US War Crimes Immunity and the International Criminal Court

The WikiLeaks cables reveal evidence of war crimes and human rights abuses carried out at the behest of the US government. They also show the lengths to which the administration of George W. Bush was prepared to go to ensure that those responsible for such crimes would remain unreachable under international law.

The US government has for decades demanded that US military personnel be tried in the US, under US law, for any crimes committed overseas. “Status of forces” agreements between the US and other nations generally include such provisions.

When the Iraqi government refused to sign an agreement granting US forces immunity from Iraqi law in 2011, US forces were withdrawn. Immunity from Afghan law was also the main sticking point in negotiations between the US and the government of Hamid Karzai on an agreement to keep US forces in Afghanistan beyond the original 2014 deadline for withdrawal.1

Immunity from local laws usually means impunity, as the US has a poor record of prosecuting its citizens for crimes committed during military engagement overseas. There have been some prosecutions of low-ranking troops in relation to war crimes committed in Iraq, but, as Iraq Body Count has reported, “no soldier or official involved in the Iraq war has faced the level of vindictive punishment that US prosecutors have sought to impose on [Chelsea] Manning.”2 Journalist Glenn Greenwaldhas documented extensively how “elite immunity” works to protect the rich and powerful from prosecution in the US, including those responsible for grave human rights abuses carried out during the “global war on terror.”3

After taking office in 2009, President Barack Obama authorized the publication of US Department of Justice memos detailing the “enhanced interrogation techniques” that had been employed at the behest of the Bush administration. At the same time, however, Obama declared that those responsible for the torture program would not be prosecuted, insisting: “This is a time for re ection, not retribution.”4

In December 2014, the publication of a largely redacted summary of the US Senate Intelligence Committee’s report on CIA torture prompted renewed calls for prosecutions. But Obama immediately invoked the doctrine of elite immunity again, saying that the report should not provide “another reason to refight old arguments.”5

The International Criminal Court

When states are “unwilling or unable” to prosecute individuals alleged to have committed such crimes, the International Criminal Court (ICC) can offer another avenue for justice. The court was established in 2002 by the Rome Statute, an international treaty that has been rati ed by 122 countries. It has jurisdiction to investigate individuals for war crimes, crimes against humanity, and the crime of genocide.

During the 1998 conference of 160 nations that formulated the Rome Statute, US negotiators sought to limit the ICC’s juris- diction and its independence. A large number of states wanted the court to have “universal jurisdiction”—that is, the power to prosecute crimes committed anywhere. But US opposition forced a compromise: the ICC only has jurisdiction over crimes com- mitted by an individual of a state, or on the territory of a state, which is a party to the Rome Statute.

The US also wanted the United Nations Security Council (UNSC) to have the power to veto prosecutions, effectively giving the US the power to prevent cases proceeding against its citizens. This was rejected by other nations at the Rome confer- ence. Instead, the ICC’s prosecutor, who is elected by the member states, has the final say on which cases will be prosecuted.

US Opposition and ICC-Related Sanctions

Unhappy with the outcome of the negotiations, the US president at the time, Bill Clinton, signed the Rome Statute in 2000, but only so that the United States would be “in a position to influence the evolution of the court.”

In May 2002, Clinton’s successor, George W. Bush, formally “unsigned” the treaty. His under secretary of state for arms control and international security, John Bolton, summed up the Bush administration’s opposition to the court when he said in 2003: “Whether it is removing a rogue Iraqi regime and replacing it, preventing WMD proliferation, or protecting Americans against an unaccountable Court, the United States will ... follow its values when measuring the legitimacy of its actions.”6 In other words, the United States will not subject its actions to the constraints of international law, nor the jurisdiction of a court it cannot control through the UNSC.

The effect of Bush’s “unsigning” was to exclude US nationals from the jurisdiction of the ICC unless their alleged crimes were committed on the territory of a state that was a party to the Rome Statute. Even where it has jurisdiction, the chances that the ICC would ever indict a US national are remote, as the court depends on the financial and political support of the West. In its thirteen-year history, the court has indicted only Africans. Moreover, without its own police force, the court depends on the cooperation of governments to detain and extradite individuals who it indicts. It is unthinkable that any US government would surrender one of its nationals to the ICC.

