Tuesday, November 29, 2016

Will Americans be charged at the International Criminal Court for war crimes in Afghanistan?

The Prosecutor of the International Criminal Court is currently conducting a preliminary examination of crimes in Afghanistan which may well lead to a formal investigation against US nationals. What does this mean and what are the probabilities that US citizens are actually brought to the ICC? This is the analysis of AMICC.


The preliminary examination in Afghanistan started in 2007 and for nine years the Office of the Prosecutor has been conducting a preliminary examination of possible war crimes and crimes against humanity. If the Court decides to proceed, the next step would be to open a formal investigation in Afghanistan that includes interviewing witnesses, taking testimony and gathering forensic evidence, after which a trial might be started.

Afghanistan has been a member of the Court since May 1st 2003, which means that the court has jurisdiction over crimes committed on its territory or by its nationals since that date. The US signed the founding document of the ICC, the Rome Statute, under President Clinton, but George W. Bush deactivated the signature, citing fears that Americans would be unfairly prosecuted for political reasons. But even though the US is not a member of the Court, its nationals might be prosecuted for crimes committed on Afghan territory.

The alleged crimes have been committed during the operation of the US-led coalition against the Taliban and in support of the Afghan military. The Office of the Prosecutor has determined that there is a reasonable basis to believe that all sides of the conflict are responsible for crimes against humanity and war crimes. The investigations will most probably focus on the crimes committed by the Taliban and by the Afghan military. However, the Prosecutor has affirmed that the US-led coalition is also under investigation for alleged war crimes, and more specifically torture and ill-treatment in secret detention facilities operated by the CIA between 2003 and 2004.

The US-led international coalition has also been under investigations for a great number of civilian casualties but the Prosecutor has concluded that the strikes did not target civilians deliberately and therefore could not be classified as war crimes.

ICC’s Prosecutor Fatou Bensouda has concluded that at least 88 detainees have been subjected to torture, cruel treatment, rape and/or outrages upon personal dignity while being in US custody. In addition, the Prosecutor is investigating cases of related CIA interrogations of Afghan nationals in detention facilities in Poland, Romania and Lithuania. These crimes are not isolated cases but were part of the policy of the so-called “enhanced interrogation techniques” approved at senior levels of the US government during the George W. Bush administration. These were mostly put to an end after 2004 but might have continued sporadically up until 2014.

Will US citizens be brought to the ICC?

The International Criminal Court functions as a court of last resort and respects the principle of complementarity. This means that it would not be able to prosecute alleged crimes of US nationals if these are already prosecuted by US courts in good faith. The US has claimed that it has carried out more than 70 trials and close to 200 investigations that have resulted in non-judicial punishment. US State Department spokeswoman Elizabeth Trudeau has praised the US “robust national system of investigation and accountability” and has said that ICC investigations would be unwarranted and inappropriate. However, Bensouda has found that most of the cases that have been investigated so far have been about Iraq and there have been no American prosecutions of cases from Afghanistan that might fall under the jurisdiction of the ICC. Bensouda has also expressed concerns that the review conducted by the Department of Justice of alleged CIA abuses had a limited scope because it investigated only “unauthorized” interrogation techniques. Consequently. only two criminal investigations were conducted and none of them resulted in an indictment because of lack of evidence. Bensouda will have to demonstrate that the small number of investigations and the absence of indictments shows that the US has not fulfilled the requirements of complementarity.

It is unclear when the Prosecutor will announce her decision on whether to start a formal investigation –international law expert David Bosco has claimed that according to “multiple sources,” the announcement will probably come after the elections but before the end of the year.

But even if an investigation is initiated, US citizens may not be brought before the Court because everything depends on the evidence available from interviews with witnesses, testimonials and forensic materials that will be gathered during the investigation. The process is prone to take a long time and will be delayed by the internal mechanisms of the Court that require an approval by a three-judge panel. According to David Bosco, another obstacle to investigations would be the possible reticence of the Afghan government to provide access and support to ICC experts given that its officials will be investigated for war crimes.

