No Bush-Style BIA – A Clarification on Mali and the US

French soldiers (some of which were transported by the US) on patrol on Mali (Photo: Issouf Sanogo/AFP/Getty Images)

French soldiers (some of which were transported by the US) have long been in Mali (Photo: Issouf Sanogo/AFP/Getty Images)

After even more digging, I have found no evidence of a Bilateral Immunity Agreement (BIA) between Mali and the US. Upon a more careful reading of the memorandum declaring that US 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” (emphasis mine). 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 that 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.”

Eventually, 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 legal 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.

About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in Bilateral Immunity Agreements, International Criminal Court (ICC), Mali, United States and tagged , , . Bookmark the permalink.

8 Responses to No Bush-Style BIA – A Clarification on Mali and the US

  1. jensiverson says:

    Nice piece. Regarding your query:
    “First, why did the Obama administration feel the need to issue the memorandum in the first place?”
    Maybe I’m misunderstanding, but the answer is pretty clear from Ryan Goodman’s piece you linked to – the certification is required by statute. I also comment on it here:

  2. Mark Kersten says:

    Thanks for the comment and compliment, Jens.

    I think you’re likely right that the Obama administration sees itself bound by ASPA and thought it necessary to produce the memorandum as a result. Perhaps I should have been more clear. I am interested in ascertaining the administration’s legal justification for the memorandum beyond our assumption that it feels compelled by ASPA. Moreover, I’m not sure that that justification is sufficient in explaining why the memorandum was released. It seems at least possible to me that the administration could have simply determined (or agreed with Mali and others behind the scenes) that the 1997 SOFA with Mali was satisfactory in guaranteeing protection from prosecution / surrender to the ICC — without the release of a public memorandum. Moreover, if I read ASPA correctly, being compelled to identify an agreement in accordance with Article 98 would be an admission that the administration does not see its participation in a UN mission as falling within the US’s “national interests”.

  3. jensiverson says:

    Well – unless there’s a constitutionality argument (and I don’t think there is), I would hope the Obama administration sees itself bound by the ASPA section in question, as it is US law. (Disregarding a simple reporting requirement would be evidence of an imperial presidency…) I don’t know why the certification required by the law wouldn’t be done in a public manner, and I don’t know why the preliminary step (if that’s what this is) wouldn’t be done in a pubic manner. Pointless secrecy would be more disturbing. I don’t read it as an admission that the administration doesn’t see the UN mission as falling within the US’s national interests – they essentially just have to tick one of three boxes to be compliant, and ticking the second doesn’t mean that the third wasn’t possible. I’m guessing that, as the first one wasn’t available, they ticked the one that they thought was politically convenient. I would have preferred they ticked the third box, but I recognize I do not represent a majority viewpoint – the majority viewpoint in this case likely being “what are you talking about?”

  4. Maya says:

    US constitutional arguments notwithstanding, your initial point is well taken, Mark. For the international community, the take-away is that the US is maintaining and reinforcing its hypocritical stance toward the ICC. I don’t think one should feel any discomfort saying this.

    In fact, I find it rather uncomfortable that scholars such as yourself refrain from pointing out this hypocrisy more often. You have sat on panels with Mr. Rapp, who, incidentally, keeps getting invited to conferences and events celebrating the ICC. This, to me, is the apogee of hypocrisy. What the heck Mr. Rapp, who is, whether he likes it or not, the visage of the US’s cavalier disregard for international criminal law, is even doing at conferences and events about the ICC is beyond me. Why don’t scholars like you call him and the organizers out on this hypocrisy and double standards? Don’t get me wrong, I know very well why you don’t: civility, fear of not being re-invited, etc. Yes, it is easy for me to say these things under the cover of a sobriquet, and I confess I haven’t done it in my personal interactions with Mr. Rapp either (who, as we know, is a very pleasant man)…

    But let’s say this for the record: is it not time to be more vocal about double standards in international criminal justice? As the future of the ICC hangs in the balance (and this is not merely hyperbole), with its case against Kenyatta disintegrating, the African continent balking at further targeting of just its people, all scholars and commentators can do is praise the United States’ “constructive engagement” with the ICC, or issue a tepid rebuke when Bush-style BIA agreements – in substance if not in name – are resurrected. This is embarrassing. I am glad you, Heller and Goodman are drawing people’s attention to this development… but where is the outrage? Where is the condemnation?

    I don’t see Human Rights Watch alerting the world to Obama’s hypocrisy and his disregard for the ICC and ICL. Yet the same HRW is all over Twitter with absurd calls for the Chadian government to arrest Bashir when he comes to visit. No matter that such an act may cause a war, leave thousands of people dead — when Bashir visits Chad, HRW and the international community are prepared to take the moral high ground and insist on ICL taking its course. When Obama issues a memorandum like this, it’s business as usual. Mr. Rapp is going to get invited to another conference assessing the ICC’s progress, he will be asked to provide his expert opinion about the ICC’s relationship with Africa, and then maybe one impertinent person in the audience will raise the comical fact of an American government representative lecturing to the international community about international criminal justice. I would love to see the audience’s reaction when Sudan’s foreign minister comes to an ICC conference to lecture about, say, the challenges of ICL.

