In considering how the United States should respond to the Court’s investigation in Afghanistan, the Task Force believes that it is important to bear three points in mind.

First, at the time of writing this Report, no case has been commenced against U.S. personnel linked to the Afghanistan situation, which covers an enormous crime base implicating the Taliban, Afghan national forces, and other non-state armed groups, such as the Haqqani Network—crimes that the Prosecutor’s own submission recognizes are ongoing and far more extensive in scale than the allegations of torture against U.S. personnel during the early 2000s (see Recent Developments; the Situation in Afghanistan). In the Task Force’s opinion, the United States should not treat the situation as if actual cases against U.S. personnel are underway or a fait accompli. Accordingly, the Report includes recommendations on how the United States might make a persuasive case that the OTP and other Court actors should not expend their investigative, prosecutorial, or judicial resources on cases against U.S. personnel, building on opportunities presented by the current openness among Rome Statute parties and within the Court to constructive ideas for reform, and doing so in a manner that addresses not only the current situations but the risk of the ICC investigating or prosecuting U.S. personnel in the future.

Second, at least some of the conduct that is at issue constituted torture or other war crimes under international law. President Obama bluntly conceded as much in August 2014:

“When we engaged in some of these enhanced interrogation techniques, techniques that I believe and I think any fair-minded person would believe were torture, we crossed a line. And that needs to be…understood and accepted.” ³⁹⁷

This inevitably frames the way in which many observers see the situation now. At the same time, the new Administration, like each of its predecessors, has already stated its strong opposition to an ICC investigation of these activities, ³⁹⁸ and there are a range of good-faith arguments that the United States can put forward to support its position that the ICC should not investigate or prosecute U.S. personnel in this situation. This Report recommends principled steps to address the possibility of the Court proceeding with a case against a U.S. person in connection with the Afghanistan situation. However, in doing so, the Task Force recognizes that it is important not to minimize or trivialize the abuses that occurred.

Third, the nature of and reaction to the Trump Administration’s critiques of the ICC following the Court’s steps to open an investigation of Afghanistan fell into three categories—

a) the ICC Prosecutor and her staff are corrupt and politicized;

b) the ICC should not assert jurisdiction over nationals of states, like the United States, that are not party to the ICC treaty; and

c) the United States takes appropriate steps to investigate and prosecute its own.

With respect to the first category, given the serious nature of the abuses and the substantial evidence, the fact that the ICC Prosecutor has concluded there is a basis for investigating the events is hardly proof that she is corrupt or politically motivated against the United States. If anything, ad hominem attacks of this nature are likely to obscure better-reasoned defenses that are expressed in a non-polemic manner, or to lead listeners to conclude that the United States lacks a reasoned defense, unless it can back up its claims. Absent actual evidence of the prosecutor’s corruption—which the previous Administration claimed existed but never made available—this type of messaging has proved unpersuasive with other states, places the United States in an unflattering light, and should not be pursued. Indeed, maintaining civil relations with Court actors and a constructive posture toward issues of accountability generally will be crucial in fostering an environment in which there is a receptivity to arguments such as those that the Report proposes and is critical to the United States' larger commitment to effective multilateralism and working with friends and allies on shared challenges.

The second category described above encompasses arguments—put forward by each Administration, since Rome, including now the new Biden Administration ³⁹⁹ —that it is impermissible, or just wrong, for the ICC to assert jurisdiction over the nationals of states, like the United States, that are not parties to the Rome Statute. ⁴⁰⁰ It is often unclear whether the United States is putting this forward as a legal argument (i.e., it would be unlawful under international law for the ICC to assert jurisdiction over such nationals) or as a policy argument. ⁴⁰¹ Either way, such arguments have consistently proven to be unpersuasive, even to the United States' closest allies. The Rome Statute clearly provides that the Court can exercise jurisdiction over such persons if the conduct in question occurred in the territory of a state party, and Afghanistan became a party in May 2003. To be sure, as a non-party, the United States is entitled to contest the Rome Statute’s jurisdictional regime. The problem, however, is that the United States has never deployed a persuasive argument as to why states, which under international law indisputably have general authority to exercise jurisdiction with respect to conduct in their territory, ⁴⁰² are precluded from becoming party to a treaty under which they essentially delegate that authority to the ICC. For its part, the 2009 Task Force reviewed a range of arguments and provisions, and concluded that it “does not consider the ICC’s jurisdiction over nationals of non-party States to be in conflict with principles of international law.” ⁴⁰³ Even if the Administration decides—as the Task Force assumes is likely—to continue to assert arguments against the ICC’s exercise of jurisdiction over nationals of non-parties, it is certain that the Court will disagree and all-but-certain that U.S. allies will not help U.S. diplomats or lawyers advance this as a line of legal reasoning. Thus, if the goal is to be persuasive, the Administration needs to develop and articulate the other reasons that it believes the Court should not pursue investigations of U.S. personnel in Afghanistan.

