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ENHANCED INTERROGATION PROGRAM

Can the ICC investigate the situation and prosecute the responsible persons?

17 JUNI 2015 KIM LUCAS

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ENHANCED INTERROGATION PROGRAM

Can the ICC investigate the situation and prosecute the responsible persons?

Author: Kim Lucas Student number: 10442057

Program: Master International and European Law: Public International Law Organisation: University of Amsterdam

Supervisor: Prof. Mr. Dr. H.G. van der Wilt Amsterdam, 17 June 2015

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Preface

After years of hard work the time was finally there, I was starting with my thesis. To finish my Master Public International Law I researched whether the International Criminal Court could, hypothetically, investigate the use of enhanced interrogation techniques and prosecute the responsible persons. I started feeling excited, but what followed was a lot of stress and frustration. Luckily, thanks to my thesis supervisor professor van der Wilt, who patiently

supported me through the whole process, everything turned out fine. Again, I am feeling excited, this time for my life after graduation.

I would also like to thank my amazing parents for all their love and support throughout the years. Thank you dad, for always making time to re-read my thesis over and over again. Thank you mom, for always being there, especially when things got difficult. You both have helped me get to the finish line.

Finally I would like thank my wonderful boyfriend, Robbert. Thank you for believing in me and making sure that I also made time to have fun.

Mom, Dad, Robbert, I could not have done it without you and I hope you are proud of how my thesis turned out.

Kim Lucas

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Table of Contents

1. Introduction ... 4

2. Case study: enhanced interrogation techniques by the CIA ... 6

2.1. Enhanced interrogation techniques ... 6

2.2. Torture memoranda ... 6

2.3. The (legal) status of the torture memo’s ... 14

2.4. Investigation by the Justice Department and inspector-general of the CIA ... 14

2.5. Senate Intelligence Committee report on CIA torture ... 15

2.6. Conclusion ... 17

3. Jurisdiction of the ICC ... 19

3.1. The Rome Statute ... 19

3.2. War crimes ... 19

3.3. International armed conflicts and non-international armed conflicts ... 20

3.4. Do the enhanced interrogation techniques fall within a crime of the Rome Statute? ... 20

3.5. Conclusion ... 25

4. Admissibility ... 26

4.1. Are the any issues of admissibility? ... 26

4.2. Conclusion ... 28

5. Individual responsibility ... 29

5.1. Is there individual criminal responsibility? ... 29

5.2. Conclusion ... 30

6. Conclusion ... 31

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1. Introduction

On September 11, 2001 the world was shocked when the United States was attacked by terrorists. The United States considered this as an act of war and reacted accordingly. They started “the war on terror”, a campaign to destroy Al Qaeda and other militant extremist organizations, carried out in various states around the world that organized, assisted, facilitated or supported terrorism. They intensively pursued the terrorists in order to obtain information to prevent further attacks on American targets. The United States used unconventional methods to detain suspects and

interrogate them.

These unconventional methods were named enhanced interrogation techniques. Enhanced interrogation techniques entail a set of interrogation techniques used by the CIA to obtain valuable intelligence from detainees which allegedly amount to systematic torture of detainees. The methods include facial hold and attention grasp, stress positions and wall standing,

confinement to boxes, sleep deprivation, facial slap and wall standing, waterboarding and were authorized by officials of the Bush administration.

On December 9, 2014, the United States Senate Select Committee on Intelligence released a 525 page portion of a 6000 page report about detailed actions by CIA officials and finding about the United States Detention and Interrogation Program. The actions include torturing prisoners and mismanaging of the program. The report concluded that the torturing of detainees did not help with acquiring actionable intelligence or cooperation from the detainees.

The reason for this Senate Intelligence Committee report of CIA torture was the destruction of CIA interrogation tapes. These tapes were made during interrogations of two Al Qaeda suspects at a CIA black site prison. One of these suspects subjected to these enhanced interrogation techniques was Abu Zubaydah, thought to have been the link between Osama Bin Laden and Al Qaeda cells. He was also suspected of running a number of Al Qaeda camps, at which some of the 9/11 hijackers were trained.1 The United States Senate Committee on Intelligence believed that the tapes were destroyed to cover up illegal activities. The tapes reportedly showed use of enhanced interrogation technique by the CIA.

After this a debate arose over whether or not the United States was involved in torture and what was supposed to be done to bring the responsible persons to justice. Given the fact that torture is an international crime, one option could be the International Criminal Court.

Since the United States are not a party to the Rome Statute, the ICC only has limited jurisdiction over crimes committed by the United States. The focus of this thesis revolves around the

assumption that the United States was a party to the Rome Statute. If the United States was a party to the Rome Statute, this would increase the power of the ICC.

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5 The first question that will be answered is whether and under which crimes within the Rome Statute these acts could fall. The crimes of the Rome Statute include genocide, crimes against humanity, war crimes and the crime of aggression.

A second question is that of admissibility. Since the ICC is a complementary court, it can only exercise its jurisdiction when a state is unwilling or unable genuinely to carry out the

investigation or prosecution. This means that we have to examine whether the United States has done this.

The third question is about the criminal individual responsibility of the suspects. Individual criminal responsibility is laid down in art. 25 of the Rome Statute. Not only physical perpetrators can be held responsible but everyone who commits, orders, solicits, induces, facilitates, aids, abets or otherwise contributes to the commission of the crime.

To answer these questions first of all a case study will be elaborated. Then the jurisdiction of the ICC, the admissibility and the individual responsibility will be analyzed. Finally conclusions can be drawn on the question whether the International Criminal Court could investigate the use of enhanced interrogation techniques and prosecute the responsible persons.

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2. Case Study: enhanced interrogation

techniques by the CIA

2.1 Enhanced interrogation Techniques

After the attacks on September 11 2001, the CIA developed a list of new interrogation techniques, which were called enhanced interrogation techniques. Enhanced interrogation techniques are part of the detention and interrogation Program and allegedly entails systematic torture of detainees. The enhanced interrogation techniques were based on the Air Force’s Survival Evasion Resistance Escape (SERE) program. The CIA contracted two psychologist to develop harsh, alternative interrogation techniques. These interrogation techniques include sleep deprivation, slapping and waterboarding and were conducted at various locations around the world known as black sites such as Bagram, Abu Ghraib and Guantanamo Bay. The methods of severe and systematic torture were used on various detainees, suspected of being part of the September 11 attacks. These methods include mock executions, stripping prisoners naked, keeping them awake for long periods, slamming them against walls and waterboarding and were authorized by President Bush.

