Guantánamo Lawyers Urge International Criminal Court to Investigate US Torture Program

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Ever since evidence first emerged of the US’s post-9/11 torture program — most conspicuously, via the photos of abuse in Abu Ghraib that were revealed in 2004, and the network of CIA “black sites” that were first revealed in the media in late 2005 — opponents of torture have sought to hold accountable those responsible for implementing torture in its various forms: in the CIA’s global network of “black sites,” in proxy prisons in other countries, in Afghanistan and Iraq, and at Guantánamo.

Their efforts have persistently been thwarted. President Obama, notoriously, used the “state secrets doctrine” to prevent torture victims from having their day in the US court system (check out the Jeppesen case in 2010, for example), and, earlier that year, after an internal Justice Department investigation into John Yoo and Jay Bybee, who wrote and approved the notorious “torture memos” of 2002 that purported to re-define torture so that it could be used by the CIA, concluded that they were guilty of “professional misconduct,” the Obama administration allowed a DoJ fixer to override that conclusion, deciding instead that they had merely exercised “poor judgment.”

In December 2014, an important step towards the truth came with the publication of the executive summary of the Senate Intelligence Committee’s report into the CIA’s post-9/11 detention program (the Senate torture report, as it is more colloquially known), which delivered a devastating verdict on the program, even if it was not empowered to hold anyone accountable. And last August, there was good news when James Mitchell and Bruce Jessen, former military psychologists who had developed the torture program for the CIA, settled out of court — for a significant, but undisclosed amount — with several survivors of the rendition and torture program, and the family of another man, Gul Rahman, who had died in Afghanistan.

Outside the US, there have also been sporadic successes. In 2009, an Italian court convicted, in absentia, CIA agents who were responsible for the kidnap in broad daylight from a street in Milan, and the rendition to torture in Egypt of a cleric, Abu Omar, and the European Court of Human Rights has issued rulings against two countries: Macedonia, regarding Khaled El-Masri, who was seized in Macedonia on behalf of the CIA and sent to a “black site,” until it was discovered that he was a case of mistaken identity, and, Poland, regarding Abu Zubaydah and Abd al-Rahim al-Nashiri, who were held in the “black site” that existed there from 2002-03.

Now lawyers with the Center for Constitutional Rights in New York are urging the International Criminal Court (ICC), which is marking the 20th anniversary of its establishment, to “demonstrate its maturity,” as CCR senior staff attorney Katherine Gallagher explained in an article for the Guardian, by proceeding with “a request to investigate members of the US Central Intelligence Agency and the US armed forces for torture and other serious crimes committed in Afghanistan or in Eastern Europe in the so-called ‘war on terror.’”

As Gallagher described it, “A criminal investigation of US torture – and other serious crimes in Afghanistan – is long overdue.”

In November, Fatou Bensouda, the International Criminal Court’s chief prosecutor, “lodged a request to open a formal investigation following a decade-long preliminary investigation into possible international crimes committed in Afghanistan since it became a member of the court in May 2003, as well as to related crimes in other member states since July 2002,” as Gallagher described it, adding that it also followed “longstanding efforts” by CCR “to hold high-level Bush administration officials accountable, through the principle of universal jurisdiction, for many of the human rights violations that the imminent ICC prosecution would encompass.”

As she explained, CCR has “pursued former US officials in Canada and around Europe, seeking to hold them accountable for torture at Guantánamo, Afghanistan, and secret ‘black sites’ around the globe.” I reported on those efforts at the time — see George W. Bush, War Criminal, Is Not Welcome in Europe, my cross-post of the case against him, which is one of my most popular articles ever, having had nearly 900 likes on Facebook, and Rights Groups Call for the Arrest of George W. Bush for Torture as He Arrives in Canada.

The ICC Pre-Trial Chamber is currently, in Gallagher’s words, “considering whether the proposed investigation – which would cover international crimes allegedly committed by the Taliban and affiliated armed groups, Afghan authorities, and members of the US military forces and the CIA – will go forward,” and as she explained, proceeding with an investigation would be hugely significant, becasue, “[t]o date, no high-level US official from the civilian leadership, military, CIA, or private contractor has been prosecuted for war crimes and crimes against humanity.” She added, “An ICC investigation could finally change that – bringing an end to the impunity US officials have enjoyed and, critically, some measure of redress to victims of the US torture program.”

Crucially, as she noted, “The investigation would cover not only serious crimes in the context of the armed conflict in Afghanistan but also crimes committed on the territory of other countries that are a member of the ICC where the crimes have a nexus to those committed in Afghanistan, such as Romania, Poland and Lithuania – all known to have hosted CIA black sites.” This is important, because, although the US is not a state party to the ICC, the court “has jurisdiction over all international crimes committed on the territory of a state party regardless of the nationality of the perpetrators.”

Gallagher also noted that the ICC “is unique among international criminal tribunals in that victims have an opportunity to participate in all stages of the proceedings, separate and apart from any role they might play as witnesses for the prosecution.” She proceeded to explain how, “In the short time-frame given to victims, thousands of victims presented their views on the proposed investigation – with most coming from Afghanistan, at a time when near-daily bombings targeting civilians continue – and almost all urged the Pre-Trial Chamber to authorize the investigation.”