Nevertheless, members of the Bush administration wanted to eliminate any possibility that they might one day nd them- selves at The Hague. In August 2002, Bush enacted the American Service-Members’ Protection Act (ASPA), which authorized the US president to use “all means necessary” to free a US national detained by the ICC. ASPA—or the “Hague Invasion Act,” as it become known—also banned military aid to countries that had ratified the Rome Statute.

Further measures passed in 2004, known as the “Nethercutt Amendment,” extended the scope of the sanctions to Economic Support Funds (ESF) assistance. ESF funds are provided to “countries of strategic interest to US foreign policy” for a variety of programs, including peacekeeping, “democracy promotion,” and “counter-narcotics” initiatives. NATO countries and des- ignated “major non-NATO allies” were exempted from these measures. The restrictions could be waived for other countries if the president deemed it “important to the national interest of the United States.”

For other states that had signed the Rome Statute, the only way to avoid the sanctions was to sign an “Article 98,” or bilat- eral immunity agreement with the US, by which they agreed not to surrender Americans to the ICC without the consent of the US government.

The WikiLeaks Cables on the Global Pursuit of Article 98 Agreements

Hundreds of diplomatic cables published by WikiLeaks show how the Bush administration used the threat of sanctions and the promise of rewards to coerce weaker states into signing Article 98 agreements. By this “carrot and stick” approach, as a cable from Honduras put it, the United States would “help those countries that sign Article 98 agreements and cut aid to those that do not.”7

However, the “carrots” on offer often amounted to no more than vague promises of favorable treatment. US diplomats told the Sri Lankan prime minister in 2002 that “[s]igning soon would win [the government of Sri Lanka] valuable positive attention among Washington decision-makers; waiting too long could result in other countries stealing Sri Lanka’s thunder.”8 The Maldives was promised that it would “gain significant credit with the US the sooner it joined with us on this vital issue.”9 Lesotho, which was struggling to cope with an AIDS epidemic, was told in June 2006 that its “high pro le” status as a non- signatory of an Article 98 agreement had led to a request for aid from the US being denied.10 However, if Lesotho signed, the US ambassador told the prime minister that he would “receive a warmer welcome whenever he travelled to the US.” As the cables show, governments were subjected to sustained pressure. After Romania capitulated and became the first European country to sign, foreign minister Mircea Geoanăsaid: “I can’t remember anything they put so much weight or interest into.”11

The bullying tactics of the United States attracted global condemnation, particularly from the European Union, where support for the ICC was strong. In September 2002, the EU Council published Guiding Principles for its members, which stated: “Entering into [Article 98] agreements—as presently drafted— would be inconsistent with ICC States Parties’ obligations with regard to the ICC Statute.”12

Several EU candidate countries told the US that they could not sign Article 98 agreements because of EU opposition, but US diplomats gave short shrift to these objections. The US told Croatia that it should not be concerned about offending EU states, which had less to lose than Croatia from refusing to sign an Article 98 agreement. According to an April 2003 cable, the US embassy in Zagreb told the Croatian government that it “should begin negotiating with us in earnest: because the ASPA exempts NATO members from the military assistance cutoff, key EU states do not feel a sense of urgency.”13

When the Moldovan justice minister raised concerns about “negative reactions from EU countries that could hinder Moldova’s chances of integration,” the US ambassador told him that “European governments would be upset for no more than a week.”14

Other governments told the US that, while they were willing to sign, they would not be able to secure parliamentary approval for an Article 98 agreement because of the ongoing war in Iraq— particularly after the 2004 publication of photographs of US soldiers abusing Iraqis at Abu Ghraib prison.

Needless to say, it was difficult to sell the idea that the United States should not be subject to the dictates of international law at a time when it was waging an illegal war of aggression and its soldiers were committing war crimes. Rejecting the double- standard inherent in the US attitude toward international law, the same cable reported that the US ambassador “urged the [government of Honduras] to make stronger public statements on Iraq, including on Iraqi war crimes.”