And if and when a trial is opened, the defendants will need to be delivered physically to the Court because the ICC does not conduct trials in absentia. This might become another obstacle to prosecution because the US would not easily surrender a citizen to the Court. If that US citizen were to be delivered to the ICC by another state, the US might use the Bilateral Immunity Agreements that the Bush administration has signed with over 100 countries. These BIAs aim to ensure that if there is a request to transfer a US citizen to the Court, this would not be done without the permission of the US. The Rome Statute does not authorize such agreements which violate states’ obligations to the Court, but the US might resort to them if its national is located in another state.

For the Court to be able to complete its functions effectively, it requires the cooperation and good will of states. In the recent case against the Deputy Prime Minister of Kenya Uhuru Kenyatta, the Prosecutor has been forced to withdraw the charges and suspend the case because of the lack of and tampering with evidence, witness intimidation and lack of cooperation by the Kenyan government. Taking into account the reluctance of the US to recognize the legitimacy of the investigations of its citizens by the ICC, it is not impossible that the case ends in a deadlock if there is insufficient political will to cooperate with the Court.

The Rome Statute establishes that the Court should prosecute the individuals who bear the biggest responsibility for a given crime, which would mean that former senior officials might face the risk of prosecution. The Court will almost certainly find it difficult to do this for officials such as George W. Bush. Dick Chaney and directors of the CIA because the US will not make them available to the court for trial.

US officials insist on the principle of state sovereignty maintain that the ICC should not exercise jurisdiction over nationals of nonmember states and would not recognize the legitimacy of the Court if it does so. The Court does respect state sovereignty through the principle of complementarity, but it is fundamentally designed to prosecute the gravest violations of human rights and to ensure justice when national systems fail to deliver it.

The US has been a strong supporter of bringing several cases to the ICC, including Libya and South Sudan which were referred to the Court by the UN Security Council. However, the US cannot expect other countries to comply with the Court, to prosecute senior officials or expect them not to withdraw from the Court if it does not live up to these expectations itself. The US needs to prove that its commitment to international justice is not hypocritical and applies also to its own crimes. And the only way to do this and to ensure that the ICC does not prosecute US citizens is to conduct genuine and effective investigations and trials itself.

It is difficult to predict the reaction of the US government under the administration of Donald Trump if a formal investigation is initiated. he fact that Trump has said he is in favor of harsh interrogation techniques such as waterboarding and may re-authorize their use speaks to how controversial this case might become. The US relationship with the Court that became increasingly friendly during the Obama administration might worsen, but AMICC is determined to maintain and extend American public support for the ICC.

Written by Iva Gumnishka

Thursday, November 17, 2016

Bringing Terrorists to the International Criminal Court

Terrorism: a global issue

According to the Global Terrorism Database, from 2000 to 2015 there were more than 87,000 terrorist attacks around the globe. The number of attacks has been on the rise since 2013, especially in the Middle East and North Africa. With terror strikes ocurring on a daily basis - even though some of them receive considerably more media coverage than others, - there is an increased global interest in bringing perpetrators to court. But when national justice systems are too weak or simply lack the political will to deal with terrorist acts, one of the few remaining solutions is the International Criminal Court.

Civil society and human rights lawyers are asking: Why then isn’t the ICC prosecuting terrorist groups like ISIS? This post will suggest an answer to this question and analyze the possibility of bringing terrorists to the Court in the future.

Is terrorism under the jurisdiction of the ICC?

Courts such as the International Court of Justice, the European Court of Human Rights and the Inter-American Court of Human Rights all prosecute states. The ICC is different because it only prosecutes individuals. This makes it very appropriate for cases that involve non-state actors like terrorist groups. The people who ICC prosecutes are those who bear the biggest responsibility for a given crime. The ICC operates in this top-down fashion in order to hold accountable not just the foot soldiers, but those who truly authored and directed the atrocities.

However, the Rome Statute, which is the founding document of the ICC, does not refer to ‘terrorism’ explicitly. This is why scholars such as Aviv Cohen have proposed amending the Rome Statute to include the “Crime of Terrorism.”

But the problem with the word ‘terrorism’ is that there is no universal agreement on how to define it in international law and different treaties interpret it differently. According to a study at Leiden University, most definitions of terrorism agree that the main components are violence, political goals, causing fear and terror, and using organized actions or tactics. This definition can be refined to include the injury of civilians, coercion, arbitrariness, and so on.