2.2 Torture memoranda

The torture memoranda are a set of legal memoranda used to advise the president, the CIA and the department of Defense of the United States on the use of enhanced interrogation techniques. In these memos, it was stated that some acts, which were widely regarded as torture in both international law as well as national law, might be legal under a wide interpretation of

presidential authority during the war on terror. In international law, the prevention of torture is regulated by the United Nations Convention against torture. This convention requires parties to implement the obligations in their national law. The United States did this in title 18 section 2340 of the United States Code.

The torture memos were drafted by the Office of the Legal Counsel and contained a

memorandum from John Bybee for A. Gonzales2 about standards of conduct for interrogation under 18 U.S.C. sections 2340-2340A, a memorandum from John Bybee for J. Rizzo3 about interrogation of Al Qaeda operative and a letter from John Yoo to Alberto Gonzales. The Office of Legal Counsel (OLC) in the Department of Justice provides authoritative legal advice to the President and executive branch agencies. OLC provides written legal opinions and oral advice in response to requests from the president, executive branch agencies, and offices within

Department Of Justice. The OLC’s issues authoritative, independent opinions on complex and important legal matters about which agencies may disagree.

2

Counsel to the President.

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7 After the resignation of head of the office of the legal counsel Bybee in September 2007, his successor Jack Goldsmith withdrew the torture memoranda and concluded that they were legally defective.4 This however only lasted 10 months, since after Goldsmiths resignation the

memoranda were reinstated. Acting assistant attorney general Levin noted that, “[w]hile we have identified various disagreements with the August 2002 Memorandum, we have reviewed this Office's prior opinions addressing issues involving treatment of detainees and do not believe that any of their conclusions would be different under the standards set forth in this memorandum.”5

Standards of conduct for interrogation under 18 U.S.C. sections 2340-2340A6

This memorandum contains the view of the Office of the Legal Counsel regarding the standards of conduct under the Convention Against Torture as implemented by section 2340-2340A of title 18 of the U.S.C. This question arose in the context of interrogations outside the US.

Part I states that section 2340A makes it a criminal offence for any person outside the US to commit or attempt to commit torture. To be able to convict someone of torture, it must be established that the torture occurred outside the US, the defendant acted under the color of the law, the victim was in de defendants custody or physical control, the defendant specifically intended to cause severe physical or mental pain or suffering and the act actually inflicted severe physical or mental pain or suffering.

Specifically intended

The severe pain and suffering must be inflicted with specific intent. For a defendant to have acted with specific intent, he must expressly intend to achieve the forbidden act, which means that the infliction of pain or suffering must be the defendants precise objective. So even if a defendant knows his actions will cause severe pain, if this is not his objective, he lacks the required specific intent.

Severe pain or suffering

An act amounts to torture if they cause severe physical or mental pain or suffering. However, since the statute does not define severe, the term will be interpreted in accordance with its ordinary or natural meaning. The adjective severe presupposes that the pain or suffering must be of such a high level of intensity that the pain is difficult to endure and must rise to a level that is ordinarily associated with a sufficiently serious physical condition or injury such as death, organ failure or serious impairment of body functions.

Severe mental pain or suffering

In order to prove severe mental pain or suffering, the Statute requires proof of prolonged mental harm, that was caused by or resulted from the four predicate acts.

4

J. Rosen, "Conscience of a Conservative", The New York Times Magazine, 9 September 2007, accessed 16 January 2013

5 Levin, Daniel (30 December 2004). "Definition of Torture Under 18 U.S.C. §§ 2340–2340A". United States

Department of Justice.

6

Bybee, J. (2002). Memorandum for A. Gonzales Counsel to the President [Re:] Standards for Conduct for Interrogation under 18 U.S.C. 2340-2340A. United States, Department of Justice, Office of Legal Counsel.

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8 Prolonged harm

The element of prolonged harm adds an temporal dimension in that the harm must be endured over a period of time. The acts giving rise to the harm must cause some lasting, though not necessarily permanent, damage.

Predicate acts

Section 2340A sets out four basic categories of predicate acts, namely (1) the intentional infliction or threatened infliction of severe physical pain or suffering, (2) the administration or application or threatened administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality, (3) the imminent threat of death or (4) the threat that another person will imminently be subjected to death, severe physical pain or suffering or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.7

Part II distinguishes between torture and cruel, inhuman or degrading treatment and punishment and concludes that torture is only the most extreme of acts. It does so by discussing the

Convention Against Torture and by examining the ratification and negotiating history.8

Part III analyses various cases involving torture to summarize the conduct. The memo concludes that, based on previous cases, interrogation techniques would have to be similar in their extreme nature and type of harm caused to violate the law. Torture should be reserved for acts of the most extreme nature.9

Part IV analyses two international cases involving torture: Ireland v. the United Kingdom, a European Human Rights case and Public Committee against torture in Israel v. Israel, an Israeli Supreme Court case. It concludes that a wide array of acts that constitute cruel, inhuman or degrading treatment or punishment do not amount to torture. Such acts include wall standing, hooding, sleep deprivation and subjection to noise.10

Part V states that even if an interrogation method would violate the law, that law would be

unconstitutional if it encroached on the constitutional power of the president to conduct a military operation.11

Part VI concludes by saying that by the attack on September 11 2001, necessity or the right to self-defense had been triggered and therefor may justify the violating interrogation methods.12 The final conclusion of the Standards for Interrogation is that torture as defined in the Convention Against Torture only covers extreme acts that are difficult to endure. Physical pain must be of an intensity which is similar to serious physical injury such as death or organ failure. Mental pain must not just be momentarily, but long lasting psychological suffering, such as posttraumatic stress disorder.

7

Ibid. Part I, p. 2-13.

8

Ibid. Part II, p. 14-22.

9 Ibid. Part III, p. 22-27. 10 Ibid. Part IV, p. 27-31. 11

Ibid. Part V, p. 31-39

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9 This memorandum sets a high minimum standard for torture. Only when it comes to very severe forms of abuse can acts be said to amount to torture. The fact that the memorandum requires specific intent to inflict the severe pain or suffering also makes it much more difficult to proof that abuse that does reach the minimum level amounts to torture. This specific intent is not required by the Torture Convention, which section 2340 is an implementation of. This would suggest that International law does not find specific intent a relevant requirement for torture. The memo also point to the prohibition of torture not being absolute, since it allows torture in several exceptional circumstances such as self-defense and in case of necessity.

