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Is the German Rendition case headed for the ICC?

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The US Supreme Court recently declined to hear a case from a German citizen who claims the CIA abducted him, sent to Afghanistan, tortured him and drugged him until they realized they had the wrong guy, at which point he claims they flew him to a remote mountain area of Albania and then abandoned him on the side of the road.   

The CIA has refused to comment on this case, but the Council of Europe found that the plaintiff, Khaled el-Masri’s, account of his ordeal is “substantially accurate” and German Chancellor Angela Merkel has issued statements claiming that the US Government admitted to her that al-Masri was seized by mistake. 

Because of the substantial evidence of this human rights violation, German prosecutors have issued 13 arrest warrants for CIA operatives and pilots involved with the al-Masri rendition case. Even though the US has had long standing agreements with countries hosting our military that allows their domestic courts to have jurisdiction for cases involving crimes committed by our personnel on their soil, the US has refused to cooperate or turn over these individuals to Germany.   

The ACLU decided to file a civil lawsuit in an American court on behalf of al-Masri against former CIA director George Tenet amongst others.  American courts all the way up to the US Supreme Court have refused to hear this case.  Each court justified its refusal by citing the US Government’s right to keep  “State Secrets.”  In other words, even though they were concerned about the nature of the allegations being made by al-Masri, they accepted on faith the Bush Administration’s claim that if they allowed this case to be heard, secrets vital to the security of the United States would be revealed.    

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While the merits of the state secrets privilege can and should be debated, the only pertinent question for al-Masri is what are his options for justice now that he has exhausted his quest for justice in the US judicial system? 

Invoking International Law 

The President of the International Criminal Court (ICC), Philippe Kirsch, was asked recently in an interview about whether the ICC would take up al-Masri’s case.  He didn’t rule it out, although he pointed out that it would be the decision of the prosecutor’s office to bring the case before the ICC and thus was not his decision to make.  He did note that the ICC could decide to exercise jurisdiction in this matter because the alleged crimes were committed in ICC participating countries. 

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Further, the mandate for the ICC only allows it to take up cases where state’s courts have either refused to hear the case, or if the state’s judicial system wasn’t “working properly.”  Philippe Kirsch has clarified this to say “what this means is that you have proceedings aimed not at administering justice but shielding a perpetrator.” 

In theory, the al-Masri case could qualify for ICC jurisdiction under the mandate of the ICC in that it involves high-level officials of a government perpetrating crimes of a widespread nature within a signatory nation to the ICC.  The CIA’s “extraordinary rendition program” should unfortunately qualify.  

It is unlikely, however, that the ICC will take up this case anytime soon.    Even though the US Courts refused to hear the case citing state secrets, which could very well have been invoked to shield the perpetrators of this crime, there are still legal proceedings at work in Germany. Most higher courts refuse to hear cases until all other legal remedies have been exhausted, and the ICC is no exception.  In fact, their mandate requires that there be no other legal remedy before they can take jurisdiction.   

The next logical step is for Germany to go to the International Court of Justice (ICJ), which is the principal judicial organ of the United Nations.  At the ICJ they could attempt to force the US to comply with its arrest warrants so it can try this case.  The ICJ has jurisdiction only when it is asked to resolve a “legal dispute between states.”  Our current refusal to comply with German arrest warrants would qualify. 

The limitation of the ICJ is that both parties to the conflict must voluntarily agree to settle the dispute using the ICJ.  It is highly unlikely that the US will agree to this, given our current refusals to cooperate.  

The outcome of this case and al-Masri’s quest for justice will be dramatically impacted by next year’s presidential election.  If we the people elect someone who cares about Human Rights and the rule of law, then the US’s stance on this case could be reversed.  It is unlikely we will be willing to give up our CIA agents involved in the extraordinary rendition program, but it is possible that other legal remedies for the harm caused by the program could be addressed.  

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Until we know when and if Germany will try to use the ICJ to resolve the warrant dispute, we won’t know how the US will respond.  Until and unless Germany fails to find justice at the ICJ, it is highly unlikely that the ICC will take jurisdiction over this case. 

The lack of involvement by the ICC at this time should actually be viewed as a good thing because it would be disastrous if the US attempted to invoke the Hague Invasion Act passed back in the summer of 2002. Having the US military invade the Netherlands to “liberate” individuals being held at the ICC would not go over well with our remaining allies.


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Jennifer Hancock runs, a website that features the thoughts, opinions, and creative pursuits of Jennifer Hancock, gentlewoman. A Humanist, Jennifer has a degree in Cognitive Linguistics from the (more...)

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