The ICC’s Afghanistan Investigation: The Missing Option

In a February Lawfare post, David Bosco analyzed the different possible US responses to the pending decision of the International Criminal Court (ICC) Prosecutor on whether to open an investigation into US detention practices and alleged torture in Afghanistan. Bosco recognizes that the best US legal argument for putting the brakes on the ICC intervention is based on the status of forces agreement (SOFA) that Afghanistan entered into with the US in 2002, though he suggests that this option has a low probability of success at the ICC. Bosco quotes Michael Newton, who has argued that “Afghanistan ceded criminal jurisdiction over US personnel when it signed a SOFA and, as a consequence, cannot delegate that jurisdiction to the ICC for crimes covered by the bilateral agreement.”

Bosco also notes Carsten Stahn’s counterargument: ICC jurisdiction is grounded in an international duty to punish. Stahn’s argument is based on the idea of “universal jurisdiction,” a principle that was rejected during the Rome debates in 1998, was not included in the Rome Statute, and was never adopted by the ICC.

But this discussion on substance ignores an important point of process: no one presented the SOFA to the ICC Prosecutor.

1. Presenting the SOFA before the ICC

A SOFA-based challenge to the ICC’s jurisdiction is, in my opinion, the best US option if its goal is to avoid the ICC investigation. But because the SOFA signed between Afghanistan and US is confidential, the ICC is presently unable to analyze it. Afghanistan should provide the ICC Prosecutor the SOFA that it signed with the US in 2002 and request the opportunity to properly present its views before the Office of the Prosecutor. The Prosecutor has the authority to receive such information. The Rome Statute establishes that before opening an investigation the Prosecutor “may seek additional information from States, organs of the United Nations, intergovernmental or non-governmental organizations, or other reliable sources that he or she deems appropriate, and may receive written or oral testimony at the seat of the Court.” In practice, the Prosecution has received arguments from NGOs, victims, and states. And in the most relevant precedent, the Palestinian National Authority briefed the Office of the Prosecutor for more than two years, triggering a public discussion about Palestinian statehood.

If at the end of the process the Prosecution rejects the arguments, Afghanistan could still request that the Prosecutor seek a ruling exclusively on jurisdiction from the judges in accordance with Article 19(3) of the Rome Statute. In any case, if the Prosecution proceeds and requests authorization from the Pre-Trial Chamber to open an investigation, Afghanistan could challenge the ICC’s jurisdiction directly before the ICC judges.

Since 2002, the US has signed bilateral treaties like SOFA with more than 100 states and has relied on UN Security Council Resolutions invoking Article 16 of the Rome Statute to protect its personnel from an ICC investigation. Legal arguments based on bilateral and multilateral treaties are part of the international relations reality. John Negroponte, then-US Ambassador to the UN, explained the rationale: “The American system of justice can be trusted to punish crimes, including war crimes or crimes against humanity, committed by an American—and we pledge to do so.”

2. The ICC legal process for defining its jurisdiction

Contrary to what many commentators initially expected, the ICC process to trigger its jurisdiction has been driven not by political considerations but rather by the legal requirements established by the Rome Statute. In 2003, the year the Judges and Prosecutor were sworn in and the ICC began functioning, Jack Goldsmith and Stephen Krasner predicted that international judges would not respect legal limits and that, as a consequence: “ICC jurisdiction can only be expected to expand.” But in his 2014 book Rough Justice, Bosco reviewed eleven years of the Court’s activities and discovered the opposite was true: “The Prosecutor and other Court officials have also sought not to expand the Court jurisdiction.” David Scheffer, the head of the US delegation at Rome, observed in April 2015 that “the original concerns of having a Prosecutor who could open investigations for political reasons have dissipated” and that the Office of the Prosecutor has developed protocols that have proven to be of far greater sophistication than the completely unregulated political decisions rendered by either State Parties or the Security Council.

Before requesting authorization from the Pre-Trial Chamber to initiate an investigation in Afghanistan, the ICC Prosecutor must conduct a preliminary examination, a formal process defined by Articles 12, 15 and 53(1) of the Rome Statute. After extensive consultations, in November 2013, the ICC Office of the Prosecutor issued its Policy on preliminary examinations, describing in detail the procedures it had adopted to implement its mandate. Phase 1 filters out those situations manifestly outside the Court jurisdiction. Phase 2, which represents the formal commencement of a preliminary examination, focuses on whether the preconditions to the exercise of jurisdiction under Article 12 are satisfied and whether there is a reasonable basis to believe that the alleged crimes fall within the subject-matter jurisdiction of the Court. Phase 3 focuses on the admissibility of potential cases in terms of complementarity and gravity. Phase 4 examines interests-of-justice considerations in order to formulate a final recommendation to the Prosecutor on whether there is a reasonable basis to initiate an investigation.

The potential impact of the SOFA between the US and Afghanistan on the ICC’s jurisdiction should be evaluated at the second phase. Afghanistan deposited its instrument of accession to the Rome Statute on February 10, 2003 without mention of the SOFA and accepting without reservations the exercise of ICC jurisdiction over crimes listed in the Rome Statute committed on Afghanistan soil or by its nationals on or after May 1, 2003.