A June 2004 cable reported that the Guatemalan government also told US diplomats that its congress would not pass its Article 98 agreement, partly because “events at Abu Ghraib have given powerful ammunition to Article 98 critics.”15 The cable said the Guatemalan government had “requested that [the United States] keep the agreement confidential while it devises a strategy for Congressional approval.”

And a similar story unfolded in Yemen, which had signed a secret agreement in 2003 via an exchange of diplomatic notes.16 When US diplomats brought up the “importance of Article 98 ratification” the following year, a cable reported that the Yemeni deputy foreign minister noted, “[i]n an obvious reference to Abu Ghraib ... that the timing for Article discussions was ‘difficult’ and ‘not good for the US.’”17

Pressure for Article 98 Agreements Creates Problems for the United States

As cables from Bahrain and Paraguay illustrate, the relentless push for Article 98 agreements threatened to undermine the broader strategic objectives of the United States, leading some diplomats to advise that Washington reconsider the policy.

Bahrain

The government of Bahrain had signed a secret Article 98 agreement with the United States in February 2003. In May 2004, a cable from the US embassy in Manama reported that only five officials at the Bahraini Foreign Ministry knew of the agreement’s existence.18 Both the US embassy and the Bahraini government judged that the agreement would be rejected by Bahrain’s parliament if submitted for ratification. The Bahraini government was facing increasing opposition to its pro-US policies—and the publication of the Abu Ghraib pictures made news of a secret immunity agreement all the more incendiary.

The May 2004 cable reported that a Bahraini government official had told the US: “Given the Abu Ghraib revelations in Iraq ... the [government of Bahrain] has no desire whatsoever to notify parliament or the public of the existence of the article 98 agreement.” A cable from June 2004 said the king of Bahrain had promised to bring the agreement into force, but that Bahrain’s foreign minister was “struggling to nd a way to carry this out without causing a political explosion.”19 The United States there- fore pushed for the agreement to be brought into force “through a secret exchange of notes”—an executive agreement that would not seek parliamentary approval.

Cables from other countries show that this tactic was the standard US response to concerns about parliamentary opposition. A 2005 cable reported comments by John Bolton that “two-thirds of all the Article 98 agreements had entered into force via diplomatic notes.”20 But some members of Bahrain’s government argued that this method was not legal, and negotiations stalled. The United States kept up the pressure, refusing to rule out sanctions on military aid if Bahrain failed to ratify the agreement.21

The deputy chief of mission at the US embassy in Bahrain, Robert Stephen Ford, cautioned Washington that such meas- ures could damage the country’s close military and political ties with Bahrain. Ford wrote in a March 2004 cable that the pro- grams that would be affected by the sanctions—the International Military Education Training (IMET) and Foreign Military Financing assistance programs—were “key to boosting Bahraini forces’ interoperability with our own in such operations.”22 In a subsequent cable, the US ambassador, Ronald E. Neumann, went further, writing that Washington’s pressure for formal ratification “ought to be reconsidered.”23 Neumann wrote: “I believe I have a responsibility to tell you that in my judgment pressuring formal ratification has large potential political pain for infinitesimal gains.” The ambassador wrote Bahrain could be trusted not to transfer an American to the ICC, because “[t]o do so would be contrary to the fundamental strategic relationship that underpins Bahrain’s security and survival.” By pursuing ratification, the US would only achieve “a legal formula without any real substantive change.” Yet public knowledge of the agreement “could touch off a major political problem, pulling Bahrain’s support for our military into the middle of a domestic firestorm.” Neumann further warned that the “abuse of Iraqi prisoners in Abu Ghraib [had] made the whole issue of American ‘criminal’ behavior a white hot issue in Bahrain ... A leak of a concluded Article 98 agreement at this time and in these circumstances would be an issue tailor made for the opposition to take to the streets.”

