The time has now come for the International Criminal Court to begin investigations and prosecutions related to the US “enhanced interrogation” (Torture) program.
On Monday, February 22, 2010, Poland publically confirmed that the CIA used Szymany airfield, a disused military air base in northern Poland, for at least six flights in 2003 related to the high value detainee detention program. Some of these flights originated in Kabul, Afghanistan and Rabat, Morocco. This confirms the common wisdom and 2007 findings of a Council of Europe investigation that one of the US “black site” secret prisons for high value detainees, such as Khalid Sheik Mohammad, Abu Zubaydah, and Abd al-Rahim al-Nashiri. All three men, and potentially others, were tortured, including by being water boarded, in CIA custody at these US “black site” secret prisons. There is no legitimate dispute; some of the “enhanced interrogation” techniques, including water boarding, were war crimes under the Rome Statute, the treaty that created the ICC.
Conservatives will argue that the ICC does not have jurisdiction over this matter because the US is not a party to the Rome Statute. This argument is simply wrong. While the US is not a party to the Rome Statute, two events have occurred in the past week that cement jurisdiction of the ICC. First, as detailed above Poland has confirmed the nexus with a State Party that is necessary for ICC jurisdiction. Second, the US has concluded the final ongoing official investigation into the “enhanced interrogations” program with the release of the US Justice Department’s Office of Professional Responsibility report.
Either the International Criminal Court Prosecutor must open an investigation on his own initiative or a respected European State, particularly Poland, or group of such states, such as the European Union, must refer the matter to the Prosecutor for investigation. The ICC must undertake this task, even in the likely event that no person will be tried by or even come into the custody of the Court. This is to establish the primacy of the rule of law and establish that the ICC and the laws of war are no longer just some form of victor’s justice or “might make right” rule, where small and weak states must play by one set of rules, but another applies to the US and its allies. There is no doubt that the conduct of the United States in its “enhanced interrogation” program would have been a crime worthy of investigation by the ICC if it had occurred in any other country on earth and particularly if it had been American citizens being tortured in some Eastern European country.
The ICC statute, drafted largely by the United States, definitively criminalizes the conduct admitted to by the Bush administration in the “enhanced interrogation” program. Whatever the legal status of the war conflict with Al-Queda the Rome Statute created individual criminal liability for torture and outrages upon personal dignity, in particular humiliating and degrading treatment.
The Rome Statute requires that the illegal conduct have occurred on the territory of State that was a party. We now know that at least two of the black sites were located on the territory of ICC member states, Poland and Afghanistan. This satisfies the jurisdictional nexus sufficient to open an investigation.
The Statute also requires that the Prosecutor wait and allow the State which has jurisdiction, here the US, to investigate and prosecute the matter on its own, unless it is unable or unwilling to investigate and/or prosecute in good faith. This test was definitely met last Friday. On February 19, 2010, the US Justice Department publically released on Office of Professional Responsibility report into the professional ethics of Office of Legal Counsel attorneys, including John Yoo, the Honorable Jay Bybee and Steven Bradbury, exonerating them of all misconduct and concluding that they simply exercised “poor legal judgment” by intentionally ignoring binding legal precedent and misrepresenting the law to comply with the request of the White House and the Vice President’s Office for authorization to implement the “enhanced interrogation” program. The report was further compromised because keys player, including legal advisor to the Vice President, David Addington, refused to cooperate and were not compelled. This report, coupled with prior statements that no criminal investigations will take place, is a clear and resounding admission by the US Government that no one will be seriously investigated, let alone prosecuted, for their role in the “enhanced interrogation” program. It does not matter whether President Obama and Attorney General Holder are unable, due to the political realities of governing a country, or are unwilling, through the short sided sale of US dignity and the rule of law for non-existent political expediency, to conduct actual investigations and prosecution.