On Friday, President Obama issued a Memorandum certifying that US Armed Forces participating in the UN military operation in Mali “are without risk of criminal prosecution” by the International Criminal Court (ICC). But is there really no such risk? And why did the President invoke the politically controversial, and legally dubious, Article 98 agreement between the US and Mali as the ground for certification, when another legal option was possible? [For a backgrounder on Article 98 agreements, see here.]
This is a significant issue for US forces, because Mali is a party to the ICC; the transitional authorities of Mali referred events occurring in Mali since January 2012 to the ICC; and in January 2013 the Prosecutor of the ICC opened an investigation into any alleged ICC crimes committed on the territory of Mali since January 2012.
It is also significant because Mali has long been opposed to signing an Article 98 agreement with the United States, and held out against the Bush Administration. President Obama’s certification states that “the Republic of Mali has entered into an agreement in accordance with Article 98 of the Rome Statute preventing the ICC from proceeding against members of the Armed Forces of the United States present in that country.” It is unclear whether this is a standard Article 98 agreement or rooted in a Status of Forces Agreement (SOFA).
Section 2005 of the American Servicemembers’ Protection Act of 2002 (22 U.S.C. 7424) requires the President to certify that members of the US Armed Forces who participate in UN peacekeeping and peace enforcement operations will not be subject to the ICC. Under the statute, there are three grounds upon which the President can issue a certification:
(1) the UN Security Council, in authorizing the operation, exempted members of the Armed Forces of the United States participating in the operation from criminal prosecution or other assertion of jurisdiction by the International Criminal Court;
(2) “members of the Armed Forces of the United States are able to participate in the peacekeeping or peace enforcement operation without risk of criminal prosecution or other assertion of jurisdiction by the International Criminal Court because each country in which members of the Armed Forces of the United States participating in the operation will be present … has entered into an agreement in accordance with Article 98 of the Rome Statute preventing the International Criminal Court from proceeding against members of the Armed Forces of the United States present in that country”; or
(3) “the national interests of the United States justify participation by members of the Armed Forces of the United States in the peacekeeping or peace enforcement operation”
The first option was unavailable because the UN Security Council Resolution authorizing the military stabilization force in Mali (April 25, 2013) does not exclude US forces from the jurisdiction of the ICC—as previous Security Council resolutions have done in other cases.
Given the legal uncertainty and political controversy surrounding Article 98 agreements, it is curious that the President did not invoke the third ground for certification—that “national interests of the United States justify participation” in the UN operation–instead or at least in addition to the second ground of certification (the Article 98 agreement).
The Legal Validity of Article 98 agreements
As many readers will likely know, Article 98 agreements are both legally and politically controversial. Indeed, several states have objected to them, including most all NATO members. The Bush Administration launched an ambitious policy that resulted in over 100 such agreements. While the Obama Administration apparently had not continued such an initiative, it left these agreements in force.
Is the agreement legally valid for Mali? Probably not. Ironically, the acts of the Bush Administration indicate why these agreements violate the ICC Treaty. Article 18 of the Vienna Convention on the Law of Treaties requires a state not to defeat the object and purpose of a treaty that the state has signed but not yet ratified. According to Article 18, this obligation exists “until [the state] shall have made its intention clear not to become a party to the treaty.” The Bush Administration stated that its “un-signing” of the ICC Treaty involved “actions [that] are consistent with the Vienna Convention on the Law of Treaties.” The act of “un-signing,” on this view, constituted notification of intent under Article 18 and released the US from any international legal obligation to support the Court.
However, what about the legal obligations of states (such as Mali) that are parties to the ICC? If an article 98 agreement defeats the object and purpose of the ICC treaty, it would be invalid for Mali to enter it. Additionally, Mali has presumably entered the agreement with the US after Mali ratified the ICC Treaty—making this an even more legally dubious agreement than other article 98 agreements such as the one the US entered with Afghanistan. At the very least, the ICC prosecutors and judges might not recognize the US-Mali agreement as legally valid. So, why not at least invoke the third ground for certification?