    Mark, again, thanks for bringing this issue to our attention. You are doing the right thing. But you shouldn’t feel any discomfort about calling a spade a spade –> “Rather, the memorandum would appear to be a clever legal manoeuvre based on a creative re-application of an old agreement.” When Kenya proposes a “creative” interpretation of the Rome Statute, it is undermining international criminal justice. When the US flouts international law, it is a ‘creative’ and ‘clever’ legal maneuver? Really?

    Forgive my diatribe, your post was just a trigger for some more general reflections on double standards in ICL. There is very little wrong with the substance of your post – I hope that is clear – and I am glad you are raising awareness.

  5. Kip Hale says:

    This memorandum situation raises many interesting legal and political issues. Allow me to comment on a few, with special emphasis on Maya’s self-titled “diatribe”. As pointed out by Kevin Heller elsewhere, the memorandum does not prevent ICC jurisdiction over US officials and service-members in Mali. It simply mandates that Mali does not cooperate with the ICC if the latter pursues an investigation/prosecution of US citizens/personnel for conduct done in Mali.

    As it relates to Maya’s comments, they are truly unfortunate. The first issue I have with it is the punitive “us against them” mentality of the comments. While the US may certainly deserve criticism for its stance towards the ICC, it does not mean the US should be banished from the ICC community. If the US (or any non-State Party for that matter) were treated in this way, it would make it that much harder to get them to accept the ICC, and ultimately serves no one’s interests. Constructive engagement is precisely the method that got the Bush administration to soften its posture to the Court, will push the Obama administration to make more progress before 2016, and to persuade future US administrations to make even more progress in US-ICC relations.

    Second, there is a reason why the US-ICC relationship is the one that receives the most attention: the US is one of, if not the, historical champions of international criminal justice. Nuremberg, ICTY, ICTR, SCSL, and ECCC likely do not happen without US leadership and contributions. This is what makes the US-ICC relationship so disappointing. I will not be naive and say the US championed these tribunals altruistically or the US didn’t screw up along the way (i.e. Rwanda). Nevertheless, often times it did act out of strong moral conviction, most notably Nuremberg. As someone who practiced at two of these tribunals and now works in DC where I see the levels of US support, the extensive public and behind the scenes support from the US is astonishing.

    Third, and most important, I often get asked when the US will ratify the Rome Statute. While ratification is important and would be an monumental success, ratification is one thing…cooperation and assistance is another. There are all too many State Parties that do not give adequate support to the ICC politically, financially, diplomatically, and logistically. What is often more important is cooperation and assistance from all nations and the int’l community as a whole. Accordingly, getting greater US support short of ratification is more important at this moment in time. In this regard, I have not canvassed every State Parties’ commitment and support of the ICC, but I am fairly sure the US supports the ICC more so than most State Parties. With troops on the ground looking for Kony to witness protection in Kenya (although more is desperately needed) to offering up to $5 million USD reward for the capture of ICC fugitives, the US is not sitting on the sidelines. So, Amb. Rapp’s and other US officials’ participation and comments are more than just welcomed as a matter of comity, but are needed.

  6. Maya says:

    Mr. Hale, we profoundly disagree on essentially everything you’ve said, but I am grateful for your comments because they make my point better than I could have possibly done myself.

    “As pointed out by Kevin Heller elsewhere, the memorandum does not prevent ICC jurisdiction over US officials and service-members in Mali. It simply mandates that Mali does not cooperate with the ICC if the latter pursues an investigation/prosecution of US citizens/personnel for conduct done in Mali.”

    This is hysterical if only it weren’t coming from someone who actually wields influence in the world of international criminal justice. Let me provide you with a helpful analogy: “The African Union’s resolutions on non-cooperation do not prevent ICC jurisdiction over African officials and service members. It simply requires that African states (including state parties to the Rome Statute such as Mali) do not cooperate with the ICC if the latter pursues an investigation/prosecution of African citizens/personnel for conduct done in African states (including state parties to the Rome Statute such as Mali).”

    Hmmm, now let me think, this must be the ABA’s – and other human rights NGOs, such as HRW, Amnesty, etc. – official position on the AU’s resolutions on non-cooperation? How is it that what’s good for the goose, isn’t good for the gander?

    What is so profoundly disturbing about your comment – and which is the underlying cause of the malaise which transpired in my previous post – is that the human rights community is partaking in these double standards championed by major powers like the US, and it no longer even notices it. You have drunk the US administration’s Kool-Aid on ‘constructive engagement’ and fail to see the hypocrisy for which it stands: an ‘above the law’ mentality, which evinces total disregard for international law, human rights and fairness. Despite what you might hear on Capitol Hill, Kip, the US is not the ‘best nation in the world.’ Its soldiers’ torture doesn’t stink any less than rape committed by rebels in the DRC.

