In the courts and beyond, a global civil society has been fighting on multiple fronts to chip away at the impunity of the world's most powerful nation. From States of Impunity.
Following the publication of the summary of the US Senate Intelligence Committee Study, authorities can no longer hide, deny or downplay the torture of detainees carried out by the CIA in various locations worldwide after 2001. The use of torture in interrogations was carefully planned, developed and executed. It involved many administrative levels–from presidential orders and legal department memos to approvals from state secretaries and agency directors–as well as the armed forces. Far from being the twisted work of a small number of individuals in a special operation, torture represented an official policy of the Bush administration.
The torture is well documented: waterboarding, sleep deprivation, isolation and sensory deprivation, religious, sexual and moral humiliation, stress positions, environmental manipulation, beatings, and more. Also revealed were the names of those who drafted and approved the memoranda on torture as well the names of those who opposed them. Those who objected to the policy at an early stage now have an important role to play as witnesses to the development of the torture program.
Prosecutions are the only way forward
Torture is a crime and is subject to an absolute prohibition as set out in the United Nations Convention against Torture, in force since 1987. The ban on torture was given the status of an absolute prohibition–meaning there are no circumstances under which it can be justified–following deliberations on the drafting of the convention and to reflect the experiences of torture throughout history. The drafters of the convention looked at the experiences of torture around the world over centuries. Some of the points for debate included whether torture can everproduce positive results, the effects of the use of torture on societies and a state’s responsibilities for its treatment of individuals who are in detention or under full state control. 156 states have to date accepted the absolute prohibition of torture, including the US in 1994.
So how should we respond when the most powerful nation in the world commits torture? The Convention obliges all states to prosecute those responsible for the use of torture. The US refuses to enforce its obligation towards it own citizens, arguing that evidence is inadmissible since certain elements, such as victims' names and statements as well as details of foreign location, constitute classified information. Without admissible evidence there can be no trial, without transparency no prosecutions. The US is using claims of national security to protect its torturers. It's a political decision, with senior figures turning to legal constructions to avoid accountability.
There exist only very few examples of a state's willingness to prosecute persons who hold public office, particularly if it involves systematic criminality that is based on government policies and where the persons most responsible hold or held senior governmental positions. Like the US, the UK is unwilling to criminally prosecute cases on torture in Iraq; similar reluctance to pursue proceedings for state-related crimes can be seen in Sri Lanka, Egypt, Uzbekistan and many other countries.
Criminals should not be allowed to continue to enjoy impunity until a new political system or shifts in political relations finally make prosecution possible. The Convention against Torture as well as other international treaties, e.g. on war crimes or enforced disappearances, offers a solution born of decades of states’ unwillingness to take action. These treaties oblige every state to prosecute individuals for international crimes, even if committed by perpetrators from another state and in another state. The only limitation for the prosecution for torture is that a suspect must be present in the third party state seeking to prosecute. This means that US officials with reason to fear prosecutions now avoid travel to countries with a functioning judiciary where they cannot expect to be shielded. This applies to hundreds of former and current CIA employees, with former CIA General Counsel John Rizzo explicitly confirming his reluctance to travel to Europe. On another occasion in 2011, former President George W. Bush cancelled a trip to Switzerland to avoid legal proceedings regarding the torture program. The US is using claims of national security to protect its torturers. It's a political decision, with senior figures turning to legal constructions to avoid accountability.
Is that enough? Certainly not. But it does at least keep the pressure on the US to proceed with domestic prosecutions, and breaking the culture of silence around it.
CIA torture before the ICC
In 2002, the International Criminal Court (ICC) began its work in The Hague. The ICC has the power to prosecute torture as a war crime, i.e. if torture has been committed in the context of an armed conflict. The US signed the Statute of the Court in 2000 but subsequently refused to ratify it and went on to withdraw its signature. However, the Court has jurisdiction over crimes under its remit committed on the territory of one of its member states. Iraq has not ratified the Statute, so acts of torture committed by the US in the Iraq war lie outside its jurisdiction (but acts by the UK in Iraq are under the jurisdiction, since the UK is a member of the ICC). Afghanistan ratified the Statute and thus crimes committed in Afghanistan are under the jurisdiction of the ICC as of May 2003.
The drafters of the ICC Statute also relied on the history and experiences with regard to the prosecution of international crimes. A key element is the frequent unwillingness of a state to prosecute its national–and often high-level–perpetrators themselves. As a result the ICC Statute includes a provision stipulating that a case is only admissible where a state is unable or unwilling to prosecute, known as the complementarity test. So the primary burden remains on the state to deal with accountability issues.
