While “high crimes and misdemeanors” dominated the news cycle in Washington this month, the focus in The Hague was on grave crimes and mistreatment. Just days before the International Court of Justice (ICJ) held a hearing on The Gambia’s suit against Myanmar for genocide of the Rohingya people, the International Criminal Court (ICC) held a momentous hearing of its own: From Dec. 4 through Dec. 6, five judges in the ICC Appeals Chamber heard arguments about whether to open an investigation into alleged war crimes and crimes against humanity related to the armed conflict in Afghanistan, including crimes committed by the CIA and the U.S. military.

If authorized, the proposed ICC investigation into the situation in Afghanistan would mark the first time since the Court’s creation that U.S. actors could face liability for grave international crimes committed on the territories of State Parties to the Rome Statute, which established the ICC. It is also the first time the Appeals Chamber has been called upon to review a refusal to authorize an Article 15 proprio motu request by the ICC Prosecutor to conduct an investigation.

We participated in the hearing on behalf of several U.S. torture victims who, for nearly 15 years, have been seeking justice and accountability for serious harms they suffered on the territories of multiple countries, including Afghanistan and other Member States of the ICC: Mohammed al-Asad, represented by the Global Justice Clinic at New York University School of Law; and Sharqawi al Hajj and Guled Hassan Duran, two men represented by the Center for Constitutional Rights who both remain detained at Guantánamo without charge. Like other victims of the U.S. torture program and Afghan victims of crimes committed by the Taliban, as well as Afghan and international armed forces, who had separate legal counsel in these proceedings, our clients have turned to the ICC as the court of last resort. (Other victims represented at the appeal hearing included Abd al-Rahim al-Nashiri, represented by Nancy Hollander, Mikolaj Pietrzak and Maria Radziejowska; Ahmed Rabbani and two other victims of the U.S. torture program, represented by Megan Hirst and Tim Moloney, QC, instructed by Reprieve; and 82 Afghan victims, represented by Fergal Gaynor and Nada Kiswanson van Hooydonk.)

This essay provides background on the hearing, highlights from the oral arguments, and reflections on potential next steps.

Background: The Prosecutor’s Request, the Political Pressure, and the “Impugned Decision”

The Request

In November 2017, the ICC Prosecutor, Fatou Bensouda, submitted a nearly 200-page request seeking authorization to open an investigation into crimes within the jurisdiction of the Court committed by the Taliban, Afghan forces, and U.S. actors, in the context of the armed conflict in Afghanistan. Notably, the request sought authorization to investigate war crimes with a nexus to the armed conflict occurring on the territory of ICC Member States Romania, Lithuania, and Poland, which are all known to have hosted CIA black sites. The request followed an 11-year preliminary examination, initiated by Bensouda’s predecessor, Luis Moreno Ocampo. (Many of the issues raised by the proposed investigation were addressed in Just Security’s Symposium on the ICC Afghanistan Probe and the U.S., hosted by Laura Dickinson.)

The request was submitted pursuant to Article 15 of the Rome Statute, which sets forth the Prosecutor’s power to initiate investigations proprio motu, with authorization from the Court’s pre-trial chamber. The drafters of the Rome Statute instituted judicial review of Prosecutor-initiated investigations as a check against spurious or otherwise frivolous investigations.

Before this request, the Prosecutor’s office had sought authorization to investigate four other times—for the situations in Kenya, Cote d’Ivoire, Georgia, and Burundi. In each of those instances, authorization was granted. And since submitting the Afghanistan request, the Prosecutor has obtained authorization for another proprio motu investigation under Article 15: the situation of Bangladesh/Myanmar, approved in November. In the case of Afghanistan, however, it was refused – much to the surprise of Court watchers and international criminal law experts (see Alex Whiting’s prediction that it was “absolutely certain” the investigation would be authorized; Dickinson likewise remarked in her introduction to the symposium that experts were “virtually certain” the request would be granted).

The Rejection

The request was not answered for 420 days—more than four times longer than the Court took to decide any prior Article 15 application. On April 12, in a surprisingly short and thinly sourced decision that was widely condemned by human rights groups and commentators (including the former ICC Prosecutor Luis Moreno Ocampo, in a post here), Pre-Trial Chamber II (comprised of Presiding Judge Antoine Kesia-Mbe Mindua, Judge Tomoko Akane, and Judge Rosario Salvatore Aitala) unanimously rejected the Prosecutor’s request to open an investigation into the situation in Afghanistan on the grounds that it would not serve “the interests of justice.” Despite having found that there exists a “reasonable basis” to proceed with an investigation of crimes that fall within the Court’s jurisdiction and satisfy admissibility requirements at this preliminary stage, the Chamber nonetheless denied authorization, citing concerns about the “relevant political landscape both in Afghanistan and in key States (both parties and non-parties to the Statute),” the “complexity and volatility of the political climate,” and the feasibility of the investigation, including speculation about the unlikelihood of obtaining state cooperation, the unavailability of evidence and witnesses, and alternative uses to which the Prosecutor could put her budget. (See posts by Christian De Vos, Sergey Vasiliev, and Alex Whiting, commenting on the Pre-Trial Chamber’s interests of justice analysis.)

