The ICC-OTP’s November 2016 Report on Preliminary Examination Activities: Part II – Situations in Afghanistan and Ukraine

In this post I will focus on the situations in Afghanistan and Ukraine. I will explore the pros and cons of investigations against non-signatory states that are also permanent members of the United Nations (UN) Security Council (P5 member states) and are unlikely to allow their nationals to be prosecuted at the International Criminal Court (ICC).

 Situation in Afghanistan

The situation in Afghanistan examines the alleged crimes committed during the armed conflict between the Afghan Government supported by the International Security Assistance Force (ISAF – first established by the UN Security Council, and later under NATO command) and the United States (US) forces on one side, and anti-Government forces (particularly the Taliban, and other groups) on the other side.1 ICC-OTP, Report on Preliminary Examination Activities, 14 November 2016, paras. 195-96 (hereinafter “ICC-OTP Report”). The conflict broke out in late 2001, triggered by the attacks of 9/11 (September 11, 2001). A US-led coalition launched air strikes and military operations against the Taliban in Afghanistan. After Osama bin Laden’s death in 2011, NATO gradually withdrew its forces. By 2014, the international forces supporting the Afghan Government ended their combat missions, but some forces remain for training, advisory, and assistance purposes.2 Id.

The ICC Office of the Prosecutor’s (OTP) examination covered various crimes committed during this armed conflict. The alleged perpetrators are the Taliban and other anti-Government groups, members of the Afghan authorities, and members of the US armed forces and the United States’ Central Intelligence Agency (CIA). Allegedly, some members of the US armed forces and CIA operatives, with the approval and following a US government policy,3 Id., paras. 212-13. may have committed war crimes by torturing detainees in Afghanistan and some European states (some detainees were transferred for interrogation to secret detention facilities in Poland, Lithuania, and Romania).4 Id., paras. 198-99.

The OTP was not able to obtain any concrete information about national investigations of potential cases in Poland, Lithuania, and Romania.5 Id., para. 223. According to the OTP’s Report on Preliminary Examination Activities (Report), none of the US national prosecutions by courts martial dealt with allegations of ill-treatment by military personnel in Afghanistan,6 According to the Report, “[t]he vast majority of investigations and prosecutions relating to detainee ill-treatment were for conduct in Iraq. A small number of court martial proceedings (7) were for ill- treatment in Afghanistan that took place in 2002.” Id., para. 220. contrary to the US response to the Committee Against Torture in 2015 regarding investigations of detainee abuses.7 Id., para. 220.

The US Department of Justice (DOJ) 2009-2011 investigation into allegations of torture and ill-treatment resulted in no indictments,8 United States Department of Justice Press Release, Statement of Attorney General Eric Holder on Closure of Investigation into the Interrogation of Certain Detainees, 30 August 2012. unsurprisingly raising concerns by human rights advocates.9 See the Human Rights Watch report and the Senate Select Committee on Intelligence report, detailing the use of torture during Central Intelligence Agency (CIA) detentions and interrogations and calling for the prosecution of the responsible officials. Human Rights Watch, No More Excuses: A Roadmap to Justice for CIA Torture, 2015; Senate Select Committee on Intelligence, Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program, 13 December 2012. The DOJ declined to initiate criminal charges because “the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt.”10 The United States Department of Justice Press Release, Statement of Attorney General Eric Holder on Closure of Investigation into the Interrogation of Certain Detainees, 30 August 2012. See also ICC-OTP Report, para. 221.

The OTP claims that the DOJ review was limited to investigating whether “any unauthorized interrogation techniques were used, and if so, whether such conduct could constitute violations of any applicable criminal statutes.”11 ICC-OTP Report, para. 221. In other words, if the conduct was in compliance with the approved techniques/policy, there was no need for further investigations. The US Attorney-General investigated only the cases of two detainees who had died in CIA custody.12 Id. Because the alleged crimes were committed according to plans and policies approved “at senior levels of the US government, following careful and extensive deliberations,” the OTP concluded that the gravity of these crimes was increased.13 Id., para. 224. The OTP intends to make a decision as to whether to request an investigation into war crimes committed in Afghanistan “imminently.”14 Id., para. 230.

Situation in Ukraine

The situation in Ukraine started in late November 2013 with Maidan protests prompted by the decision of the Ukrainian Government not to sign an Association Agreement with the European Union. These protests escalated to violent clashes between the protesters and the Ukrainian Government. President Viktor Yanukovych flew to the Russian Federation (Russia) and was impeached by the Ukrainian Parliament.15 Id., para. 151.

In late February 2014, protests against the new Ukrainian Government began in Eastern Ukraine and the Crimean Autonomous Republic (Crimea). On 27 February 2014, armed individuals bearing no identifying insignia seized control of the Crimean peninsula.16 Id., para. 153. Russia later admitted the involvement of its military personnel, justifying its actions on the basis of protecting Russian citizens and a request from (former) President Yanukovych.  On 18 March 2014, following a referendum declared invalid by most of the UN states, Russia annexed Crimea by signing a treaty with the Crimean authorities.17 Id., para. 155.

Parallel to events in Crimea, protests in Eastern Ukraine resulted in the seizure of government buildings and the emergence of anti-government paramilitary groups.  The situation quickly deteriorated into armed violence.18 Id., para. 156.  In April 2014, the Ukrainian Government started an “anti-terror operation” but by the end of April it had lost control of Donetsk and Luhansk – the two cities central to the self-proclaimed Donetsk and Luhansk People’s Republics (DPR and LPR). Both remain unrecognized by most states including Russia.19 Id., paras. 160-62.

Information collected by the OTP so far “suggests that the situation within the territory of Crimea … amounts to an international armed conflict between Ukraine and the Russian Federation.”20 Id., para. 158.  The OTP observed that the situation “factually amounts to an on-going state of occupation.”21 Id.

