This post has been updated.
This will almost certainly never happen. The Post spoke by phone with George Andreopoulos, professor of political science and criminal justice at the John Jay College of Criminal Justice and director of the Center for International Human Rights at the college, who explained how international law and the international courts would work.
The International Criminal Court is the only international venue that could try an American for his or her actions in the CIA's interrogation program. There are territorial and temporary courts — the tribunals dealing with Yugoslavia or Rwanda, for example — but only the ICC is poised to take action if an individual country won't. That's key: The ICC has "complementary" jurisdiction, meaning that it will step in only if a local or national court is unable or unwilling to do so.
What's more, it only has jurisdiction for crimes in countries that are signatories to the 1998 Rome Statute that established the ICC. Afghanistan, where many of the CIA's actions occurred, is a signatory, as are Lithuania and Romania, which were sites of other CIA prisons. If any of those countries chose to charge CIA agents — or Bush administration officials, as Emmerson suggests — they could do so. Or they could refer cases to the ICC, which would determine if any defendants would face war crimes charges (if the actions were considered to be part of a military conflict) or charges of crimes against humanity.
But that won't happen. "It is highly unlikely that any prosecution against American nationals that were involved in this kind of abusive conduct that is discussed in the report will face the light of judgment day before an international criminal court," Andreopoulos said. Why? Politics. Afghanistan is dependent on American financial support for its ongoing rebuilding effort — not to mention that America still has an active military presence aimed at keeping the country stable. (Andreopoulos: "There's no chance in hell that an Afghani government will refer American citizens to the ICC.") Lithuania and Romania could, assuming that the CIA's actions in those countries were provable, but given America's international clout, they won't either.
In part, that's because the ICC doesn't try people in absentia (unless they've been removed from existing proceedings for being disruptive). If, say, former vice president Dick Cheney were referred by Lithuania to the ICC to face charges, one of the ICC signatory countries would actually have to take Cheney into custody and transport him to The Hague. And it is, as Andreopoulos put it, "far-fetched" to think that any country would put handcuffs on a former American vice president. Or even the CIA agents, who can certainly count on the government of the United States weighing in on their behalf. Andreopoulos suggested that Cheney might want to think a little bit more about any future travel plans, but doubted he'd need to worry about it.
There's one other way that a case could get to the Court: If the U.N. Security Council refers a case to it. Given that the U.S. has a veto in that body, that won't happen either.
The United States, incidentally, is not party to the Rome Statute. President Bill Clinton signed the treaty shortly before he left office, although full ratification would require action by the Senate, which is unlikely. But in early 2002, President George W. Bush took the unusual step of effectively "unsigning" the United States by notifying the U.N. that it doesn't consider the United States bound to the treaty despite that signature.
That letter was sent May 6, 2002. The enhanced interrogations began less than three months later.
Update: Twitter user @adammc123 wrote that "the prosecutor himself can initiate the investigation." I asked Andreopoulos to clarify. A prosecutor can do that, he explained, but has to submit a request for authorization to a Pre-Trial Chamber. If that body approves, the prosecutor then must argue in support of jurisdiction and admissibility to the Court. None of which gets past what is likely the largest stumbling block: The need to try someone in-person.