Interrogation of Al Qaeda operative13

This memorandum was a response to the request for a legal opinion whether certain proposed conduct would violate the prohibition against torture found in section 2340A of title 18 U.S.C. Part I specifies that this memorandum can only be used in the case of Abu Zubaydah and that the conclusions of this memorandum can change according to the facts. Zubaydah was held by the United States and was believed to have additional information about terrorist networks in the US and Saudi Arabia and to have plans to conduct other terrorist attacks. In retrieving this

information from Abu Zubaydah use will be made of a so called increased pressure phase, in which enhanced interrogation techniques will be used. Part of this increased pressure phase will be an interrogator and a survival, evasion, resistance, escape training psychologist and medical expert, that will stop the procedures if deemed medically necessary to prevent severe mental or physical harm to Zubaydah. It further explains what each of the proposed techniques entail. (1) the attention grasp: grasping the individual with both hands, with one hand on each side of the collar opening, in a quick and controlled motion. (2) walling: placing the individual against a flexible false wall, with his heels touching the wall. The interrogator pulls the individual forward and quickly pushes him into the wall. The head and neck are supported with a towel to prevent a whiplash. The loud sound of the false wall will shock or surprise and will make the impact seem worse than it is. (3) facial hold: used to immobile the individual by placing an open palm on either side of the individuals face, while the fingertips are kept away from the individuals eyes. (4) facial slap: slapping the individual with fingers slightly spread, directly between the tip of the individual’s chin and the bottom of the earlobe. (5) cramped confinement: the individual will be placed in a dark confined space, with the dimensions restricted to the individuals movements. Duration various from two hours in a small space to up to eighteen hours in a large space. (6) wall standing: is used to induce muscle fatigue and requires the individual to stand for about four to five feet from the wall, with his feet spread approximately to shoulder wide. His arms are stretched out in front of him, with his fingers touching the wall to support his whole body. The individual is not permitted to move or reposition. (7) stress positions: designed to produce physical discomfort associated with muscle fatigue. Positions that will be used on Zubaydah are sitting on the floor with his legs extended straight out in front of him with his arms raised above his head and kneeling on the floor while leaning back at a 45 degree angle. (8) sleep deprivation: used for the purpose of reducing the individual’s ability to think on his feet and through the

13

Bybee, J. (2002). Memorandum for J. Rizzo Acting General Counsel of the CIA [Re:] Interrogation of al Qaeda Operative. United States, Department of Justice, Office of Legal Counsel.

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10 discomfort associated with lack of sleep, to motivate him to cooperate. (9) placement in a

confinement box with insects: in light of Zubaydah’s fear of insects he will be placed in a confinement box together with an insect. Although it will be a harmless insect, Zubaydah will told it is an stinging insect. (10) waterboarding: the individual will be securely bound to an inclined bench while his feet are generally elevated. A cloth will be placed over his forehead and eyes on which water will be applied in a controlled manner. The cloth will be lowered until it reached the individual’s nose and mouth, which will cause the air flow to slightly restrict for 20 to 40 seconds. Waterboarding causes an automatic psychological sensation of drowning which the individual cannot control.14

Part II reviews the context in which the interrogation techniques will be applied and sets forth an assessment of Zubaydah’s psychological profile. Zubaydah’s strengths include the ability to focus, goal directed discipline, intelligence, emotional resilience, street savvy, ability to organize and manage people, keen observation skills, fluid adaptability, capacity to assess and exploit the needs of others and the ability to adjust goals to emerging opportunities. Zubaydah will most likely draw upon his vast knowledge of interrogation techniques to cope with the interrogation and assessment indicates that he may be willing to die to protect important information. However, he might be willing to disclose some information, he deems not to be critical, but which may be useful when pieced together.15

Part III provides for a legal analysis of the US anti torture law and the application of the proposed techniques in this particular case. It summarizes and analyzes the elements of torture and the required specific intent for the offense. This part begins by outlining torture as defined in section 2340(1). It is stated that torture is an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering upon another person within his custody of physical control. Section 2340A makes it a criminal offence for any person outside the United States to commit or attempt to commit torture. The issue that is being

considered whether, in the case of Abu Zubaydah, the element of the intention to inflict severe pain or suffering and the actual infliction of severe pain or suffering are met. In doing this the elements of severe pain or suffering are defined.

Severe pain and suffering

In this memo, it is again concluded that severe pain within the meaning of section 2340 is pain that is difficult to endure and of an intensity similar to the pain accompanying serious physical injury. Examples of acts inflicting severe pain that typify torture are severe beatings with

weapons and the burning of prisoners. The memo continues to examine the proposed techniques to be used on Abu Zubaydah and concludes that such techniques do not inflict severe pain. Facial hold and attention grasp: these techniques do not involve physical pain, which means they cannot inflict severe physical pain or suffering.

Stress positions and wall standing: these techniques require the sustained holding of a position.

14

Ibid. Part I, p. 1-4.

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11 Although uncomfortable, pain associated with muscle fatigue is not considered to be of the

intensity sufficient to amount to severe physical pain or suffering. Therefor it is concluded that these techniques involve discomfort that falls far below the threshold of severe physical pain. Confinement boxes: although very uncomfortable, these boxes are not small enough to sit or stand. It cannot be said that these boxes cause pain that is of the intensity associated with serious physical pain.

Sleep deprivation: this also does not involves severe physical pain within the meaning of the statute. The discomfort that is experienced during the sleep deprivation remit after the individual is permitted to sleep and thus do not amount to severe physical pain or suffering.

Facial slap and walling: even though there is physical contact between the individual and the interrogator, the experienced pain does not rise to the level of severe pain.

Waterboarding: although the individual may experience the fear or panic associated with the feeling of drowning, this technique does not cause severe pain or suffering. Waterboarding is considered to be a controlled acute episode, lacking the association of a protracted period of time generally given to suffering.

Even when all these techniques are considered combined in an overall course of conduct, they are still not considered to inflict severe physical pain or suffering. This due to the fact that

individuals are supposedly not being subjected to substantial repletion.

The memo also considers whether the proposed techniques can amount to mental pain or suffering. Mental pain within the meaning of section 2340 means the prolonged metal harm caused by or resulting from one of several predicate acts. These predicate acts must, separately or as a course of conduct, constitute a threat of severe physical pain or suffering, a procedure

designed to disrupt profoundly the senses or a threat of imminent death.

Facial hold and attention grasp: since these techniques are not accompanied by verbal threats of severe physical pain or suffering and do not constitute threats of imminent death and are not procedures designed to disrupt profoundly the senses or personality of an individual, these are not predicated acts that fall within the meaning of section 2340.

Stress positions and wall standing, confinement to boxes, sleep deprivation, facial slap and wall standing: neither one of these techniques involve the threat of imminent death nor does it constitute a threat of severe physical pain or suffering. they can also not be seen as a procedure calculated to disrupt profoundly the senses, as long as it is used for limited periods of time.

Waterboarding: this technique is constituted as a threat of imminent death and therefor fulfils the predicate act requirement under the statute. But since it has been said that once the cloth is

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12 removed, immediate relief is felt, prolonged mental harm is absent , no severe mental pain or suffering is inflicted and the use of this technique does not constitute torture within the meaning of the statute.

