Global Policy Forum

Keeping the ICC out of Abu Ghraib.

By Phillip Carter *

When they are eventually prosecuted, the abusive guards at Abu Ghraib prison in Iraq will present a tremendous challenge for the American justice system. In addition to producing verdicts based on the evidence, our courts must produce verdicts that will satisfy the world's desire for justice in this case. U.S. military and civilian courts can certainly manage the complicated evidentiary and procedural issues sure to arise during these trials. But it's not clear that the world will accept our courts' verdicts—particularly if some of the soldiers and intelligence officers are acquitted. In light of this case's importance for the perception of America around the world, an international consensus that justice has been achieved matters as much as—if not more than—what happens inside the courtroom.

One option that's not on the table would perhaps best serve the interests of global justice: a trial before the International Criminal Court. Unfortunately, we cannot avail ourselves of this option, because we have refused to join this new world court. Even more unfortunate, we may nevertheless find ourselves subject to its jurisdiction, trumpeting the message worldwide that American justice is inadequate to punish American criminals.

The ICC was created by the Rome Treaty in 1998, with jurisdiction to try "the most serious crimes of concern to the international community": genocide, crimes against humanity, war crimes, and the crime of aggression. In theory, the court was supposed to supplant ad hoc tribunals such as the ones put together to try war criminals in Rwanda and the former Yugoslav republics. In a number of ways, the abuse at Abu Ghraib presents the model ICC case. The defendants hail from one country; the victims from another. The acts were committed during a military occupation following a war of dubious legality. And the acts, at first glance, might constitute war crimes under both the Rome Treaty and the Third Geneva Convention.

President Clinton signed the Rome Treaty in 2000 with strong reservations, largely over the prospect of U.S. soldiers being hauled before politically motivated ICC prosecutions. He signed nevertheless, hoping that American diplomats would work within the ICC to ensure this prophecy did not come true. However, Clinton never submitted the Rome Treaty to the Senate for ratification and in May 2002, President Bush withdrew the nation's signature from the treaty altogether but pledged that the nation's withdrawal from the ICC would not result in a lack of justice for American misconduct abroad. In lieu of the ICC, the United States pledged to prosecute American service members and civilians for gross misconduct wherever it should occur. Generally speaking, this has been the norm, such as when American military prosecutors charged two soldiers in South Korea with negligent homicide for running over two girls with an armored vehicle in June 2002.

It's not clear that the ICC could hear the Abu Ghraib cases, even if we were signatories to the Rome Treaty. Two main conditions must be met for ICC jurisdiction: First, the acts must qualify as serious enough to merit international attention. The Rome Treaty explicitly includes crimes such as "torture or inhumane treatment," "committing outrages upon personal dignity, in particular humiliating and degrading treatment," and "committing outrages upon personal dignity." But ICC prosecutors must also find that the acts were "committed as part of a plan or policy or as part of a large-scale commission of such crimes" in order to claim jurisdiction. It's not yet clear that the latter was the case at Abu Ghraib.

Second, ICC prosecutors can only act when a nation with jurisdiction (either the United States or Iraq in this case) fails to investigate or prosecute the incidents. This provision (found in Article 17 of the treaty) is known as the "complementarity" principle. It ensures that ICC prosecutions will complement—but not override or pre-empt—domestic prosecutions. American diplomats fought hard for this provision's addition to the treaty, largely on the assumption that American prosecutorial efforts would always satisfy the complementarity requirement. So, even if we had been signatories to the Rome Treaty, we might have forestalled an ICC prosecution.

Unfortunately, American prosecutors appear to be moving both slowly and inadequately in this case. Military prosecutors have charged only the six lowest-ranking military police accused of actually committing the abuses at Abu Ghraib. [Update, May 8, 2004: A seventh soldier was charged yesterday, according to this AP report.] Thus far, their commanders have been let off with slaps on the wrist in the form of career-ending administrative reprimands. Nor has the Justice Department rushed in to prosecute any of the CIA employees or the private contractors involved in the abuses, whose involvement has been documented by the Army. (John Ashcroft has just announced that they may eventually be prosecuted, however.) And American-advised Iraqi prosecutors have not stepped in either, hobbled by a June 2003 order giving home countries like the United States exclusive jurisdiction over its soldiers and contractors.

This inaction undercuts the arguments made by the Clinton and Bush administrations against the Rome Treaty and violates the justification for our ultimate refusal to participate in the ICC. Arguably, the United States has not lived up to the promise it made when it withdrew from the treaty—to zealously police and prosecute its own personnel for transgressions committed overseas.

But even though the United States is not part of the ICC and Iraq is not a member, we might still find our troops wrangled into ICC jurisdiction by a provision that lets non-ICC member states refer cases to it anyway. Once the Iraqi government takes sovereignty on June 30, it might decide to do just that, especially if the Iraqi people demand international justice for the crimes at Abu Ghraib. The United States will surely lobby the future Iraqi government not to refer charges to the ICC. But once we hand the reins of sovereignty to the Iraqi government, this decision will be theirs to make.

So, the United States must now make a difficult choice: It can continue to prosecute a fraction of those involved, with the risk of an ugly ICC prosecution in the future. Or, take a more aggressive stance toward the abuses at Abu Ghraib, in order to preempt ICC jurisdiction. "More aggressive" here means that the United States should do three things immediately: We must prosecute the military and civilian leadership involved, in addition to the junior soldiers who allegedly carried out the abuses at Abu Ghraib; second, we should appoint an independent commission (not just a Pentagon-sponsored panel, as suggested by Defense Secretary Donald Rumsfeld to Congress) to investigate these abuses and make recommendations on how to prevent these staggering breaches in military discipline from reccurring in the future; finally, we should evaluate our stance toward prisoners of war and enemy combatants generally, with particular attention to how cases like Guantanamo and Abu Ghraib are viewed around the world, and how this stance may create ambiguity in the field for soldiers charged with physically dealing with prisoners.

Even if the United States acts only to keep its own soldiers off the ICC docket, the interests of justice will be served. The full cast of culpable characters will be tried for their crimes, and systems will be created to prevent reccurrences. That may, in fact, be the wisdom behind the Rome Treaty and its complementarity principle. In some cases, the mere threat of an ICC prosecution may push nations to investigate and prosecute their own citizens where grave breaches of international law are concerned. So long as justice is done, it really doesn't matter how we get there.

About the Author: Phillip Carter is a former U.S. Army officer who now writes on legal and military affairs in Los Angeles.