The OTP’s Afghanistan Investigation: A Response to Vogel

As a number of commentators have recently noted, the latest report on the OTP’s preliminary-examination activities indicates that the OTP is specifically considering whether US forces are responsible for war crimes relating to detainee treatment in Afghanistan — something it only hinted at in its 2013 report. Here are the relevant statements (pp. 22-23):

94. The Office has been assessing available information relating to the alleged abuse of detainees by international forces within the temporal jurisdiction of the Court. In particular, the alleged torture or ill-treatment of conflict-related detainees by US armed forces in Afghanistan in the period 2003-2008 forms another potential case identified by the Office. In accordance with the Presidential Directive of 7 February 2002, Taliban detainees were denied the status of prisoner of war under article 4 of the Third Geneva Convention but were required to be treated humanely. In this context, the information available suggests that between May 2003 and June 2004, members of the US military in Afghanistan used so-called “enhanced interrogation techniques” against conflict-related detainees in an effort to improve the level of actionable intelligence obtained from interrogations. The development and implementation of such techniques is documented inter alia in declassified US Government documents released to the public, including Department of Defense reports as well as the US Senate Armed Services Committee’s inquiry. These reports describe interrogation techniques approved for use as including food deprivation, deprivation of clothing, environmental manipulation, sleep adjustment, use of individual fears, use of stress positions, sensory deprivation (deprivation of light and sound), and sensory overstimulation.

95. Certain of the enhanced interrogation techniques apparently approved by US senior commanders in Afghanistan in the period from February 2003 through June 2004, could, depending on the severity and duration of their use, amount to cruel treatment, torture or outrages upon personal dignity as defined under international jurisprudence.

I highly recommend the posts by David Bosco at Multilateralist and Ryan Goodman at Just Security on the OTP’s report. But I have reservations about Ryan Vogel’s post at Lawfare. Although Vogel makes some good points about the political implications of the OTP’s decision to investigate US actions, his legal criticisms of the OTP are based on a problematic understanding of how gravity and complementarity function in the Rome Statute.

First, there is this claim:

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.

It is not completely clear what Vogel’s objection is, but it’s likely one of two things: (1) he does not believe US actions in Afghanistan qualify as torture; or (2) he does not believe any acts of torture the US did commit are collectively serious enough to justify a formal OTP investigation.The first objection is irrelevant: whether acts qualify as torture is for the ICC to decide, not the US. The second objection is more serious, but is based on a confusion between situational gravity and case gravity. Were the OTP investigating only torture in Afghanistan by US forces, the objection might be valid: although torture is a serious crime, the number of US acts of torture under investigation would not add up to a situation whose gravity would be comparable to, say, Libya, Darfur, or the DRC. Indeed, the OTP refused to open an investigation into the situation in Iraq precisely because the actions of the British armed forces, though involving both wilful killing and torture, did not create a situation grave enough to investigate. (I and many others disagreed with the OTP’s approach to situational gravity in Iraq. But that’s neither here nor there — what’s important is how the OTP views situational gravity.)

The problem with the situational gravity objection is that the torture committed by US forces is only one small part of a much larger situation. The OTP is not assessing the gravity of the situation in Afghanistan solely on the basis of US crimes; it is also considering crimes committed by the Taliban, the Afghan government, and other pro-government forces. And there is little question that, viewed collectively, those crimes are grave enough to warrant a formal investigation.

Now, Vogel could concede the situational gravity point but still insist that even within the Afghanistan situation torture by US forces is not sufficiently grave to prosecute. That would be a legitimate case-gravity objection — but not one that’s persuasive. The OTP likely would — and probably should — go after crimes committed by the Taliban and by the Afghan government first; it could easily find high-ranking individuals in both camps that are responsible for far greater crimes than the US soldiers and commanders responsible for torture. But that does not mean the OTP should not pursue torture prosecutions as part of a larger prosecutorial program. Torture is a very grave act, one that the Rome Statute deems both a war crime and a crime against humanity. And even if we consider the statement in Art. 8(1) of the Rome Statute that “[t]he Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes” to be an independent gravity requirement (which is questionable), torture at Bagram and elsewhere would still easily qualify — the acts singled out by the OTP were, after all, approved at the highest levels of the US government. So it would be wholly appropriate for the OTP to build a case around US individuals responsible for torture in Afghanistan, just as it was wholly appropriate for it to bring charges against the Darfuri rebel leaders responsible for killing UN peacekeepers, even though those attacks paled in comparison to the attacks orchestrated by the Sudanese government. There is difference between saying a case should not be first and saying a case should not be ever.

Vogel’s complementarity argument is equally problematic. Here is what he writes, in relevant part:

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.

[snip]

For this and other reasons, this case seems like an obvious candidate for prosecutorial discretion. And yet, the Prosecutor appears to have spent valuable and finite resources pushing an examination of the United States from phase to phase (the Prosecutor’s office is apparently now in Phase III of the preliminary examination) and releasing updates of the examination over the course of almost a decade; with this latest public announcement, she seems to have signaled an intent to continue.

To begin with, Vogel once again confuses the difference between case gravity and situational gravity. The OTP is not “pushing an examination of the United States from phase to phase”; it is pushing an examination of the situation in Afghanistan as a whole. Torture by US forces is simply part of that larger situation.

More importantly, though, Vogel seems to not understand how complementarity works. Here is what the OTP says in its report (pp. 2-3):

Complementarity involves an examination of the existence of relevant national proceedings in relation to the potential cases being considered for investigation by the Office. This will be done bearing in mind its prosecutorial strategy of investigating and prosecuting those most responsible for the most serious crime. Where relevant domestic investigations or prosecutions exist, the Office will assess their genuineness.

There are two things to note here. First, the OTP’s complementarity analysis focuses on “the potential cases being considered for investigation by the Office” — not on the general availability or effectiveness of the domestic criminal-justice system in question. It is thus irrelevant that “[t]he 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.” The only question is whether the US is investigating the same cases as the OTP.

Second, and relatedly, the OTP is not interested in the low-level US soldiers who were the principal perpetrators of torture in Afghanistan; it is focusing instead on “those most responsible” for that torture. It is thus equally irrelevant that “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.” The problem for the US going forward is that it has never made any genuine attempt to investigate, much less prosecute, the high-ranking military commanders or the important political officials who ordered and/or tolerated the commission of torture in Afghanistan. That is simply indisputable. So until such time as the US does — read: never — complementarity will not prevent the OTP from continuing its investigation into US actions.

Finally, a couple of thoughts about the politics of the Afghanistan investigation. I completely agree with Vogel’s basic point, which is that a formal OTP investigation into torture by US forces would almost certainly doom any further cooperation between the US and the ICC. Indeed, I think that’s why the OTP took more than seven years to move the preliminary examination from Phase II to Phase III — which formally required the OTP to determine only that at least one international crime had been committed in Afghanistan. There is no question that very serious crimes have been committed in Afghanistan, particularly by the Taliban and by the Afghan government. But there is also no question — at least for most observers — that US forces committed crimes there, as well. So the OTP is in a very difficult position. If it opens a formal investigation and ignores US torture, it will lose significant credibility in the eyes of the many states in the Global South that already view the ICC as a puppet of the West. But if it opens a formal investigation and pursues a case involving US torture — even one placed at the back of the prosecutorial line — it will alienate the US, probably permanently. That catch-22, in my view, explains what we have actually seen: the slow-walking of the preliminary examination for years. That is not an ideal solution, for obvious reasons. But it might be the OTP’s best strategy.