Last week, US National Security Advisor John threatened to severely sanction the International Criminal Court (ICC), a judicial branch of the UN, if they proceeded with investigations regarding potential war crimes committed by US armed forces and the Central Intelligence Agency (CIA) during it's wars in the Middle East. Bolton denounced the ICC as "illegitimate" and a "threat to American national sovereignty and security." He also derided the investigation proposed by the ICC as based on "utterly unfounded" claims. While the US government has been at odds with the ICC ever since it retracted its signature from the Rome Statute (the court's founding document), it is also interesting to examine why the ICC was investigating US forces in Afghanistan in the first place. From torture to illegal imprisonment, the ICC alleges that the United States has violated international law on multiple occasions while carrying out military operations during the wars on terrorism.
Last year, Gambian lawyer Fatou Bensouda stated that the ICC would begin preliminary proceedings examining whether or not there were "secret detention facilities" where "war crimes" were perpetrated "by the United armed forces." Specifically, Bensouda was referring to torture procedures used by the US military against prisoners suspected of Islamist ties, such as waterboarding, a technique which makes the victim think he/she is drowning. Many of these so-called "enhanced interrogation" procedures were undertaken at US military bases like Guantanamo Bay and the infamous CIA "Salt Pit" prison in Afghanistan. It is also worth noting that many of the prisoners held were not allowed to exercise basic Constitutional rights . In the court case Boumediene v. Bush, the Washington D.C. circuit court held that the writ of habeas corpus (the right for someone in custody of the law to know what crimes they are being charged with) does not apply to overseas military bases like Guantanamo. Therefore, it can be reasonably concluded that prisoners held by the US military were not allowed to access the 5th amendment right to due process of law, even though the Insular Cases of 1901 directly state that the US Constitution applies under all foreign territories under US control (this should include Guantanamo Bay). U.S. Constitution aside, the ICC has been called to investigate these potentially unlawful and "indefinite" detentions as violations of international law, specifically international humanitarian law.
When John Bolton threatened the ICC, he had reason to be concerned. For years, the US military and the CIA have been mistreating its prisoners in manners that violate the international accords set at the Geneva Conventions of 1949, since the United States was clearly engaged in an "armed conflict" in Afghanistan and the Middle East when many of these alleged crimes were committed. Although, given the US's power and prestige worldwide, the ICC will likely have no impact on the fates of those involved in the accusations, this investigation should send a loud and clear message of accountability that the United States will hopefully consider when crafting future foreign policy.
