LAW VS. ORDER
Could CIA Nominee Gina Haspel Be Prosecuted for War Crimes?
The spy who supervised torture of al Qaeda suspects will face questions about it during her confirmation hearing. That could mean international legal jeopardy.
The nomination of Gina Haspel to be the next director of the CIA faces trouble amid accusations that she personally supervised the torture of suspected terrorists and destroyed the evidence of the interrogations.
Haspel supervised a U.S. “black site” in Thailand in 2002 where Abu Zubeidah and Abdul Rahim Nashiri were tortured by CIA personnel. In 2005, she helped destroy 92 videotapes showing their torture. She faced no consequences for those actions, and, assuming senators ask about them at her upcoming confirmation hearing, it’s likely that her answers will be given in a closed, secret session.
But Haspel’s actions may well have violated international law, specifically the U.N. Convention Against Torture. Could she face prosecution?
Legally speaking, yes. But politically, almost certainly not.
There are two legal avenues for a case against Haspel. The first is the International Criminal Court (ICC), and the second is a domestic court of a European nation.
The ICC is a better fit conceptually. Its entire purpose is to prosecute people for “genocide, war crimes, crimes against humanity, and aggression.” And despite legal counsel provided to the Bush administration at the time, the kinds of torture which Haspel supervised when she oversaw a CIA “black site” in Thailand are almost certainly violations of the U.N. Convention Against Torture.
Mary Ellen O’Connell, professor of international law at Notre Dame Law School, told The Daily Beast that Haspel “clearly broke the law… Every member of the CIA is aware that the U.S. is a party to the Convention Against Torture. Even members of the military would have had the duty to disobey a manifestly unlawful order from superiors to use torture.”
Not only did Haspel not disobey orders, some experts believe that she gave them herself, while supervising the interrogation of Zubaydah and Nashiri, and subsequently destroyed the tapes. The answers may be in the 6,000-page Senate intelligence committee report on torture during the Bush administration that remains classified (only the 524-page executive summary is authorized for release).
Moreover, O’Connell noted, the ICC itself is “under pressure, with developing world countries leaving, for the court to look even-handed.” Nearly all ICC prosecutions have thus far been of Africans; a high-profile investigation of a sitting CIA director would help dispel concerns that the ICC is biased in favor of “first world” defendants.
The problem with the ICC is jurisdiction. Under the Rome Statute of the International Criminal Court, which established the body in 1998, the court can only hear of abuses that were either committed by an ICC member nation or took place within an ICC member nation. The United States is not a member: It signed the Rome Statute, but the Senate didn’t ratify it.
Thailand, where Haspel’s black site was located—at the international airport outside Bangkok—is in the same situation. It’s a signatory, but not a member.
The only way that Haspel could be prosecuted at the ICC, then, is if she had responsibility for war crimes that took place in another country that, unlike Thailand, is an ICC member nation.
The most likely candidate is Poland, where the CIA operated another black site, but it is not known whether Haspel had responsibility for that site, or exactly what took place there.
In other words, the ICC may not have jurisdiction at all, and absent additional leaks, it’s hard to see them gaining any information about what did or didn’t happen in Poland.
Even Haspel’s testimony to the Senate may be of little use. It is common practice for intelligence officers to request a closed hearing for matters related to national security, and until the Russia Investigation, it was unheard of for members of Congress to divulge the records of such hearings.
At Haspel’s public hearing, you can expect her to refuse to answer any question that has to do with torture, black sites, extraordinary rendition, on the grounds it could compromise national security—to say nothing of her own prosecution.
So much, then, for the ICC. What about the second option: domestic courts in other countries?
Andrew Novak, professor of international law at George Mason University, told The Daily Beast that “many countries have universal jurisdiction laws when the law of nations has been violated, as in cases of torture, slavery, or genocide. They would have jurisdiction if someone’s not being prosecuted elsewhere.”
Moreover, “after Rwanda and Yugoslavia, there are very broad laws to prosecute war crimes,” Novak said.
This has happened before. According to O’Connell, cases against Americans implicated in torture have proceeded in Spain, Italy, and Belgium. For example, O’Connell said, “Italy issued arrest warrants for CIA agents involved in the kidnapping and rendition of a Muslim cleric. One of the agents… was arrested on the warrant and held for a time in Panama. Another woman was arrested in Portugal a few months ago.”
A similar process is already underway in Haspel’s case. In Germany, the European Center for Constitutional and Human Rights (ECCHR), has filed a series of complaints with the country’s federal prosecutor, urging him to investigate.
Andreas Schüller, director of ECCHR’s International Crimes and Accountability Program, told The Daily Beast that this campaign has been going on for years. “In 2014, when the Senate report on the CIA came out, we filed a brief criminal complaint… They opened a preliminary examination—not yet an investigation, but a file that establishes the initial suspicion to open a case.”
In 2015 and 2016, ECCHR filed two more extended complaints, one regarding the Army’s alleged torture of inmates at Guantanamo Bay and Abu Ghraib, and a second on the CIA’s alleged torture at black sites.
“In 2016, Gina Haspel’s name was not known,” Schüller said, “but when she was nominated as vice-director of the CIA last year, we had a name to connect to other facts we had presented already.”
Now, the ECCHR says, “Gina Haspel must face arrest on traveling to Europe.”
But would the German federal prosecutor really go after the the CIA director, when such a move would gravely damage U.S.-German relations?
Schüller agreed it was unlikely.
“We don’t expect to see that move,” he said. “What we want to achieve is to say: look, there was torture, there is the UN Convention Against Torture, and you [the government] know who this person is. If you allow her to come here, you are making a clear political decision that you prioritize that over your obligations under the Convention Against Torture… They can’t say they didn’t know who was coming here.”
Moreover, Schüller added, “the legal accountability debate continues and makes life at least a little bit harder for the people making those decisions [to conduct torture]. It’s something they have to take into account.”
In sum, while the actions documented in the Senate’s report would be strong grounds for a war crimes prosecution of Gina Haspel, it’s very unlikely that anyone will make use of them. International law often takes a back seat to international relations, and realpolitik often dictates results. Even when the law, and its violation, are clear.