This was something neither the repressive Bahraini regime nor its powerful US backer wanted to see. Neumann expressed concern that “all of this focus on the security relationship would tempt political opponents to try to expand the debate to other ‘surrenders’ of Bahrain rights, in such matters as the Defense Cooperation Agreement.” This agreement, signed by the United States and Bahrain in 1991, gives the US military access to Bahrain’s military bases. The US Navy’s Fifth Fleet has been stationed in Bahrain since 1995, and Bahrain is home to the US Naval Forces Central Command. In 2002, the Defense Cooperation Agreement was secretly extended by the Bush administration until 2016.24 The risk, from the ambassador’s point of view, was that news of the secret Article 98 agreement could bring unwelcome attention to the secretly extended Defense Cooperation Agreement.

The experience of other US allies in the region showed that Article 98 agreements would not pass easily. When Kuwait’s agreement was submitted for ratification in April 2007, a cable reported that “parliamentarians objected strongly.”25 The cable reported that opponents of the agreement had said it was in violation of Kuwait’s ICC obligations, and would place the United States “above the law.” Others compared the treatment of US nationals under the agreement to the detention and alleged torture of Kuwaiti citizens held at Guantánamo prison, and argued that Kuwait should not bow to US bullying.

When Jordan’s government submitted its agreement for parliamentary ratification in July 2005, a cable from the US embassy in Amman reported: “The Lower House voted overwhelmingly to exclude the Article 98 agreement from its agenda.”26 The agreement was not ratified until the next year, after the king of Jordan had “read the riot act” to parliamentarians, the embassy reported.27

Despite Neumann’s recommendations, pressure on Bahrain to ratify continued for at least another two years. It is unclear from the cables whether an Article 98 agreement was ever brought into force in Bahrain or Kuwait.28

Paraguay

US diplomats faced a similar dilemma in Paraguay. They believed the pursuit of an Article 98 agreement threatened the “permissive environment” that Paraguay offered for US military exercises. Like Bahrain, Paraguay’s government told the United States that its congress would not pass an Article 98 agreement.

The US agreed with this assessment, and the US embassy in Asunción instead advocated an exchange of notes “which would both give us Article 98 protections and allow the [government of Paraguay] to continue to say it had not/not signed an Article 98 agreement; we are seeking a ‘non-agreement’ ‘arrangement’ open to diverse interpretations.”29

In June 2005, Paraguay’s government came under criticism from local media and neighboring countries for granting immunities to US soldiers taking part in joint US-Paraguay military exercises over an eighteen-month period. As a result, Argentina, Brazil, Paraguay, and Uruguay agreed to a declaration at the 2005 Common Market of the South (Mercosur) summit, which com- mitted them not to sign any agreements that would undermine the jurisdictional basis of the ICC. By this stage, Article 98 negotiations between the US and Paraguay had been ongoing for two years. Cables show that while the president at the time, Óscar Nicanor Duarte, publicly said that Paraguay would not sign an Article 98 agreement, his government told the United States that it would seek ways to provide the immunities it was seeking.30

A cable from the US embassy sent shortly after the Mercosur summit reported that “Paraguay’s lawyer for Article 98 negotiations with the US conveyed concern that [the Mercosur] declaration could pose a further obstacle to concluding an agreement.”31

A July 7 cable warned the commander general of US Southern Command (responsible for US military contingency plans for Central and South America) “to avoid discussion of the ICC with Paraguayan interlocutors” during an upcoming visit.32 The cable said: “You come at a particularly sensitive time, with press and political activity calling into question important aspects of our military to military relationship. The open and permissive environment for exercises and other military activities here is both extremely valuable and potentially vulnerable to local and regional pressures.” The cable reiterated the embassy’s concern that pushing Paraguay on Article 98 negotiations in the wake of the “flap” over immunities could jeopardize “the most permissive environment for exercises in the region.” The cable said, “We may need to wait until current unfavorable press coverage blows over to get a good sense of how best to proceed.”

Paraguay was subject to sanctions for failing to sign an Article 98 agreement, but in 2006 President Bush waived the restrictions on the grounds that it was “important to the national interest of the United States” to do so.