Gallagher also explained how CCR has submitted “victim’s representations” on behalf of two of their clients — Sharqawi Al Hajj, one of ten men who arrived at Guantánamo from CIA “black sites” in September 2004, and Guled Hassan Duran (identified by the US as Gouled Hassan Dourad), one of 14 so-called “high-value detainees” who arrived at Guantánamo from CIA “black sites” two years later, in September 2006.

In its submissions, CCR has explained, drawing on publicly available information, how both men “were detained by the CIA in black sites or “proxy-detention” by other countries, tormented, and tortured,” urging the ICC to make sure that “any investigation include looking into extraordinary rendition and proxy detention sites overseen by the CIA, and continuing crimes at Guantánamo.”

As Gallagher added, “We have argued that the prosecutor should investigate crimes against humanity, i.e., a widespread or systematic attack against a civilian population, as well as war crimes by US officials,” noting that CCR “also set out for the ICC why it should focus its investigation on senior leadership of the Bush administration, including George Bush, Dick Cheney, and former CIA Director George Tenet, as well as private contractors who played a key role in developing the CIA torture program.”

Gallagher continued, “In pressing for such an investigation CCR is asking the ICC to reject the “war on terror” paradigm advanced by the US to justify not only its detention and interrogation program but also its global campaign of so-called ‘targeted killings’ and drone attacks in the wake of September 11.” This is an important addition, and one that also extends the ICC’s proposed remit to President Obama, who embraced drone attacks as, essentially, a replacement for the discredited rendition and torture program, and a revival of the assassination programs that existed long before the 9/11 attacks, choosing to ignore how much criticism was also levelled at the drone program by numerous legal experts.

Gallagher concluded her article by stating that, “Overall, Al Hajj and Duran’s victim’s representations make the case for a thorough investigation that brings an end to impunity for over a decade of international human rights violations related to the war in Afghanistan.” She added, “The ICC is deemed a court of last resort, the place to go when other courts in other countries have proved unable or unwilling to prosecute. The responsibility of US parties for crimes related to the war in Afghanistan, for which impunity has reigned for nearly 15 years, is exactly the sort of case the ICC was designed to take on.”

Her article ended, “An investigation will make clear that all victims of serious crimes have recourse to an independent and impartial process for having their claims heard. It will show that those who bear the greatest responsibility for serious international crimes will be held accountable. In short, it will demonstrate that no one is above the law. This is especially important in the face of a US president who has shown disdain for human rights, disregard for the law, and zeal for escalating the use of force in Afghanistan that will likely result in even more death and destruction. It is high time an international body takes action. The ICC Pre-trial Chamber should authorize the investigation.”

Last month, in an article about the potential investigation, IRIN, news analysts who were part of the UN until January 2015, noted that “many analysts” expected it to go ahead, and stated, “The potential case is a bold one – it would be only the second for the ICC outside Africa, where the court has become highly unpopular. Burundi has recently withdrawn from the court and South Africa is threatening to follow.

IRIN spoke to several experts who were supportive of the proposal to proceed with the investigation. Param-Preet Singh, the associate director of the international justice program at Human Rights Watch, said, “It’s an important first step in the direction of justice that has eluded victims for a long time in Afghanistan, but it’s definitely going to be hard. The ICC is going to face roadblocks to cooperation everywhere it turns.”

IRIN noted how analysts agreed that the US “will never cooperate with an ICC case against its armed forces, meaning Afghan victims won’t ever see an American in the dock at The Hague,” and also noted “dire warnings that a confrontation with the United States will hurt the fledgling court – already weakened by African disapproval and under fire for mistakes it has made in previous prosecutions.”

However, Mark Kersten, a fellow at the Munk School of Global Affairs and the deputy director of the Wayamo Foundation, said that “fear of confronting a major power is no reason for the ICC not to take on the case,” as IRIN described it.

As he said, “There’s no one on this planet that thinks the US will cooperate. But the vast majority of criticism and blame for that will be placed at the feet of Washington not the ICC. This is brave and courageous – exactly the kind of thing the ICC was supposed to investigate.”

Note: The image at the top of this article is from the website of the AMICC (the American NGO Coalition for the International Criminal Court), a Program of Columbia University Institute for the Study of Human Rights, which states, as its vision, “AMICC believes strongly in the power of the International Criminal Court (ICC) to promote fundamental human rights and the foundational American principles of liberty and justice for all people worldwide. It is our firm belief that full American participation in the ICC and subsequent ratification of the Rome Statute will both enhance the aims of the court and help bring to fruition the vision of our United States. ”

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose music is available via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and the Donald Trump No! Please Close Guantánamo initiative, launched in January 2017), the co-director of We Stand With Shaker, which called for the release from Guantánamo of Shaker Aamer, the last British resident in the prison (finally freed on October 30, 2015), and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

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