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 misunderstanding of the difference between situational gravity and case gravity…