In this post I will focus on the situations in Afghanistan and Ukraine. I will explore the pros and cons of investigations against non-signatory states that are also permanent members of the United Nations (UN) Security Council (P5 member states) and are unlikely to allow their nationals to be prosecuted at the International Criminal Court (ICC).
Situation in Afghanistan
The situation in Afghanistan examines the alleged crimes committed during the armed conflict between the Afghan Government supported by the International Security Assistance Force (ISAF – first established by the UN Security Council, and later under NATO command) and the United States (US) forces on one side, and anti-Government forces (particularly the Taliban, and other groups) on the other side.1 The conflict broke out in late 2001, triggered by the attacks of 9/11 (September 11, 2001). A US-led coalition launched air strikes and military operations against the Taliban in Afghanistan. After Osama bin Laden’s death in 2011, NATO gradually withdrew its forces. By 2014, the international forces supporting the Afghan Government ended their combat missions, but some forces remain for training, advisory, and assistance purposes.2
The ICC Office of the Prosecutor’s (OTP) examination covered various crimes committed during this armed conflict. The alleged perpetrators are the Taliban and other anti-Government groups, members of the Afghan authorities, and members of the US armed forces and the United States’ Central Intelligence Agency (CIA). Allegedly, some members of the US armed forces and CIA operatives, with the approval and following a US government policy,3 may have committed war crimes by torturing detainees in Afghanistan and some European states (some detainees were transferred for interrogation to secret detention facilities in Poland, Lithuania, and Romania).4
The OTP was not able to obtain any concrete information about national investigations of potential cases in Poland, Lithuania, and Romania.5 According to the OTP’s Report on Preliminary Examination Activities (Report), none of the US national prosecutions by courts martial dealt with allegations of ill-treatment by military personnel in Afghanistan,6contrary to the US response to the Committee Against Torture in 2015 regarding investigations of detainee abuses.7
The US Department of Justice (DOJ) 2009-2011 investigation into allegations of torture and ill-treatment resulted in no indictments,8 unsurprisingly raising concerns by human rights advocates.9 The DOJ declined to initiate criminal charges because “the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt.”10
The OTP claims that the DOJ review was limited to investigating whether “any unauthorized interrogation techniques were used, and if so, whether such conduct could constitute violations of any applicable criminal statutes.”11 In other words, if the conduct was in compliance with the approved techniques/policy, there was no need for further investigations. The US Attorney-General investigated only the cases of two detainees who had died in CIA custody.12 Because the alleged crimes were committed according to plans and policies approved “at senior levels of the US government, following careful and extensive deliberations,” the OTP concluded that the gravity of these crimes was increased.13The OTP intends to make a decision as to whether to request an investigation into war crimes committed in Afghanistan “imminently.”14
Situation in Ukraine
The situation in Ukraine started in late November 2013 with Maidan protests prompted by the decision of the Ukrainian Government not to sign an Association Agreement with the European Union. These protests escalated to violent clashes between the protesters and the Ukrainian Government. President Viktor Yanukovych flew to the Russian Federation (Russia) and was impeached by the Ukrainian Parliament.15
In late February 2014, protests against the new Ukrainian Government began in Eastern Ukraine and the Crimean Autonomous Republic (Crimea). On 27 February 2014, armed individuals bearing no identifying insignia seized control of the Crimean peninsula.16 Russia later admitted the involvement of its military personnel, justifying its actions on the basis of protecting Russian citizens and a request from (former) President Yanukovych. On 18 March 2014, following a referendum declared invalid by most of the UN states, Russia annexed Crimea by signing a treaty with the Crimean authorities.17
Parallel to events in Crimea, protests in Eastern Ukraine resulted in the seizure of government buildings and the emergence of anti-government paramilitary groups. The situation quickly deteriorated into armed violence.18 In April 2014, the Ukrainian Government started an “anti-terror operation” but by the end of April it had lost control of Donetsk and Luhansk – the two cities central to the self-proclaimed Donetsk and Luhansk People’s Republics (DPR and LPR). Both remain unrecognized by most states including Russia.19
Information collected by the OTP so far “suggests that the situation within the territory of Crimea … amounts to an international armed conflict between Ukraine and the Russian Federation.”20 The OTP observed that the situation “factually amounts to an on-going state of occupation.”21
The alleged crimes in Crimea include harassment of the Crimean Tatar population, killings and abductions, ill-treatment, arbitrary detention, the denial of due process, and compelled military service.22
Concerning Eastern Ukraine, the OTP is assessing whether the “Russian authorities have provided support to the armed groups in the form of equipment, financing and personnel, and also whether they have generally directed or helped in planning actions of the armed groups in a manner that indicates that they exercised genuine control over them.”23
Serving cases on a silver platter
So, how much sense does it make for the OTP to request and open an investigation into these two situations when, assuredly, the US and Russia will refuse to cooperate or hand over the alleged perpetrators?
