Looking into the future – and acknowledging that the prospect of an indictment of CIA operatives is distant, to say the least – if these crimes were ever to be prosecuted by the ICC, the judges would have to decide whether IHL applied to them. Indeed, even if the ICC has territorial jurisdiction in Poland, Lithuania and Romania, a distinct question is whether these acts come under the material jurisdiction of the Court and qualify as war crimes. Because war crimes are serious violations of IHL (under the Rome Statute and customary international law), this question preliminarily depends on whether IHL applied to these acts.
War crime courts have usually followed a two-prong inquiry to answer this question: 1) is there an armed conflict and 2) is there a nexus between the conduct and this armed conflict? That a non-international armed conflict (NIAC) involving the US (or two if the Taliban and Al-Qaeda are considered two distinct parties) existed at the time of the alleged acts of ill-treatment is beyond reasonable doubt. In addition, based on the “nexus” jurisprudence of the ICC and other international and national war crime employment database courts, finding a sufficient nexus in this case should not raise any major issue. The Prosecutor would apparently focus on “individuals captured in the context of the armed conflict in Afghanistan, such as presumed members of the Taliban or Al Qaeda” transferred to these CIA-run sites. The victim’s affiliation with the Taliban or Al-Qaeda would indeed be sufficient to prove a sufficient nexus (actual membership would not be required; perceived support for one of the enemies of the US would be sufficient to meet the nexus requirement).
However, in deciding whether IHL applied to these alleged acts of torture, ICC judges would likely have to rule on a defense challenge that IHL did not apply there, beyond Afghanistan’s borders. The ICTY, ICTR and ICC (and other war crime courts) have had to decide on the geographical reach of IHL within the territory of States where a NIAC was taking place, but not beyond such territory (the ICTY’s jurisdiction extended only to the territory of the former Yugoslavia, the ICTR’s only to Rwanda and its neighboring States; the ICC, whose territorial jurisdiction is not so limited, has not had to rule on such a scenario yet). The prosecution of acts of torture committed in CIA-run sites in Poland, Lithuania or Romania would be the first time – to the best of my knowledge – a war crime court has to rule on the applicability of IHL to conducts linked to a NIAC occurring in another non-neighboring State. The same would be true if State courts decide to prosecute these crimes, acting under the catalytic effect of the ICC complementarity principle – on which Bensouda insists in her announcment.