JURIST Guest Columnist Benjamin G. Davis of University of Toledo College of Law discusses the International Criminal Court’s looking into investigating Americans for criminal prosecution for torture of prisoners in Afghanistan…

As has been recently reported in the news, the International Criminal Court is looking into investigating Americans for criminal prosecution for torture in Afghanistan. A commentary at lawfareblog almost solely focused on how the United States can avoid such prosecutions, as opposed to how we could assist the ICC in successfully prosecuting the high level torturers, prompts this comment.

The most serious American offenders capable of putting in place a 54 country torture regime with Afghanistan being merely one spoke in a wheel and spoke torture structure would be the logical focus of such an ICC effort. The CIA and DOD personnel onsite in Afghanistan in the Salt Pit and other places of course are in the line of fire, but as revealed in the Senate Select Committee on Intelligence declassified summary of their torture report, actions were directed in the most minute detail by others in the US and around the world. Those actions in the US and around the world might be addressed in this setting under the territoriality principle of actions overseas having and intending to have effects in a country make those actions abroad within the jurisdiction of that country. In this case the effects test leads to Afghanistan at least and from there to ICC jurisdiction.

US failure to meaningfully investigate let alone prosecute one senior level official for such torture is patent. The capacity of the US to in fact prosecute has been demonstrated for low level soldiers such as those court-martialed at Abu Ghraib. The consequence of this different treatment between the lower level persons and the higher ups which has now persisted over both Republican and Democratic administrations is strong evidence of American “inability and/or unwillingness” to hold these high level people to account. In the harsh light of international law, the domestic US foreign relations law machinations to protect our high-level torture mafia from their day of reckoning appears hopelessly transparent and painfully hypocritical.

The Status of Forces Agreement between Afghanistan and the United States provides one method of allocating jurisdiction for such prosecutions, but under a hierarchy of norms view of the SOFA it would be the height of perverse bad faith performance for the SOFA to operate as a get out of prosecution card.

In the event the investigation proceeds to actual indictment, some who might speak of head of state immunity rationae materiae or personae preventing third States or Afghanistan handing over Americans as a matter of international law should keep in mind that those protections are not impediments to the United States itself handing over its own high level present and/or former officials to the ICC. And to the extent there is US domestic law that seemingly would prevent such a handover, surely that unitary Executive Power so bandied about by the proponents of torture would reach the ability and allow the President to bring American torturers to justice albeit in The Hague. I would fully expect a US citizen to seek judicial review under habeas or otherwise to protest their handover by the United States to the ICC, but surely the guarantees of the ICC process would not disturb an American court. And, that American would have their day in court, an American court, before they were sent by our state to The Hague.

In the end, if internal law rules are invoked to prevent such a rendition by the United States, surely the kinds of surreptitious renditions used in the torture regime might be reinvigored by the Deep State Intelligence aspects of our government to make such transfers to The Hague. Moreover, under the old and banal international legal rule that no state can extract itself from its international obligations through its internal law, US treaty obligations under the Convention Against Torture or customary international law serve to temper and possibly trump those internal law rules.

Those who find this commentary nonsensical or outrageous as it imagines the United States handing over Americans to an international criminal tribunal to be prosecuted for crimes directed and ordered by the President of the United States should not feel that way. The problem these persons are facing is their own inability to comprehend such high level lawlessness as a crime that should be preferably sanctionable in United States domestic courts. Our inability to do that prosecution opens the way to think how alternatives might be put in place. This commentary is suggesting that rather than time being spent and words being written in order to caress American torturers in a direction that keeps them on the streets, we might think about getting this scum off the streets and in front of a decent court.

Benjamin G. Davis, professor of law, is a former member of the American Bar Association (ABA) Standing Committee on Law and National Security. He is a Founder of Advocates for US Torture Prosecutions. Davis led the adoption of the 2006 American Society of International Law Centennial Resolution on Laws of War and Detainee Treatment. Davis is an international expert on topics such as cyber dispute resolution, drones, detainee treatment, military commissions, torture and international law. He is a graduate of Harvard College (BA), and Harvard Law School and Harvard Business School (JD/MBA).

Suggested citation: Benjamin G. Davis, American Standing Against ICC Torture Inquiry, JURIST – Academic Commentary, Mar. 12, 2017, http://jurist.org/forum/2017/02/Benjamin-Davis-american-standing-against-icc-torture-inquiry.php