The Pre-Trial Chamber maintained that it was required to consider whether the requested investigation, which was strongly supported by nearly all of the 699 victim submissions received by the Court, would serve the interests of justice. It did so notwithstanding the Rome Statute’s presumption in favor of investigating serious international crimes, and the fact that the Prosecutor was neither required to make any affirmative showing that the investigation would serve the interests of justice, nor asked by the Chamber to do so. Notably, under Articles 15(4) and 53(1) of the Rome Statute, the Prosecutor need only establish a reasonable basis to believe that the situation includes a crime within the jurisdiction of the Court and that the crime would be admissible (based on complementarity and gravity), provided that she has found no “substantial reasons” to believe investigation would not serve the interests of justice. (For insights into drafting history of the “interests of justice,” see Gilbert Bitti’s two-part post in EJIL:Talk!)

The Pre-Trial Chamber purported to have victims’ interests in mind when it denied authorization, contending—in our view, patronizingly—that by not opening an investigation at all, the Court would avoid generating frustration and dashing victims’ hopes for justice when concrete cases did not materialize out of the investigation.

In addition to the heavily criticized interests of justice analysis, the Pre-Trial Chamber’s decision also contained questionable findings regarding the permissible scope of an authorized investigation and constructions of the Court’s subject matter and territorial jurisdiction that excluded certain categories of crimes and victims from the Prosecutor’s scrutiny. Specifically, it interpreted the Court’s jurisdiction over war crimes including torture and inhuman treatment in a way that appears to write our clients, and many other victims of the US torture program, out of the scope of any eventual investigation. Furthermore, in a part of the decision endorsed by only two of the Pre-Trial Chamber judges (see Judge Mindua’s separate opinion), the majority asserted that an Article 15 investigation must be limited to incidents specifically mentioned in the Prosecutor’s request or “closely linked” to them—thus undercutting the very purpose of an investigation.

U.S. Bullying

The Pre-Trial Chamber issued its decision in the wake of repeated threats against ICC judges, the Prosecutor, and staff, as well as threatened sanctions against the Court, by then-National Security Adviser John Bolton, Secretary of State Mike Pompeo, and President Donald Trump himself. (See Sergey Vasiliev’s piece, The Legal Line Crossed in Bolton’s Attack on the ICC , from September 2018.) The decision followed on the heels of the Trump administration’s revocation of Prosecutor Bensouda’s visa to the United States less than two weeks earlier. Whether the two events are related is unknown, but the timing contributed to the widespread perception that the Pre-Trial Chamber caved to U.S. pressure. Indeed, Pompeo issued a statement following the Pre-Trial Chamber’s decision in which he explicitly credited the U.S. campaign against the Court for the ensuing rejection of the request to investigate. The White House released a statement praising the decision and warning that, “Any attempt to target American, Israeli, or allied personnel for prosecution will be met with a swift and vigorous response.”

In June, the Center for Constitutional Rights submitted a complaint to the UN Special Rapporteur on the Independence of Judges and Lawyers regarding the U.S. threats to the ICC. To date, it remains pending.

Parallel Appeals of the “Impugned Decision”

The Pre-Trial Chamber’s April decision prompted appeals not only by the Prosecutor but also by victims who had submitted representations to the Court in support of the request. While all appellants cited similar legal errors and sought reversal of the “Impugned Decision” and authorization of the investigation, they did so via distinct routes: Several victims filed notices of appeal (available here, here, and here) directly to the Appeals Chamber, under Article 82(1)(a) of the Rome Statute, which permits an appeal as of right from a “decision with respect to jurisdiction or admissibility.” Victims argued that a decision which entirely forecloses the exercise of the Court’s investigative and prosecutorial jurisdiction over all alleged crimes related to a situation, and which contains express jurisdictional findings, is a decision with respect to jurisdiction. Having been rebuffed in the past when she tried to directly appeal a Pre-Trial Chamber decision regarding a separate situation, the Prosecutor took a more cautious route and sought the Pre-Trial Chamber’s permission to appeal, pursuant to Article 82(1)(d) of the Statute.

