In the Crosshairs: Should the ICC prosecute US officials over CIA Torture?

Although it was relatively well-known before December 2014 that the United States tortured its detainees, there was still a genuine sense of shock about the extent of that torture when the details were revealed.

After the United States Senate Select Committee on Intelligence (SSCI) released a damning 525-page excerpt report showing some of its findings on the US detainee program, horrific details were revealed about the methods used by the CIA in interrogating detainees. Among the most horrific details are:

  • The use of “rectal rehydration”, where detainees are forcibly rehydrated by inserting food into their rectum;
  • Detaining individuals with mental handicaps as a way of interrogating other detainees;
  • Forcing detainees who have broken arms and legs to stand in “stress positions”;
  • Threatening to harm, kill or sexually assault family members of detainees; and
  • Denying medical attention to badly wounded detainees.
United States Senator Dianne Feinstein has faced some criticism on the timing of her release of the CIA Torture Report (Source:
United States Senator Dianne Feinstein has faced some criticism on the timing of her release of the CIA Torture Report (Source:

The full report, which is approximately 6,000 pages long and is said to have cost more than $40 million to compile over 5 years, provides details about the US detainee program over the span of 2001-2006. If the 525 page report reveals anything, it’s that the full report paints a damning picture of the extent that the CIA went to to interrogate detainees, but perhaps even more damning is that the CIA admits that it obtained little to no intelligence that was useful in conducting these interrogations. Furthermore, it seems that the CIA and former president George W. Bush had an agreement to be willfully blind to one another regarding the extent of these interrogations – which, if true, may be yet another failure to add on George W. Bush’s troubled presidency.

Will/Should the ICC put the US in its crosshairs?

The International Criminal Court at the Hague in Netherlands (Source:
The International Criminal Court at the Hague in Netherlands (Source:

Meanwhile, the International Criminal Court (ICC) is trying to justify its existence nearly 12 years after its inception. The court, which is responsible for investigating and prosecuting international crimes like genocide, crimes against humanity, and war crimes, has been accused of being biased against African leaders. It’s not difficult to see that allegation – currently, the ICC has 9 cases and/or active investigations against African states.

In light of the recent allegations against the CIA, one wonders if the ICC can capitalize on this public wave of anger and attempt to bring the United States under its investigative mandate. This would go a long way to dispel any allegations that the ICC is biased towards African states, and could provide for a new avenue of accountability and rule of law in the international sphere.

However, this does not mean that the United States would have any actual charges brought against it by the ICC. The reasons for that are simple – the United States has never ratified the Rome Statute (which is required in order for the ICC to have jurisdiction over that country) and has already indicated that they do not intend to become state parties to the Rome Statute, thereby releasing them of their obligation not to subvert the treaty.

Yet, there are some justifications as to why the ICC should make it known that it intends to prosecute US officials:

  • Restoring public trust in the ICC by emphasizing its non-partisan stance;
  • Emphasizing the rule of law;
  • Bringing discussion of human rights for detainees to the forefront, and
  • Catalyzing a change in the US stance on the ratification of the Rome Statute.

The last point may seem a bit odd: how can the ICC catalyze a change to a long-standing US policy of not ratifying the Rome Statute by essentially warning the US “we’re coming for you”?

The hope is that, if the ICC joins the conversation on the US Torture Report, it may influence some reaction from the electorate to either demand a response from the US government (e.g. implementing new policy to respect detainee rights and prosecuting individuals through an internal mechanism) or to implement an “external enforcement mechanism” where officials found to be torturing detainees would be remanded to the ICC. This can only happen if the ICC indicates an interest in prosecuting individuals who were found to have indeed tortured detainees.

As I stated before, this does not mean any US officials will actually face any charges at the ICC. However, it could lead to a ratification of the Rome Statute by the US, or it could lead to the ICC modifying its rules to prevent “politicized prosecutions” (one of the grounds on which the US refused to ratify the Rome Statute). It’s difficult to anticipate what kind of change could come about as a result of the US government and the ICC talking to each other, but it could at least lead to something.

One thing I know for certain: the ICC could certainly benefit from changing its focus on some Western states for a little bit. Last time I checked, there are other places in the world that have rampant human rights abuses.

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