This brings us to the third category: that the United States has done enough to address allegations of detainee abuse. ⁴⁰⁴ The Task Force’s recommendations build on this line of argument, as the United States can contend that, particularly considering the totality of the steps that it has taken to address the allegations and prevent their recurrence, together with the scale of the abuses and the other challenges facing the ICC, these are not matters that the ICC should pursue or prioritize. Many of our interlocutors offered that the easiest way to avoid the ICC’s jurisdiction is to address allegations against U.S. personnel in domestic proceedings. Assuming the new Administration concludes that the cons of reopening the Justice Department investigations that were conducted during the Obama Administration outweigh the pros, it should consider articulating the reasons for such a conclusion.

Given the very different circumstances surrounding the allegations against DOD personnel and CIA personnel, we address the two sets of allegations separately in this Section.

(1) Allegations Related to DOD. With respect to the allegations against DOD personnel, the Prosecutor’s submission states that there is a reasonable basis to believe that “at least 54” persons were subject to detainee abuse by DOD personnel in Afghanistan. ⁴⁰⁵ Thus, the evidence that the Prosecutor relied on in seeking authorization to investigate implicitly reflects that the abuses alleged to have been committed by DOD personnel are relatively limited. At the same time, many of the “techniques” that the Prosecutor says there is reasonable basis to believe were used (including some of the most severe measures employed) rely on evidence that actually relates to the CIA. ⁴⁰⁶ In addition, the Prosecutor’s conclusion that the use of torture and other prohibited detainee abuse reflected a plan or policy within DOD is not at all self-evident, and even the Prosecutor’s own assessment is that any such policy appears to have emerged at a much lower level and that the abuses were “inflicted on a relatively small percentage of all persons detained by US armed forces…during a limited time period…” ⁴⁰⁷ Indeed, while noting that “'[t]here is both institutional and personal responsibility at higher levels,'” ⁴⁰⁸ the sources of information upon which much of the Prosecutor’s conclusions are based—the independent Church Report and Schlesinger Report—both concluded that abuses occurred but that the DOD had not promulgated an abusive interrogation policy (See Text Box The Church and Schlesinger Reports).

The Prosecutor’s application itself cites to reports of a range of DOD investigations and disciplinary proceedings, including over six hundred criminal investigations (covering Iraq and Afghanistan), over seventy investigations of detainee abuse by military personnel in Afghanistan leading to trials by courts-martial, and at least fifty-four persons convicted by courts-martial for detainee abuse in U.S. custody in Afghanistan, Iraq, and Guantánamo Bay. ⁴⁰⁹ The Prosecutor appears to have discounted some or all of these for the purposes of her admissibility assessment, arguing that the United States did not provide sufficient detail regarding these actions to discharge what the Prosecutor considers to be the United States' burden of proof to show that a case is inadmissible. ⁴¹⁰ The Prosecutor also avers that—"[t]o the extent discernible”—the investigations and prosecutions “appear to have focused on alleged acts committed by direct physical perpetrators and/or their immediate superiors” rather than on “those who developed, authorized, or bore oversight responsibility.” ⁴¹¹