Since the US is clearly not pursuing prosecutions for the torture perpetrated by its citizens in Afghanistan, in detention centers such as Bagram or the CIA black site known as the "Salt Pit", the US will face difficulties in demonstrating otherwise before the ICC. The Office of the Prosecutor of the ICC has already initiated the preliminary examination stage, using its proprio motu powers, with a view to opening a full formal investigation in the future. The examination phase includes allegations of crimes under the jurisdiction of the ICC committed by all parties to the conflict, including the Taliban and Afghan government forces as well as international forces. Regarding the US, the Office of the Prosecutor is currently focusing on torture and ill-treatment of conflict-related detainees by US armed forces between 2003 and 2008.
However, the CIA rendition and torture cases in Afghanistan seem not to be in the focus of the ICC at the moment, since the Prosecutor explicitly refers to torture by the armed forces and to conflict-related detainees, and not those arrested outside the battlefield and rendered to Afghanistan. A careful analysis of the Senate’s Study on CIA torture and the particular circumstances of US operations against the Taliban, al-Qaeda and others in Afghanistan could lead to changes of the current position of the Office of the Prosecutor.
While prosecution by the ICC would be an important step, the strongest effects would be triggered by prosecutions for the acts of torture in the USA itself. If a local judiciary deals with crimes committed by state officials, there is much more political scope for permanently eliminating the use of torture as a policy.
Still a long way to go
History has shown that it often takes decades before the states are willing to prosecute their perpetrators for torture and other crimes. In Argentina and Chile, trials dealing with crimes under military dictatorships in the 1970s and 80s are still ongoing, some 30 years after the events. There could be many more examples. There is much to be learnt from the experiences of how these domestic trials have been brought about despite the long period of time elapsed. Key to the success of the prosecutions was the unwavering work done by lawyers, victim support groups and others to document the crimes, and to analyze chains of command and the roles played by individuals within the policies and the political system behind it. The documentation work began the moment a crime was committed.
Another ever-present aspect was the aforementioned role of the judiciaries of other states or at an international level. The obligation set out in the UN Convention against Torture for third states to prosecute is included because of the importance of such trials when it comes to preventing and punishing torture. German Nazi crimes have come before courts of the allied powers in Nuremberg and elsewhere, while many European justice systems have investigated dictatorship crimes in Argentina and Chile.
This experience is the reason why lawyers and NGOs have been pushing for accountability for US torture before courts worldwide since 2004. Central roles were played by the Center for Constitutional Rights (CCR) in New York as well as the European Center for Constitutional and Human Rights (ECCHR) in Berlin together with their lawyers Michael Ratner and Wolfgang Kaleck. The first cases were filed in 2004 and 2006 in Germany and involved extensive complaints detailing the background and context of the US torture program, as well as the responsibility of the armed forces, the CIA, and the government lawyers involved. The CCR, ECCHR and their cooperating lawyers also achieved victories for their clients resulting in French and Spanish law enforcement authorities initiating investigations and gathering evidence such as witness statements on Guantanamo. In the latest decision, a French Appeals Court summoned former Guantánamo commander Geoffrey Miller to testify.
Investigations, supported by international NGOs, are also ongoing regarding CIA black sites in Poland and Lithuania. These have been aided by supportive judgments from the European Court of Human Rights increasing the pressure on states to prosecute. Italian courts handed down convictions in absentia to CIA officials for rendition and torture; German courts issued 13 arrest warrants in a similar case. The announcement of a criminal complaint for torture by CCR and ECCHR caused the last minute cancellation of a trip by former President George W. Bush to Switzerland in 2011.
While lawyers and NGOs will continue to press for investigations in other states in order to secure evidence and to name suspects, the ICC will increase the pressure on the US to address torture in Afghanistan. At the same time, the US must debate and rethink its strategy of seeking to avoid prosecutions by classifying evidence. As many other examples in the past show, it is extremely difficult for a state to deal with past criminal policies. Meaningful accountability processes can take decades. This is the case not only in dictatorships and countries without a functioning judiciary, but also in some of the biggest and oldest democracies in the world, places where one might expect or hope for a different approach.
Establishing the truth and securing accountability will remain on the US agenda for many more years to come. It is a team effort driven by victims, lawyers and NGOs and supported by third states' judiciaries, international bodies and courts. While the road ahead is a long one, the absolute prohibition of torture as enshrined in the UN Convention against Torture–with its various provisions born of humanity’s terrible history of torture–calls for a global reaction to the policies of torture.