International Criminal Court to Investigate Illegally Sanctioned Torture

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"In a matter of weeks, the International Criminal Court (ICC) is expected to open a full-fledged investigation into the 'war crimes of torture and related ill-treatment, by United States military forces deployed to Afghanistan and in secret detention facilities operated by the Central Intelligence Agency,' " submits Loyola Law School International Human Rights Clinic director Mary H. Hansel to the Wisconsin Law Review. The author invokes the principle of complementarity (all states have a duty to prosecute or extradite suspected perpetrators of international crimes when the state of the alleged perpetrator fails to exercise jurisdiction) to prescribe legal proceedings against government lawyers who authorized the use of 'enhanced interrogation' techniques amounting to torture. 

"Contrary to popular belief," says Hansel, "there is nothing about functioning in a legal capacity that immunizes lawyers from prosecution for their participation in crimes." Former Office of Legal Counsel John Yoo, attorney general Alberto Gonzales, undersecretary of Defense for Policy Douglas Feith, general counsel for the Department of Defense William Haynes II, Dick Cheney's chief of staff David Addington, and now-judge of the Ninth Circuit Court of Appeals Jay Bybee were all involved in the drafting of torture memos that facilitated war crimes of torture, cruel treatment and rape.   

In an ICC report dated November 14, 2016 chief prosecutor Fatou Bensouda found "these alleged crimes were not the abuses of a few isolated individuals." The report stated that the U.S. Army soldiers subjected at least 61 detainees to torture practices, and CIA officers did so to at least 27 detainees, mostly between May, 2003 and December, 2004, but continued after that date.

Time will tell if the ICC pursues charges, adds Hansel. "Meanwhile, members of the Trump Administration, including newly-confirmed attorney general Jeff Sessions, have indicated that they deem torture a viable option in the treatment of detained terrorist suspects.

"Indeed, the provision of legal cover for torture by government attorneys may be a recurrent problem in years to come."

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This page contains a single entry published on April 2, 2017 1:47 PM.

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