Unintended Consequences of ICC-Related Sanctions

By May 2005, one hundred states had signed Article 98 agreements. Twenty states were subject to ASPA sanctions, and seven to Nethercutt measures, for failing to sign.33

Support for these measures waned during Bush’s second term, but not because the administration’s hostility toward international law had diminished. Rather, as documents published by WikiLeaks show, some US politicians and diplomats were worried that the sanctions were having “unintended negative effects” on US policy objectives—and were undermining US power in countries of strategic importance. A 2007 US Congressional Research Service (CRS) report, made publicly available by WikiLeaks, out- lined the “evolving policy debate in the US government” in the context of the effect of ICC-related sanctions in Latin American countries.34

The CRS report noted Secretary of State Condoleezza Rice’s March 2006 comment that implementing ASPA sanctions against US allies in the “war on terror” and the “war on drugs” was “sort of the same as shooting ourselves in the foot,” also noting the concern of some US policy-makers that the sanctions were reducing US influence in the region, as affected states looked to other countries—such as China and Russia—for military training and assistance. This conflict of interests is further detailed in US diplomatic cables.

Costa Rica

Costa Rica was one of twelve Latin American countries that refused to sign an Article 98 agreement, and was therefore subject to ASPA and Nethercutt sanctions. In 2005, the US ambassador to San José wrote that the “unavailability of US military assistance and ESF unavoidably contributes to a decline in US influence in Costa Rica and makes it more difficult to achieve our objectives in the areas of counternarcotics, counterterrorism, and, to a lesser extent, free trade.”35 The ambassador noted that the withdrawal of funds had led to a “noticeable deterioration of the seaworthiness of the Costa Rican Coast Guard fleet and degradation of the operational readiness of other law enforcement units such as the SWAT team.” “More worrisome,” the ambassador wrote, was that “the absence of training and other US military assistance may eventually cause Costa Ricans to call into question the value to them of the Bilateral Maritime Agreement.” This 1999 agreement allows US Coast Guard ships to patrol in Costa Rican waters and US aircraft to y into Costa Rican airspace. In 2010 it was controversially extended to allow US warships carrying Black Hawk helicopters and other aircraft into Costa Rican waters.36 The ambassador wrote: “Our task is to find a way out of the dilemma faced by the [Government of Costa Rica] because it is in reality also a dilemma for the United States as we strive to stem the flow of illegal drugs, stop terrorists, and foster an ever- growing trade relationship with Costa Rica.”

In October 2006, Bush deemed it in the national interest of the United States to waive IMET restrictions for Costa Rica. The US ambassador to San José welcomed the resumption of US military training, which had previously “provided the US with access and influence among key Costa Rican officials.”

Brazil

In Brazil, the US embassy was concerned that IMET restrictions had meant that the country’s Ministry of Defence was “shifting to other countries for training and exchanges previously done with the US.” A March 2004 cable reported: “While France and the United Kingdom have picked up much of the slack, Brazilian officers, according to military sources, are now being sent also to training programs in China, India, and South Africa.”37 As well as weakening “traditionally close ties between our two armed forces,” the cable reported that the sanctions were prejudicing US weapons manufacturer Lockheed Martin’s prospects of winning a contract from Brazil for new F-16 fighter jets worth $700 million. The cable noted: “When a decision on purchase of Brazil’s next generation fighter jet ... is finally taken, training for pilots will likely be in the country of origin of the new aircraft.” With such training prohibited in the US, Brazil might look to buy the jets from another country.

Brazil subsequently abandoned its plan to purchase new jets because of budgetary constraints. But a cable from December 22, 2004, reported that the government of Brazil instead “may review whether to purchase less costly used aircraft,” and said: “In this regard, the Lockheed Martin F-16 would have the inside track.”38 The cable suggested that US diplomats had had some success in convincing generals in the Brazilian air force that buying used F-16s was “the most logical way forward both tactically and economically.” However, in the embassy’s view, the Brazilian government might not be so easily won over because, “[a]s Brazil observes the bite that ASPA is taking on countries that do not sign Article 98 agreements, it [sic] questions about the reliability of the US as a supplier/strategic partner will continue.”

In 2006, Bush also waived IMET restrictions against Brazil on national interest grounds.

