The Other Torture Report

The International Criminal Court in The Hague is finally speaking up about our abuse of detainees in Afghanistan:

The prosecutor’s office concluded that “the information available suggests that between May 2003 and June 2004, members of the US military in Afghanistan used so-called ‘enhanced interrogation techniques’ against conflict-related detainees in an effort to improve the level of actionable intelligence obtained from interrogations.” (The report also considered whether certain raids and airstrikes by international forces constituted war crimes but concluded that there was no evidence of intentional harm to civilians.) Still, the prosecutor’s statements on U.S. detainee abuse mark the first time that the ICC, which the United States has not joined, has explicitly identified possible criminal behavior by U.S. nationals. …

The court remains a very long way from indictments of U.S. soldiers or civilian officials. The prosecutor still hasn’t decided to open a full investigation. Even if she does, indictments of U.S. personnel are highly uncertain. What appears to be happening behind the scenes is a quiet push and pull between The Hague and Washington over whether the United States has adequately investigated abuses by its own forces. If the United States can demonstrate that it has done so, the doctrine of “complementarity” should preclude any court action.

Ryan Vogel isn’t sure the ICC has valid grounds to investigate these abuses:

Whatever one’s views regarding U.S. detention policy in Afghanistan from 2003-2008, the alleged U.S. conduct is surely not what the world had in mind when it established the ICC to address “the most serious crimes of concern to the international community as a whole.”  The ICC was designed to end impunity for the most egregious and shocking breaches of the law, and it is hard to see how alleged detainee abuse by U.S. forces meets that standard.

But even if a case against U.S. forces for alleged detention-related abuses is not dismissed because it is insufficiently grave to meet the thresholds for the ICC to proceed, it also seems questionable for the ICC to pursue such a case for reasons of complementarity (i.e., the principle that the ICC is not to move forward when a State is genuinely able and willing to investigate and prosecute).  The United States has one of the most developed and effective military justice systems in the world, which has the demonstrated ability and willingness to hold its own accountable for violations of the law, including any violations in the context of detention operations.

To which Kevin Jon Heller replies:

[The prosecutor’s office] is not interested in the low-level US soldiers who were the principal perpetrators of torture in Afghanistan; it is focusing instead on “those most responsible” for that torture. It is thus equally irrelevant that “there have not been many issues more thoroughly investigated by the military and U.S. Government in the past decade than that of detainee treatment.” The problem for the US going forward is that it has never made any genuine attempt to investigate, much less prosecute, the high-ranking military commanders or the important political officials who ordered and/or tolerated the commission of torture in Afghanistan. That is simply indisputable. So until such time as the US does — read: never — complementarity will not prevent the OTP from continuing its investigation into US actions.