The International Criminal Court • an international court set up to prosecute major human rights crimes • Jurisdiction over genocide, crimes against humanity, war crimes, and aggression. • Proceedings may be initiated by (1) state party request, (2) the prosecutor, or (3) UN Security Council resolution. • In (1) and (2), the ICC’s jurisdiction is limited to citizens of member states and individuals accused of committing crimes on the territory of member states. In (3), these limits do not apply. • Principle of Complementarity. The Court acts only if the state of primary juris- diction proves itself “unwilling or unable” to launch criminal proceedings (art. 17). Situations under official investigation by the ICC: Uganda, Democratic Republic of Congo, Sudan (Darfur), Central African Republic (2), Kenya, Libya, Côte d’Ivoire, Mali, Georgia, Burundi. Preliminary Examinations: Afghanistan, Myanmar/Bangladesh (Rohingya crisis), Colombia, Guinea, Iraq (UK), Nigeria, Palestine, Philippines, Ukraine, Venezuela. Convicted by the ICC: Thomas Lubanga (Dem. Rep. of Congo), Germain Katanga (Dem. Rep. of Congo), Bosco Ntaganda (DR Congo), Ahmad Al- Faqi Al-Mahdi (Mali), and a few others for obstruction of justice. Some individuals convicted at trial have been acquitted on appeal. On trial at the ICC: Abdallah Banda Abakaer Nourain (Sudan), Dominic Ongwen (Uganda). Wanted for trial at the ICC: Omar al-Bashir (Sudan), Seif al-Islam Gaddafi (Libya), Joseph Kony (Uganda), and several others Laurent Gbagbo, former president of Côte d’Ivoire • In late 2017, the prosecutor requested permission to open a formal investigation into crimes committed in Afghanistan. The investigation would cover crimes by the Afghan government, the Taliban, and US authorities. • Prosecutor: There is a “reasonable basis to believe” that the U.S. military 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.” There is reason to believe that the CIA committed similar acts against at least 27 detainees “on the territory of Afghanistan and other State Parties to the Statute (namely Poland, Romania and Lithuania) between December 2002 and March 2008.” • In April 2019, the ICC pre-trial chamber refused the prosecutor’s request to open a formal investigation. The prosecutor has appealed this decision to the ICC appeals chamber. Detention and Interrogation Practices of the United States in the “War on Terror.” • The torture question: What has been the pattern and extent of torture? How did the US government come to authorize torture? • The detention question: How should we view the US policy of indefinite detention in the “War on Terror”? Is indefinite detention ever justified? If so, under what constraints? • Indefinite detention (or preventive or noncriminal or administrative detention) means extended detention without charge or trial. Murat Kurnaz The contexts of torture in the US “War on Terror” • Afghanistan • Guantánamo Bay • Iraq, various detention centers -- abuses at Abu Ghraib prison captured on camera • CIA “enhanced interrogation techniques” used in “black sites” around the world • Extraordinary rendition, or “outsourcing torture” – sending individuals to be tortured by the security forces of other governments. Abuse and torture in Guantanamo • Sleep deprivation, stress positions, extreme temperatures, prolonged isolation, beating, sexual humiliation, hooding, nudity, forcing prisoners to urinate themselves, 24-hour lighting, cigarette burning, mind-altering drugs, forced feeding of hunger strikers. • Elsewhere, torture methods also included water-boarding, “rectal feeding,” diapering. • International Committee of the Red Cross: interrogation methods at Guantanamo “tantamount to torture.” • Several people died from torture in U.S military installations and CIA black sites. Some Guantanamo prisoners may have died from torture. Abuse and torture in Guantanamo, cont. Mohammed al-Qahtani Mohamedou Ould Slahi Jan. 2009: Susan Crawford, senior Pentagon official, withdraws charges against Mohammed al-Qahtani, stating that he was tortured. In the CIA black sites Abu Zubaydah … and many others Torture, euphemistically called “enhanced interrogation techniques,” was authorized by President Bush and members of his cabinet. • Puzzle: How could the Bush administration authorize torture even though it is a crime under both international and domestic law? • Torture methods adapted from SERE program (SERE = “Survival, Evasion, Resistance, Escape”) in the US military. • James Mitchell and John Bruce Jessen, two former military psychologists, helped devise the program, using the theory of “learned helplessness.” • Long-time standing, stress positions, sleep deprivation, hypothermia, nakedness, loud noise, sexual