When these acts are considered as a course of conduct, it is unsure whether they may constitute a threat of severe pain or suffering. Even if this were the case, this course of conduct does not constitute a violation of Section 2340.

Specific intent

According to the statute, an individual must have specific intent to inflict severe pain or suffering. Without this specific intent, a specific act cannot be called torture. Based on received information it is believed that those carrying out these procedures would not have specific intent to inflict severe physical pain or suffering, since the objective of the techniques is not to cause severe physical pain but to gain valuable information. The document lists several arguments for this position.

First, the constant presence of personnel with medical training who have the authority to stop the interrogation should it appear it is medically necessary indicates that there is no intent to cause severe physical pain.

Second, steps are being taken to ensure that Zubaydah’s injury is not worsened or his recovery impeded by the use of these techniques.

Third, the proposed techniques, as has been described, involving physical contact between the interrogator and Zubaydah actually contain precautions to prevent any serious physical harm. Fourth, no specific intent to cause severe mental pain or suffering appears to be present. For this an individual must have the specific intent to cause prolonged mental harm in order to have the specific intent to inflict severe mental pain or suffering. For prolonged mental harm, substantial mental harm of a sustained duration is necessary. It is believed that an individual conducting the interrogation has a good faith belief that the procedures he applies would not result in prolonged mental harm, either conducted separately or together and therefor that individual would lack the required specific intent.

The exact psychological impact of the course of conduct must be assessed with reference to the subjects psychological history and mental health status, the healthier the individual, the less likely that the use of any one of the procedures will result in prolonged mental harm.16

This memorandum serves to conclude that during the interrogation of Zubaydah no use was made of techniques that amount to torture. The memo analyzes every technique that was used during the interrogations and cautiously refutes that they include severe pain or suffering or that the required specific intent was present. It also states that the requirement of specific intent is not met, since the objective of the techniques were not to cause severe physical pain but to gain valuable information. In my opinion, the fact that United States officials studied how Zubaydah would react to certain techniques, does point to specific intent to inflict severe pain.

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13 In a report by the ICRC on the treatment of fourteen “high value detainees” in CIA custody, provides a description of the of the treatment and material conditions of detentions as reported by fourteen detainees. One of these detainees, who’s treatment was described was Abu Zubaydah. He describes the subjection of waterboarding as being very painful, due to the pressure of the straps that were used to hold him down on his wounds. The report states that the suffocation procedure was applied during five sessions of ill treatment that took place during a one-week intense period of interrogation, during which Zubaydah though he was going to die. The confinement in a box was also described a very painful, since the confined position put a lot of stress and the wounds on his stomach and leg. The other detainees also experienced the enhanced interrogation techniques as causing severe pain.17

This report leads me to believe that the enhanced interrogations in fact did cause severe physical and mental pain or suffering.

Letter from John Yoo to Alberto Gonzales18

The third memorandum is addressed to Alberto Gonzales in response to the question whether the interrogation methods used on Al Qaeda operatives would be a violation of the Convention against torture and whether these actions could be the basis for prosecution before the International Criminal Court.

Part I briefly explains the definition of torture according to the United States Code, just like has been done in the previous memoranda.19

Part II compares the definition of torture by the Convention against torture to the definition of the United States Code and concludes that although there are apparent differences in language, the United States can only be hold to the obligation as expressed in the United States code due to the ratification they made to the Convention against torture.20

Part III discusses the possibility of prosecution before the International Criminal Court. This memorandum states that the International Criminal Court could not claim jurisdiction since the United States did not ratify the Rome Statute. It further states that even if the International Criminal Court were to claim jurisdiction, the interrogation of an Al Qaeda member would not constitute as a crime under the Rome Statute.21

Although the definitions by the United States and the Torture Convention is apparently different, this should not lead to a conclusion that the enhanced interrogation techniques would be allowed under either of them. Whether prosecution before the ICC, hypothetically, could happen will be analyzed in chapter 3.

2.3 The (legal) status of the torture memo’s

17 International Committee of the Red Cross, ICRC report on the treatment of fourteen “high value detainees” in CIA custody, February 2007, P.8-14.

18

Yoo, John C. (August 1, 2002). Response to Alberto Gonzales' Request for Views on Legality of Interrogation Techniques. United States, Department of Justice, Office of the Legal Counsel.

19 Ibid. Part I, p. 1-2. 20

Ibid. Part II, p 2-5.

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14 As previously explained, the torture memoranda entail a set of legal memoranda used to give guidance for the enhanced interrogation program. The OLC’s interpretations of law do not formally have the force of law, but they are considered definitive within the executive branch until withdrawn or overruled.22 Even though such opinions are not binding outside the executive branch they do provide for the legality of the enhanced interrogations which were based on these memos. After taking office, President Obama, rescinded all the guidance of the office of the legal counsel about the detention or interrogation of detained individuals and directed that no

government agency could rely on these memoranda. In the executive order, signed in January 2009, President Obama ordered that the CIA can only use the 19 interrogation methods outlined in the United States Army Field Manual on interrogations, “unless the Attorney General with appropriate consultation provides further guidance.”23 With this President Obama ordered compliance with US domestic law and its international agreement, in its treatment of detainees. Despite the fact that these enhanced interrogation techniques were based on legal opinions that provided for its legality, the enhanced interrogation methods should nevertheless be considered unlawful since torture is the prohibition against torture is absolute and reliance on severely flawed legal advice should not be invoked as a defense to torture.

2.4 Investigation by Justice Department and inspector-general of CIA

After some speculations were made by the media in 2007 of the destruction of videotapes that showed these enhanced interrogation techniques, the Justice Department and the CIA’s office of the inspector-general decided to launch a joint inquiry into these allegations. It was reported that these videos showed harsh interrogation methods which could be considered as violation of United States anti-torture statutes or international law. One of the suspects who’s interrogations were taped was Abu Zubaydah. Allegedly the tapes were made to document possible confessions and would serve as an internal check on the conduction of the interrogation, but were ultimately destroyed to protect agency officials from legal risk since the videotapes showed abusive interrogations that could amount to torture. The tapes were ordered to be destroyed by CIA director Jose A. Rodriquez in November 2005.24 In January 2008, federal prosecutor John H. Durham started his criminal investigation. In August of 2009, the new Attorney General, Eric Holder, expanded the mandate of the investigation to include looking into whether crimes had been committed in the interrogation program. In 2010 he concluded that due to the fact that the Justice Department initially signed off on certain interrogation techniques it was considered essentially impossible for the department to prosecute officials who relied on the memorandums. This means that these officials claim to have acted according to approval of higher authority. Durham closed the investigation without recommending that criminal charges be filed.25

22

OLC Guidelines, supra note 12, at 1603 (“OLC’s legal determinations are considered binding on the executive branch, subject to the supervision of the Attorney General and the ultimate authority of the President.”)

