Did the Senate just open the U.S. up to ICC prosecution?

U.S. soldiers patrol near Afghanistan’s Kandahar Airfield on June 3. (Brendan Smialowski/AFP/Getty Images)
Dec. 9 saw the much anticipated release of the U.S. Senate’s “torture report,” outlining in harrowing and tragic detail the CIA’s program of “enhanced interrogation techniques” in its “global war on terror.” On Dec. 2, the Office of the Prosecutor at the International Criminal Court also released a report in which it made clear that it was inching closer to opening an official investigation into crimes in Afghanistan – including U.S. interrogation techniques. These developments could very well expose U.S. officials to formal investigation – and potentially prosecution – by the ICC. But is the court truly prepared to confront Washington head-on?
The international justice and human rights world is abuzz with the possibility that accountability for U.S.-sponsored and perpetrated torture and so-called “enhanced interrogation techniques” may finally be at hand. In the span of just a few days, the once naive aspiration that U.S. officials would come under the judicial microscope of the ICC has been resuscitated. However, any move to investigate and prosecute alleged crimes by U.S. citizens in Afghanistan needs to be set within the context of the ICC’s interest in maintaining positive relations with the United States while pushing for accountability for crimes committed by even the most powerful of states.
Despite the United States being a non-member state, no relationship has dominated the court’s first decade as much as that with Washington. The popular narrative, one that the court and its advocates regularly reiterate, is one of consistent struggle and resilient progress. The storyline goes something like this: Despite the United States voting against the creation of the ICC in 1998, in one of his last acts while in office, President Bill Clinton signed the Rome Statute. However, not long after the court became a functioning entity, then-U.S. Under Secretary of State for Arms Control and International Security John Bolton was dispatched to “unsign” the statute, an unprecedented political move. What followed was a series of hostile measures by the United States, including the passage of the American Service-Members Protection Act (or “The Hague Invasion Act”) which prohibited the United States from providing funds to the court and bestowed upon the president the right to use “all necessary measures” to repatriate any U.S. citizen detained by the court. At the same time, the administration successfully employed coercive diplomacy against over a hundred states to ensure that they signed “Bilateral Immunity Agreements,” guaranteeing that they would never surrender a U.S. official or soldier to the ICC.
During President George W. Bush’s second term, relations began to thaw. In 2005, the United States allowed the passage of a U.N. Security Council resolution referring Darfur to the ICC. When President Obama arrived on the scene, relations continued to warm. The United States began actively participating in ICC conferences, identified areas in which it could cooperate with the court and spoke of its “positive engagement”with the ICC. In addition, the State Department expanded its Rewards for Justice Program to include ICC indictees and played an important role in the surrender of Bosco Ntaganda, charged with committing war crimes in the Democratic Republic of Congo, to The Hague.
As David Bosco cogently argues in his book, “Rough Justice,” the ICC has generally sought to accommodate U.S. interests. Seeking to improve its relationship with the world’s most powerful country – and the country with the best surveillance techniques and thus access to the kind of evidence the court needs – prosecutors avoided stepping on Washington’s toes, neither investigating alleged abuses by U.S. officials nor intervening in states where the United States had preexisting political interests. This avoidance of confrontation, however, may be about to change in dramatic fashion.
That allegations of torture by U.S. officials in Afghanistan were mentioned in the ICC prosecutor’s report may seem, at first glance, to be window dressing to assuage the concerns of many that the court is toothless when it comes to confronting powerful states. But behind this unprecedented and explicit mention of potential U.S. culpability is a court that appears more willing than ever to finally push the United States over accountability for international crimes in Afghanistan. However, in the wake of some serious setbacks including the collapse of the case against Kenyan President Uhuru Kenyatta, is the ICC in a position to do so?
There are two lines of thought on whether the ICC should pursue a formal investigation of U.S. officials for their use of torture in Afghanistan. First, there is the argument that the court is in too weak of a position to pursue the prosecution of citizens from great powers. The fear here is that the positive relationship the court worked so hard to earn shouldn’t be sacrificed for a fight that the ICC can’t win. The second viewpoint is that the court is in too weak of a position and thus it must confront abuses from great powers. The weakness of the ICC, in this view, stems from its unwillingness to challenge powerful states and its propensity to focus on weaker states in Africa. Strength will only come when the ICC fulfills its promise to transcend, rather than accommodate, global powers.
Unsurprisingly, U.S. officials aren’t thrilled with the prospect of an ICC investigation. Stephen Rapp, U.S. ambassador-at-large for war crimes issues, responded to the ICC’s report by insisting that, because the United States isn’t a member-state, the court has no right to investigate alleged war crimes committed by its citizens. But this is unlikely to resonate with human rights and international justice advocates, many of whom view it as another reiteration of U.S. exceptionalism.
With the release of the torture report, it will become increasingly difficult for the ICC not to press forward. Expectations that the court confront allegations of international crimes by Western states have never been higher and, as Eugene Kontorovich observes, the torture report “gives significant impetus and ammunition to the ICC’s investigation.” With the CIA’s dirty laundry now airing in the political winds, it will be nearly impossible for the court to reverse course and avoid confronting U.S. abuses in Afghanistan.
Still, advocates of accountability should not get too far ahead of themselves. The gears of justice at the ICC grind notoriously slowly. Moreover, the court’s endgame is not to prosecute U.S. officials. Instead, it is to galvanize domestic accountability for any alleged crimes committed by Western officials. Indeed, it is not within the ICC’s institutional interests to pick a fight it can’t win with the United States or incur the wrath of Washington’s resultant hostility. The prosecutor’s report on Afghanistan is thus not so much a threat to the United States as a signal to take justice for alleged torture seriously. Doing so would require going high up the political food chain, to those in the Bush administration “most responsible” for deploying torture as a means of war. The question is: Will the United States take the opportunity to finally pursue accountability for alleged international crimes committed by its citizens in Afghanistan or not? The world – and the ICC – is watching.
Mark Kersten is a researcher based at the London School of Economics and the creator of the blog, Justice in Conflict.