JURIST Guest Columnist Eric Leonard, the Henkel Family Chair in International Affairs at Shenandoah University, argues that President Obama’s recently issued memorandum regarding US troops in Mali represents a step backwards in the US-ICC relationship…

Just when things appeared to be taking a positive and constructive turn in the sometimes tumultuous US-International Criminal Court (ICC) relationship, a setback occurs. Over the past five years or so the US-ICC relationship began to settle into a pattern of both acceptance and at times US advocacy for the court. This benevolent pattern began near the end of the Bush administration and progressed under the Obama administration. Some clear indications of a warming relationship were the abstention on the UN Security Council vote on ICC intervention, referral [PDF] of the Libya case to the ICC, promised assistance (PDF) for capturing Kony and most recently the extradition of Bosco Ntaganda to the ICC.

However, just when advocates of the ICC believed that the US was on their side, President Barack Obama released the following memorandum:

By the authority vested in me as president by the Constitution and the laws of the US, and consistent with section 2005 of the American Servicemembers’ Protection Act of 2002 (ASPA) (PDF), concerning the participation of members of the armed forces of the US in certain UN peacekeeping and peace enforcement operations, I hereby certify that members of the US armed forces participating in the UN Multidimensional Integrated Stabilization Mission in Mali are without risk of criminal prosecution or other assertion of jurisdiction by the ICC because the Republic of Mali has entered into an agreement in accordance with Article 98 of the Rome Statute (PDF) preventing the ICC from proceeding against members of the armed forces of the US present in that country.

Article 98 agreements—also known as Bilateral Immunity Agreements (BIA)—were a Bush administration tactic to undermine the legitimacy of the ICC. These arrangements provide that both parties agree not to extradite current or former government officials, military personnel (regardless of their national status) or citizens of the other party to the ICC. The purpose of these agreements is to protect US nationals from politically motivated prosecution in the ICC. As John Bolton articulated in November of 2003:

Article 98 agreements serve to ensure that US persons will have appropriate protection from politically motivated criminal accusations, investigations and prosecutions. These straightforward agreements require that our partners agree, either reciprocally or non-reciprocally, not to surrender US persons to the ICC, not to retransfer persons extradited to a country for prosecution and not to assist other parties in their efforts to send US persons to the ICC. We have worked hard to find mechanisms and formulations in these agreements that meet our requirement of blanket coverage while also responding to the needs of our bilateral partners.

Obama’s citing of these agreements in his memorandum is disheartening to ICC advocates but is also peculiar to those that follow US-ICC relations. With the Obama administration warming to the ICC, why take such a step to undermine the court and its role as the ultimate overseer of international criminal justice? Some, Mark Kersten in particular, have begun analyzing this situation and it has now come to light that this BIA is actually not an overt BIA. Instead, the reference to “an agreement in accordance with Article 98” is predicated on a 1997 Status of Forces Agreement (SOFA) (PDF) (see Table 6 for summary) between the US and Mali. Thus, Obama can claim that this is not a return to the anti-ICC BIAs of the past but is the upholding of a long-standing SOFA with the government of Mali.

For those that study the ICC, this clarification does not really clarify anything. In fact, it may raise more questions than it answers. For one, why did the Obama administration release the memorandum and make this overt declaration of US service member immunity? If the SOFA is in place, why not publicly declare immunity if the situation necessitates it—in other words, when a US service member is in danger of prosecution before the ICC. By remaining silent on the issue, the Obama administration could retain its pro-international justice momentum along with its renewed sense of soft power.

Further, why give legitimacy to a Bush-era piece of legislation (the ASPA) that large portions of the international community refer to as the “Hague Invasion Act.” Despite Congress amending certain parts of the act, it remains that the ASPA is an anti-ICC piece of legislation that many thought the Obama administration was attempting to move beyond. However, this recent memorandum brings the benevolent relationship cultivated by the current administration into question.

So this situation essentially begs two questions—first, what does this mean for the court? If the US begins to undermine the actions of the ICC will this hinder the legitimacy of the institution or possibly hinder its ability to fulfill its mandate? I believe having US support is beneficial but not necessary for a strong ICC. Empirically, the speed in which the ICC came into force and the number of cases and prosecutions in its first twelve years proves this ability to succeed without overt US support. It is important to emphasize that the ICC can succeed without the US but would be a stronger institution with US support.

Second what does this mean for the US? That is difficult to discern because it is not clear what this means for the US-ICC relationship. Maybe this memorandum is just a blip in the developing relationship or possibly a nod to the conservative opponents of the ICC. However, it is clear that this memorandum is a restatement of US exceptionalism by Obama. The administration may be in favor of a strong and robust ICC, as long as the court does not try to assert its strength over the US. The message from this administration is clear—the fight for international justice is important and the principle of international criminal law apply to all, but the US can prosecute its own criminals as US sovereignty remains the final form of authority for its citizens. Therefore, the fight for international justice applies to all, but the ICC does not apply to the US. In the end this will hurt US soft power and as a result, it will hurt US legitimacy in the eyes of the democratic global community.

Eric Leonard is the Henkel Family Chair in International Affairs at Shenandoah University. His primary areas of expertise are global politics, foreign policy, human rights, humanitarian law and political philosophy. He has published several articles and is the author of The Onset of Global Governance: International Relations Theory and the International Criminal Court.

Suggested citation: Eric Leonard, One Step Forward, Two Steps Back: New Developments in the US-ICC Relationship, JURIST – Hotline, Feb. 23, 2014, http://jurist.org/hotline/2014/02/eric-leonard-us-icc.php.