Levina and Vaid Guest Post On The Recent HRW Torture In Afghanistan Report: What Does It Mean For The ICC?

[Polina Levina is a masters in international law candidate at the School of Oriental and African Studies and Kaveri Vaid is an Institute for International Law and Justice Scholar at New York University School of Law.]

Overview

Recently, Human Rights Watch released a report detailing systematic practices of capture, torture, and rendition of members of the Libyan opposition by the United States Central Intelligence Agency.  At least five of the alleged victims were tortured by the CIA in “black sites” in Afghanistan in or after 2003.

Torture is clearly prohibited by the Rome Statute, both as a war crime and as a crime against humanity.  The entire situation in Afghanistan during the time period addressed by the report has been under preliminary examination by the International Criminal Court (ICC) since 2007. In a report on this preliminary examination, the ICC Office of the Prosecutor (OTP) cited the lack of concrete and particularized evidence, including about potential victims and witnesses, as a significant reason why the preliminary examination could not move forward.

It might seem at first blush that the HRW report would provide the critical evidence of crimes within the court’s jurisdiction. But this assumption assumes the existence of a critical prerequisite – there must be a nexus between the alleged acts of torture committed by the CIA and the armed conflict in Afghanistan for those acts to qualify as war crimes under article 8(2)(c)(i)-4 (or, as cruel treatment under article 8(2)(c)(i)-3) of the Rome Statute. The nexus requirement is a jurisdictional requirement – the ICC and other international tribunals only have jurisdiction to prosecute acts as war crimes when committed in connection with an armed conflict.

The HRW report undoubtedly alleges acts of torture that occurred during the non-international armed conflict in Afghanistan. However, the ICC has emphasized that this fact alone does not establish a legal nexus between the alleged acts and the armed conflict in The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, thus setting an outer boundary for the nexus requirement.  Instead, the Court requires a more substantial connection between the alleged acts and the armed conflict.

While the issue is complex, we argue that the acts qualify as war crimes based on the Court’s current jurisprudence.  We will first delineate the Court’s test for a nexus—that the armed conflict must be a substantial factor in the commission of the alleged crimes.  We will then demonstrate that the acts alleged in the HRW report are more than merely coincidentally related to the armed conflict in Afghanistan; the conflict was a substantial factor in the commission of the alleged crimes. As such, the allegations detailed in the HRW report are relevant to the OTP’s preliminary examination into the situation in Afghanistan.

How the ICC Defines a Nexus to Armed Conflict

In its decision on the confirmation of charges in the Katanga Case [para. 380], Pre-Trial Chamber I defined crimes having the requisite nexus to armed conflict as those crimes occurring “in the context of and associated with an armed conflict,” where “the armed conflict…play[s] a substantial role in the perpetrator’s decision, in his ability to commit the crime, or in the manner in which the conduct was ultimately committed.” In its decision refusing to confirm the charges in the Prosecutor v. Bahar Idriss Abu Garda, [para. 90], Pre-Trial Chamber I held that “it is not necessary for the conflict to have been regarded as the ultimate reason for the criminal conduct, nor must the conduct have taken place in the midst of battle.”

To be clear, the Court still maintains the nexus requirement, stating in its decision regarding the case against Abu Garda [para. 92] that crimes must be “related to [the armed conflict], because criminal acts or offences unrelated to the armed conflict are not considered to be war crimes.”  At the same time, the Court clearly rejects any requirement of “but-for” causation, holding instead that “it is not necessary…for the armed conflict to have been regarded as the ultimate reason for the criminal conduct.”

In the Katanga Case, [para. 382] the Court identified certain factors as particularly relevant to the inquiry regarding nexus: whether the perpetrator was a combatant in the armed conflict; whether the victim was not a combatant; whether the victim was a member of an opposing party in the conflict; whether the acts in question may “serve the ultimate goal of a military campaign;” and whether the alleged crime was committed “as part of or in the context of the perpetrator’s official duties.” However, the Court did not specify all or any of these factors as being dispositive of a nexus.

Both in citing the above factors and in adopting the more general “substantial role” test to find a nexus between particular crimes and an armed conflict, the Court thus adopted much of the prior relevant jurisprudence from the International Criminal Tribunal for Yugoslavia.  Indeed, the Court affirms this adoption explicitly in its decision in Katanga, [paras. 382], “endors[ing] the ICTY finding [in Tadic and Kunarac] that the Trial Chamber may take into account, inter alia, [factors indicating whether a nexus exists].”

Analyzing the HRW Report’s Allegations Against the Nexus Requirement

Decision

The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui [para. 380] found that a nexus is established when “the armed conflict…play[s] a substantial role in the perpetrator’s decision” to commit the crime. It thus becomes necessary to assess both the perpetrator’s decision and the purpose for which the crime was committed.

