(Photo: AP)

Update / Clarification

After even more digging, I have found no evidence of a Bilateral Immunity Agreement (BIA) between Mali and the US. Indeed, upon a more careful reading of the memorandum stating that US officials and troops participating in a UN stabilization mission in Mali will be protected from any potential prosecution at the ICC, it has become evident that it doesn’t actually reference a BIA. Rather, it simply 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.” This helps explain why even the Coalition for the International Criminal Court did not cite Mali as a country that had signed a BIA with the US.

Ryan Goodman’s post also provided a clue. Goodman notes it is possible that the memorandum rests upon a legal source other than a BIA and which the Obama administration views as being consistent with Article 98 of the Rome Statute: “It is unclear whether this is a standard Article 98 agreement or rooted in a Status of Forces Agreement.”

I was able to find a reference to a Status of Forces Agreement (SOFA) between the United States and Mali. There isn’t much, but apparently the US and Mali entered into a SOFA (that sounds weird!) in 1997. At the time, the US was conducting military exercises in the country. This agreement – and not a BIA – is likely the basis of the memorandum.

While I stand by the arguments in my initial post, this finding is important for at least three reasons. First, it means that the current administration is not recycling sneaky Bush-era tactics to undermine the ICC; those really are a thing of the past. Second, it suggests that the US did not apply pressure on Mali to protect US troops and officials from being sent to The Hague. Rather, the memorandum would appear to be a clever legal manoeuvre based on a creative re-application of an old agreement. Third, the respect that Mali rightfully earned for having rejected any BIA with the US during the Bush years is untarnished.

At the same time, some questions remain and will hopefully be answered soon. First, why did the Obama administration feel the need to issue the memorandum in the first place? Some think it is likely a response to conservative hawks applying pressure to ensure that the administration didn’t send troops into a situation without guarantees that the ICC could never get their hands on them. But if this is the case, it should be clarified – it is key to justifying the memorandum itself. Second, the memorandum makes the legal case of Article 98 agreements less clear. It is a question more for legal scholars and practitioners, but what now counts and doesn’t count as an Article 98 agreement in accordance with the Rome Statute?

One way or the other, hopefully this helps clarify matters a bit. And with that, I’m (probably) done digging.

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Original Post:

As per my earlier post, the Obama administration has released a memorandum declaring that any US officials or troops deployed in Mali will be beyond prosecution by the International Criminal Court (ICC). According to the memorandum, this is possible “because 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.”

The problem is that there is no trace of a Bilateral Immunity Agreement between the US and Mali.  In his post, Ryan Goodman observes that the memorandum is “significant because Mali has long been opposed to signing an Article 98 agreement with the United States, and held out against the Bush Administration.” Indeed, the Coalition for the International Criminal Court’s situation page for Mali  states that the country “[p]ublicly rejected BIA agreement.” Moreover, Human Rights Watch reported in 2003 that Mali’s Ministry of Foreign Affairs had  “advised AGAINST signing a bilateral agreement, explaining that such an agreement is contrary to Mali’s obligations under the Rome statute and undermines the independence of the ICC.” After some digging, I found that not only had Mali rejected signing a BIA with the US but the Bush administration retaliated by withdrawing military aid to the country (see this 2006 post by Kevin Jon Heller and this article at the New York Times).

So, as far as I can tell there is no public evidence that Mali ever signed an Article 98 Agreement with the United States. While I could be wrong and have simply missed something obvious (and please point this out to me if that’s the case), this does seem to point to a disturbing and additional reality: that the Obama administration itself signed the BIA agreement with Mali as a condition for its participation in the United Nations Multidimensional Integrated Stabilization Mission in Mali.

It is one thing to capitalize on the old tricks of the George W. Bush administration. It is another thing altogether to make them your own.