War crimes in Afghanistan and Beyond: Will the ICC Weigh in on the “Global Battlefield” Debate?

The ICC Prosecutor recently announced her decision to request an authorization to open a formal investigation into possible international crimes committed in connection with the conflict in Afghanistan. The outcome of her preliminary examination was long-awaited and expected to be significant because an investigation into the Afghanistan situation would cover all parties involved – that is, not only local actors but also the international coalition, including the US (US nationals would come under the jurisdiction of the Court if they committed crimes in Afghanistan or in any other State party to the Rome Statute).

The Prosecutor’s choice to subject some aspects of the Afghan conflict to judicial scrutiny despite the pressures deserves to be praised as an “act of bravery.” If the Pre-Trial Chamber authorizes this investigation, the road to justice will be long – many have already commented on possible issues of jurisdiction (e.g. here and here), admissibility (e.g. here and here), evidence-gathering and cooperation (e.g. here), etc. In this post, I want to focus on a potential effect of this announcement: the situation in Afghanistan may give the ICC an opportunity to weigh in on the debate over the global applicability of IHL. Fatou Bensouda intends to prosecute acts of torture committed in CIA detention facilities located in Europe, in connection with the armed conflict in Afghanistan, as war crimes. If she does, ICC judges will have to rule on whether IHL applied to those acts and hence more generally on whether IHL applies beyond the territory of a State where a non-international armed conflict (NIAC) is primarily taking place. The geographical scope of IHL remains one of the most vexing debates in international law (as was clear from a heated discussion on this blog and others, just a month ago) but the Afghanistan investigation may help highlight an overlooked aspect of it. Here is why.

The Afghan conflict, CIA black sites and IHL applicability

In its public announcement, the Prosecutor indicated that she will focus, in conformity with the ICC’s jurisdiction,

“solely upon war crimes and crimes against humanity allegedly committed since 1 May 2003 on the territory of Afghanistan as well as war crimes closely linked to the situation in Afghanistan allegedly committed since 1 July 2002 on the territory of other States Parties to the Rome Statute.”

War crimes “closely linked to the situation in Afghanistan” but committed elsewhere are most likely allegations of torture and other forms of ill-treatment committed as part of the infamous CIA’s “extraordinary rendition programme.” The programme implicated the rendition, detention and interrogation of terrorism suspects, with the support of at least 54 States. Some of them, like Poland, Lithuania and Romania, hosted CIA-run secret facilities where detainees were allegedly ill-treated. These three States are parties to the Rome Statute, and as a result, the ICC’s jurisdiction extends to their territory. In her 2016 Preliminary Examinations report, the Prosecutor had already mentioned her determination that “there is a reasonable basis to believe” that:

“War crimes of torture and related ill-treatment, by US military forces deployed to Afghanistan and in secret detention facilities operated by the Central Intelligence Agency, principally in the 2003-2004 period, although allegedly continuing in some cases until 2014” (para 198).

As to secret facilities outside of Afghanistan, the Prosecutor specifically mentions those located in the territories of Poland, Lithuania and Romania (para 199).

Looking into the future – and acknowledging that the prospect of an indictment of CIA operatives is distant, to say the least – if these crimes were ever to be prosecuted by the ICC, the judges would have to decide whether IHL applied to them. Indeed, even if the ICC has territorial jurisdiction in Poland, Lithuania and Romania, a distinct question is whether these acts come under the material jurisdiction of the Court and qualify as war crimes. Because war crimes are serious violations of IHL (under the Rome Statute and customary international law), this question preliminarily depends on whether IHL applied to these acts.

War crime courts have usually followed a two-prong inquiry to answer this question: 1) is there an armed conflict and 2) is there a nexus between the conduct and this armed conflict? That a non-international armed conflict (NIAC) involving the US (or two if the Taliban and Al-Qaeda are considered two distinct parties) existed at the time of the alleged acts of ill-treatment is beyond reasonable doubt. In addition, based on the “nexus” jurisprudence of the ICC and other international and national war crime courts, finding a sufficient nexus in this case should not raise any major issue. The Prosecutor would apparently focus on “individuals captured in the context of the armed conflict in Afghanistan, such as presumed members of the Taliban or Al Qaeda” transferred to these CIA-run sites. The victim’s affiliation with the Taliban or Al-Qaeda would indeed be sufficient to prove a sufficient nexus (actual membership would not be required; perceived support for one of the enemies of the US would be sufficient to meet the nexus requirement).

However, in deciding whether IHL applied to these alleged acts of torture, ICC judges would likely have to rule on a defense challenge that IHL did not apply there, beyond Afghanistan’s borders. The ICTY, ICTR and ICC (and other war crime courts) have had to decide on the geographical reach of IHL within the territory of States where a NIAC was taking place, but not beyond such territory (the ICTY’s jurisdiction extended only to the territory of the former Yugoslavia, the ICTR’s only to Rwanda and its neighboring States; the ICC, whose territorial jurisdiction is not so limited, has not had to rule on such a scenario yet). The prosecution of acts of torture committed in CIA-run sites in Poland, Lithuania or Romania would be the first time – to the best of my knowledge – a war crime court has to rule on the applicability of IHL to conducts linked to a NIAC occurring in another non-neighboring State. The same would be true if State courts decide to prosecute these crimes, acting under the catalytic effect of the ICC complementarity principle – on which Bensouda insists in her announcment.