humiliation, prolonged isolation, close confinement, head-slamming, beatings, waterboarding. • Techniques first authorized for CIA, but quickly adopted by the US military. Several detainees in US custody died as a result of this treatment. US torture policy, cont. • US torture policy documented by ACLU, Amnesty International, Human Rights Watch, Int’l Committee of the Red Cross • Senate Armed Services Committee Report, 2008 • The Constitution Project, Report of the Bipartisan Taskforce on Detainee Treatment, 2013 • Much information contained in the 6000-page Senate Select Committee on Intelligence Report on CIA Interrogations, still kept secret. The 500-page executive summary of this report was released in December 2014. Why these methods are properly called “torture.” • They fit the legal definition of torture: the intentional infliction of severe pain or suffering, mental or physical. • These methods have considered torture for centuries. • The US government has referred to these methods as “torture” when used by other governments. • Water-boarding called “torture” by US federal appeals court in 1984. • In any event, methods that do not rise to the level of torture are absolutely prohibited by international and US law if they constitute cruel, inhuman, or degrading treatment. • “[US officials] tortured innocent people. They tortured people very likely guilty of terrorism-related crimes, but ruined all chance of prosecuting these people thanks to the torture. They tortured the innocent and the likely-guilty alike when the torture had nothing to do with imminent threats: they tortured people based on bad information extracted from people they had tortured… they tortured to get specific information they wanted, as when detainees were pressed about links between Saddam Hussein and Al Qaeda; they tortured to hide their mistakes, as when they used coerced statements by Guantanamo detainees to build cases against fellow detainees they had not business holding in the first place. They tortured people to break them, pure and simple.” Larry Siems, The Torture Report: What the Documents Say About America’s Post-9/11 Torture Program (New York: OR Books, 2011). The difficulty of discussing torture A brief history of torture Arguments for torture: • It is useful for gathering intelligence. • the “ticking time bomb” rationale • the “learned helplessness” model Arguments against torture: • It’s wrong. • It’s against the law. • It’s a crime. • It doesn’t work. Problems with torture as an interrogation method • It is wrong, illegal, and a crime. • Other interrogation strategies are more effective. • It generates false confessions. • It becomes a crutch for security services, leads them to neglect more useful methods. • It spreads. • It generates recruits for the other side. • It inhibits recruitment of voluntary informants. Senate Select Committee on Intelligence report: “The CIA’s use of its enhanced interrogation techniques was not an effective means of acquiring intelligence or gaining cooperation from detainees.” Ibn al-Shaykh al-Libi, and the “information” that helped start a war • Seized Dec. 19. 2001, by Pakistani officials • Interrogated by FBI officials in Afghanistan, gives valuable information • Taken by CIA, transferred to Egypt, where he was tortured. • “disclosed” under torture that Saddam Hussein is training Al Qaeda in WMD use. (Recants in 2004.) • Bush, Oct. 7, 2002: “We’ve learned that Iraq has trained Al Qaeda members in bomb-making and poisons and deadly gasses.” • Similar claim is the centerpiece of Colin Powell’s speech at the UN, February 2003 • In 2006, al-Libi was sent to Libya, where he died in jail under mysterious circumstances. Defenders of torture tend to examine only the “benefits,” and do not weigh the costs. Why not? Darius Rejali: “The terrorist’s suffering is uniquely satisfying regardless of whether he reveals any information. Beneath the urbane, civilized appeal to torture for information, lurks a deeper impulse, born from fear and satisfied by pain.” Torture and Democracy. Donald Trump: “Would I approve waterboarding? You bet your ass I would. In a heartbeat. I would approve more than that. It works… And you know what? If it doesn't work, they deserve it anyway, for what they're doing.” Photos from Abu Ghraib ! Warning: These are disturbing.! ! [not shown here] Max Ginsburg, Torture Abu Ghraib Torture is emphatically prohibited in US and international law. In US law: • Torture Act of 1994 • War Crimes Act of 1996 • Torture Victim Protection Act of 1991 • Uniform Code of Military Justice • Numerous criminal laws against battery, assault, and kidnapping • Common law • US Constitution: 4th, 5th, 8th and 14th Amendments • Several treaties ratified by the