[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…

For my final guest contribution regarding Bin Laden’s killing, I’m reposting (with permission) a piece that was just published by Foreign Policy magazine entitled The Bin Laden Aftermath: Why Obama Chose SEALs, Not Drones.  I look forward to comments from the OJ community.

Why did the United States choose to launch a raid against al-Qaeda leader Osama bin Laden’s compound in Abbottabad, Pakistan, rather than bombing it?  It wasn’t because of a “law enforcement mindset.”  And it wasn’t compelled by human rights law.  Rather, it was the best option based on the military objectives, available intelligence, and the law of armed conflict.

On the one hand, practical considerations dictated this riskier kind of raid.  The United States needed to have a body to prove, once and for all, that the hard-to-kill Bin Laden was in fact dead.  The recent media fascination with whether the U.S. will release photos of his body lends credence to this concern.

A second issue prompting the raid was that the Obama administration was worried about collateral damage.  This problem is more serious than some may initially suspect.  Abbottabad is a heavily populated city, with nearly 1 million residents.  Moreover, numerous civilian residences and the Pakistani military academy were near bin Laden’s “drone-proof compound.” There’s little doubt that the risks to nearby residents certainly weighed on the minds of senior policymakers and President Obama.  The matter of collateral damage alone, though, may not have been enough to tip the scales away from a bombing operation.

Instead, the issue may have been the uncertainty over whether Bin Laden was even in the compound.  Nation-states are simply not permitted to  drop bombs in the hope they will kill the right person; they need to be reasonably certain they are attacking the right target.  That fact leads us to the legal concerns that may have necessitated a raid rather than a bombing operation.

The Requirement to Positively Identify a Target

Most contemporary discussions of collateral damage skip the threshold legal question likely posed by the Obama administration, namely whether bin Laden or some other lawful military target was actually inside the compound.  Unless that question could be answered to a reasonable degree of certainty, any bombing operation would have been unlawful, even with no or minimal collateral damage to surrounding persons and objects.

This reality flows from the principle of distinction, (or “positive identification” in U.S. military parlance) a fundamental tenet of the law of armed conflict.  Armed forces are required to “at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.”  Positive identification, according to U.S. policies, requires that commanders know with reasonable certainty that “a functionally and geospatially defined object of attack is a legitimate military target.”  In short, directing attacks against civilians (in this context, non-uniformed personnel) is not permitted, unless they are directly participating in hostilities.

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