Chile

It was a different story in Chile, where the US embassy in Santiago reported in 2006 that it was pleased that the pursuit of an Article 98 agreement “has yet to interfere with future military sales, bilateral relations, or exchanges or humanitarian opera- tions between our countries’ armed forces.”

Chile had signed a deal to purchase ten F-16s for $500 million in 2002, the first of which were delivered by Lockheed Martin in January 2006. Unlike Costa Rica and Brazil, Chile had not ratified the Rome Statute and was therefore not subject to sanctions. The cables report that the Chilean government told the US that it would eventually ratify the treaty because of strong domestic and regional support for the ICC, and that signing an Article 98 agreement “would not be politically possible.”39

The Chilean government was concerned that joining the ICC without signing an immunity agreement would jeopardize the “strong US-Chile relationship.” According to a December 2005 cable, Chilean foreign minister Ignacio Walker told the US ambassador that this relationship was “more important now than ever, given the recent troubling developments in the region.”40 Specifically, the cable said, “Walker cited Evo Morales’ recent election in Bolivia, the Chávez-Morales axis, and increasing ties between Venezuela and Argentina as reasons why ‘like-minded countries’ like the US and Chile need to remain close.”

A January 2006 cable reported that Stephen Rademaker, the US international security and nonproliferation assistant secretary, had told Chilean officials that “Chile should not count on a Presidential waiver of ASPA sanctions” if it went ahead with ratification.41 According to the cable, Rademaker said: “Several other countries, notably Colombia in the hemisphere, have faced political difficulties in deciding to enter into an Article 98 agreement with the US. Granting a national interest waiver for Chile now could harm our relations with those countries.”

In the end, Chile avoided ICC-related sanctions by delaying the ratification of the Rome Statute until 2009, by which time the Bush administration had abandoned the measures.

Ecuador

Ecuador’s refusal to sign an Article 98 agreement rendered it subject to sanctions. Cables from Quito detail the variety of underhanded tactics employed by the US embassy to persuade Ecuador to sign. They also show that the embassy was concerned about the “unintended consequences” of ICC-related sanctions for other US policy objectives in Ecuador.

A cable sent on November 17, 2004, from the US embassy in Quito alluded to the Bush administration’s fear that US leaders and military personnel could find themselves on trial at The Hague for crimes carried out during the “global war on terror.” The US ambassador complained that Article 98 negotiations with Ecuador had “stagnated” and wrote: “Cognizant that increasing deployments of US forces worldwide makes inking an Article 98 with Ecuador imperative, we are conducting another offensive.”42 This “offensive” included urging the Ecuadorian military to lobby the Ecuadorian government for an Article 98 agreement, so that it could regain access US military assistance: “[W]e are not missing any opportunities to og the military over the need for Article 98.” “Big-ticket items,” the cable reported, “such as A-37 upgrades for [air base defense] and additional helicopters ... are non-starters until we get an agreement.” According to the cable, the embassy hoped that a “joint special forces counter-terrorism operation featuring Blackhawk helos,” which was taking place near Quito, would lead “battalion- and brigade-level officers to push their HQ superiors for similar goodies.” The cable said: “The [Foreign Affairs Ministry] continues to believe it can wait us out. It cannot. We are helped by Washington re-opening the second front, calling in Ecuadorian Ambassador Raul Gangotena for meetings with Assistant Secretaries Roger Noriega and Steven Rademaker.”

Another cable, sent on November 26, 2004, detailed the embassy’s “game plan” for persuading Ecuador to sign an Article 98 agreement.43 This plan was described as “heavy on personal diplomacy and media education,” and included hosting “a series of roundtables with interested journalists, hoping to correct Article 98 misperceptions.” It also featured “a possible International Visitor program for Ecuadorian think-tankers and talking heads, whose support will be vital come ratification time (and who are bashing us now).”

The cable went on to note that Ecuadorian president at the time, Lucio Gutiérrez, had told the US defense secretary Donald Rumsfeld that he agreed in principle to signing an Article 98 agreement, but that “it was a hard sell, especially with the left- leaning legislature,” and that he “would need serious quid pro quo to go forward.” The embassy was therefore considering implementing “Plan Ecuador,” described in the cable as a “mostly PR effort to recast existing [US government] assistance efforts as political ‘payback’ for Article 98 ... Believing our aid package already robust but seeing utility in providing deliverables, we deliberated in-house how best to recast and repackage existing programs for maximum political benefit.”