23 United States President Barack Obama, Executive Order 13491 – Ensuring Lawful Interrogations, The White

House, January 20, 2009.

24

Eggen, Dan; Warrick, Joby (December 7, 2007). "CIA Destroyed Videos Showing Interrogations: Harsh Techniques Seen in 2002 Tapes". Washington Post. Retrieved October 13, 2011. Mazzetti, Mark (December 7, 2007). "C.I.A. Destroyed 2 Tapes Showing Interrogations". New York Times. Retrieved October 14, 2011.

25

Mazzetti, Mark; Savage, Charlie (November 9, 2010). "No Criminal Charges Sought Over C.I.A. Tapes". New

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15 Although officials of the Department of Justice did not provide any details of the decision not to prosecute, one obstacle to the case was that the officials who destroyed the tapes claimed to have gotten approvals from CIA lawyers.26

In my opinion Durham should and could have started a prosecution of the responsible people. Multiple reports and statements clearly prove that the enhanced interrogation techniques by United States officials did intentionally inflict severe physical or mental pain and suffering.

2.5 Senate Intelligence Committee report on CIA torture

However, in 2009 the Senate Intelligence Committee decided to open an investigation into the CIA detention and interrogation program. From 2009 to 2012, more than six million pages of CIA material were reviewed by a group of committee staff, including intelligence reports,

internal memoranda, emails, briefing materials, interview records and other materials, which was used to compile a report on the CIA’s Detention and Interrogation Program and its use of various forms of torture on detainees between 2001 and 2006. The report was conducted in light of the destruction of almost 100 videotapes of interrogations in 2005 by the CIA director of the National Clandestine Service. It was believed by the United States Senate Select Committee on

Intelligence that the director was covering up illegal activities by the CIA. In this report the Committee, chaired by Dianne Feinstein, made several findings and conclusions on the actions of CIA officials and the Detention Program. The executive summary, findings and conclusions have been declassified.27

Some of the key findings and conclusions the Committee makes about the enhanced interrogations techniques are:

1. The CIA's use of its enhanced interrogation techniques was not an effective means of acquiring intelligence or gaining cooperation from detainees. According to the report, seven of the 39 CIA detainees produced no intelligence after having been subjected to the CIA’s enhanced

interrogation techniques. Of those who had been subjected to enhanced interrogation techniques, multiple detainees fabricated information which resulted in false intelligence. Detainees that did provide accurate intelligence were mostly not subjected to these techniques.

According to both their own national law as well as the Rome Statute the prohibition of

intentional infliction of severe pain or suffering is absolute, no matter how effective it can be in acquiring intelligence or cooperation.

2. The CIA's justification for the use of its enhanced interrogation techniques rested on inaccurate claims of their effectiveness. The CIA used various examples to claim that its enhanced

interrogation techniques were not only effective but also necessary to acquire intelligence that was otherwise unavailable and that saved lives. But most of the provided examples included numerous factual inaccuracies.

26 M. Mazzetti, C. Savage (November 9, 2010). "No Criminal Charges Sought Over C.I.A. Tapes". New York Times. 27

The U.S. Senate Report on CIA Detention Interrogation Program that details the use of torture during CIA detention and interrogation.

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16 3. The interrogations of CIA detainees were brutal and far worse than the CIA represented to policymakers and others. The CIA applied its enhanced interrogation techniques on several detainees with significant repetition for days or weeks at a time. Combinations of slapping and slamming against a wall and sleep deprivation and nudity were frequently used. Representations by the CIA that they initially used an open and non-threatening approach or that interrogations began with the least coercive techniques possible are not supported by records. Other methods used were waterboarding and subjection to rectal rehydration.

The fact that the CIA claimed to initially have used an open and non-threatening approach and began interrogations with the least coercive techniques, seem to suggest that such interrogation techniques were explored. When there are less coercive measures available, these should be used. 4. The conditions of confinement for CIA detainees were harsher than the CIA had represented to policymakers and others. Especially in the early days, conditions at the detention centers were very poor. Detainees were kept in complete darkness, constantly shackled in isolated cells with loud noises or music. Lack of heat even reportedly contributed to the death of a detainee. Other harsh conditions detainees were put in were being hooded and dragged naked up and down corridors while being slapped and punched. Even after construction of new detention centers, conditions barely improved. Multiple detainees exhibited psychological and behavioral issues after being subjected to the CIA’s enhanced interrogation program.

5. The CIA repeatedly provided inaccurate information to the Department of Justice, impeding a proper legal analysis of the CIA's Detention and Interrogation Program. Representations made by the CIA on which the Office of the Legal Counsel of the DoJ relied proved to be inaccurate. The CIA’s representations about the techniques were completely different from how the techniques were actually applied. The legal justifications on which the program relied were claimed to be the necessity to save lives. These justifications were based on various inaccurate examples of the effectiveness of the enhanced interrogation techniques.

Here the CIA seems to purposely misguide the OCL by claiming to use softer forms of

techniques in order to possible save lives. To me however, even these softer forms of enhanced interrogation techniques should not be used to justify saving life, since their own national law and international law does not permit any derogation from torture or cruel, inhuman or degrading treatment or punishment.

6. CIA detainees were subjected to coercive interrogation techniques that had not been approved by the Department of Justice or had not been authorized by CIA Headquarters. Detainees were routinely subjected to nudity and dietary manipulation and the CIA also used abdominal slaps and cold water dousing, all of which had not been approved by the Department of Justice or authorized by the CIA headquarters. Although some of these cases were identified by CIA supervisors as being inappropriate, corrective action was rarely taken against involved interrogators.

This seems to suggest that some detainees were being subjected to both coercive interrogation techniques that had been approved as well as to coercive interrogation that had not been approved by either the DoJ or the CIA. Since the approved techniques are already questionable as to their

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17 legality, the unapproved techniques surely are not legal. The CIA supervisors should have taken action against the interrogators involved in the unapproved interrogations. By not doing so, this seems to indicate that the United States was unwilling genuinely to investigate or prosecute. 7. The CIA did not conduct a comprehensive or accurate accounting of the number of individuals it detained, and held individuals who did not meet the legal standard for detention. The CIA's claims about the number of detainees held and subjected to its enhanced Interrogation techniques were inaccurate.

This can also be seen as an indication of the unwillingness of the United States to genuinely investigate or prosecute.

8. The CIA failed to adequately evaluate the effectiveness of its enhanced interrogation

techniques. The CIA never conducted a credible and comprehensive analysis of the effectiveness of the enhanced interrogation techniques, despite several recommendations by the CIA inspector general and the national security advisor.