State of the debate on the geographical reach of NIAC rules

As the “fight against terrorism” has taken a global dimension, the question of the applicability of IHL beyond the State where a NIAC originates has become more pressing. While IHL instruments are largely indeterminate on the issue, the debate has polarized, in a nutshell, around two main conceptions of IHL applicability.

The first approach considers that IHL is geographically limited based on national borders. IHL applies in the territory of a given State if an armed conflict exists there. For instance, if the US is engaged in a NIAC against ISIS in Syria and launches operations against an ISIS cell located in, say, Mauritania (a non-neighboring State), IHL would not apply to such operations until the threshold of a NIAC is met in Mauritania. This would be doubtful in case of a single drone strike for instance. (Many proponents of this first approach would, however, accept that IHL applies to operations spilling over the Syrian border, into a neighboring country). One question resulting from this territorially-based conception of IHL applicability is whether IHL is applicable to the territory of States engaged in an extraterritorial NIAC even when no hostility is occurring there. While States’ pronouncements on this issue are scarce, France seems to consider that IHL does not apply to its territory despite its armed forces being engaged in several NIACs extraterritorially. The ICRC favors the contrary view.

According to the second approach, IHL is, generally speaking, territorially unrestricted. IHL attaches not to territories but to the conduct of armed conflicts and their effects on individuals, irrespective of location (except, of course, when provided otherwise by specific rules, e.g. rules on occupied territories). The only condition to the application of IHL to a given act or ommission is the existence of an armed conflict and of a sufficient nexus to it. For arguments in favor of this approach see here and here. Critics have expressed fears that this would result in a “global battlefield” as States would be able to rely on the supposedly more permissive rules of IHL to conduct hostilities across the globe.

Moving forward from the “global battlefield” critic?

If it were to adjudicate allegations of torture committed by the CIA in Poland, Romania or Lithuania, the ICC (or national courts) would have to take a stand in this debate. If judges follow the first approach, they will have to examine whether IHL applied in Poland, Lithuania or Romania. As no hostility occurred there, they will have to conclude that the NIAC threshold was not crossed there. A finding of war crimes would be possible only if they adopt the view -shared by the ICRC – that IHL is automatically applicable to the territory of States engaged in an extraterritorial NIAC. The three countries were indeed parties to the NIAC(s) against the Taliban (and other armed groups) at the time of the alleged crimes, as they were contributing troops to Operation Enduring Freedom and ISAF since early 2002 (Lithuania deployed troops under ISAF from October 2002 and OEP from November 2002 but had provided other kinds of support before). Then the judges would have to examine the existence of a sufficient nexus between this NIAC and the acts of ill-treatment.

Or they could adopt the second approach. In that case, once the existence of a NIAC is established, they would only have to address the nexus requirement. Because NIAC rules prohibiting ill-treatment contain no territorial limitation, the location of the incriminated conducts would not impact their analysis. In doing so, they would also leave the door open for the future prosecution of other crimes committed in the name of the global fight against terrorism, in connection to a distant NIAC. Indeed, if IHL applies across frontiers, it protects, for instance, anyone detained in connection to an armed conflict from ill-treatment, irrespective of where (s)he is being held. A breach of this IHL prohibition could then be prosecuted as a war crime by the ICC or non-territorial State courts (which otherwise would have no jurisdiction, unless the violation constituted another international crime, such as a crime against humanity), irrespective of whether the threshold of an armed conflict is met in the State where it occurred, and of whether the territorial State was a party to the conflict.

The prospect of ICC and national proceedings over acts of torture committed in CIA-run black sites is a chance to expand the breadth of the debate on the geographical scope of IHL, zooming out from the recurrent focus on conduct of hostilities (CoH) rules. Critics tend to concentrate on the risk that if CoH rules can apply anywhere, States will feel incentivized to conduct hostilities everywhere. The risk of a “global battlefield” where some States feel entitled to use lethal force against ill-defined enemies across borders is real. But it remains to be seen whether this is not less a jus in bello issue than it is a jus ad bellum issue (related e.g. to overly broad definitions of the right to self-defense, to the fluidity of the notion of territorial consent or to  a lack of enforcement). The idea that States could invoke the more permissive rules of IHL to justify status-based targeting is also playing into the controversial view that IHL itself provides authorizations. At the same time, this CoH-focus may distract from the fact that global applicability would also concern rules protecting persons in the hands of parties to the conflict, such as Common Article 3. Critics will counter-argue that this is cold comfort because human rights law (HRL) provides largely equivalent protections including against all forms of ill-treatment. This being said, the concurrent application of IHL creates obligations not only for States but also for non-State actors (which remains a controversial issue under HRL). It also opens the possibility of war crime prosecutions and, as the ICC announcement just demonstrated, such prospect may be less hypothetical than it seems. While it remains less than clear that war will follow IHL, this may be one of the reasons why IHL should follow the war.