By March 2005, the cables reported, Ecuador was no closer to signing an Article 98 agreement. The US ambassador to Ecuador, Kristie Kenney, wrote that she was hopeful that imminent ESF cutbacks “might spur the [government of Ecuador] to reconsider their ‘ignore them, they’ll go away’ strategies.”44 The ambassador saw the appointment of a new Ecuadorian ambassador to Washington, Mauricio Pozo, as another opportunity to lever- age the Ecuadorian military’s interest in US aid in favor of an Article 98 agreement: “I have suggested to Ecuador’s military leaders that they concurrently lobby their newest envoy for movement on Article 98.” Further, Kenney wrote, “a ‘deliverable’ or two might help also in the ght for 98.” She suggested the US government consider the extradition from the US of one of a number of corrupt bankers suspected of embezzling millions from Ecuadorian banks, as a quid pro quo for signing an Article 98 agreement. But the cable also reported the embassy’s concerns about the unintended consequences of the Bush administration’s policy on Article 98 agreements. ICC-related sanctions had man- dated a suspension of IMET assistance to Ecuador which, the cable said, “represents perhaps the most cost-effective manner to influence Ecuador’s armed forces.” Moreover, the embassy was concerned that “other nations, especially China, have rushed to fill the gap.”

A subsequent cable reiterated this concern: “ASPA sanctions, especially those restricting US training opportunities (IMET), are costing us influence with the Ecuadorian military.”45 In April 2005, Gutiérrez was forced out of office after Ecuadorians took to the streets in their thousands to protest his government’s economic policies. Gutiérrez had been elected on the promise that he would break with the neoliberalism of his predecessors, but quickly reneged on this after taking office. While Gutiérrez’s economic policies were unpopular with the Ecuadorian people, they gained him favor in Washington, as did his support of the US-backed Free Trade Area of the Americas (FTAA) and its “war on drugs.” Moreover, Gutiérrez had allowed the US considerable in uence in Ecuadorian affairs, and the US embassy in Quito was sorry to see him go.46

When the government of Alfredo Palacio took over from Gutiérrez, Kenney wrote that “Article 98’s chances in Ecuador sunk from bad to worse.”47 Ecuadorian minister of government, Mauricio Gándara, described by the ambassador as “the quintessential gringo-basher,” announced publicly that Ecuador would not sign an Article 98 agreement with the US. But the ambassador saw some hope in new Ecuadorian foreign minister Antonio Parra, who, she said, “appeared less ideological and more approachable than Gándara and company” and therefore “merited cultivation.” The ambassador wrote: “Rather than hit Parra with Article 98, perhaps the hottest bilateral potato he’ll encounter, we favor an early campaign to educate him on ‘softer’

US assistance and shared interests ... As Parra grows to realize that close US relations benefit Ecuador, he should become less apt to dismiss Article 98 out-of-hand.”

In September 2005, the new US ambassador to Ecuador, Linda Jewell, reiterated the embassy’s concerns about an unintended loss of US influence in Ecuador, in a cable titled: “Democracy Promotion Strategies for Ecuador.”48 As this cable illustrates, so- called “democracy promotion” is a strategy by which Western governments seek to influence and contain political and eco- nomic change in countries of strategic importance.

In Ecuador, the US wanted to counteract the influence of Latin America’s burgeoning social movements. Demanding democratic reforms and an economic alternative to the Washington consensus, these movements had brought left-wing leaders to power in Venezuela, Bolivia, and Uruguay. The embassy feared that the “pink tide” would engulf Ecuador, damaging US business interests in the country and dashing any hopes of negotiating a free-trade agreement. Moreover, the Ecuadorians who had mobilized against Gutiérrez were calling for an end to US interference in Ecuador and closure of the US Forward Operating Base at Manta.