It could not be said that the intelligence required by the CIA through these enhanced interrogation was effective or that this information was actually obtained as a result of these techniques. The possible effectiveness of these enhanced interrogation techniques, however does not even matter since, as previously mentioned, no derogation is permitted from the prohibition on torture and cruel, inhuman and degrading treatment or punishment.

9. The CIA rarely reprimanded or held personnel accountable for serious and significant

violations, inappropriate activities, and systemic and individual management failures. Rarely did the CIA hold CIA officers or contractors accountable for violations of CIA policies or poor performance.

2.6 Conclusion

The report on CIA torture by the Senate Intelligence Committee details actions by numerous CIA officers, such as torturing detainees and providing false or misleading information about the program. It has been concluded that these harsh interrogation methods did not help acquire live saving and otherwise unavailable information.

In my opinion this report concludes that the enhanced interrogation techniques violate several rules of international law. The prohibition of torture is absolute, meaning that it can never be used for any reason, not even in case of self-defense, necessity or because these techniques were approved by the president. By basing these techniques on memoranda, the United States tried to give these techniques a legal status. However, since the prohibition on torture is absolute, there can never be a legal basis for torture. By repeatedly providing false information, it seems like the CIA is trying to hide their true, possibly forbidden, actions. However, after two investigations, one led by federal prosecutor John Durham and the other by the Senate Intelligence Committee report on CIA torture, it has been announced by the department of Justice that they are not reopening the investigation into the use of torture by CIA agents, despite what has been reported in the report of the Senate Intelligence Committee. Reason for this was that they did not find new information they had not considered previously. Since the enhanced interrogation techniques

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18 were approved by the CIA and the President, prosecutors are likely to only consider charges against persons who engaged in unauthorized activities.

Since the enhanced interrogation program likely entails the use of torture and cruel, inhuman and degrading treatment, does this mean that by not starting prosecutions against people responsible for developing this program and subjecting detainees to it the United States is violating both international law as well as their own national laws? If this is the case, this can lead to possible investigation and prosecution by the ICC. This will be further analyzed in the next chapters concerning the jurisdiction of the ICC, the admissibility of this case to the Court and the individual responsibility.

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19

3. Jurisdiction of the ICC

3.1 The Rome Statue

For the International Court to be able to investigate and prosecute, the crimes must fall within the jurisdiction of the Court. The jurisdiction of the ICC is established in the Rome Statute and based on four core international crimes, genocide, the crime of aggression, crimes against humanity and war crimes. Genocide is the intent to destroy, in whole or in part, a national, ethnical, racial or religious groups by means of several proscribed acts.28 The crime of aggression means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.29 Crimes against humanity are particularly odious offences which constitute a serious attack on human dignity or a grave humiliation or degradation of human beings. Torture may amount to a crime against humanity when they are committed as part of a widespread or

systematic practice or attack against a civilian population.30 War crimes are serious violations of the laws and customs applicable in international armed conflict and serious violations of the laws and customs applicable in an armed conflict not of an international character, such as torture. The Court has jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.31 In this case, the enhanced

interrogation techniques seem to best fit the category of war crimes. Since the enhanced interrogation techniques were not committed as part of a widespread or systematic practice or attack against a civilian population they don’t fit the elements of torture as a crimes against humanity.

3.2 War crimes

Torture may be a predicate offence underlying a war crime, however for this all the general requirements for this class of crimes must be met. War crimes take place in an armed conflict. This armed conflict can either be of an international nature or of a non-international armed conflict. So, the torture must have been committed in connection with an armed conflict. Additionally, torture as a war crime must be committed against a protected person in an

international armed conflict or against persons taking part in hostilities or captured fighters in a non-international armed conflict.32 For torture to be conceived as a war crime, the infliction of severe physical or mental pain or suffering upon an individual is necessary. This pain or suffering

28

Article 6 Rome Statute.

29 Article 8 bis** Rome Statute. 30 Article 7 Rome Statute. 31

Article 8 Rome Statute.

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20 must be inflicted to obtain information or a confession, punishment, intimidation or coercion or for any reason based on discrimination of any kind.33

3.3 International armed conflicts and non-international armed conflicts

Common article 2 of the Geneva Conventions describes an international armed conflict as a conflict between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.34 In the commentary to the Geneva Conventions it is stated that any difference arising between two states and leading to the intervention of armed forces is an international armed conflict. It makes no difference if one of the parties denies the existence of a war, how long the conflict lasts and how much slaughter takes place.35

Common article 3 of the Geneva Conventions describes conflicts not of an international character as occurring on the territory of one of the High Contracting Parties. These armed conflicts are between a party and one or more non-governmental armed groups or between such groups. The intervention of a third state does not necessarily change the non-international character of the armed conflict.

In the Tadic case the court established two criteria to separate internal disturbances from a non-international armed conflict. First, the hostilities must reach a minimum level of intensity. Second, the non-governmental groups involved must be considered as parties to the conflict, in the sense that they must possess organized armed forces.36

3.4 Do the enhanced interrogation techniques crimes fall within the Rome Statute?

The question needs to be answered whether the enhanced interrogations took place within an international or non-international armed conflict. Since the enhanced interrogations took place during the “war on terror”, this conflict needs to be categorized. However, war crimes can be committed during both an international as well as a non-international armed conflict, but both require different elements to be fulfilled.

War crime of torture during an armed conflict:

For acts to be considered as war crimes in an international armed conflict several elements need to be fulfilled.37

First, the conduct must have taken place in the context of and must have been associated with an international armed conflict. Therefor the question that needs to be answered here is whether or not the subjection to enhanced interrogations took place in the context of and was associated with an international armed conflict. As been said, an international armed conflict exists between two states. The active hostilities in Afghanistan against the Taliban began on 7 October 2001 as part of ‘Operation Enduring Freedom’, which is a US-led military campaign directed against the

33

International Criminal Court, Elements of crimes, article 8(2)(a)(ii)-1(2).

34 Common article 2 of the Geneva Conventions of 1949.

35 J. Pictet, Commentary on the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick

in Armed Forces in the Field, ICRC, Geneva, 1952, p. 32.