It is undoubtedly difficult if not impossible to ascertain the specific purpose or decision process that motivated the CIA to engage in the alleged conduct. However, looking at the alleged acts in the broader context in which they occurred—specifically, the development and deployment of so-called “enhanced interrogation techniques” for use against members of the Taliban or Al Qaeda—indicates at least plausible motivations.

The so-called “torture memos” and related investigative reports repeatedly justified the specific “enhanced interrogation techniques” allegedly inflicted upon these detainees by the United States as vital to the successful prosecution of multiple components of the so-called “War on Terror,” including, at the time, the armed conflict in Afghanistan.  These techniques were justified specifically by their purported ability to obtain greater amounts of more useful information from alleged terrorists in the interrogation context. The “torture memos” were withdrawn as a matter of US policy in 2003. As government approval or toleration of an act is only required for war crimes committed by civilians, the fact that the alleged acts violate current US law does not defeat the nexus between these acts and the conflict in Afghanistan as it existed in the relevant time period.

The acts alleged by HRW occurred in the context of interrogations, rather than as punishment.  This suggests that the intent was to obtain information that would be necessary or advantageous to the United States. The HRW report further describes how the alleged torture of one of the detainees began with an interrogator saying, “‘We want to hear about your last plan to strike America,” further indicating at least a likely motive for the alleged acts.

Ability

The HRW report alleges that all acts of torture in Afghanistan occurred either at Bagram Air Force base or at CIA black sites. The armed conflict in Afghanistan, and specifically the United States’ presence as an initial party to that conflict and then as a continuing force operating at the request of the Afghan government, enabled these sites to be created and placed under United States control. For instance, until 10 September 2012 the US was occupying Bagram under a bilateral agreement with Afghanistan that allows the US and coalition forces “exclusive, peaceable, undisturbed and uninterrupted possession” of Bagram for military purposes.

These facts suggest that the existence of the armed conflict in Afghanistan played a “substantial role” in the CIA’s ability to use sites within Afghanistan to commit the alleged crimes.  Certainly, had the CIA not had this access to Afghanistan, it may well have engaged in the alleged acts elsewhere.  However, this counterfactual does not negate the fact that the armed conflict gave the United States access to the sites actually used.  Under the standard adopted by the Court, this relation is sufficient.

Manner

Regarding the manner in which the alleged acts of torture were committed, the HRW report specifically alleges the use of waterboarding, stress positions, cramped confinement, and other so-called “enhanced interrogation techniques.” As the report alleges, these techniques were inflicted upon detainees in United States custody, and deployed specifically in the context of interrogations occurring over significant periods of time.  For example, two of the Libyan detainees (Shoroeiya and Sharif) were

“chained to walls naked—sometimes while diapered—in pitch black, windowless cells, for weeks or months at a time; being restrained in painful stress positions for long periods of time, being forced into cramped spaces; being beaten and slammed into walls; being kept inside for nearly five months without the ability to bathe; being denied food; being denied sleep by continuous, deafeningly loud Western music; and being subjected to different forms of water torture including, in Shoroeiya’s case, waterboarding.”

The specific treatment of the five Libyans is strikingly consistent with the alleged torture and cruel treatment of certain “high value detainees” held by the United States in Afghanistan, as documented by the ICRC in 2007. Both these techniques and their specific deployment in the context of interrogation were specifically cited in memos between the Office of Legal Counsel, the Department of Defense, and the Central Intelligence Agency in the years immediately preceding the alleged crimes.  For instance, a memo known as “Bybee II” that remains confidential, advised the CIA on specific interrogation methods it could use against al Qaeda. This memo specified techniques including “(3) walling, (4) facial slap (insult slap), (5) cramped confinement, (6) wall standing, (7) stress positions, (8) sleep deprivation…and (10) the waterboard.” These techniques were also alleged to have been inflicted upon other high-value (non-Libyan) detainees in United States custody in Afghanistan (for example, as detailed in the ICRC Report on the Treatment of Fourteen “High Value Detainees” in CIA Custody).

Certainly, the United States may have approved the same techniques for use against those persons deemed responsible for the 9/11 attacks even absent the armed conflict in Afghanistan.  Indeed, certain “high-value detainees” for whom these techniques were specifically intended were not even captured in the context of the conflict in Afghanistan, such as Khalid Sheikh Mohammed. We thus do not argue that these crimes would not have been committed in this particular manner but for the armed conflict in Afghanistan – or even that the war was the ultimate cause of these particular crimes.

However, the Court does not require such but-for causation to establish a nexus between the manner in which these alleged crimes were committed and the armed conflict.  Rather, the armed conflict only must play a substantial role in the way these particular acts were committed.

Other Factors Identified as Relevant

In addition to the above criterion, the Court has identified additional factors as relevant to (but not determinative of) the finding of a nexus.