The alleged crimes in Crimea include harassment of the Crimean Tatar population, killings and abductions, ill-treatment, arbitrary detention, the denial of due process, and compelled military service.22 Id., paras. 172-76.

Concerning Eastern Ukraine, the OTP is assessing whether the “Russian authorities have provided support to the armed groups in the form of equipment, financing and personnel, and also whether they have generally directed or helped in planning actions of the armed groups in a manner that indicates that they exercised genuine control over them.”23 Id., para. 170. The alleged crimes in this context include killing; destruction of civilian objects; detention; disappearance; torture/ill-treatment; and sexual and gender-based crimes. Id., paras. 177-83.

Serving cases on a silver platter

So, how much sense does it make for the OTP to request and open an investigation into these two situations when, assuredly, the US and Russia will refuse to cooperate or hand over the alleged perpetrators?

Donald Trump and his coterie of four-star generals and hard-liners expected to be part of his national security team (CIA Director Mike Pompeo, known for his views on using harsh interrogation techniques on detainees and strong opposition to the Iran nuclear deal; Secretary of Defense James “Mad Dog” Mattis, Retired Marine Corps General; National Security Advisor Michael Flynn, Retired Lieutenant General; and Head of the Department of Homeland Security John F. Kelly, Retired Marine Corps General) seem to be amenable to the use of “enhanced interrogation techniques,” a code phrase for torture (Trump has previously said that he sees waterboarding as an acceptable means of obtaining actionable intelligence). They likely have little use for international norms that get in the way of their view of how the US should protect itself against external threats such as ISIS.  And they certainly will not cooperate with the likes of the ICC, especially in investigating and prosecuting US military and civilian personnel involved in protecting the homeland.24 President-elect Trump is considering appointing former US Ambassador to the UN John Bolton as Secretary of State. Bolton is reported to have said that the “happiest moment” of his service in the government was “unsigning” the Rome Statute.

Similarly, Russia is unlikely to cooperate with the ICC.  Shortly after the OTP issued the Report, President Vladimir Putin signed a decree to withdraw Russia’s signature of the Rome Statute (despite the fact that it has never ratified it).  According to the press-release of the Ministry of Foreign Affairs, the ICC “failed to meet the expectations to become a truly independent, authoritative international tribunal.” It characterized the ICC as “ineffective and one-sided.”25 Statement by the Russian Foreign Ministry, 16 November 2016, available in English here. Russia also criticized the OTP’s examination of Russia’s five-day conflict with neighboring Georgia in 2008, stating that such examination resulted in “accusations against South-ossetian militia and Russian soldiers,” while investigations against Georgian government officials were left to the discretion of the national authorities. Considering these developments, Russia “can hardly trust the ICC….”26 Id.

But what choice does the OTP have?

In other words, can the OTP in this and similar instances where the evidence may be compelling, use its discretionary authority not to investigate and prosecute alleged crimes?

The OTP is obligated to examine all information that comes to its attention.27 ICC-OTP Report, para. 1, citing Policy Paper on Preliminary Examinations, November 2013. As a starting point, it must review whatever evidence or information it is provided. It must also go further and proceed with a formal investigation, if certain criteria are met.28 Article 53(1) of the Rome Statute obligates the OTP to initiate a formal investigation when certain criteria are met: “The Prosecutor shall, having evaluated the information made available to him or her, initiate an investigation unless he or she determines that there is no reasonable basis to proceed under this Statute….” (Emphasis added.) See also Part I of this series explaining the procedure for a preliminary examination and the criteria for starting an official investigation. In other words, it does not have the discretion (luxury) to decide whether to investigate based on the likelihood of success in getting the alleged perpetrators before the ICC. But if the likely outcome of the investigation is going to lead to no viable prosecutions because the alleged perpetrators are from P5 member states (or other states who are not signatories of or have not ratified the Rome Statute), does it make much sense to be spending the ICC’s limited human and financial resources in pursuing such cases?

From a cost-effective point of view, the answer is no. But that seems to be beside the point. Whether certain actors cooperate with the ICC is ancillary if part of the raison d’être of the OTP is to investigate crimes that fall under the ICC’s jurisdiction – irrespective of whether it will ultimately pursue prosecutions.  If indeed this is the case (and it seems so), then the ICC, for all intents and purposes, is expected to serve as an investigative organ of the international community.

By investigating, gathering evidence, and preparing cases for prosecution (compiling case files with sufficient admissible evidence that meets the standard and burden of proof for conviction), the OTP may affect some positive results: nudging (by naming and shaming if necessary) certain states – including P5 member states such as the US and Russia – into prosecuting in domestic courts cases that fall within the ICC’s jurisdiction. To this end, by serving on a silver platter fully investigated cases for states to prosecute, the OTP puts the onus on the states to adhere to and abide by the international norms expected of all states, irrespective of their status within the international community or “the Parliament of man.”29 The English poet Alfred Tennyson in his 1837 work, “Locksley Hall,” foresaw the coming of airpower and bombing of the cities and coined the phrase “the Parliament of man,” – a form of political federations the nations of the world would create to protect each other from devastation and destruction. US President Harry Truman, drawing inspiration from Tennyson, recited passages from “Locksley Hall” at the 1945 UN conference in San Francisco. See Paul Kennedy, The Parliament of Man: The United Nations and the Quest for World Government ix-x (Penguin Books, 2007).

My next post will deal with the OTP’s reconsideration of the Mavi Marmara incident.  Hopefully, it will help to shed some light on the Pre-Trial Chamber’s request to the OTP to reconsider the decision not to initiate an investigation into the Mavi Marmara.

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

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