From the outset, the Prosecutor challenged victims’ standing to appeal the decision, contending that victims are not “parties” to the proceedings within the meaning of Article 82(1) and thus have no appeal rights. While reserving a decision on the matter, the Appeals Chamber ordered victims’ legal representatives to brief both admissibility issues and the merits. Throughout the appeal proceedings, the Prosecutor maintained that the Impugned Decision was not “a decision with respect to jurisdiction,” and thus not directly appealable under Article 82(1)(a)—contrary to victims’ position.

In their joint appeal brief, the legal representatives of seven victims (LRVs) of the U.S. torture program (comprised of four separate legal teams), raised four issues warranting reversal of the Impugned Decision:

(1) The Pre-Trial Chamber acted ultra vires in conducting its own, de novo assessment of whether the requested investigation would serve the interests of justice; (2) In the alternative, the Pre-Trial Chamber committed both substantive and procedural errors in conducting its interests of justice analysis, by considering inapposite factors, unreasonably weighing those factors against the gravity of the crimes and victims’ interests, ignoring victim submissions, and failing to seek the views of the Prosecutor and victims regarding the interests of justice; (3) The Pre-Trial Chamber erred in limiting the scope of an investigation to incidents specifically mentioned in the Prosecutor’s request or closely linked thereto, and wholly excluding victims’ representations on the content of the investigation; and (4) The Pre-Trial Chamber misconstrued the chapeau requirements for war crimes, as well as the elements of specific crimes including torture, and the Court’s territorial jurisdiction to bar investigation into alleged crimes committed on the territory of ICC Member States against victims of the US torture program.

(Although they framed the issues on appeal slightly differently, the legal representatives of Afghan victims raised the same errors in their separate appeal brief.)

In mid-September, the Pre-Trial Chamber granted the Prosecutor leave to appeal, but only on two of the three issues that she sought to challenge, namely whether the Pre-Trial Chamber was required or even permitted to make a positive interests of justice assessment and whether the chamber properly exercised its discretion in considering the factors it took into account. The Pre-Trial Chamber denied the Prosecutor leave to appeal on the third issue she raised concerning the scope of an authorized investigation.

Enter Amici

On September 27, just days before appellants’ merits briefs were due, the Appeals Chamber issued an order scheduling oral argument for December 4 to December 6, on the contested preliminary issues, as well as the merits of the Prosecutor’s and victims’ appeals. The same order invited interested states, professors and experts in international criminal law and human rights law, to submit observations.

In response to the large number of amici curiae requests—15 in total—the Appeals Chamber granted all leave to participate, but permitted each amicus to choose between filing a 10-page brief or making oral submissions during the December hearing.

The 13 amici who intervened in support of reversal of the Impugned Decision included, among others: Afghan and international human rights organizations; a group of former UN Special Rapporteurs on torture (Manfred Nowak and Juan Mendez) and transitional justice (Pablo de Greiff), collectively represented at the hearing by Professor Hannah Garry; Professor David Scheffer, the first U.S. Ambassador-at-Large for War Crimes Issues; and a group of former international chief prosecutors, including David Crane, Benjamin Ferencz, Richard Goldstone, Carla Del Ponte, and Stephen Rapp.

The only amici who did not call for the Impugned Decision to be overturned were one of Trump’s personal lawyers, Jay Sekulow, intervening as an amicus on behalf of the European Center for Law and Justice, and a group of organizations including the Lawfare Project and UK Lawyers for Israel.

The questions included in the Appeals Chamber’s November 22 order on the conduct of the hearing focused on the preliminary issues of victim standing and the jurisdictional nature of the Impugned Decision, which would be discussed on the first day of the hearing, as well as the interests of justice analysis and the Pre-Trial Chamber’s authority to limit the scope of an investigation to incidents specifically mentioned in the Prosecutor’s request, which would be heard over two days of the hearing. The order did not include any questions concerning the LRVs’ fourth ground of appeal—the Pre-Trial Chamber’s errors regarding the Court’s territorial and material jurisdiction over war crimes.

Late Appearance by the Islamic Republic of Afghanistan

The Appeals Chamber had set November 15 as the deadline for “interested States” to make observations; none did. However, the week before the hearing, the government of Afghanistan requested—and was granted—additional time to make a written submission and permission to participate in the hearing. In both its written submissions, filed on Monday, Dec. 2, and its oral submissions, Afghanistan urged the Chamber not to authorize an investigation, stressing that the government was making efforts to reform its judiciary and criminal laws, and should be given more time to pursue investigations and prosecutions in its own courts. Conspicuously absent from the Afghan government’s submissions, however, was any evidence that authorities have investigated or prosecuted a single senior Taliban or Afghan official, let alone U.S. official, for the very crimes against humanity or war crimes that were the subject of the Prosecutor’s request.

