If Obama won't prosecute CIA torture, can the ICC?

The International Criminal Court quietly revealed in a recent report that it was inching toward its first-ever investigation into the alleged torture of U.S. detainees in Afghanistan. That update — which came two weeks ago, just as the White House was bracing itself for the release of Senate findings on CIA torture — seemed to send a message: If the Obama administration continues to rule out prosecuting CIA torturers, the ICC could take action.

"Certain of the enhanced interrogation techniques apparently approved by U.S. senior commanders in Afghanistan … 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," read a Dec. 2 report from the ICC prosecutor's office.

In the wake of the Senate report’s release — which brought fresh assurances from President Barack Obama that alleged CIA torturers would have immunity from criminal prosecution — the ICC has emerged as potentially the only hope for those demanding that the CIA be held accountable. 

It had previously seemed impossible that there would ever be such an investigation into the covert program, which was specifically crafted by the George W. Bush administration to shield the agency from prosecution. But now that the Senate has entered a potential body of evidence into public record, the door has opened slightly for the ICC to pursue a case, according to Jennifer Trahan, an ICC expert with the New York University Center for Global Affairs.

Even though the United States is not a member of the ICC, Trahan said the court may have jurisdiction to prosecute alleged violations of international law that took place on CIA black sites in member countries — including Afghanistan, Poland and Romania.

But jurisdiction is merely the first hurdle to clear before the ICC considers prosecution. The court, which is designed “to help end impunity for the perpetrators of the most serious crimes of concern,” operates on a principle of complementarity, meaning it can only prosecute such crimes when a government refuses or is unable to do so. The fact that there is an ongoing Justice Department probe into CIA tactics could be problematic for the ICC, though most experts believe the court can argue that Obama’s guarantees of immunity for CIA officers would satisfy complementarity.

“Obama is trying to walk a fine line, but I think it’s an untenable position,” said Jens Ohlin, a national security law expert at the Cornell University School of Law. “If Obama believes we engaged in torture, which he’s said he does, then why aren’t we prosecuting it?”

The court will then have to decide that alleged CIA crimes meet the court’s high gravity threshold — meaning the offenses need to be exceptionally serious. As Eugene Kontorovich put it in The Washington Post, “one needs a certain body count.”

The court has previously dismissed cases about alleged improper use of force by British and Israeli troops on the grounds that too few casualties had amassed to warrant a massive and expensive ICC investigation. It isn’t clear whether the 39 detainees subject to possible torture between 2002-2008, as detailed in the Senate report, would meet that threshold.

And torture, in and of itself, is not a crime under the ICC statute. The ICC prosecutor would have to demonstrate that U.S. torture was so widespread and systematic that it constitutes either a crime against humanity or war crimes, experts said. In theory, a case of that scale would target Bush administration officials who directed CIA policy, and not just the officers who allegedly carried out the torture.

But the greatest obstacle to ICC prosecution could be political in nature.

"The ICC is reluctant to touch a sensitive subject and risk alienating the U.S., which has just begun cooperating with the court,” Ohlin said. “If the ICC commenced prosecution, even just against European officials who approved CIA black sites, the Americans might stop cooperating entirely.”

International cooperation, he said, is essential to the ICC’s functioning. Because the court has few coercive measures at its disposal to compel states to turn over evidence — it can’t send in a police force to gather information, for example — the court is often at the mercy of its targets. Recent prosecutions of war crimes collapsed in Kenya and Sudan after those countries refused to cooperate.

The court therefore often relies on evidence available in the public domain — hence the importance of the Senate release. But basing a case on the heavily redacted summary of the 6,000-page Senate report, most of which remains confidential, could leave holes in the prosecutor’s case.

Notably, the real names of every country involved are represented in the summary only by code words. Though previous leaks and independent investigations have determined that Black Site Blue stands for Poland, for instance, the prosecution will be held to a higher standard of evidence.

That is reportedly why the United Kingdom, an ICC member, did “some work” to ensure certain redactions were made to the public version of the Senate summary, according to testimony this week from U.K. Home Secretary Theresa May. Though the British government’s participation in alleged CIA rendition and torture is well documented — it has even paid settlements to alleged victims — it was not explicitly implicated in crimes by the public version of the Senate report.

If the ICC is unable to proceed with charges, there is at least some chance that preliminary investigations or mere threats of prosecution will pressure governments complicit in alleged CIA torture to act. An international investigation of American rights violations would be embarrassing, if nothing else. “If governments want to be clever, they will head off exposure by the ICC and prosecute themselves. That is always preferable," Trahan, of New York University, commented.

At present, there seems a better chance of domestic prosecution in Europe than in Washington. The Senate release touched off a contentious debate in Poland over whether to speed up ongoing prosecutions against Polish intelligence officials who were complicit in alleged CIA torture. As the Economist noted in a recent article, former Polish intelligence chief Zbigniew Siemiatkowski “may yet end up with the dubious honor of being the only person in the world to face legal proceedings over” the torture claims.

Separate any potential ICC investigation, the European Court of Human Rights could also decide to fine any member nation found complicit in any CIA wrongdoing. Earlier this year, the ECHR ordered Warsaw to pay nearly $300,000 in damages to two ex-detainees.

But there is no such body that is likely to fine the U.S. And given Obama’s stance on domestic prosecution, most experts say the odds of holding an American accountable for CIA torture — in any venue — are slim.

Cornell’s Ohlin traces this apparent impunity back to safeguards established by the Bush administration when it launched its "war on terror." For the same reason that CIA black sites were used in order to skirt domestic law, Bush decided to backtrack from former President Bill Clinton’s promise to join the ICC in order to stymie international prosecution, critics have said.

Impunity is “precisely what the Bush administration wanted when they crafted this torture and detention program,” Ohlin said. “I fear that they’ve accomplished it.”