(Photo credit: Enfoque Derecho)
As the “court of last resort” for trying individuals for crimes against humanity, war crimes, and genocide, the International Criminal Court (ICC) has been criticized for having a Western bias since its inception with the Rome Statute in 2002.
This assertion, however, may be refuted finally, as the Court takes on one of the most contentious cases yet. ICC Prosecutor Fatou Bensouda submitted her Request for Authorization to the designated Pre-Trial Chamber to begin a formal investigation into the “situation” of Afghanistan on November 20, 2017. This investigation could lead to arrest warrants against Afghans and Americans. The world awaits the Chamber’s determination.
When the ICC conducts a preliminary investigation on any country situation, the Prosecutor assesses potential crimes under its jurisdiction. The three categories of parties and associated crimes determined in the preliminary investigation in this Request include: crimes against humanity and/or war crimes by the Taliban, Haqqani Network, and affiliated armed groups; war crimes by members of the Afghan National Security Forces; and war crimes by members of United States armed forces (in Afghanistan) and members of the Central Intelligence Agency (in “black site” detention facilities in Afghanistan, Poland, Romania, and Lithuania).
Many Americans claim moral superiority, yet hypocritically justify actions like torture for a presumed greater global good. We can never again allow popular sentiment around American exceptionalism extend to inhumane conduct amounting to accountability for war crimes. Torture techniques have not yielded helpful intelligence, so even from a pragmatic, utilitarian standpoint, such tactics should be eliminated.
While the US is not a State Party to the ICC, the Statute grants the Court jurisdiction over any crimes within the territories of states that are party to the Statute. These crimes must meet its standards for gravity (severity) and complementarity (a lack of relevant national proceedings).
Afghanistan, Poland, Romania, and Lithuania are State Parties to the ICC, so the ICC has jurisdiction over any conduct related to the situation in Afghanistan on these territories. This parameter also indicates that the ICC does not have jurisdiction over any Afghan detainees in Guantanamo Bay, Cuba, as neither the US or Cuba are State Parties.
The war crimes charges currently stated against the members of US armed forces and members of the Central Intelligence Agency (CIA) include torture and cruel treatment, outrages upon personal dignity, and rape and other forms of sexual violence.
The 181-page Request includes nauseating details of the gross abuses of detainees by some American intelligence officials and service members. Worse, some detainees suffered these injustices without the benefit of due process; numerous individuals may have been innocent or forced to collaborate with the Taliban, Haqqani network, or Al Qaeda by threats to themselves or others.
Regardless of the detainees’ innocence or guilt, I feel ashamed as an American that US conduct against detainees is even in the same breath as the conduct of the Taliban or Al Qaeda toward their detainees.
To add insult to injury, one can’t even argue that the ends justify the means; torture has been proven ineffective for obtaining accurate, constructive intelligence. Moreover, the report by the Senate Select Committee on Intelligence on CIA detention and interrogation practices demonstrated that no unique, actionable evidence came from such conduct.
Congress and the Department of Defense (DOD) have more recently taken steps to conduct thorough investigations and to properly adjust protocol to abide by the Geneva Conventions and Convention against Torture. However, there have been very few criminal charges levied for such actions to ensure justice and accountability.
If the Pre-Trial Chamber approves a formal investigation, this case will also establish critical warnings against such grave crimes for multiple types of actors: militant groups utilizing terror tactics on civilian populations, repressive regimes that use coercive tactics against detainees, and Westerners who are not immune from the ICC’s reach.
DOD and CIA leadership should accept accountability for the deliberate efforts to subvert the Geneva Conventions and Convention against Torture. We as American citizens must also assert our resolve that such conduct should never be justified again. These war crimes should outrage civilians and service members alike, as they violate both American military rules of engagement and international law.
Polls show that 72% of Americans support the US collaborating with and participating in the ICC. Nonetheless, some individuals will likely react with defensiveness against any arrest warrants issued against Americans. Rather, we must respond with justified indignation that our own leadership would undertake such action and the moral fortitude to recognize that they should be held accountable for it.