Because there is to date no indication that any such DOD policy was affirmatively approved or adopted in Washington, as acknowledged by the OTP,  ⁴¹² those “most responsible” for the abuses alleged would not likely occupy leadership positions or be able to prevent genuine investigations. This distinguishes DOD detention practices from the activities of the CIA, which were approved at the highest levels of government. In light of the above, it may be possible at the appropriate time to secure an indication from the OTP reflecting the unlikelihood of the OTP pursuing charges in these cases involving the DOD, based on practical realities—e.g., the Prosecutor’s acknowledgment that any DOD policy (if it existed at all) was not approved at senior levels; that it did not involve some of the more severe abuses, such as waterboarding; that the number of cases alleged would (even if proven) constitute only a very small portion of the number of detainees held in total by DOD personnel (which numbered in the tens of thousands); and that there are reliable accounts of numerous internal investigations in the same reports upon which the OTP relies in drawing its conclusions that detainee abuse occurred in the first place.

(2) Allegations Related to CIA. The allegations against the CIA cover torture and other abuses that were part of a program of enhanced interrogation techniques that was approved at the senior levels of government. Both the acts of torture and abuse, and any failure to submit credible allegations to competent U.S. authorities for the purpose of prosecution, would violate the United States' obligations including under the Convention Against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment. ⁴¹³ Yet no one was prosecuted for their role in conceptualizing, authorizing, or implementing the CIA program. Given the seriousness of these allegations, it would be in the interests of the United States to go beyond simple assertions that the United States does everything appropriate to investigate and prosecute and to articulate a tailored explanation of why it believes the ICC should not investigate or prosecute cases arising from the CIA program.

As has already been seen, Trump Administration officials did put forward a complementarity rationale in their public statements about the Afghanistan situation, but only in the most general terms. It would clearly be helpful for the United States to look for ways to bolster its defensive posture “on the merits.” There are several basic ways in which such a set of arguments could be strengthened.

First, the Administration could work to better explain the facts and circumstances surrounding the investigation undertaken by John Durham and the subsequent decision by the Department of Justice not to pursue prosecutions. Durham’s mandate (see Text Boxes - Durham Investigation) did not extend to recommending the prosecution of individuals “who acted in good faith and within the scope of the legal guidance” provided by the Department of Justice regarding the legality of the interrogation techniques that were authorized. ⁴¹⁴ The Prosecutor appears to rely on the existence of this carve-out in concluding that the United States did not genuinely investigate individuals. In fact, at least some of the conduct cited—such as the allegations of rape and sexual assault—were not authorized at all and thus would clearly have fallen within Durham’s mandate to investigate. With respect to the authorized techniques, however, the United States could well take the position that the recognition of such a carve-out for good faith reliance on formally approved legal advice from the Department of Justice was not unreasonable—i.e., that it would not be inappropriate for the Justice Department to decline to pursue prosecutions against individuals who had relied in good faith on legal advice from those within the Department who were authorized to dispense it under applicable U.S. law. ⁴¹⁵ As such, the fact that a national prosecutor would make such a decision is hardly proof that his or her efforts were not “genuine,” or were made for the purposes of shielding an accused, which is the test that the ICC would apply in determining whether an appropriate basis may exist for the ICC Prosecutor to pursue an investigation.

In practice, such arguments could be more persuasive if the United States makes available additional information about what investigative and analytical efforts Durham and other U.S. Government actors in fact undertook and the grounds on which they reached their conclusion that a criminal prosecution would be inappropriate “because the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt.” ⁴¹⁶ That said, it may well be difficult for the United States to disclose relevant information in light of generally applicable rules and procedures limiting the extent to which grand jury and other investigative information may be divulged, whether to the ICC or other recipients. ⁴¹⁷ In addition, unlike states that are parties to the Rome Statute, the United States has no responsibility—and could not reasonably be expected—to modify its longstanding laws and procedures with respect to cases in which the ICC might be interested. It could thus fairly argue that it would be inappropriate in such circumstances for the ICC Prosecutor to draw a negative inference that no genuine investigation occurred simply because the United States is not in a position to provide such information, even if such inferences might be warranted with respect to a situation in which a state party—obliged as it would be to conform its domestic legal framework to its cooperation obligations toward the Court—declined to provide such information. ⁴¹⁸