36ICTY, The Prosecutor v. Dusko Tadic, Judgment, IT-94-1-T, 7 May 1997, para. 561-568. 37 International Criminal Court, Elements of crimes, article 8(2)(a)(ii)-2

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21 Taliban and Al Qaeda in Afghanistan in response to the 11 September 2001 terrorist attacks on the United States. Even though only a few states recognized the Taliban as the legitimate government of Afghanistan at the time, it was widely agreed that they did represented the de facto Afghan government at the time because they controlled the majority of Afghanistan’s territory, passed and enforced laws, and provided some sort of security in the areas that they controlled.38

The beginning of the war in Iraq can also be labelled as an international armed conflict, since the United States invaded Iraq to overthrow Saddam Hussein, who was president at the time, for possessing weapons of mass destruction and ties to Al Qaeda.39

Since the enhanced interrogations took place in the context and in association with Operation Enduring Freedom and the war in Iraq, they can be seen as taking place in the context of and was associated with an international armed conflict, in Afghanistan at least for the time that the Taliban was considered as the government.

Second, the perpetrator must have been aware of factual circumstances that established the existence of an armed conflict. Even though it is very difficult to know what other people are aware of, in this case it seems logical that the interrogators were in fact aware of the factual circumstances that established the existence of an armed conflict. It was the United States that invaded both Afghanistan and Iraq and thereby established the existence of an armed conflict themselves. Since the interrogators were guided by the United States government, it seems like they knew what they were into.

Third, the subjected persons must be protected under one or more of the Geneva Conventions of 1949. This element is important for the question whether there is a grave breach. The Geneva Conventions and their Additional Protocols protect the sick, wounded and shipwrecked not taking part in hostilities, prisoners of war and other detained persons, as well as civilians and civilian objects. Article 4 of the Fourth Geneva Convention states that persons protected by the

Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.40

The persons subjected to the enhanced interrogations were all detained persons at various black site prisons under jurisdiction of the United States in different parts of the world.

Fourth, the perpetrator must have been aware of the factual circumstances that established that protected status. Since the persons subjected to enhanced interrogations were all detained by the United States special detention centers, they should have either been considered as prisoners of war or other detained persons, despite of what the interrogators believed their status to be.

38 International review of the Red Cross, Conflict in Afghanistan II, Volume 93 number 881 March 2011, P. 14-15. 39 Geneva Academy of International Humanitarian Law and Human Rights, The rule of law in armed conflicts program.

40

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22 Fifth, the perpetrator must have inflicted severe physical or mental pain or suffering upon one or more persons. The United States government denies that the enhanced interrogations inflict severe pain or suffering. Based on the torture memoranda, the techniques used during interrogations do not amount to severe pain or suffering, either physically or mentally. The torture memoranda state that the used techniques are not difficult to endure and are not of an intensity similar to the pain accompanying serious physical injury, which is required for severe physical pain or suffering. Since these acts also do not cause prolonged mental harm that separately or as a course of conduct, constitute a threat of severe physical pain or suffering and are not part of a procedure designed to disrupt profoundly the senses or a threat of imminent death, none of these interrogation techniques entail severe pain or suffering.

Reading these torture memoranda, one can also come to the conclusion that all the techniques summed up do amount to severe physical or mental pain or suffering. The memorandum about the interrogation of Al Qaeda operative list waterboarding among techniques that in their opinion are not considered as torture. However, to me it seems that waterboarding would be both

physically as well as mentally painful, since the memorandum itself says it causes an automatic psychological sensation of drowning which the individual cannot control.41

The opinions by the United States can be countered by several independent sources such as the Committee against torture.In a report it is stated that the committee is concerned that the United States authorized the use of certain interrogation techniques that were defined in vague and general terms which have led to serious abuses of detainees. It advises the United States to rescind interrogation methods that constitute torture or cruel, inhuman or degrading treatment, such as water boarding, in all places of detention under its effective control. This seems to suggest that the Committee regards water boarding as torture and one of the enhanced interrogation techniques used by the United States was waterboarding.42

In a report on enhanced interrogation techniques used in Guantanamo Bay, the UNESC found that the attempts by the US to redefine torture in the framework of the struggle against terrorism in order to allow certain interrogation techniques that would not be permitted under the accepted definition of torture are very concerning and finds the confusion with regard to authorized and unauthorized interrogation techniques particularly alarming. It concludes that some aspects of the interrogation techniques authorized by the DoD, especially when used simultaneously, do amount to torture.43

Sixth, the perpetrator must have inflicted the pain or suffering for such purposes as: obtaining information or a confession, punishment, intimidation or coercion or for any reason based on discrimination of any kind. This means that the act must have been committed for a specific purpose. Since the enhanced interrogation program was invented to obtain information from prisoners, this could be considered a specific purpose. Besides harsh interrogations, prisoners were also subjected to torture as punishment and intimidation.

41 Bybee, J. (2002). Memorandum for J. Rizzo Acting General Counsel of the CIA [Re:] Interrogation of al Qaeda

Operative. United States, Department of Justice, Office of Legal Counsel, Part I, p. 1-4.

42

Committee against torture, CAT/C/USA/CO/2, 25 July 2006, point 24.

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23 In the memorandum for J. Rizzo about interrogation of Al Qaeda operative it is stated that Abu Zubaydah was believed to have had additional information that he refused to share. Since

Zubaydah was reported to be accustomed to a certain level of treatment and displayed no signs of willingness to disclose further information the CIA decided to move the interrogations into an increased pressure phase. In this increased pressure phase to obtain information, Zubaydah was subjected to enhanced interrogation techniques.44

An ICRC report about the CIA detention program describes the program as a harsh regime of employing a combination of physical and psychological ill treatment as aimed on obtaining compliance and extracting information.45

War crime of torture during a non-international armed conflict:

For acts to be considered as war crimes in a non-international armed conflict several elements need to be fulfilled.46

First, the conduct must have taken place in the context of and must have been associated with an armed conflict not of an international character. An armed conflict not of an international

character consist of armed conflict between a state and non-governmental armed group on the territory of one of the High Contracting Parties. This armed conflict must reach a minimum level of intensity, for instance when the hostilities are of a collective character or when the government is obliged to use military force and the parties involved must show a minimum of organization.47 When a state is no longer controlled by the non-governmental armed group, the ongoing

hostilities between the group and regular armed forces operating with the consent of the territorial state are part of a non-international armed conflict.48

On 19 June 2002, the emergency Loya Jirga established the Afghan Transitional Administration and elected Hamid Karzai as the new head of government recognized by the international community.49 Following this, the international armed conflict came to an end because it no longer involved two or more opposing states. However, soon after hostilities resumed. Since then the hostilities have been taking place at several locations and to various degrees between the new Afghan government with the support of ISAF (International Security Assistance Force) and OEF (Operation Enduring Freedom) forces on the one hand, and the armed opposition on the other. The organization of the armed opposition, and the hostilities, have reached such a level that the existence of a non-international armed conflict can be claimed.50

44 Bybee, J. (2002). Memorandum for J. Rizzo Acting General Counsel of the CIA [Re:] Interrogation of al Qaeda

Operative. United States, Department of Justice, Office of Legal Counsel. Part I, p.1.

