US officials and military officers implicated by the Senate report on torture could face arrest in other countries as a result of investigations by their national courts, human rights lawyers said on Wednesday.
The report, released on Tuesday by the Senate intelligence committee, found the CIA misled the White House, the Justice Department, Congress and the public over a torture programme, launched in the wake of the 9/11 terror attacks, that was both ineffective and more brutal than the agency disclosed.
“If I was one of those people, I would hesitate before making any travel arrangements,” said Michael Bochenek, director of law and policy at Amnesty International.
The Obama administration wound up an inquiry into criminal responsibility for the use of torture in 2012, without launching any prosecutions and it is unclear whether the Senate intelligence comittee’s findings on the CIA’s interrogation techniques will lead to that decision being reviewed.
“Obviously this is something for US justice, both military and civilian, to take up. They have the first bite of the apple,” said Richard Dicker, the director of Human Rights Watch’s international justice programme. “But we have not seen any persuasive indicators that the department of justice is willing to step up to its responsibilities.”
However, because torture is considered a grave crime under international law, other governments could arrest and prosecute anyone implicated in the report who happened to be on their territory under the principle of universal jurisdiction.
“It is a legal avenue open to states with those laws on their books and the political will,” Dicker said. “Many European states and many states internationally have those laws”
“Some of these people will never leave US borders again,” Bochenek said. “If say, one of them goes on holiday in Paris, then France would have the legal obligation to arrest and prosecute that individual. States have clear obligation in cases of torture.”
As the repercussions of the report spread around the world, Poland’s president, Bronislaw Komorowski, said it would be critical for an inquiry underway on the running of a secret US prison “black site’’ on Polish soil. “I think the American report will revive that inquiry. I also think that it will provide, if not new information, then guidance as to the conduct of the investigation in Poland.”
Former Polish president Aleksander Kwasniewski admitted on Wednesday that there had been a secret CIA interrogation site in the country, but insisted he tried to convince US President George Bush to close it.
“I told Bush that this cooperation must end and it did end,” Kwasniewski said.
Polish prosecutors have asked for access to the full Senate report, which is 10 times longer than the 500-page declassified version published on Tuesday. That version said that 119 detainees in the “war on terror” were held at black sites around the world. The names of the countries were redacted but they are thought to include Afghanistan, Poland, Romania, Thailand and Lithuania. Lithuanian prosecutors have also asked to see the full report.
“If the information proves correct, Lithuania will have to take responsibility,” the country’s president Dalia Grybauskaite, said. Valdas Adamkus, Lithuania’s president at the time, denied any knowledge of a secret prison on Lithuanian soil.
“I am still convinced that there had been no jails and no prisoners from there”, Adamkus said
Scotland’s chief law officer, the Lord Advocate Frank Mulholland told the police to review the Senate report as part of an inquiry into whether rendition flights carrying CIA detainees used Scottish aiports.
“The use of torture cannot be condoned,” Mulholland said in a statement. “It is against international law and contrary to the common law of Scotland. I have instructed Police Scotland to consider the information published in the US Senate report as part of the ongoing police investigation into rendition flights into Scotland.”
In the most famous case of the application of universal jurisdiction for severe human rights abuses, the former Chilean dictator Augusto Pinochet was arrested in London in 1998 on the basis of an indictment issued by a Spanish court. In 2009, Westminster magistrates court issued an arrest warrant for the former Israeli foreign minister Tzipi Livni. Israel subsequently demanded a change in UK law that would allow her to travel without fear of arrest.
The Senate report will almost certainly be assessed by the international criminal court as part of a preliminary examination of US treatment of detainees in Afghanistan.
However, it is seen as unlikely that the ICC’s inquiry will lead to charges against the US officials involved in the torture programme, for both legal and political reasons.
“Certain of the enhanced interrogation techniques apparently approved by US senior commanders in Afghanistan in the period from February 2003 through [to]June 2004, could, depending on the severity and duration of their use, amount to cruel treatment, torture or outrages upon personal dignity as defined under international jurisprudence,” the ICC prosecutor’s office said in an annual report on its activities.
Earlier this month, the court, which is based in The Hague, revealed that it was looking into the potential US torture of detainees in Afghanistan. “In addition, there is information available that interrogators allegedly committed abuses that were outside the scope of any approved techniques, such as severe beating, especially beating on the soles of the feet, suspension by the wrists, and threats to shoot or kill,” the prosecutor’s office said.
Bochenek said that the ICC inquiry represented “the most obvious way the report would enter the ICC’s jurisdiction”.
The 500-page Senate report, which includes newly declassified memos, would be examined by the prosecutor’s offices to assess how widespread the use of torture was and who could be held criminally responsible, but the preliminary examination would have to pass several legal and procedural hurdles before it could proceed to a full investigation.
The prosecutors would have to make a call on whether the scale of the abuse warranted judgment from an international court established to prosecute “the most serious crimes of concern to the international community as a whole”. The Senate report mentions 39 known cases of enhanced interrogation techniques, only some of which took place in Afghanistan. There are no exact benchmarks for the ICC’s jurisdiction, but it has tended to examine mass crimes involving many thousands of victims.
“The ICC was designed to end impunity for the most egregious and shocking breaches of the law, and it is hard to see how alleged detainee abuse by US forces meets that standard,” Ryan Vogel, an assistant professor at the Chicago-Kent College of Law and former policy adviser to the US defence secretary, argued on the Lawfare Blog.
However, Bochenek argued that the significance of the US torture programme went beyond simple numbers of victims. “This was the world’s only superpower that has carried out a programme of torture and tried it cover it up in a reprehensible way and recruited the help of some 50 other countries in the programme.”
Vogel also pointed out that, on the principle of complementarity, the ICC prosecutors would have to demonstrate that the US was unwilling or unable to prosecute the abuses itself. The ICC would have to show that the American process was essentially a sham. The prosecutor’s office alluded to these obstacles, saying it was “analysing the relevance and genuineness of national proceedings by the competent national authorities for the alleged conduct described above as well as the gravity of the alleged crimes”.
Furthermore, the US is not a state party to the ICC. Bill Clinton signed the Rome statute establishing the court during his last days in office in 2000, but his successor, George W Bush, withdrew US assent to the document.
The Afghan government could request an ICC investigation as it is a state party to the statute and the abuses were committed on its soil, but Kabul is an American ally and dependent on US economic and military support. An ICC investigation would also look at abuses by all parties in Afghanistan over a given period, including the Kabul government.