There has been extensive criticism that the United States did not sufficiently investigate or prosecute those responsible for these events from human rights groups, human rights treaty bodies, and others. For example, in its Concluding Observations in 2014, the UN Committee Against Torture expressed concern about “the ongoing failure on the part of the State party to fully investigate allegations of torture and ill-treatment of suspects held in United States custody abroad…” ⁴¹⁹ Others have proffered that the decision not to go further in pursuing prosecutions represented a tacit political bargain based on considerations that included: ⁴²⁰ (1) the fact that the prosecution of the leaders of a predecessor government of a competing political party is likely to be perceived as politically motivated, no matter how warranted the prosecution; (2) given such perceptions, the prohibition of torture itself could become a partisan issue, and Republicans may have felt the need to defend, or even advocate for, the practice of torture; and (3) the ensuing polarization of torture as a partisan issue could have ended up preventing Congress from enacting the further statutory prohibitions on torture under the McCain-Feinstein legislation. ⁴²¹

In terms of the situation facing the new Administration, reports such as this highlight that, given the great controversy about the prospect of prosecutions during this Administration for potentially unlawful conduct by members of the Trump Administration, it seems highly unlikely at this point that there would be an appetite to reopen allegations against Bush Administration officials—particularly investigations that the Obama Administration had already decided not to pursue. At the same time, a lack of persuasive explanations as to the basis of the decisions not to further pursue the possibility of criminal prosecutions has been a significant barrier to domestic and international acceptance of the lack of criminal accountability for U.S. custodial abuses. In this connection, the Task Force recommends that the Administration follow former Attorney General Eric Holder’s 2015 recommendation to publicly release more information about the Justice Department’s criminal investigation into the abuses in Afghanistan, which Holder has said publicly “would show the world how hard his prosecutors tried to bring Bush-era torturers to justice.” ⁴²²

In addition, in light of the “carve out” in Durham’s investigation that excluded individuals “who acted in good faith and within the scope of the legal guidance,” several interlocutors raised questions about the lack of accountability for the Department of Justice lawyers responsible for dispensing that consequential legal advice, which has generated pervasive public criticism. ⁴²³ For these Office of Legal Counsel lawyers, there were investigations undertaken during the Obama Administration by the Justice Department’s Office of Professional Responsibility (OPR) focused on whether those lawyers should be referred for professional disciplinary proceedings. The OPR issued a report on July 29, 2009, concluding that the authors engaged in professional misconduct by failing to provide “thorough, objective, and candid legal advice” and indicated its intent to refer its finding of misconduct to relevant state bar disciplinary authorities. ⁴²⁴ Ultimately, however, the senior Department of Justice official who reviewed OPR’s conclusions, the late Associate Deputy Attorney General David Margolis, decided not to adopt that Office’s findings. Notwithstanding what he determined were significant flaws in the torture memoranda, Margolis concluded in a sixty-nine-page analysis that the episode did not constitute professional misconduct. ⁴²⁵ For its part, the Justice Department, during the Obama Administration, concluded that, in light of the Margolis memorandum, there existed no basis for criminal prosecution of the lawyers. ⁴²⁶ Later, various steps were taken with a view to safeguarding the independence of OLC’s legal advice. ⁴²⁷

To be sure, this outcome remains controversial. ⁴²⁸ However, under the Rome Statute, the relevant test for the Prosecutor and the Court to apply in determining admissibility in a case against the lawyers would not be whether the advice that they provided in fact was wrong, or was given in bad faith, or even amounted to a war crime. Nor would the test be whether Margolis’s conclusion that the matter did not amount to professional misconduct, or the decision not to pursue criminal proceedings in light of that conclusion, was correct. Rather, in order for the ICC to proceed, the determination would need to be made that the investigation of the matter conducted within the Justice Department was not conducted genuinely—i.e., that it was made to shield the person from responsibility. ⁴²⁹ In other words, it need not be established that the Justice Department’s responses were ideal, just that the Durham process together with the OPR investigation—and the many other steps taken as outlined below—provide an appropriate basis for the Prosecutor not to pursue investigations of the U.S. persons involved.