In one of the more powerful moments of the hearing—which also served as a reminder that these proceedings concern far more than U.S. actors potentially coming before the ICC—Nema Milaninia, counsel for amici Afghan human rights organizations, strongly challenged the Afghan government’s suggestion that justice should wait, and expressed incredulity at the Pre-Trial Chamber’s conclusion.

“The reality is,” Milaninia explained, “that peace first, then justice, has been a promise told to Afghan victims for the past 40 years and has resulted in neither peace nor justice. When considering the current situation in Afghanistan, it is inconceivable that an investigation into these atrocities would not be in the interests of justice.”

The Afghan government’s caution to the Appeals Chamber not to “rush” into an ICC investigation rang especially hollow given the unprecedented delays which have marked the proceedings in the Afghanistan situation to date. The Prosecutor’s request was itself a long time coming: It followed a preliminary examination that spanned from 2006 to 2017. The Pre-Trial Chamber then took nearly a year and a half to issue its decision. As Fergal Gaynor, legal representative of 82 Afghan victims, put it to the Appeals Chamber, “it is impossible to understand how a preliminary examination into, for example, Taliban crimes against women and girls could have lasted more than two or three days.”

Hearing Highlights: Preliminary Matters & Victim Voices

The Appeals Chamber, comprised of Presiding Judge Piotr Hofmański of Poland, Judge Howard Morrison of the United Kingdom, Judge Luz del Carmen Ibáñez Carranza of Peru, Judge Solomy Balungi Bossa of Uganda, and Judge Kimberly Prost of Canada, maintained a strict schedule to accommodate oral submissions from the many participants. Contrary to the typical conduct of appellate proceedings in the United States, the judges avoided spontaneous questions and instead confined their questions to designated periods at the conclusion of each session. [Transcripts of the hearing are available online: Day 1 (Dec. 4), Day 2 (Dec. 5), and Day 3 (Dec. 6). Videos of the hearing can be found here.]

The legal arguments before the Chamber were framed by vivid accounts of the abuse suffered by victims of the U.S. torture program. Counsel for al-Asad (Nikki Reisch, arguing; Sara Robinson and Meg Satterthwaite also appearing) described the “capture shock” treatment to which he was subjected, and the further physical and psychological torture he suffered throughout his secret, incommunicado detention—or enforced disappearance. In depicting al-Nashiri’s experience, his counsel underscored the global reach of the torture program and the continuous nature of the crimes to which victims were subjected. They described how their client was shuttled from country to country, passing between the territories of State Parties and non-States Parties to the Rome Statute, continuously held incommunicado and tortured by his U.S. captors. Counsel for al Hajj and Duran emphasized the ongoing suffering of their clients held at Guantánamo—physical and mental suffering that had commenced on the territories of ICC Member States—and the absolute global impunity that U.S. actors enjoyed, while warning of the risk of recurrence of serious international law violations under the current U.S. administration.

These facts were presented not for shock value, but to illustrate the gravity of the crimes committed and to underscore that they were highly planned, coordinated, widespread and intentional acts, not mere “excesses” by some soldiers, as Judge Chile Eboe-Osuji suggested in a November speech. These details also demonstrated for the Appeals Chamber the breadth of the U.S. torture program and the number of ICC Member States that furthered it, and which, along with the United States, have thus far failed to provide accountability and redress.

Victims Denied Standing

On the first day of the hearing, the victims’ legal representatives and numerous amici set out for the Chamber why the unique interests and statutorily defined role of victims in Article 15 proceedings, together with the right to remedy under international law, require granting victims the right to appeal a decision, like this one, which completely forecloses their access to justice before the court of last resort. Polish criminal law professor Paweł Wliński’s observations, as amicus, on the evolution of victims from objects to subjects of international criminal proceedings, and comparative perspective on victims’ rights in civil-law systems were particularly noteworthy. Questions posed by Judges Prost and Ibáñez Carranza possibly reflected the role of victims in criminal proceedings in each of their country’s own legal systems—or at least foreshadowing their vote on the matter. Judge Prost asked about the textual and contextual understanding of “party” in Article 82(1), while Judge Ibáñez Carranza’s questions centered on the application of the international human rights of access to justice and effective remedy.

The Appeals Chamber issued an interlocutory ruling from the bench at the start of the second day of the hearing, holding by majority (Judge Ibáñez Carranza dissenting) that victims do not have standing to appeal a decision denying a Prosecutor’s proprio motu request to open an investigation. The majority appears to have adopted the logic of the Prosecution, which argued that because only the Prosecutor can initiate an investigation under Article 15, only she can appeal a refusal to grant her request. Importantly, however, the Chamber did not hold that victims can never qualify as a “party” with appeal rights under Article 82(1). Instead, it held that the meaning of “party” “depends on the procedural context, and is to “be determined taking into account the type of decision that is the subject of the appeal.”

