As It Happens

Guantanamo detainees' lawyer celebrates ICC probe into alleged U.S. war crimes

After the International Criminal Court gives the go-ahead to an investigation into war crimes allegations against Americans in Afghanistan, human rights lawyer Katherine Gallagher says the long arm of the law could be coming for some very big names.

The move re-establishes the ICC as a credible court 'not guided by politics,' says Katherine Gallagher

A lawyer for two detainees at Guantanamo Bay says they are finally able to seek justice against their alleged torturers after the International Criminal Court greenlit a war crimes investigation against the U.S. government and CIA. (Mladen Antonov/AFP/Getty Images)

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The International Criminal Court is going to investigate allegations of war crimes committed by the United States in Afghanistan — something Katherine Gallagher has been advocating for years. 

In a decision handed down on Thursday the court overturned an earlier ruling that blocked any such investigation.

Investigators will also look into allegations against the Taliban, the Afghan government, and private contractors. Both Canada and Afghanistan are signatories of the ICC.

Gallagher is a lawyer at the Center For Human Rights in New York and she represents two men who allege that they were tortured at CIA black sites in Afghanistan.

Gallagher spoke to As It Happens host Carol Off about the decision. Here is part of their conversation.

What does today's decision in The Hague mean for your client?

I represent two men — Sharqawi Al Hajj and Guled Duran — who are still detained in Guantanamo. These are men who have spent more than 15 years trying to get some measure of accountability for U.S. torture.

These are individuals who are picked up in the post-9/11 period, subjected to CIA detention in black sites, held in countries like Jordan and Afghanistan at the hands of the U.S.

And today was a very big day. This is the first time in those many years of seeking some measure of justice and accountability that my clients and other victims of U.S. torture see that there may, in fact, be some kind of accountability.

You know that this is a very difficult decision for the court to make, given the amount of pressure they've been under from the United States and from Washington. So how big a step do you think this is for the International Criminal Court to take?

The situation of Afghanistan includes three dimensions: crimes by the Taliban, crimes by Afghan forces, and crimes by the U.S. actors — including CIA military and private contractors.

There has been zero accountability for any of those groups, and there have been well-documented crimes by the governments themselves, by the United Nations, by the European Court of Human Rights, by countless NGOs, and accounts from the victims themselves.

So, in some ways, this was a very easy case and the investigation should have been opened already two years ago.

Now, no doubt the Trump administration has put massive pressure on the court. But this is a court of law. This is not a political court. And so what the appeals chamber did today was actually bring the ICC back on the right track.

There are many who believe, including myself, that the pre-trial chamber, when it denied the investigation last April, was, in fact, feeling the weight of the political pressure from D.C.

So today's decision was a very important moment for the International Criminal Court to re-establish its credibility as a court of law and not one guided by politics.

Prosecutor Fatou Bensouda's decision to open a case into alleged Afghanistan war crimes at the International Criminal Court (ICC) in The Hague has angered the Trump administration. (Peter Dejong/The Associated Press)

But how will the International Criminal Court be able to proceed with an investigation to support an attempted prosecution of the United States and its activities in Afghanistan, given that they have called the court "illegitimate"? There have been statements about what they might do to the court if it pursued Americans. [U.S. Secretary of State Mike] Pompeo vowed to revoke visas for anyone involved in any investigation against American citizens. That's already happening. So how difficult is it going to be to actually proceed?

What we've seen, unfortunately, during the years of the Bush-era torture program is far too many countries that are members of the ICC co-operating with the United States.

These ICC member states have an obligation to the court to co-operate with investigations. So we actually don't need the United States to co-operate. We need those member states to bring forward the information they have and then add that to the investigations already carried out by the U.S. military [and] the U.S. Congress. There is a massive Senate torture report. Already, with just the executive summary, we see a well-documented global torture program.

We don't need more information from the Trump administration. In fact, [former U.S. president] George W. Bush admitted in his own memoir that he authorized torture. [Former U.S. vice-president] Dick Cheney continues to praise the torture program. So we have unrepentant former administration officials and we have a current administration where [U.S. President] Donald Trump speaks positively of torture.

It's very important that the rest of the world, at this moment, stand firm in saying that there cannot be policies of state-sanctioned torture. 

OK. So even if the ICC can investigate and proceed as you've described it, what's the significance of any indictment or conviction if the United States doesn't even recognize the power of this court? They call it an illegitimate body.

Yes. Well, you can't have prosecutions at the International Criminal Court without defendants. There are no trials in absentia. So we may get to a point where there are arrest warrants issued and charges that are out there against senior U.S. military or intelligence officials, or even contractors. And then it is up to the 123 member states of the ICC to act on those arrest warrants if Americans come into their territory.

We also have an election coming up in the United States and we may have a future administration in the United States that thinks, unlike Donald Trump, that war criminals shouldn't be pardoned, but rather that they should be punished.

I think we have to take a long view here. I know that my clients who continue to languish at Guantanamo hold out hope for some justice.

We know that orders came from very on high for what happened to detainees in Afghanistan. So I'm wondering how far up the chain of command you would like to see indictments issued. Who are the big fish, perhaps, that you might like to see caught in this investigation?

I think the ICC is a court that is built to hold those who bear the greatest responsibility accountable. So this would not be a court where you'll see low-level military members prosecuted, and you should not see them prosecuted, even if they were the direct perpetrators of torture.

The individuals who should be called to account at The Hague are people like the former civilian leadership — George Bush, Dick Cheney, [former U.S. defence secretary] Donald Rumsfeld. We should see the investigations of senior leadership of the Central Intelligence Agency. We should see an investigation of some of the lawyers who gave legal cover to the torture program.

We have a current head of our CIA, Gina Haspel, who ran a black site. I think she is someone who should be investigated. And some of the private contractors that we know helped to set up the torture program should also be investigated.

There are names that are clearly out there that should be the starting point of the investigation and they are high-level and well-known names.

Written byJohn McGill. Interview produced by Kevin Robertson. Q&A has been edited for length and clarity.