Politics and the law are uneasy bedfellows, as the International Criminal Court (ICC) found to its cost earlier this month with the unedifying collapse of the landmark Kenyatta case. Even so, the ICC has been identified as the one potential source of justice if alleged CIA torturers and their masters are to be called to account.
"If I were one of those people, I would hesitate before making any travel arrangements," said Michael Bochenek, director of law and policy at Amnesty International, which called on the Obama administration to prosecute officials responsible for the torture programme.
“The fact that the policies revealed in this report were authorised at a high level within the US government provides no excuse whatsoever,” agreed Ben Emmerson, the UN’s special rapporteur on human rights and counter-terrorism.
In this context, it was an extraordinary coincidence that a fortnight ago the prosecutor at the ICC confirmed she was looking at the use of "enhanced interrogation techniques" by the US military in Afghanistan.
In a report published on December 2nd, Fatou Bensouda observed: "There is information available that interrogators allegedly committed abuses that were outside the scope of any approved techniques, such as severe beating, beating on the soles of the feet, suspension by the wrists, and threats to shoot or kill.
“Certain of the enhanced interrogation techniques apparently approved by US 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.”
Darfur abandoned
Assessing information does not, of course, necessarily lead to a full ICC investigation. Even where it does, it is easily frustrated, as Bensouda – fresh from her Kenyatta debacle – told the UN
Security Council
last Friday when she “suspended” investigations into alleged war crimes in Darfur.
In an unusually undiplomatic address, she told the 15 council members: “What is needed is a dramatic shift in this council’s approach to arresting Darfur suspects.” Without that, there would be “little or nothing to report to you for the foreseeable future”.
So, do the collapse of the Kenyatta case and the suspension of the Darfur investigation mark the emergence of a tougher, more politically aware, prosecutor – or has Bensouda, after 30 months in the job, simply woken up to the limitations of her position, powerful though it is?
That remains to be seen. A confrontation with the US would certainly be a test. But what is clear, says Amnesty International, is the prosecutor’s current examination of alleged torture in Afghanistan is “the most obvious way” the Senate’s CIA report can “enter the ICC’s jurisdiction”.
The Hague court has jurisdiction only in countries that are signatories to the Rome Statute that established it.
However, those signatories include Afghanistan, Poland, Lithuania and Romania – all countries which, the Senate report suggests, were the locations of "black sites" where torture of suspected al-Qaeda detainees is alleged.
It would therefore be possible for those countries to charge CIA employees or even Bush administration officials under their domestic legal systems.
Another route would be for them to refer a case to the ICC for a decision on whether the alleged perpetrators should face war crimes charges in the context of a military conflict or, alternatively, charges of crimes against humanity.
Will any of those countries take action – at the potential cost of damaging their relationships with the United States?
Former Polish president Aleksander Kwasniewski has admitted the presence of a CIA site in his country, adding, “I told Bush that this co-operation must end, and it did.”
Senate report
An investigation is already under way in Warsaw, and Polish prosecutors have asked for access to the full Senate report, 10 times longer than the 500-page declassified one.
Lithuania’s president at the time, Valdas Adamkus, denies any knowledge of a secret prison, though acknowledging, “If the information proves correct, Lithuania will have to take responsibility.”
As for Afghanistan, despite tensions it is a staunch American ally in the region, dependent on US military and economic support – a situation complicated by the possibility that if the ICC did begin an investigation, it might also wish to look at any alleged abuses by the government in Kabul.
If all else fails, the security council could, in theory, refer a case involving any of those countries to the ICC – but that is simply not going to happen because the US, which is not a signatory to the Rome Statute, would veto any such referral.
The bottom line is although there are avenues by which the ICC could show independence and investigate allegations of CIA torture that have shocked the world, the likelihood is it will not – because law comes a poor second to expediency and geopolitics.