The same day, Judge Ibáñez Carranza issued a 30-page dissent from the majority’s oral ruling (the written decision by the majority “will be contained in the eventual judgment on the appeals”). In her view, the obligation under Article 21(3) of the Rome Statute for the Court to apply and interpret international law consistent with internationally recognized human rights includes the rights to access justice and to effective remedy—and requires providing victims a right of appeal when an article 15(4) decision forecloses any possibility of an investigation and thus denies victims access to justice. She took issue with the majority’s opinion that

“[t]he right to an effective remedy arises, in the first place, with regard to a State that has violated the human rights of an individual [and] cannot be a basis for finding that, before this Court, victims have procedural rights that go beyond those set out in the Court’s legal framework.”

Applying that reasoning to other human rights, Judge Ibáñez Carranza cautioned, “renders Article 21(3) of the Statute redundant and, all the more, moot,” as it would imply that rights are only enforceable against a State. Moreover, she wrote,

“[t]he rights to access to justice and to obtain effective remedies are rights inherent to the victims as human beings. The Court would not be creating such rights but simply acknowledging their existence.”

Because of its ruling on victim standing, the Chamber held that it did not need to reach the question of whether the Impugned Decision was one with respect to jurisdiction, which the victims’ representatives and the Prosecution had both addressed on the first day of the hearing.

Although the victims’ appeals were dismissed, the Chamber remained seized of the Prosecutor’s appeal, which raised many of the same issues, and not only allowed the victims to remain active participants in the proceedings, under Article 15, but also remained seized of their extensive briefing.

Hearing Highlights: Interests of Justice

Following the interlocutory ruling on victim standing, the second day of the appeals hearing focused on the propriety of the Pre-Trial Chamber’s “interests of justice” analysis. As the legal representatives of victims, we found ourselves in the somewhat odd position of defending prosecutorial discretion and independence more robustly than the Prosecutor herself. The LRVs contended that the Pre-Trial Chamber lacked legal authority under the Rome Statute to ask whether a requested investigation affirmatively would be in the interests of justice and formulate its own opinion on the matter. Under Articles 15 and 53 of the Rome Statute, we maintain, the Pre-Trial Chamber may only review the interests of justice when the Prosecutor informs the Chamber that she has decided not to pursue an investigation solely on the grounds that there are “substantial reasons” to believe it would not be in the interests of justice. And even then, we continue, the Chamber’s consideration of that negative determination is confined to reviewing the reasonableness of the Prosecutor’s assessment, not replacing her assessment with its own. This view was echoed in the written and oral submissions of multiple amici.

In response to questions from Judge Prost regarding the drafting history of Articles 15 and 53 of the Rome Statute, and the subsequent adoption of Rule 48 of the Rules of Procedure and Evidence (which instructs the Prosecutor, but not the Pre-Trial Chamber, what to consider when determining whether there is a reasonable basis to proceed with an investigation), the Prosecution appeared to concede that it may be beyond the Pre-Trial Chamber’s power to make an affirmative finding on the interests of justice. It would not only be correct as a matter of law, in our view, to determine that the Pre-Trial Chamber’s interests of justice analysis was ultra vires. Such a ruling would further avoid the Chamber undertaking the necessarily subjective exercise of opining on which factors should be taken into account when assessing the interests of justice. Indeed, as amicus David Scheffer, who had served as the head of the U.S. delegation during the ICC negotiations in his role as Ambassador-at-Large-for-War-Crimes, explained in his oral submission to the Appeals Chamber, “If we had intended such a role for the Pre-Trial Chamber, it would have been drafted into the Rome Statute.”

Amicus Scheffer further explained that the drafters intentionally did not require an affirmative showing of “interests of justice” at all, as to do so “would impose an almost intolerable burden, fraught with politicised rationales…conjur[ing] up any manner of moral and politically acceptable reasonings regarding a prospective investigation.” He also made clear that the “interests of justice” determination was granted solely to the Prosecutor under Article 53(1) of the Statute.

