Will US admissions of torture matter to the ICC?

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ICC headquarters in The Hague

By David Bosco

Michael Hayden, the former director of the Central Intelligence Agency and the National Security Agency, is worried about increasingly formal U.S. admissions that it engaged in torture. In a Washington Times column, he noted with concern a recent statement by U.S. assistant secretary of state Tom Malinowski:

Last week in Geneva, Tom Malinowski, assistant secretary of state for democracy, human rights and labor, told the U.N. Committee Against Torture: “A little more than 10 years ago, our government was employing interrogation methods that, as President Obama has said, any fair-minded person would believe were torture.”

Indeed, in response to a question near the end of an hourlong press conference in early August, Mr. Obama did use that word. “We tortured some folks,” he said.

But those remarks were extemporaneous, almost casual, and wrapped in a warning not to be too judgmental, given the circumstances after 9/11.In Geneva, Mr. Malinowski was speaking from a prepared statement in front of foreign officials ready to stand in judgment of the United States.

Hayden is particularly worried that foreign and international courts may use the acknowledgments to prosecute U.S. officials:

Some European countries claim universal jurisdiction for their laws, and although unrelated to the events in Geneva, Spain’s National Court last week upheld a Spanish investigation into alleged torture at the U.S. military detention center at Guantanamo Bay, Cuba.

Was there any thought given to what effect a formal statement like this might have on this or on the International Criminal Court in The Hague? And what about the civil suits that these comments will inspire or reinforce?

Those concerns are not entirely without basis, at least as far as the ICC is concerned. As I reported last summer at Foreign Policy, the ICC prosecutor’s office has been engaged in a (quiet) dialogue with the U.S. government about whether the United States adequately investigated abuses–mostly related to interrogation and detention–by its forces on Afghan soil.

About David Bosco

Assistant Professor at American University's School of International Service. Contributing editor at Foreign Policy magazine. Author of Rough Justice: The International Criminal Court in a World of Power Politics and Five to Rule Them All: The UN Security Council and the Making of the Modern World
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