By Mark Kersten
This year’s Report on Preliminary Examination Activities from the International Criminal Court (ICC) carried within it a number of fascinating - and crucial - details into who and what is falling under the ICC’s microscope. Below are five important takeaways that demonstrate and increasingly emboldened, provocative and courageous institution, not to mention one that really doesn’t look like it’s unfairly picking on Africa.
U.S. Torture in Afghanistan
The ICC’s examination into alleged atrocities committed in Afghanistan continues. In last year’s preliminary examination report, we saw the first-ever reference to the alleged “enhanced interrogation techniques” used by U.S. officials against Taliban forces, who are also under examination by the Court. American officials reacted coolly to the inclusion of torture allegations in the prosecutor’s last report, but it was back once again this year. Moreover, in a handful of hard-hitting paragraphs, the 2015 report laid down a challenge to U.S. officials to take allegations of torture
- those investigated by the ICC as well as those outlined in the country’s own ‘Torture Memos’ - seriously.
While the report takes note of the judicial actions against U.S. citizens allegedly responsible for war crimes and crimes against humanity in Afghanistan, it insists that those efforts have been insufficient. Specifically, the report points out that two cases that involved the deaths of detainees in CIA custody “did not result in any indictments or prosecutions” and that thirteen Department of Defence investigations “were administrative enquiries rather than criminal proceedings”. In short, the U.S. isn’t doing nearly enough to take accountability for these alleged abuses seriously and, if it doesn’t, the ICC may have no choice but to open an official investigation.
In perhaps its most devastating paragraph, the report suggested that it was no longer questioning whether war crimes had been committed by U.S. forces but how systematic those crimes were. It also evoked the long-term pain and suffering of victims:
"The Office is assessing information relevant to determine the scale of the alleged abuse, as well as whether the identified war crimes were committed as part of a plan or policy. The information available suggests that victims were deliberately subjected to physical and psychological violence, and that crimes were allegedly committed with particular cruelty and in a manner that debased the basic human dignity of the victims. The infliction of 'enhanced interrogation techniques', applied cumulatively and in combination with each other over a prolonged period of time, would have caused serious physical and psychological injury to the victims. Some victims reportedly exhibited psychological and behavioural issues, including hallucinations, paranoia, insomnia, and attempts at self-harm and self-mutilation."
In short, the ICC has reprimanded the U.S. for not doing nearly enough in pursuing accountability for these alleged abuses and has taken the rather remarkable step of suggesting that the perpetration of torture in Afghanistan may not have been the work of ‘bad apples’ but a plan or policy orchestrated at senior levels of the Bush administration.
Palestine and Israel
The 2015 report marked the first time that the preliminary examination into alleged war crimes committed by Palestinian and Israeli factions in Gaza has been detailed in a report. The section on Palestine is worth reading in full. But one interesting fact stands out: “On 9 July 2015, the government of Israel announced that it had decided to open a dialogue with the Office over the preliminary examination.” In other words, Israel has decided to cooperate with the ICC’s examination of alleged crimes perpetrated in Palestine. While this has been previously reported in the media, it was welcome news to see it in the ICC’s report. Engaging the ICC, as I have suggested elsewhere
, is a wise move on the part of the Israeli government.
Entrance and Exit Strategies: Georgia and Honduras
It is notable that the ICC’s intervention in Georgia moved onto the status of official investigation and that the Office of the Prosecutor concluded and closed its examination into alleged crimes perpetrated in Honduras. Again, this was already evident prior to the release of the report. But they are particularly relevant as it suggests that the Court does have an exit strategy for preliminary examinations and won’t simply let cases languish on the back-burner eternally. As an aside, despite the ongoing official investigation, Georgia has become the 26th state to ratify
the Kampala amendments on war crimes.
The Gravity of it All: UK in Iraq
Back in 2006, then-ICC Chief Prosecutor Luis Moreno Ocampo refused to open an official investigation into alleged Western abuses in Iraq because, in his estimation, they didn’t satisfy the “gravity” requirements of the Rome Statute. In essence, Moreno Ocampo insisted that the numbers weren’t big enough and that there hadn't been sufficient crimes to warrant the Court’s attention. Fast-forward to 2015 and those numbers are rising. As reported in Samuel Oakford’s analysis
"The International Criminal Court has drastically increased its review of alleged crimes committed by British military personnel in Iraq, including the reported deaths of more than 250 individuals and the abuse and mistreatment of hundreds more…
"… Those potential violations included accounts of burning, electrocution, mock executions, threats to detainees' families, sexual assault and 'forced exposure to pornography'. The report also cited the alleged killing of at least 8 Iraqis while in the custody of UK forces, as well as '8 civilians who were killed by UK personnel in other situations outside of custody'.
"…The new toll reflects alleged cases brought to the attention of the Court on September 29 by the London-based law firm Public Interest Lawyers, in conjunction with the European Center for Constitutional and Human Rights."
The number of cases is likely to only continue to rise and, as they do, the claim that the allegations aren’t “grave” enough will become harder to sustain. Of course, it is crucial to remember that the purpose of these examinations is not to put British officials in the dock in The Hague but rather to galvanise genuine prosecutions of alleged perpetrators in the UK itself. The ball, as it were, is firmly in the British judiciary’s court.
Ukraine’s ICC Strategy Unmasked?
Finally, according to the 2015 report, while Ukrainian forces used “excessive and indiscriminate” force during the 2014 unrest on Maidan Square, the Office of the Prosecutor ultimately concluded that the “alleged crimes do not amount to crimes against humanity”. In other words, the ICC wasn’t about to open an official investigation into violence perpetrated in Kiev.
Why is this important? Because it is the best evidence we have to support the view that the current Ukrainian government decided to expand the ICC’s jurisdiction
into the country earlier this year due to its fears that ICC prosecutors would let their adversaries off the hook. Ukraine clearly did not want news headlines to declare that the previous regime was not responsible for international crimes. Opening itself up to further examination avoided that fate. And now we know why.
Courtside Justice is a bi-monthly column by Mark Kersten, the creator of Justice in Conflict, looking into the politics and dilemmas of international justice.