The question of the Pre-Trial Chamber’s authority aside, the Prosecution and the victims’ legal representatives concur that the factors considered by the Pre-Trial Chamber in its interests of justice analysis—the passage of time, state cooperation, and availability of evidence—were wholly inappropriate. The victims emphasized that in speculating about the prospects for state cooperation—a premature exercise given that the obligation of States Parties to cooperate under Part 9 of the Rome Statute is not triggered until an investigation is opened—the Chamber ignored the global nature of the U.S. torture program and the possibility that the dozens of ICC member states that provided assistance to the United States could be sources of information and evidence during the investigation. Indeed, given the extent of information in the public domain already, including the public presence of multiple suspects responsible for the program, U.S. cooperation may not even be necessary for a successful investigation of U.S. torture. Moreover, on behalf of victims of the U.S. torture program, we stressed that the Pre-Trial Chamber failed to appreciate the gravity of the alleged crimes at issue—in no small part because of its flawed understanding of the Court’s subject matter and territorial jurisdiction over torture and related crimes—and failed to weigh that gravity, together with victims’ interests in justice and ending impunity, against the Chamber’s own conception of the “interests of justice.”

Amicus Scheffer did not mince his words in expressing his views on the “interests of justice” factors examined by the Pre-Trial Chamber:

“[W]ho in the world dreamed up such criteria? Neatly framed to obliterate the Afghanistan situation. My goodness, if in the 1990s when building five war crimes tribunals one had followed the factors in paragraph 91, there would have been no cases and no jurisprudence developed because the arc of international criminal justice is very long and should not be cut off at the knees with such impossibly rigid criteria. Justice is justice. Do not massacre the term with undocumented and highly selective explanations that can only invite allegations of political bias or manipulative pressure from great powers.”

While those unnamed “great powers” were not represented at the hearing—Afghanistan was the only State Party present—several amici did give voice to the perspectives of the United States through their oral submissions. As we will discuss below, they went beyond supporting the Pre-Trial Chamber’s determination that certain alleged war crimes were outside of the Court’s subject matter or territorial jurisdiction, and challenged the very basis for the Court’s jurisdiction over nationals of non-States Parties.

Hearing Highlights: ICC Jurisdiction Over U.S. Torture

The danger of letting the Pre-Trial Chamber’s “nexus” errors stand

The Impugned Decision’s egregious errors of law regarding the Court’s jurisdiction of the war crime of torture had the effect of writing our clients and other victims of the U.S. torture program out of any investigation. Therefore, we urged the Appeals Chamber not only to reverse the Pre-Trial Chamber’s interests of justice analysis and vacate the decision, but to affirmatively correct its glaring legal errors with respect to jurisdiction for several reasons.

As we explained in our appeal brief, the Pre-Trial Chamber correctly stated that if any part of a crime is committed on the territory of a State Party, whether it commences, continues or concludes there, the Court has jurisdiction under Article 12(2)(a) of the Rome Statute. (A separate Pre-Trial Chamber recently affirmed this position when it authorized an investigation into cross-border crimes in the Myanmar/Bangladesh situation.) But the Chamber then plainly failed to apply that understanding when reviewing the dimensions of the Prosecutor’s request concerning U.S. torture.

The Pre-Trial Chamber’s errors manifested most clearly in paragraphs 54 and 55 of its decision. Based on its overly restrictive view of the application of Common Article 3 of the Geneva Conventions in non-international armed conflicts, the Pre-Trial Chamber required that for torture to constitute a war crime under Article 8 of the Rome State, the victim had to have been “captured” on the territory of the “High Contracting Party” engaged in that armed conflict—i.e., Afghanistan. According to the Pre-Trial Chamber (and contrary to past precedent), the locus of capture alone determines whether the requisite nexus to the armed conflict has been satisfied to trigger application of international humanitarian law. Furthermore, based on a misapplication of Article 12 of the Rome Statute, the Pre-Trial Chamber went on to hold that crimes committed against a person who was captured in Afghanistan but subsequently tortured on the territory of a non-State Party would fall outside the Court’s territorial jurisdiction because it did not consider “capture” part of the crime.

This analysis—which has dangerous implications, as Professor Gabor Rona explains in his amicus brief—appears to have rested on a fundamental misunderstanding not only of the protective purposes of international humanitarian law but also of how the U.S. torture program operated, and the continuous nature of the crimes involved. “Capture” in the torture program systematically entailed kidnapping, rape and other forms of sexual assault, and enforced disappearance. Those acts were part of the continuing criminal conduct, including torture, not “mere antecedents” to it, as the Pre-Trial Chamber suggested.

Moreover, the Pre-Trial Chamber’s confusion on this point is especially troubling since the U.S. torture program was designed to exploit purported lacunae in human rights and humanitarian law and to avoid the jurisdiction of courts—domestic, foreign or international—that might otherwise shut the program down. Through distorted interpretations of international law that have been roundly rejected by many tribunals—including by the U.S. Supreme Court in Hamdan v. Rumsfeld—as well as human rights bodies, the U.S. sought to place detainees in a legal black hole while also physically moving them to prisons chosen or constructed to avoid the jurisdiction of courts that might view the law differently.

