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.]
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…