    I may have taken slight issue with Mark’s defensive tone in his last post, but to his credit he states clearly that the US is “undermining” the Court. You don’t even see this anymore because you are too busy reading the history of international criminal justice (through rose-colored glasses, one should probably add), and peddling the ‘constructive engagement’ theme, whose biggest achievement is that it “got the Bush administration to soften its posture to the Court, will push the Obama administration to make more progress before 2016…”

    Right. More progress like this new iteration of Bush-style BIAs. More expert commentary from Amb. Rapp at ICC conferences. More military solutions to Africa’s unresolved conflicts.

    “In this regard, I have not canvassed every State Parties’ commitment and support of the ICC, but I am fairly sure the US supports the ICC more so than most State Parties… the US is not sitting on the sidelines.”


    Kip, in case you’ve forgotten this, you’re not a part of the game until you accept its rules. The US is not a player because it refuses to abide by the rules of international criminal justice. It is at best a cheerleader, waving its pompons, making some nice gestures here and there when the game happens to be going its way. But the US is not a supporter of the ICC; notwithstanding the token gestures made by the Obama administration, the US still thinks it is above the law. It refuses to play by the rules, and this Mali issue is a stark reminder of this basic fact.

    “So, Amb. Rapp’s and other US officials’ participation and comments are more than just welcomed as a matter of comity, but are needed.”
    Why exactly are they needed? I don’t see Sudanese officials coming to international conferences celebrating the ICC, and explaining why investigations into war crimes committed by the US would be helpful. That would be ludicrous, right? Sudan is a pariah state, and we all know it. Right?

    And yet when Amb. Rapp does the exact same thing, i.e. lectures about war crimes in Darfur as opposed to his own country’s crimes, this is “welcomed as a matter of comity” and “needed.”

    Let’s be clear: there are realpolitik reasons for why Amb. Rapp is invited to ICC conferences, and not Sudanese officials. But these reasons have very little to do with the ideals of international criminal justice. Which brings me back to the message I was conveying in my original post: double standards. It would be nice if we — you, I, Mark, etc. — could call hypocrisy by its name.

  7. Kip Hale says:

    First, Maya et al., a point of clarification: I personally wish the US did not enter into that agreement with Mali, and then re-issue the memorandum (or whatever they did). It is unfair and playing by double standards. I am confused where in my comments you got the premise that I endorsed this memorandum or the sentiment behind it. The point of that paragraph was to say the memorandum, etc. does not have as much effect, in reality, as one would think, despite the US’ intentions otherwise. The ICC could still have jurisdiction.

    As for the rest of your comments, the only thing that I can take from it is that you feel the US should be ostracized from the ICC field of stakeholders until it ratifies. If that is a correct conclusion from your comments, what good does that do anyone? What does that accomplish? In my mind, this would be an immensely counterproductive thing to do, especially for the ICC and the future of the rule of law globally. This is not to say the US is a magical icon of human rights that can change everything…it is to say that pushing any non-State Party away is counterproductive, particularly the US.

    If constructive engagement’s biggest accomplishment is to change the Bush administration’s and Obama administration’s stance towards the ICC, then that is a HUGE reason to continue this practice. While you may think this is small grapes so to speak, these are no small feats that a gross majority of human rights advocates, diplomats, and international criminal law practitioners wanted and applaud.

    With respect to abiding by the rules, you are right that the US has taken it ball and run back to its sandbox when it comes to the ICC. Furthermore, I am very troubled by the US’ likely illegal and perhaps criminal use of drones and detention practices around the world (I use “likely” and “perhaps” because I do not know all of the facts and am not comfortable making declaratory judgments without them). Yet, I do know that US military takes pains to adhere to IHL and ICL when it comes to military and civilian engagements, far more than most countries do. And the US does promote human rights around the world with great effect, most notably the rights of women and LGBT rights. These positives do not “cancel out” the negatives, but certainly calls into question your belief that the US willing flaunts international human rights law, etc. in every single thing that it does, without fail.

    Bringing this back to the ICC, you conveniently sidestepped the significant things the US has done in support of the ICC, and which I gave examples of. These are far from “token” gestures. Again, I do not know the absolute truth of the matter, but I am curious to know if any non-State Party has supported the ICC as much as the US has, and even more curious to know how US support compares to the average level of support from State Parties. My hunch is that US is in the top percentile of states lending support to the ICC (while having anti-ICC legislation still on the books that restricts their ability to finance any support). All of this is to say your comparison of Sudan to the US is baseless, and I am unclear what point you are making. As an FYI, Sudan officials are invited to give their position, and do attend the ASPs (from what I have seen).

    Let me be clear once again: realpolitik is alive and well. I am under no presupposition that it is dead. However, one would be equally naive to think State Parties are not engaging with the ICC for the exact same realpolitik reasons. Which comes back to your hope we call out “hypocrisy” when we see it. By your standards, almost every country in the world (a good chunk being State Parties to the Rome Statute) should be called out. If that is what you think should occur, I am at a loss as to what good this achieves in the short and long term.

  8. Pingback: The Evolving US Policy Towards the ICC |

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