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Torture Charges Against the US Considered by International Criminal Court

US armed forces and the CIA may have committed war crimes by torturing detainees in Afghanistan and elsewhere, the International Criminal Court’s chief prosecutor says in a recent report, raising the possibility that US citizens could be indicted.

“Members of US armed forces appear to have subjected at least 61 detained persons to torture, cruel treatment, outrages upon personal dignity on the territory of Afghanistan between 1 May 2003 and 31 December 2014,” according to the Nov. 14 ICC report issued by Chief Prosecutor Fatou Bensouda’s office in The Hague.

The report says that CIA operatives may have subjected at least 27 detainees at its secret prisons in Afghanistan, Poland, Romania and Lithuania — to “torture, cruel treatment, outrages upon personal dignity” including rape, between December 2002 and March 2008. Individuals captured by US forces in Afghanistan were transferred to the secret CIA prisons, sometimes referred to as “black sites” where prisoners were chained to ceilings, “chained to walls and forgotten [one for 17 days] froze to death on concrete floors, and were waterboarded until they lost consciousness” according to the 2014 Senate Intelligence Committee Report on the torture program.

On Dec. 9, 2005, the State Department’s deputy spokesman Adam Ereli said the United States would continue to deny the Red Cross access to prisoners it was holding secretly around the world, claiming they were terrorists who were not guaranteed any rights under the Geneva Conventions. The Red Cross complained that its central purpose is to protect the human rights of prisoners, all of whom deserve protection under international humanitarian law — binding treaty laws that include the absolute, unambiguous prohibition against torture.

More than 120 countries are members of the ICC, but the US is not. Although the US refused to join the 2002 Rome Statute that created the ICC and established its authority, US military personnel and CIA agents could still face prosecution because their crimes were allegedly committed within Afghanistan, Poland, Romania and Lithuania — all members of the ICC.

The ICC’s jurisdiction can be invoked when allegations of war crimes are not investigated and prosecuted by the home governments of the accused. The Guardian reported that the “ICC is a court of last resort that takes on cases only when other countries are unable or unwilling to prosecute.” Writing in Foreign Policy magazine last October, David Bosco noted, “The prosecutor’s office has repeatedly called attention to alleged abuses of detainees by US personnel between 2003 and 2005 that it believes have not been adequately addressed by the United States.”

“Committed with particular cruelty”

Bensouda’s report says about alleged US war crimes, they “were not the abuses of a few isolated individuals. Rather, they appear to have been committed as part of approved interrogation techniques in an attempt to extract ‘actionable intelligence’ from detainees. The information available suggests that victims were deliberately subjected to physical and psychological violence, and that crimes were allegedly committed with particular cruelty and in a manner that debased the basic human dignity of the victims,” the ICC report says.

Reuters noted that the Senate committee released 500 pages of excerpts from its report and found that torture was committed. Official photographs of the abuse are evidently so incriminating that the military, as recently as February 9th this year, refused to release 1,800 pictures that the public has never seen.

The George W. Bush administration, which authorized and implemented torture in Iraq, Afghanistan and the offshore penal colony at Guantanamo Bay, was fiercely opposed to the ICC, but Afghanistan, Lithuania, Poland and Romania are all members, which gives the court jurisdiction over crimes committed within those territories. This could lead to prosecution of US citizens.

Both President Bush and Vice President Dick Cheney have boasted in public about waterboarding which was sanctioned, “legalized,” and practiced widely under their command authority. Asked during a televised interview about what he called this “enhanced interrogation technique,” Mr. Cheney said, “I’d do it again in a heartbeat.”

During a Republican primary debate Donald Trump said, “I would bring back waterboarding and I’d bring back a hell of a lot worse than waterboarding,” a statement he repeated many times. Gen. Michael Hayden, a former director of both the CIA the NSA, reacted in a televised interview: “If he [Trump] were to order that, once in government, the American armed forces would refuse to act. You are required to not follow an unlawful order. That would be in violation of all the international laws of armed conflict.” President-elect Trump also repeatedly called for targeted assassinations of family members of suspected terrorists. Both actions are prohibited by US military service manuals and by international treaty law, crimes ultimately prosecuted by the ICC.

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John LaForge is a Co-director of Nukewatch, a peace and environmental justice group in Wisconsin, and edits its newsletter.

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