War crime courts have usually followed a two-prong inquiry to answer this question: 1) is there an armed conflict and 2) is there a nexus between the conduct and this armed conflict? That a non-international armed conflict (NIAC) involving the US (or two if the Taliban and Al-Qaeda are considered two distinct parties) existed at the time of the alleged acts of ill-treatment is beyond reasonable doubt. In addition, based on the “nexus” jurisprudence of the ICC and other international and national war crime courts, finding a sufficient nexus in this case should not raise any major issue. The Prosecutor would apparently focus on “individuals captured in the context of the armed conflict in Afghanistan, such as presumed members of the Taliban or Al Qaeda” transferred to these CIA-run sites. The victim’s affiliation with the Taliban or Al-Qaeda would indeed be sufficient to prove a sufficient nexus (actual membership would not be required; perceived support for one of the enemies of the US would be sufficient to meet the nexus requirement).
However, in deciding whether IHL applied to these alleged acts of torture, ICC judges would likely have to rule on a defense challenge that IHL did not apply there, beyond Afghanistan’s borders. The ICTY, ICTR and ICC (and other war crime courts) have had to decide on the geographical reach of IHL within the territory of States where a NIAC was taking place, but not beyond such territory (the ICTY’s jurisdiction extended only to the territory of the former Yugoslavia, the ICTR’s only to Rwanda and its neighboring States; the ICC, whose territorial jurisdiction is not so limited, has not had to rule on such a scenario yet). The prosecution of acts of torture committed in CIA-run sites in Poland, Lithuania or Romania would be the first time – to the best of my knowledge – a war crime court has to rule on the applicability of IHL to conducts linked to a NIAC occurring in another non-neighboring State. The same would be true if State courts decide to prosecute these crimes, acting under the catalytic effect of the ICC complementarity principle – on which Bensouda insists in her announcment.
As the “fight against terrorism” has taken a global dimension, the question of the applicability of IHL beyond the State where a NIAC originates has become more pressing. While IHL instruments are largely indeterminate on the issue, the debate has polarized, in a nutshell, around two main conceptions of IHL applicability.
The first approach considers that IHL is geographically limited based job seekers database on national borders. IHL applies in the territory of a given State if an armed conflict exists there. For instance, if the US is engaged in a NIAC against ISIS in Syria and launches operations against an ISIS cell located in, say, Mauritania (a non-neighboring State), IHL would not apply to such operations until the threshold of a NIAC is met in Mauritania. This would be doubtful in case of a single drone strike for instance. (Many proponents of this first approach would, however, accept that IHL applies to operations spilling over the Syrian border, into a neighboring country). One question resulting from this territorially-based conception of IHL applicability is whether IHL is applicable to the territory of States engaged in an extraterritorial NIAC even when no hostility is occurring there. While States’ pronouncements on this issue are scarce, France seems to consider that IHL does not apply to its territory despite its armed forces being engaged in several NIACs extraterritorially. The ICRC favors the contrary view.
According to the second approach, IHL is, generally speaking, territorially unrestricted. IHL attaches not to territories but to the conduct of armed conflicts and their effects on individuals, irrespective of location (except, of course, when provided otherwise by specific rules, e.g. rules on occupied territories). The only condition to the application of IHL to a given act or ommission is the existence of an armed conflict and of a sufficient nexus to it. For arguments in favor of this approach see here and here. Critics have expressed fears that this would result in a “global battlefield” as States would be able to rely on the supposedly more permissive rules of IHL to conduct hostilities across the globe.