The Pre-Trial Chamber’s erroneous conclusions regarding war crimes resuscitate condemned legal arguments precisely at a time in the United States when there is a manifest risk of recurrence. If uncorrected on appeal, we argue, these errors could have the effect of lending support for, or even putting the ICC’s imprimatur on, the repugnant legal logic that underpinned the U.S. torture and extraordinary rendition program.

Challenging the ICC’s jurisdiction over nationals of non-State Parties

Two amici at the hearing argued that the Pre-Trial Chamber was correct to hold that the ICC lacks jurisdiction over specific alleged war crimes committed by U.S. actors, but erred in suggesting that the Court has any jurisdiction over nationals of non-States Parties at all. Neither the Prosecution nor victims’ legal representatives responded to the merits of these arguments, maintaining that such challenges fell beyond the scope of matters before the Appeals Chamber.

The investigation into the situation in Afghanistan provokes discussion regarding the ICC’s jurisdiction over nationals of non-States Parties, including the United States. (See past posts on what an investigation could mean for the U.S., here and here, as well as possible U.S. responses, here and here.)

On the application of the ICC Statute to non-nationals, it is important to recall certain basic principles regarding the scope of ICC jurisdiction: pursuant to Article 12(2), the Court has jurisdiction over the crimes of genocide, crimes against humanity and war crimes, as set forth in Articles 6-8 of the Rome Statute, when committed either on the territory of an ICC Member State, regardless of the nationality of the perpetrator, or by a national of an ICC Member State. Although certain States, including the United States, strongly advocated during negotiations to limit the exercise of the Court’s jurisdiction only to nationals of Member States, that position was rejected. (See then-Ambassador Scheffer’s July 1998 testimony before the Senate Foreign Relations Committee, reporting back on the Rome Treaty Conference.) In contrast, such a carve out does exist for the exercise of jurisdiction over the crime of aggression in cases other than through a UN Security Council referral. See Article 15 bis (5).

Counsel for amici Lawfare Project, UK Lawyers for Israel et al were the first at the hearing to make the broad argument that the ICC lacks jurisdiction over nationals of non-States Parties, absent a permissive rule of international law allowing the exercise of such jurisdiction. Dov Jacobs, arguing on behalf of the amici, drew on the Appeals Chamber’s May ruling in the Bashir case regarding head of state immunity in asserting that there must be express permission under international law for an international body like the Court to exercise territorial jurisdiction—not merely silence or an absence of any prohibition on such exercise.

Amicus Jay Sekulow—participating not in his capacity as Trump’s personal attorney but as chief counsel of the France-based European Center for Law and Justice—reiterated that assertion and took it further. He went so far as to suggest that Article 12(2)(a) of the Rome Statute, which sets out the Court’s jurisdiction over crimes committed on the territory of a State Party (regardless of the nationality of the perpetrator), was “ultra vires and void,” or that jurisdiction could be exercised only with the consent of the state of nationality or a Security Council referral. To those arguments, he added the narrower, alternative claim that the ICC cannot exercise territorial jurisdiction over U.S. nationals for alleged war crimes committed in Afghanistan, because Afghanistan purportedly relinquished any such jurisdiction over Americans through bilateral agreements with the United States. His contention is based on the theory of delegated jurisdiction expertly explained, and challenged, by Beth Van Schaack in Parts I and II of her two-part essay published on Just Security in April 2018—a full year before the Pre-Trial Chamber’s decision. Van Schaack’s detailed account of how the United States might cite its “Status of Forces Agreements” (SOFAs) with Afghanistan to contest the Court’s jurisdiction reads almost like Sekulow’s speaking notes.

Professor Hannah Garry, counsel for a group of former UN Special Rapporteurs, took on Sekulow’s arguments without directly referencing them. Underscoring the Pre-Trial Chamber’s acknowledgment that torture is “radically banned by international law,” Garry emphasized that “Afghanistan and the United States are bound to abide by this jus cogens prohibition under customary and treaty law, specifically the United Nations Convention Against Torture, the CAT, the International Covenant on Civil and Political Rights, the ICCPR and Common Article 3 of the 1949 Geneva Conventions,” and may not “enter into agreements for contracting around it, given the fundamental values it upholds.”

