This philosophical paper harvests from international criminal legal theory and meta-ethics to reshape and reconfigure our “legal thought and talk,” as David Plunkett and Tim Sundell term it, concerning alleged acts of torture authorized and executed under the United States government’s watch in Afghanistan. The Rome Treaty authorizes the International Criminal Court’s (“ICC”) jurisdiction over such alleged war crimes, and the ICC Appeal’s Chamber approbated an Article 15 prosecutorial propio motu investigation in March 2020 (later set aside in 2021). Nonetheless, critics of American conduct relative to Afghanistan suggest that the United States continues to minimize or trivialize the ICC’s authority, aptness, capacity, and compass when it comes to the alleged post-9/11 CIA perpetration and legal rationalization of “torture.”

I adopt a meta-ethical approach to query what kind of meta-normative reframing would behoove transitional justice pursuits. This effort requires reevaluating some of the legalist axiomata of American criminal and evidentiary law, if not an exclusively and context-invariantly legalist strategy generally, for at least three reasons, all of which draw inspiration from legal ethicist David Luban’s work, the ICC, truth-commissions, and various legal scholars and philosophers. First, as it is often noted, truth commissions proper approach truth-seeking and fact-finding distinct from prosecution in criminal law: sourced from diverse community members, truth-commissions register grave atrocities by collectively upbuilding that truth through testimonial sharing and communal contribution. I resort to Catherine Elgin’s notion of the “true enough” and Heidi Grasswick’s conception of “epistemic trust,” among others, to unpack this. Second, responsibility is not, as philosopher Iris Marion Young would say, solely framed in a conventionally legalist and causal manner culminating in individualized conviction, but also framed as an accountability forged in prospective political alliance against a “structural injustice.” I adopt from Young and the philosophers Robin Zheng and Maeve McKeown to flesh out this nuance. Third, as I remark in conclusion, there is a link to human dignity in “having one’s own story” be told and heard, as Luban puts it, that is not easily captured in our adversarial system of law, but which non-legal or legally adjacent fora might adjunctively foster.

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