The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Senate's report on the Central Intelligence Agency's harsh treatment of detainees, amounting to torture, comes shortly after the prosecutor of the International Criminal Court announced she is conducting a preliminary investigation of alleged detainee abuse by U.S. forces in Afghanistan. (Afghanistan joined the court in 2003 – I do not know what the U.S. was thinking when it allowed this – and torture is certainly a crime, or multiple crimes, within the Court's treaty-based jurisdiction.) The Senate report, which I have read only in small parts, gives significant impetus and ammunition to the ICC's investigation, as well as providing a basis for expanding its scope.
This post will examine possible jurisdictional barriers to a full ICC investigation, especially in light of the new information in the report. Ultimately, the matter may not be admissible, but this depends on how high the Court chooses to set several still undefined jurisdictional hurdles.
First, there is the simple question of temporal jurisdiction. The ICC can only hear cases prospectively from when the relevant nation joins the Court's treaty as a state party. Afghanistan joined in 2003, so conduct from before that (the "Salt Pits," for example, began in 2002) simply cannot be prosecuted. Some theorists like to talk about "continuous crimes," and might argue that to the extent the interrogation program was continuous, and some victims may have been in custody since before 2003, jurisdiction could extend back to the establishment of the Court on July 1, 2002. The continuous crimes doctrine has always been theoretical and fuzzy, and as a means of retrospectively expanding jurisdiction, inconsistent with the ICC statute's thoroughgoing prospectivity (see Arts. 11, 22, and 24), so I would say Afghanistan's accession will be the temporal backstop.
Then we get to the two Art. 17 barriers to admissibility: complementarity (the existence of good faith national investigations or prosecutions) and gravity (the crimes must be of a particularly serious nature, even given that most of the crimes within the Court's jurisdiction are inherently grave). Complementarity was thought to be a barrier to ICC investigations into Western democracies with well-functioning legal systems. They have "nothing to fear" from the ICC, jurists have often assured, because presumably they deal reasonably with their own crimes.
But here, President Obama has already announced immunity for those involved in the program, and foreswore any systematic investigation. His response to the new report is "never again" rather than "no impunity!" And even prosecutions of low-level operators might not satisfy complementarity without also investigating the responsibility of top political officials, something that has no chance of happening. So complementarity will not work here.
Gravity represents a more serious and viable obstacle to ICC prosecutions. While the gravity criteria is very fuzzy and unsettled, it has both a qualitative and quantitative dimension. One needs a certain bodycount. Thus the ICC Prosecutor has dismissed investigations into alleged improper uses of force by both British and Israeli troops on the grounds of insufficient gravity, when the casualties numbered around ten people.
The Senate report finds 39 detainees were subject to harsh treatment from 2002-2008 (and some might be excluded from the ICC's consideration for temporal jurisdiction reasons). It is not clear if all these crimes occurred in Afghanistan, where territorial jurisdiction exists.
The number is fairly low in absolute terms (not by moral standards, but by ICC standards), and certainly given that we are not talking about a single incident or incidents. Rather, this may represent all of the wrongdoing within a fairly long time-frame (this is not to diminish the seriousness of each incident, but only to relate it to the ICC's limited statutory mission of pursuing "mass atrocities," through which the gravity requirement must be viewed. The qualitative aspect must also be considered. There is no question these are very serious alleged offenses. Whether such abuse is better or worse than the unjustified killing of civilians is debatable and imponderable. One might roughly say they are equally bad.
Thus the ICC prosecutor's Israel and UK decisions suggest a possibility that the ICC could not pursue these allegations on gravity grounds. Of course, much of the international law community thinks the ICC could pursue even a situation where the admissible crimes are merely malum prohibita, involving no violence, which would mean that any torture would surely satisfy the test.
At the ICC, both the overall situation and individual cases need to satisfy a gravity test, but obviously the requirement for cases that are part of a situation is lower than for the situation as a whole. The question with the U.S. policies is about the gravity of potential cases against individuals, rather than the gravity of the overall situation in Afghanistan, which involved crimes by local forces and certainly qualified. Still, given that responsibility for the conduct against the 39 documented victims is probably divided across many individual potential defendants, it is not clear if even individual case gravity is satisfied. Of course, as I have written before, gravity remains poorly undefined in the jurisprudence of the Court, so anything can happen.
Finally, it should be noted that Afghanistan may not be the limit of the U.S.'s exposure to the ICC's territorial jurisdiction. Some of the conduct documented in the report apparently occurred in Guantanamo Bay. This means that Cuba holds in its hands jurisdiction over American servicemen and officials. It could at any time file a retroactive declaration accepting jurisdiction over crimes in Guantanamo Bay (or even more broadly) without joining the Court or otherwise significantly exposing itself. Then the prosecutor would have to investigate Gitmo.
It should not be obvious that Cuba can delegate to the ICC jurisdiction over an area that it has never exercised control of since 2002, and where agreements between the two countries provide for U.S. temporary jurisdiction over the area. The issue is similar to the question of ICC jurisdiction over possible Palestinian claims about Israeli settlements, where I have argued the ICC would not have jurisdiction. Guantanamo is a trickier case as the U.S. does not dispute ultimate Cuban sovereignty over the territory, and so if I am wrong and the Palestinians can bring a settlements case, then surely Havana can have the ICC pursue abuses at Gitmo.
As a practical matter, it is exceedingly unlikely that the ICC will press charges against any U.S. officials. A full investigation, however, is more likely, and Castro can certainly force the issue matter if he wants to see America squirm. Such an investigation would pose dilemmas for the U.S. about the extent to which it will cooperate. Some say that such investigations also hurt the target's international standing. But I have seen no evidence that Kenya has seen its diplomatic relations suffer, despite having two top leaders actually prosecuted by the ICC, and then derailed the proceedings with witness intimidation.