As Adil Ahmad Haque pointed out in a Just Security post in 2018, Scheffer made similar arguments to Sekulow’s when he represented the United States as Ambassador-at-Large-for-War-Crimes. But, as Scheffer readily admitted in the appeals hearing, his views then gained little traction, either among States Parties or in academic circles. “I find it now a rather retrograde rationale for bailing out of the quest to end impunity for atrocities crimes,” amicus Scheffer told the Appeals Chamber. “It is an argument that flies in the face of one of the most fundamental rules of criminal law, namely territorial jurisdiction and defies common sense regarding atrocity crimes, some of which indeed have entered the realm of jus cogens as Judge Carranza rightly pointed out yesterday.”

The comment by Judge Ibáñez Carranza to which amicus Scheffer referred came in the form of a question to Sekulow. She asked whether it is possible to reconcile the jus cogens prohibition on torture, which is non-derogable and triggers erga omnes obligations to prosecute or extradite, with what Sekulow called the U.S.’s “principled non-cooperation” with the Court. (She added that she would “need an academic response because [he is] not the representative of any State”—a helpful reminder, given Sekulow’s proximity to Trump.)

In his response, Sekulow avoided the question about whether jus cogens norms trump any jurisdictional arguments. He focused instead on defending the adequacy of the U.S. military and criminal justice systems to address those cases that “do arise from time to time” as a result of “something not going as planned”—his inaccurate, euphemistic way of referring to the calculated program of torture and enforced disappearance operated by the U.S. government.

As amicus Scheffer noted, such promises may have meant something in the 1990s when he was negotiating on behalf of the U.S., but carry little weight now, following the “U.S. president’s appalling interference with several cases in the American military justice system.”

They also fly in the face of officials’ continued impunity for the systematic, organized offenses committed under the U.S. torture program. As we explained to the Appeals Chamber, under three successive administrations, the United States has been unwilling to fully investigate let alone prosecute the senior U.S. officials who ordered, authorized and furthered the torture program. Not one member of the CIA has faced charges for the grave crimes committed as part of the program. And the United States has often intervened in civil lawsuits to block redress for victims. In recent weeks, it was reported that Trump, who promised during his campaign to “bring back a hell of a lot worse than waterboarding,” selected the current head of the CIA, Gina Haspel, not despite her history of running a CIA black site where individuals were tortured, but because of this experience. Trump has also pardoned convicted war criminals, against the advice of military leadership, and taken steps to penalize the U.S. military lawyers who prosecuted them. Moreover, it bears repeating that there is a stark difference between U.S. non-cooperation with the ICC—whether “principled” or misguided—and active obstruction, intimidation, and threats.

Despite the attention given by two amici to the ICC’s jurisdiction over US nationals, that issue is largely irrelevant to the questions presently before the Appeals Chamber. Rather than engage with amici’s arguments on their merits, the Prosecution and the legal representatives of victims uniformly rejected their assertions regarding the Court’s jurisdiction over US nationals as outside the scope of the appeal and premature, at best. The Statute provides opportunities, under Articles 17, 18, and 19, for a State to challenge the admissibility of a case or the Court’s jurisdiction at a later date. At this stage, such challenges are purely hypothetical or theoretical, and there is no reason the Chamber should address them in its decision.

More fundamentally, perhaps, as we pointed out during the hearing, if the United States does not want to come before the ICC it has two choices: prevent or prosecute. The United States can prevent its nationals and especially members of its military intelligence services and senior officials from committing serious violations of international law on the territory of the 122 Member States of the ICC. Or it can hold those citizens, including senior officials, accountable if such violations have occurred, cease the harm to the victims, provide an apology and redress. To date, however, the U.S. has done neither.

Conclusion

There is near-unanimity among all those who made written and oral submissions to the Appeals Chamber—as well as among external commentators—that the Impugned Decision is deeply flawed, as a matter of law, on the facts, and when measured against the object and purpose of the Rome Statute and the system of justice it created. It is hard to conceive of an outcome that does not require the Appeals Chamber to mandate reversal, even if the route is not certain. What is uncertain, however, is how far the Chamber will go in correcting the many errors in the Impugned Decision, and whether it will directly authorize the opening of the investigation or remand to the Pre-Trial Chamber.

In our view, international law dictates only one outcome. As the former UN Special Rapporteurs stressed in their oral submission, “Prompt initiation of a criminal investigation into allegations of torture is an international legal obligation and, in and of itself has reparative effect for victims. Blocking an investigation on the other hand, purportedly on the basis of victims’ own interests has grave negative effect on torture victims—adding insult and further injury to that which they have already suffered.”

To give voice to our clients’ experiences as victims of the U.S. torture program and recount some portion of their stories at this month’s hearing before the ICC was, in itself, an important step forward. But justice demands more: namely, that the grave crimes committed against them be immediately and thoroughly investigated, and that senior officials who bear the most responsibility for those crimes be held accountable.