45

International Committee of the Red Cross, ICRC report on the treatment of fourteen “high value detainees” in

CIA custody, February 2007, P.4.

46 International Criminal Court, Elements of crimes, article 8(2)(a)(ii)-2 47

ICTY, The Prosecutor v. Fatmir Limaj, Judgment, IT-03-66-T, 30 November 2005, para. 135-170 and para. 94-134.

48 D. Fleck, the handbook of international humanitarian law, Oxford University Press, 2008, P. 607. 49

In accordance with the Bonn Agreement of 5 December 2001.

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24 After the United States had overthrown Saddam Hussein, the extent and sustained nature of armed violence and the level of organization of the non-state armed group fighting in Iraq still reached the threshold of an armed conflict. Since Iraq, assisted by the United States, is engaged in armed conflict between its armed forces and a variety of non-state armed groups the conflict can be qualified as an armed conflict of a non-international character.51

Second, the perpetrator must have been aware of factual circumstances that established the existence of an armed conflict. As previously said, in this case it seems logical that the

interrogators were in fact aware of the factual circumstances that established the existence of an armed conflict. It was the United States that invaded both Afghanistan and Iraq and thereby established the existence of an armed conflict themselves. Since the interrogators were guided by the United States government, it seems like they should have been aware of the factual

circumstances and very likely were.

Third, the subjected person or persons must have been either hors de combat, or civilians, medical personnel or religious personnel taking no active part in the hostilities. A person hors de combat is a person who is no longer taking part in the hostilities. When someone is taking part in the hostilities it means that they are committing acts that have adverse effect on military

operations or directly inflict death, injury, or destruction of persons or objects.52 Taking part in hostilities does not give someone the status of combatant, however such person can become hors de combat.

According to Additional Protocol I to the Geneva Conventions a person can be placed hors de combat when he is in the power of an adverse party.53 Although Additional Protocol I governs the law of international armed conflict, it can be used to explain de meaning of hors de combat. Since the persons subjected to the enhanced interrogations were no longer taking part in the hostilities, because they were in the power of the adverse party, they can be considered as hors de combat.

Fourth, the perpetrator must have been aware of the factual circumstances that established this status. Since the persons who were subjected to the enhanced interrogations were suspected to be part of the non-governmental group Al Qaeda, the other part of the armed conflict, they should be considered as persons hors de combat when they no longer take part in the hostilities. Therefore they should have been aware of the status of these detainees.

Fifth, the perpetrator must have inflicted severe physical or mental pain or suffering upon one or more persons. The analyses of whether the committed acts constitute severe physical or mental pain or suffering has been discussed in the analyses of the war crime of torture in an international armed conflict. In these sections it was concluded that the committed acts indeed amount to severe physical or mental pain or suffering.

51 Geneva Academy of International Humanitarian Law and Human Rights, The rule of law in armed conflicts program.

52

D. Fleck, the handbook of international humanitarian law, Oxford University Press, 2008, P. 262.

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25 Sixth, the perpetrator must have inflicted the pain or suffering for such purposes as: obtaining information or a confession, punishment, intimidation or coercion or for any reason based on discrimination of any kind. The analyses of whether the pain or suffering was inflicted for a specific purpose such as obtaining information has been discussed the analyses of the war crime of torture in an international armed conflict. In these sections it was concluded that the pain or suffering was indeed inflicted for such a purpose.

3.5 Conclusion

Based on this analyses the enhanced interrogation techniques can be qualified as the war crime of torture during an international armed conflict as well as during a non-international armed

conflict. The conflict in both Afghanistan and Iraq can be qualified as an armed conflict. In the case of Afghanistan as an international armed conflict during the period that the Taliban was the legitimate government and a non-international armed conflict during the period of the new government. The same goes for Iraq, during the period Saddam Hussein was still president, the conflict is of an international nature and after Saddam Hussein was overthrown of a

non-international nature. The subjection of the enhanced interrogation techniques on detainees can be considered as severe physical or mental pain or suffering. Since the detainees were protected persons, all requirements for a war crime of torture are met. For the war crime of torture, the requirement of specific intent is not necessary.

To support my analyses and to refute the denial of torture by the United States, I used arguments by several highly respectable and independent organizations such as the Committee against torture and the International Committee of the Red Cross. I find the arguments made by these organizations to be more convincing.

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26

4. Admissibility

Now that it has been established that the ICC has jurisdiction based on the war crime of torture we have to see whether the case is admissible. Because even if the ICC does have jurisdiction, this does not necessarily mean they will find the case admissible. The ICC is a complementary court, which means that the ICC can only prosecute nationals if the state party is unwilling or unable to prosecute.54 As previously mentioned, the United States are not party to the Rome Statute. However, for this thesis we investigate the hypothetical situation that the United States are party.

4.1 Are there any issues of admissibility?

The first question that has to be considered is whether there the situation is being investigated or prosecuted at national level. If a state fails to take action in case of the commission of a crime falling within the jurisdiction of the ICC, the case can be admissible before the court, provided that the other requirements are also satisfied.55 If the case has been investigated and the state decided not to prosecute, a case is inadmissible unless the decision resulted from the

unwillingness or inability of the state genuinely to prosecute.56 A case will also be inadmissible if the person has already been tried for the same conduct.57 For a case to be admissible it must also be of sufficient gravity to justify further action by the Court.58 According to ICC case law, in order to determine whether a case is sufficiently grave the conduct must be either systematic or large-scale and the conduct must have caused social alarm in the international community.59 The United States has not yet criminally investigated or prosecuted any senior officials for involvement in torture and ill-treatment of detainees. However, they did conduct a number of trials involving minor officials, such as in the Abu Ghraib cases. The gravity of this situation is sufficient, since the enhanced interrogation program was both systematic and large-scale. In the chapter about jurisdiction it has been concluded that the enhanced interrogation techniques amount to the systematic war crime of torture in both an international armed conflict as well as in a non-international armed conflict.

Unwillingness

The question of unwillingness consist of three separate elements, namely for the purpose of shielding concerned persons, an unjustified delay and when the proceedings are not

independently or impartially conducted.

54 Article 17 Rome Statute. 55 Article 17(1)(a) Rome Statute. 56

Article 17(1)(b) Rome Statute.

57

Article 17(1)(c) Rome Statute.

58 Article 17(1)(d) Rome Statute.

59 Prosecutor v. Thomas Lubanga, (Case No. ICC-01/04-01/06), ICC Trial Chamber I, Decision Concerning

Pre-Trial Chamber I's Decision of 10 February 2006 and the Incorporation of Documents into the Record of the Case against Mr. Thomas Lubanga Dyilo, 24 February 2006, Annex 1, para. 46

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