OTP and the US: (un)complementarity

Former Defense Department officials William Lietzau and Ryan Vogel write about complementarity here on Just Security. Excerpt:

In theory, complementarity should resolve practical concerns regarding politically-motivated excesses. Since no reasonable U.S. official would argue that the United States lacks the authority or will to investigate and prosecute the most serious atrocities, why would it have concerns about ICC jurisdiction over American nationals? The answer is that complementarity analysis is necessarily burdened by myriad facts; and facts can be manipulated to an even greater degree than can the law—especially facts not associated with the gravamen of an offense like the relative genuineness of a state’s claim to having conducted an investigation.

Any review of the Afghanistan examination yields significant questions as to how the OTP [Office of the Prosecutor] could possibly deem U.S. detention practices to meet the admissibility (not to mention, interests of justice) threshold. The United States has repeatedly made clear that, as a non-party, it rejects any assertion of ICC jurisdiction and does not consider itself legally required to satisfy the OTP’s demands for information. Yet, during the preliminary examination, U.S. officials met regularly with the OTP, supplied it with copious information regarding investigations and processes, and answered questions related to specific allegations. Moreover, the Pentagon expended hundreds of man-hours attempting to determine whether there was any actual evidence to support OTP allegations, and whether those allegations had been reviewed. This was no easy task considering the fact that in the collective theaters of war DoD had detained more than 100,000 persons and OTP evidence, often derived from bald assertions by human rights organizations, would never meet the credible information standard used for the thousands of detention-related investigations the United States had conducted.

They add:

. . . The record demonstrates the United States’ firm commitment to investigate, assess, and adjust detention operations during armed conflict and to prosecute abuses when appropriate. But in a perverse twist, the OTP cited improvements and policy clarifications not as laudable complementary efforts at ensuring humane treatment but as proof of wrongdoing. This is a common legal maneuver whereby the (incorrect) assumption is that a policy would not need clarification or modification if it had not previously amounted to a violation. And instead of avoiding any hint of political manipulation, some in the OTP actually have admitted that part of the rationale for rejecting complementarity claims was to counter African criticisms that the ICC is a Western court only interested in prosecuting nationals of third-world countries. In other words, the complementarity principle has been turned on its head, and the reasons for it are political.