If it were to adjudicate allegations of torture committed by the CIA in Poland, Romania or Lithuania, the ICC (or national courts) would have to take a stand in this debate. If judges follow the first approach, they will have to examine whether IHL applied in Poland, Lithuania or Romania. As no hostility occurred there, they will have to conclude that the NIAC threshold was not crossed there. A finding of war crimes would be possible only if they adopt the view -shared by the ICRC – that IHL is automatically applicable to the territory of States engaged in an extraterritorial NIAC. The three countries were indeed parties to the NIAC(s) against the Taliban (and other armed groups) at the time of the alleged crimes, as they were contributing troops to Operation Enduring Freedom and ISAF since early 2002 (Lithuania deployed troops under ISAF from October 2002 and OEP from November 2002 but had provided other kinds of support before). Then the judges would have to examine the existence of a sufficient nexus between this NIAC and the acts of ill-treatment.
Or they could adopt the second approach. In that case, once the existence of a NIAC is established, they would only have to address the nexus requirement. Because NIAC rules prohibiting ill-treatment contain no territorial limitation, the location of the incriminated conducts would not impact their analysis. In doing so, they would also leave the door open for the future prosecution of other crimes committed in the name of the global fight against terrorism, in connection to a distant NIAC. Indeed, if IHL applies across frontiers, it protects, for instance, anyone detained in connection to an armed conflict from ill-treatment, irrespective job seekers database of where (s)he is being held. A breach of this IHL prohibition could then be prosecuted as a war crime by the ICC or non-territorial State courts (which otherwise would have no jurisdiction, unless the violation constituted another international crime, such as a crime against humanity), irrespective of whether the threshold of an armed conflict is met in the State where it occurred, and of whether the territorial State was a party to the conflict.
The prospect of ICC and national proceedings over acts of torture committed in CIA-run black sites is a chance to expand the breadth of the debate on the geographical scope of IHL, zooming out from the recurrent focus on conduct of hostilities (CoH) rules. Critics tend to concentrate on the risk that if CoH rules can apply anywhere, States will feel incentivized to conduct hostilities everywhere. The risk of a “global battlefield” where some States feel entitled to use lethal force against ill-defined enemies across borders is real. But it remains to be seen whether this is not less a jus in bello issue than it is a jus ad bellum issue (related e.g. to overly broad definitions of the right to self-defense, to the fluidity of the notion of territorial consent or to a lack of enforcement). The idea that States could invoke the more permissive rules of IHL to justify status-based targeting is also playing into the controversial view that IHL itself provides authorizations. At the same time, this CoH-focus may distract from the fact that global applicability would also concern rules protecting persons in the hands of parties to the conflict, such as Common Article 3. Critics will counter-argue that this is cold comfort because human rights law (HRL) provides largely equivalent protections including against all forms of ill-treatment. This being said, the concurrent application of IHL creates obligations not only for States but also for non-State actors (which remains a controversial issue under HRL). It also opens the possibility of war crime prosecutions and, as the ICC announcement just demonstrated, such prospect may be less hypothetical than it seems. While it remains less than clear that war will follow IHL, this may be one of the reasons why IHL should follow the war.