There are other lines of argument touching upon complementarity that might also be pursued. When considering a state’s response to the potential commission of international crimes within its jurisdiction, it is true that the Court’s jurisprudence suggests that, once an ICC case has been commenced, nothing short of investigations that entail the possibility of criminal prosecutions will satisfy its view of the Rome Statute’s rules on complementarity when there is a challenge to the Court’s jurisdiction over a particular individual. That said, particularly at the stage at which the overall situation—rather than cases against specific individuals—is being reviewed, there is increasing receptivity to the view that the Court’s traditional approach to complementarity is too narrow, and that responses that do not involve traditional criminal prosecutions should “count” in determining whether a state’s response is so inadequate that an ICC investigation of the situation should be pursued. ⁴³⁰ In this connection, the Administration should highlight multifaceted responses within the U.S. system that did not involve traditional criminal prosecutions but that did address allegations of mistreatment and put in place important measures to guard against repetition. This would include doing what it can to demonstrate the rigor and output of various internal and independent investigative bodies ⁴³¹ and highlighting other steps that it took aimed at preventing recurrence, including legal and policy reforms (notably the enactment of the Detainee Treatment Act and the McCain-Feinstein amendment) and the repudiation and withdrawal of controversial legal advice. ⁴³² Such views might arguably carry even greater weight when it comes to states that are not parties to the Rome Statute and have not consented to the complementarity regime or accepted its implementation over time.

Putting forward arguments along the lines suggested—and particularly regarding the Court’s admissibility criteria—in a principled and transparent manner could add to the credibility of the United States' position domestically and with diplomatic partners and could even help elicit their support. They could also be a factor that the Prosecutor could take into account in discretionary decisions regarding the extent to which any cases should or should not be prioritized. Once again, the argument need not be that responses of this type are ideal, or even that they satisfy obligations or responsibilities that the United States may have separate from the Rome Statute to pursue criminal investigations or prosecutions, but rather that the existence of these steps are sufficient to warrant the Prosecutor not prioritizing these cases. The fact that so much of the Prosecutor’s information derives in the first place from the results of U.S. investigations, hearings, and reports could be argued to further bolster a decision not to pursue such cases, on the basis that doing so may disincentivize states from undertaking similar non-criminal efforts in the future to bring past abuses to light. ⁴³³ That said, it was appropriate for the United States to pursue those inquiries into how these policies and practices occurred and to declassify and release portions of the reports in the interests of good governance and of coming to terms with what had happened.

There are further arguments that the Administration could consider related to other admissibility criteria. For example, the United States could put forward an argument that the portion of the Afghanistan investigation that relates to the United States lacks sufficient gravity, particularly as compared with the innumerable international crimes committed by other armed groups in Afghanistan, to warrant the Prosecutor prioritizing these allegations in her investigation. Such an approach would not diminish the seriousness of the allegations, but rather would aim to encourage that they be considered in relation to other alleged crimes and perpetrators within this and other situations. ⁴³⁴ This could include not only the comparative scale of the abuses, but also contrast the steps that the United States has taken to prevent recurrence of abuses against the ongoing nature of crimes by other armed groups (“the impact of investigations and prosecutions on ongoing criminality” being one factor that the Prosecutor has already recognized as important in prioritizing cases). ⁴³⁵ To be sure, under its jurisprudence and practice, Court actors generally look at “the situation as a whole” in determining whether the crimes in question are sufficiently grave to justify the Court’s involvement. There is no doubt that the scale of the crimes allegedly committed by the Taliban, Afghan security forces, and other armed actors are sufficient to satisfy the gravity test under the “situation as a whole” approach; as such, no separate inquiry would be required into the scale of the crimes allegedly committed by CIA personnel. ⁴³⁶ The logic of the Court’s approach is not beyond debate, however. Even assuming this approach is maintained, however, the fact that the Prosecutor concludes that there is sufficient gravity to initiate an investigation into the situation as a whole does not necessarily mean that, as a matter of discretion, the Prosecutor should devote resources to actively pursuing allegations against a party to the conflict whose alleged conduct did not, if considered independently, meet the Court’s gravity threshold.

All that said, the United States should also continue to look for ways to further strengthen the anti-torture norm, internationally and domestically; ⁴³⁷ to address prior policies and practices with honesty and transparency vis-à-vis the public and the international community; and to consider other reparative steps it might undertake with respect to detainee abuse in appropriate circumstances. ⁴³⁸