In my capacity as ICC Chief Prosecutor until June 2012, my legal duties included analyzing alleged crimes committed in the territory of states party to the Rome Statute. In 2007 we made public that we were conducting a preliminary examination in Afghanistan. As part of the second phase of the process, we sought to identify alleged crimes committed by different parties in Afghanistan. In those days, it was difficult for my Office to obtain details about incidents and, in particular, about the individuals who were most responsible for the crimes allegedly committed. In accordance with the Rome Statute, during the preliminary examination the Office of the Prosecutor could not collect evidence outside the ICC premises at The Hague and was forced to rely on third-party information. Since then, the Office of the Prosecutor’s public reports on the preliminary examination activities show that the Afghanistan situation remained in Phase 2 until 2013. The reports make no mention of the SOFA.

In those years, other institutions had their own difficulties learning in detail what happened in Afghanistan. According to US Senator Dianne Feinstein (D-Calif.), in 2007 briefings before the US Senate Intelligence Committee, the CIA was still denying the scope and modalities of its commission of torture. Gradually the Committee collected more and more information.

Finally, in April 2014, President Obama recognized that “[w]e tortured some folks,” adding that “we crossed a line” by doing “some things that were contrary to our values.” On December 9, 2014, the Senate Intelligence Committee publicly released a 450-page executive summary of the Committee Study of the CIA’s Detention and Interrogation Program confirming the alleged crimes against CIA detainees. Committee Chair Feinstein wrote: “CIA detainees were tortured. I believe the evidence of this is overwhelming and incontrovertible.”

3. Recent Prosecution reports on preliminary examination in Afghanistan

On December 2, 2014, the ICC Office of the Prosecutor released a new report on its preliminary examination activities. The Afghanistan situation moved from the second phase to the third phase: admissibility. The move indicated that the Office of the Prosecutor believed there was reasonable basis to believe that crimes under the ICC’s jurisdiction were committed in Afghanistan and had begun evaluating the existence of genuine national proceedings and the gravity of the crimes.

The most recent Prosecution report on preliminary examinations, indicates that the preliminary examination process is almost complete. It provides details about the alleged crimes analyzed by the Office of the Prosecutor, the lack of national investigations, and the gravity of the crimes allegedly committed in Afghanistan by the Taliban and the Afghan forces, as well as US forces.

The report issued on November 14, 2016 includes the following findings.

i) Allegations against US forces.

War crimes of torture and related ill-treatment, by US military forces deployed to Afghanistan and in secret detention facilities operated by the Central Intelligence Agency, principally in the 2003-2004 period, although allegedly continuing in some cases until 2014 (para. 198).

. . . .

These alleged crimes were not the abuses of a few isolated individuals. Rather, they appear to have been committed as part of approved interrogation techniques in an attempt to extract ‘actionable intelligence’ from detainees. According to information available, the resort to such interrogation techniques was ultimately put to an end by the authorities concerned, hence the limited time-period during which the crimes allegedly occurred (para 212).

The Office considers that there is a reasonable basis to believe these alleged crimes were committed in furtherance of a policy or policies aimed at eliciting information through the use of interrogation techniques involving cruel or violent methods which would support US objectives in the conflict in Afghanistan (para. 213).

On the other hand the Prosecution determined that there was no reasonable basis to believe that the “incidental loss of civilian life” resulted from “military forces” intentionally attacking them (para. 202).

ii) Lack of US national investigations. In terms of admissibility, the Prosecution concluded that the US Attorney General did not investigate those most responsible for the alleged crimes but instead limited the US investigations to incidents where interrogation methods were not authorized at the time and, even in those cases, no prosecution was pursued (paras. 221-22).

iii) Gravity of alleged crimes.

The gravity of the alleged crimes is increased by the fact that they were reportedly committed pursuant to plans or policies approved at senior levels of the US government, following careful and extensive deliberations (para. 224).

Notably, the 2016 report makes no mention of the SOFA.

Conclusion

The US Senate and then-President Obama’s recognition of the use of torture by US personnel would make it very difficult for the Trump administration to criticize an eventual ICC intervention as an arbitrary decision. If the ICC opens an investigation, individuals such as Donald Rumsfeld could be investigated and charged, limiting their travel to Europe, Latin America, Japan, Korea, Australia, Canada and New Zealand due to the risk of arrest.

If the ICC opens an investigation, a US political campaign will not be enough to avoid the Court’s involvement. In addition, in his post Bosco notes the US political risks that could come of campaigning aggressively against the ICC:

"However popular at home, this approach would likely generate strong opposition abroad, particularly in Europe and Latin America, where support for the court remains strong. This opposition might in turn complicate other U.S. diplomatic and security initiatives. (...) After pursuing aggressive steps toward the ICC between 2002 and 2005, the Bush administration in its second term moderated its position to avoid diplomatic fallout with many of its traditional allies."

The outcome of the legal process before the ICC is uncertain, but triggering legal discussion of the SOFA appears to be the only means by which the US could avoid a full ICC investigation of US personnel involved in the Afghanistan intervention. For that the SOFA must be presented to the Office of the Prosecutor so that the ICC’s designated authorities have an opportunity to rule on the matter.

This post benefitted from collaboration with Joanna Frivet.