Victims as members of an opposing party

Whether or not the alleged victims were actually members of a party opposing the United States in the armed conflict in Afghanistan, both the information contained in the report and contemporaneous statements and efforts by the United States government (most specifically the communications surrounding the so-called “torture memos”) argue that the United States saw them as such.

Perhaps the most compelling argument against finding a nexus lies in the characterization of the alleged victims as Libyan rebels or members of the Libyan opposition. This characterization certainly seems to be undisputed.  As Libyan rebels, the connection between the alleged victims and the armed conflict in Afghanistan could be called into question, as the alleged victims were not specifically identified as combatants in the conflict in Afghanistan.

However, the fact that the alleged victims were members of a Libyan opposition group does not itself defeat the nexus.  First, as we argue above, the existence of the armed conflict was closely and substantially related to the ability of the CIA to engage in the alleged acts.  If the United States were not engaged in armed conflict in Afghanistan, the CIA would almost certainly lack the authorization and likely the ability to detain and interrogate people on Afghan soil. Second, simply because the alleged victims were indeed part of Libyan opposition groups does not preclude them from also having a connection to the armed conflict in Afghanistan.

The so-called “torture memos” only authorized the use of the particular techniques allegedly inflicted upon the detainees against members of Al Qaeda or the Taliban. These techniques were definitively not approved for broad use against all terrorists (including members of Libyan opposition groups). Subsequently released investigative reports, including one from the CIA Inspector General, do not dispute this limit.  Thus, the fact that the alleged victims were also members of a Libyan opposition group does not preclude the possibility that the United States saw them as affiliated with either the Taliban or Al Qaeda. Taking the United States government at its word, the interrogations of the alleged victims named in the HRW report would have to have been related to that conflict by the United States for the CIA to be able to deploy such techniques against them.

Acts as serving the ultimate goal of a military campaign

Whether the alleged acts may “serve the ultimate goal of a military campaign” is largely contingent on an assessment of facts and assumptions by the actors at the time.  At this point, we do not know either what the particular interrogations were motivated by, or whether information drawn from them was subsequently used in the armed conflict in Afghanistan.  Absent more information about particular contextual facts, it thus remains ambiguous whether the alleged acts were undertaken, as the Kunarac Case at the ICTY, referenced in Katanga, put it, “in furtherance of or under the guise of the armed conflict.” [para. 58]

Operation Enduring Freedom, which began in Afghanistan shortly after the 9/11 attacks, was a mission to kill and capture “high value” al Qaeda and Taliban members and destroy the safe havens from which al Qaeda planned and directed the 9/11 attacks. The interrogation techniques were approved in the context of an armed conflict with Afghanistan, which the United States government saw as (at least initially) the main front of the so-called “War on Terror.” For instance, the 1 August 2002 “Bybee Memo” legally sanctions “enhanced interrogation techniques” “in the context of interrogations outside the United States,” specifically in “the circumstances of the current war against al Qaeda and its allies.” Thus, the legal sanction of these “enhanced interrogation techniques” was directly and expressly tied to their intended use in the context of the conflict with the Taliban and Al Qaeda—a conflict that was, grounded in the armed conflict in Afghanistan at the time the memos were approved. A 9 January 2002 memo for William Haynes from John Yoo addresses the treatment of individuals detained “during the conflict in Afghanistan,” observing that “it appears… that the Taliban militia may have been so intertwined with al Qaeda as to be functionally indistinguishable from it.” As these memos demonstrate, the United States approved the particular techniques specifically for use in the armed conflict against the Taliban and Al Qaeda in Afghanistan.

Alleged crime committed as part of or in the context of the perpetrator’s official duties

Finally, as the “torture memos” and associated investigative reports make clear, the alleged acts were officially sanctioned and integrated into the CIA’s interrogation mandate for “high-value detainees” in the “War on Terror.”  Following this approval, these “enhanced interrogation techniques” were integrated into the interrogation portfolio of the CIA.  The alleged acts, explicitly approved by the Office of Legal Counsel, were thus within the realm of the alleged perpetrator’s official duties.

Conclusion

The crimes alleged in the HRW report present a new context within which to analyze the nexus requirement, requiring both elucidation of the Court’s existing standard and application of that standard to this set of facts.  Based on the above analysis, we find that the alleged crimes described by the HRW report appear to satisfy the nexus requirement of article 8(2)(c)(i) of the Rome Statute, and that they could thus be considered as war crimes by the International Criminal Court.  Certainly, this information is preliminary and does not presently satisfy the rigorous evidentiary standards imposed by the Court.  The OTP would thus have to undertake greater assessment before taking further steps regarding its preliminary examination into the situation in Afghanistan.  Still, the facts alleged by the HRW report, when examined in light of related contextual and background information, argue in favor of finding a nexus between the specific crimes alleged and the armed conflict enabling their perpetration.