Donald Trump and his coterie of four-star generals and hard-liners expected to be part of his national security team (CIA Director Mike Pompeo, known for his views on using harsh interrogation techniques on detainees and strong opposition to the Iran nuclear deal; Secretary of Defense James “Mad Dog” Mattis, Retired Marine Corps General; National Security AdvisorMichael Flynn, Retired Lieutenant General; and Head of the Department of Homeland Security John F. Kelly, Retired Marine Corps General) seem to be amenable to the use of “enhanced interrogation techniques,” a code phrase for torture (Trump has previously said that he sees waterboarding as an acceptable means of obtaining actionable intelligence). They likely have little use for international norms that get in the way of their view of how the US should protect itself against external threats such as ISIS. And they certainly will not cooperate with the likes of the ICC, especially in investigating and prosecuting US military and civilian personnel involved in protecting the homeland.24
Similarly, Russia is unlikely to cooperate with the ICC. Shortly after the OTP issued the Report, President Vladimir Putin signed a decree to withdraw Russia’s signature of the Rome Statute (despite the fact that it has never ratified it). According to the press-release of the Ministry of Foreign Affairs, the ICC “failed to meet the expectations to become a truly independent, authoritative international tribunal.” It characterized the ICC as “ineffective and one-sided.”25 Russia also criticized the OTP’s examination of Russia’s five-day conflict with neighboring Georgia in 2008, stating that such examination resulted in “accusations against South-ossetian militia and Russian soldiers,” while investigations against Georgian government officials were left to the discretion of the national authorities. Considering these developments, Russia “can hardly trust the ICC….”26
The OTP is obligated to examine all information that comes to its attention.27 As a starting point, it must review whatever evidence or information it is provided. It must also go further and proceed with a formal investigation, if certain criteria are met.28 In other words, it does not have the discretion (luxury) to decide whether to investigate based on the likelihood of success in getting the alleged perpetrators before the ICC. But if the likely outcome of the investigation is going to lead to no viable prosecutions because the alleged perpetrators are from P5 member states (or other states who are not signatories of or have not ratified the Rome Statute), does it make much sense to be spending the ICC’s limited human and financial resources in pursuing such cases?
From a cost-effective point of view, the answer is no. But that seems to be beside the point. Whether certain actors cooperate with the ICC is ancillary if part of the raison d’être of the OTP is to investigate crimes that fall under the ICC’s jurisdiction – irrespective of whether it will ultimately pursue prosecutions. If indeed this is the case (and it seems so), then the ICC, for all intents and purposes, is expected to serve as an investigative organ of the international community.
By investigating, gathering evidence, and preparing cases for prosecution (compiling case files with sufficient admissible evidence that meets the standard and burden of proof for conviction), the OTP may affect some positive results: nudging (by naming and shaming if necessary) certain states – including P5 member states such as the US and Russia – into prosecuting in domestic courts cases that fall within the ICC’s jurisdiction. To this end, by serving on a silver platter fully investigated cases for states to prosecute, the OTP puts the onus on the states to adhere to and abide by the international norms expected of all states, irrespective of their status within the international community or “the Parliament of man.”29
My next post will deal with the OTP’s reconsideration of the Mavi Marmara incident. Hopefully, it will help to shed some light on the Pre-Trial Chamber’s request to the OTP to reconsider the decision not to initiate an investigation into the Mavi Marmara.
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