With the release of the torture report, it will become increasingly difficult for the ICC not to press forward. Expectations that the court confront allegations of international crimes by Western states have never been higher and, as Eugene Kontorovich observes, the torture report “gives significant impetus and ammunition to the ICC’s investigation.” With the CIA’s dirty laundry now airing in the political winds, it will be nearly impossible for the court to reverse course and avoid confronting U.S. abuses in Afghanistan.
Still, advocates of accountability should not get too far ahead of themselves. The gears of justice at the ICC grind notoriously slowly. Moreover, the court’s endgame is not to prosecute U.S. officials. Instead, it is to galvanize domestic accountability for any alleged crimes committed by Western officials. Indeed, it is not within the ICC’s institutional interests to pick a fight it can’t win with the United States or incur the wrath of Washington’s resultant hostility. The prosecutor’s report on Afghanistan is thus not so much a threat to the United States as a signal to take justice for alleged torture seriously. Doing so would require going high up the political food chain, to those in the Bush administration “most responsible” for deploying torture as a means of war. The question is: Will the United States take the opportunity to finally pursue accountability for alleged international crimes committed by its citizens in Afghanistan or not? The world – and the ICC – is watching.