Yet finding a definition of ‘terrorism’ that satisfies everyone is still a challenge because the word has many ideological implications and a strong symbolic effect of condemnation. It is said that “one person’s terrorist is another person’s freedom fighter,” and a perfect example for this double standard is Nelson Mandela, a Nobel Peace Prize winner and president of South Africa who was until 2008 on the U.S. terrorism watch list.

This disagreement on the definition was the reason terrorism was not included in the Rome Statute in the first place. Cohen’s idea is that the definition from the Convention for the Suppression of the Financing of Terrorism is already widely accepted in states’ legislation and practice and should be used for the inclusion of terrorism under a new article in the Rome Statute.

However, is it necessary for a person to be explicitly identified as a terrorist in order to be brought to the Court? Aren’t all of the crimes that terrorists commit already under the Court’s jurisdiction? The ICC can prosecute crimes against humanity (art.7), such as murder, torture, rape, enslavement, forcible transfer of population, etc. when they are “committed as part of a widespread or systematic attack directed against any civilian population.”

The Court also has applicable jurisdiction over war crimes (art.8), in the cases of international and non-international armed conflict, such as torture, taking of hostages, extrajudicial executions, sexual violence, intentional attacks on civilian population and religious or educational buildings or monuments. The Court can also prosecute genocide (art.6), in the sense of any act that intends to destroy a national, ethnical, racial or religious group. The last category of crimes in the Rome Statute is the crime of aggression, but it would not be applicable to terrorism because it only concerns acts of states.

Proponents of the inclusion of the “crime of terrorism” argue that what characterizes and distinguishes it is its intention to spread fear and achieve a political aim. However, should these subjective criteria be taken into account by the ICC when it decides whether an attack on civilians or torture should be prosecuted? Should the same crime receive different treatment depending on whether it was committed by a terrorist group for a political purpose or by another perpetrator?

An amendment to the Rome Statute would be problematic because as it is designed now, it dismisses the relativity of what terrorism can mean. It is difficult to use the same standard for state terrorism, armed groups terrorist attacks, acts by lone wolfs, and terrorism in the context of foreign occupation. Interpretation of these acts depends almost entirely on subjective opinion and ideology. The ICC as an international court is compelled to look at the objective facts of the crimes and not to express any value judgements.

It is important to recognize that some acts that we determine as terrorist may fall outside of the Court’s jurisdiction. Acts that would be considered war crimes in the context of an armed conflict (be it international or non-international) may be impossible to prosecute if they are committed during peace time. On the other hand, the acts which are committed during peace time may be classified as crimes against humanity only under the condition that they are “part of a widespread or systematic attack directed against any civilian population.” It may be difficult to establish that some acts of. terrorism meet this standard.

There is also the Statute’s high requirement of seriousness for the crimes it can try. This “gravity threshold,” could mean that one-time attacks that have not had many victims may not enter the Court’s jurisdiction, even if they have produced much fear and terror in the population. For example, the attacks at Charlie Hebdo in Paris in 2015 which killed 12 people may be regarded as terrorist but the ICC would not prosecute them even if it received a referral from France. The Court was created to prosecute only the most serious crimes and it would be a waste of resources for it to prosecute shootings around the world, as morally reprehensible as they might be.

Bringing terrorists to the ICC

It is important to note that the ICC has actually already prosecuted or issued arrest warrants for individuals defined as terrorists and has been able to do so by applying the crimes included in the Rome Statute without the need for a special article on terrorism. For example, the most recent sentence of the Court was on the case of Ahmad Al Faqi Al Mahdi, who belongs to the Al-Qaeda affiliate Ansar Dine in Mali. Al Mahdi was accused of intentionally directing attacks against religious and historic monuments in Timbuktu, Mali in 2012. This was classified as a war crime under article 8 of the Rome Statute, given the context of a “non-international armed conflict.”

