Visiting Assistant Professor Ryan Vogel has authored a new post on Lawfare, a leading national security blog. The post analyzes a preliminary examination of U.S. detention policies in Afghanistan that has been advanced by the International Criminal Court’s prosecutor. Read an excerpt below:
As Professors Ryan Goodman and David Bosco have both noted in excellent posts at Just Security and Foreign Policy, respectively, over the past seven years, the International Criminal Court’s (ICC) Prosecutor has quietly but persistently advanced a “preliminary examination” of the conflict in Afghanistan. Although it has been clear that the United States was one of the subjects of this examination, the Prosecutor had avoided direct references to U.S. forces in public documents. This changed on Tuesday when, for the first time, the Prosecutor’s annual report alleged that “members of the US military in Afghanistan used so-called ‘enhanced interrogation techniques’ against conflict-related detainees,” which could amount to the war crimes of “cruel treatment, torture or outrages upon personal dignity as defined under international jurisprudence.”
Whatever one’s views regarding U.S. detention policy in Afghanistan from 2003-2008, the alleged U.S. conduct is surely not what the world had in mind when it established the ICC to address “the most serious crimes of concern to the international community as a whole.” The ICC was designed to end impunity for the most egregious and shocking breaches of the law, and it is hard to see how alleged detainee abuse by U.S. forces meets that standard.
But even if a case against U.S. forces for alleged detention-related abuses is not dismissed because it is insufficiently grave to meet the thresholds for the ICC to proceed, it also seems questionable for the ICC to pursue such a case for reasons of complementarity (i.e., the principle that the ICC is not to move forward when a State is genuinely able and willing to investigate and prosecute). The United States has one of the most developed and effective military justice systems in the world, which has the demonstrated ability and willingness to hold its own accountable for violations of the law, including any violations in the context of detention operations. Indeed, there have not been many issues more thoroughly investigated by the military and U.S. Government in the past decade than that of detainee treatment. Ironically, the Prosecutor’s report even cites some of these very investigations as evidence of crimes – or worse, evidence of a criminal policy – rather than citing these reports as acknowledgement of accountability measures.
Click here to read the rest of this post at Lawfare.