AFRICAN countries that have been critical of the International Criminal Court (ICC) because they claim it is biased against the continent are now watching with keen interest how things will play out between the Court and the incoming administration of Donald Trump in the US following Prosecutor Fatou Bensouda’s announcement that her Office is looking at investigating alleged torture by US soldiers and operatives of the CIA in Afghanistan. This could bring the ICC into collision with President-elect Donald Trump who has backed torture as a means of countering terrorism.
In her annual Report on Preliminary Examination Activities (2016), the Prosecutor said ‘war crimes of torture and related ill-treatment’ by American soldiers and members of the CIA in Afghanistan took place ‘in secret detention facilities operated by the [CIA], principally in the 2003-2004 period, although allegedly continuing in some cases until 2014.’
The report added, ‘The information available provides a reasonable basis to believe that, in the course of interrogating these detainees, and in conduct supporting those interrogations, members of the US armed forces and the CIA resorted to techniques amounting to the commission of the war crimes of torture, cruel treatment, outrages upon personal dignity, and rape.
‘Members of [the]US armed forces appear to have subjected at least 61 detained persons to torture, cruel treatment, outrages upon personal dignity on the territory of Afghanistan between 1 May 2003 and 31 December 2014,’ the report said.
It added, ‘Members of the CIA appear to have subjected at least 27 detained persons to torture, cruel treatment, outrages upon personal dignity and/or rape on the territory of Afghanistan and other States Parties to the Statute (namely Poland, Romania and Lithuania) between December 2002 and March 2008.’
The report said that the majority of the abuses in both instances allegedly took place between 2003 and2004. ‘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,’ the report noted.
‘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.
‘Likewise, there is a reasonable basis to believe that all the crimes identified herein have a nexus to the Afghanistan conflict,’ the report added.
Although the US is not a state party to the Rome Statute of the ICC, which came into force in 2002, Afghanistan is and as such any alleged crimes committed by American soldiers and members of the CIA in that country make them liable to face the ICC. However, the ICC is a court of last resort, whereby it will only act if a country is unwilling or unable to prosecute its citizens who have been accused of genocide, crimes against humanity or war crimes.
The Prosecutor, however, does not believe that the US authorities had acted in the interest of international justice even though the administration of President Barack Obama ordered that the harsh interrogation methods be discontinued in 2009. The Prosecutor’s report noted that the US Department of Justice conducted a two-year preliminary review from August 2009 to June 2011 of allegations related to the abuse of detainees.
‘According to the information available, the scope of this review appears to have been limited to investigating whether any unauthorised interrogation techniques were used by CIA interrogators, and if so, whether such conduct could constitute violations of any applicable criminal statutes,’ the report said.
She noted that the US Attorney General’s office had argued, ‘The Department of Justice
(DOJ) will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees.’
As a result, only the cases of two detainees who had died in CIA custody received ‘full criminal investigations”, but there were no indictments or prosecutions.
Instead, the Attorney General contended in August 2012 that ‘The admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt.’
The report noted, ‘While proceedings appear to have been limited to the conduct of interrogators and to incidents where interrogation methods were not authorised at the time, the Office is seeking to obtain further clarifications on the scope of relevant preliminary reviews and investigations before finalising its determination on the admissibility of the related potential cases.
‘In light of the mandate of the Office, as well as the object and purpose of the Statute, and taking into account the gravity of the crimes and the interests of victims, based on the information available the Office would have no substantial reasons to believe that the opening of an investigation would not be in the interests of justice,’ the report added.
The US has taken a hostile stance against the ICC since President George W. Bush decided to overturn former President Bill Clinton’s 2000 signing of the Rome Statute. It was not ratified by the Senate and when Mr Bush came to power in 2001 he said the US would not be a member of the ICC.
China and Russia, permanent members of the UN Security Council, are also not members of the ICC even though they, like the US, have the power to order the ICC to undertake investigations that could lead to warrants of arrest being issued, as in the case of President al-Bashir of Sudan with regard to Darfur. The other two permanent members, Britain and France, are members of the ICC who strongly support the institution.