Another infamous example is the case against Lord’s Resistance Army (LRA) in Uganda, another group that has been listed as terrorist by the African Union but that has been excluded from the U.S. State Department's list since 2001. In 2015, Dominic Ongwen, one of the top members of the LRA, confessed to the Court and now awaits his trial on over 70 charges of crimes against humanity and war crimes. Other top members, such as Joseph Kony and Vincent Otti, remain at large. This example speaks to the fact that the terrorism label could be an obstacle to prosecution if the Court relies only on whether a group can be legally defined as terrorist.

The precedent case against Al Mahdi for the destruction of the religious monuments in Mali which are UNESCO World Heritage sites has given the international community hopes that other similar crimes might be brought to the Court – the destruction of cultural heritage in the ancient Palmyra in Syria by ISIS in 2015 or the annihilation of 1,500-year-old Buddha sculptures in Afghanistan by the Taliban in 2001. However, the case of Palmyra would be more difficult to prosecute since Syria is not a member of the Court and the ICC can only prosecute crimes committed on the territory of a state party or by nationals of a state party. And while Afghanistan is a state party to the Rome Statute, the crime happened before the entry into force of the statute for that country, so it cannot be prosecuted. In general, international law professor Alex Whiting has argued that a second case about cultural heritage is unlikely at the Court because of its limited resources.

So is there nothing that the ICC can do about atrocities committed by ISIS in Syria and Iraq? Especially given that the destruction of cultural heritage is the least ISIS can be tried for: the UN Human Rights Commission has released reports on the atrocities committed by ISIS since 2014 and the list includes crimes against humanity, war crimes and genocide of religious minorities such as the Yazidis. Human Rights advocates such as Amal Clooney have been appealing for a long time to bring ISIS to the ICC for these crimes.

As we have already said, neither Syria nor Iraq are members of the Court. One option they have is ratifying the Rome Statute and accepting its jurisdiction retroactively, as for example Palestine, which was accepted as a member in December 2014 and deposited a declaration to allow jurisdiction back to June 2014 so as to cover the 2014 Gaza war. Another option is moving to accept the jurisdiction of the Court without becoming a state party, as Ukraine did after the Maidan protests and the events in Crimea and Eastern Ukraine. Neither of these options is likely for Syria or Iraq because of the lack of political will.

Another option, albeit an improbable tone, is to bring to Court any foreign fighters in ISIS who are nationals of state parties to the Court, assuming that they hold high enough positions to be held responsible for the crimes. Currently, the ICC is actually carrying out an investigation of this nature on the war crimes committed by UK soldiers in Iraq, since the UK is a member of the Court.

The only other option for entering the Court’s jurisdiction is a referral by the UN Security Council, which has happened in the cases of Libya and Darfur. This can be done only if the gross human rights violations are a threat to peace, and in the case of Syria this is certainly true. However, as journalist Harry Farley has pointed out, the Security Council is unlikely to do that because the ICC would not examine only the acts of ISIS but the whole geographic “situation” in Syria and Iraq. This would involve possible crimes by governmental, non-governmental and international forces, including the US, France and Russia - all of whom have veto powers in the Security Council. For the same reason, it is possible that Syria and Iraq face considerable international pressure against ratifying the Rome Statute.

In conclusion, terrorist acts do fit within the jurisdiction of the International Criminal Court when they involve widespread attacks or are committed within the context of an armed conflict. In those cases there would be no need for an amendment to the Rome Statute in order to prosecute because it already covers all the crimes that terrorist groups may commit, such as murder, torture, rape, taking of hostages, attacking civilian buildings, and so on. The only cases that the ICC may not be able to prosecute are one-time attacks that may not pass the gravity threshold even if they produce significant fear in the population.

The ICC has already tried chiefs and members of terrorist groups but there are other, political barriers to the prosecution of groups like ISIS. These involve the fact that Syria and Iraq are not members of the Court, that they are currently lacking the political will to join the Court and that they may face intense external pressure if they attempt to. Given the international deadlock on the war in Syria, there is little probability for investigations in the near future. Does that mean it is futile to advocate for bringing ISIS or other terrorists to the ICC? Most certainly not, since theoretically there are ways in which this can be done and mass international awareness, evidence-gathering and support for investigations might be able to put enough pressure on politicians to take the necessary measures.

Written by Iva Gumnishka


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