Under the heading “Democracy is broken here,” Ambassador Jewell warned that “the danger of democratic backsliding is very real, whether in the form of a tradition of [sic] strongman military or civilian solution or a more populist Bolivarian movement ... Nethercutt/Article 98 restrictions that prohibit support to the [government of Ecuador] greatly hinder USG ability to effect change [and are] putting at risk our influence over an entire generation of [military] officers.” ESF restrictions would also “undermine USG democracy building efforts with local governments and hamper policy reform efforts with a wide array of Central Government institutions, including the Electoral Tribunal, other courts, and the Trade and Environment Ministries.”

The embassy was particularly concerned about Palacio’s proposal for a referendum on whether to convoke a constituent assembly to reform Ecuador’s political system and rewrite its constitution. “The contents of the referendum will be determined through negotiations with Congress,” wrote Jewell, “which presents some risk to [US government] interests.” The cable said that one of the tasks of the embassy’s “democracy promotion” working group would be to “[e]ncourage informed debate on electoral and political reforms being considered for inclusion in the referendum, while shielding [US government] security and trade interests from inclusion.” Specifically, Jewell wanted US “interests in [a Free-Trade Agreement], the Forward Operating Location at Manta, and security cooperation protected from inclusion in any popular referendum.”

In late 2006, Bush waived the military and economic sanctions against Ecuador on national-interest grounds. But the embassy’s “democracy promotion” efforts failed to prevent the election that year of “dark horse populist, anti-American candidate”49 Raphael Correa, who has taken Ecuador in a very different direction to the one preferred by the US.

A New Era of Engagement with the ICC?

ICC-related sanctions were impeding cooperation between the United States and other states in the “war on terror” and the “war on drugs,” and costing the US military and political influence. As the Congressional Research Service reported in 2007,50 these unintended consequences had led the Bush administration to rethink the policy, and the sanctions were gradually abandoned. By January 2008, all the provisions prohibiting military aid to countries that had refused to sign Article 98 agreements had been removed from ASPA Act. The Nethercutt Amendment was dropped in 2009, so that ESF assistance could be restored to countries that had failed to sign.

Actions taken by the Obama administration have led to hopes that the US is embarking on a new era of engagement with the ICC. The US began sending delegations of observers to sessions of the Rome Statute’s Assembly of States Parties in 2009. In 2011, it voted in favor of a UNSC resolution referring the situation in Libya to the ICC—the first time it had approved a UNSC referral to the Court.

In 2013, when ICC indictee and M23 leader Bosco Ntaganda surrendered to the US embassy in Kigali, the United States arranged for him to be extradited to The Hague, even though it was not legally obligated to do so. In the same year, the US Congress voted to extend the US Rewards for Justice program, which offers substantial cash rewards for information leading to the arrest of terrorism suspects, to individuals indicted by the ICC.

While these developments and other instances of cooperation between the United States and the ICC suggest a greater acceptance of the role of the court in bringing war criminals to justice, the likelihood that the US will ratify the Rome Statute has remained remote during Obama’s terms of office. Moreover, rather than offering principled support for the Court, cooperation with the ICC has been selectively undertaken when the administration has believed that it will further US interests.

The administration chose to support the UNSC referral of Libya to the ICC in the hope that it would help to expedite Muammar Qadda ’s removal from power. At the insistence of the United States, a provision was included in the resolution stating that nationals of non-signatories to the Rome Statute would not be subject to the jurisdiction of the ICC. As Glenn Greenwald reported, the Obama administration was worried that without this provision the resolution would set a precedent, potentially paving the way for ICC indictments of US nationals. According to Greenwald, the resolution was therefore “yet another episode where the US exempts itself from standards it purports to impose on the rest of the world.”51

The Obama administration has also worked consistently to try to ensure that the actions of its key Middle East ally, Israel, remain outside the ICC’s jurisdiction. In May 2014, the US supported a UNSC resolution referring alleged war crimes com- mitted in Syria to the ICC—but only on the condition that the Court would not have jurisdiction to investigate alleged crimes committed by Israelis in the occupied Syrian Golan Heights.52

The greatest threat to Israel, however, has been the prospect of a Palestinian referral of alleged Israeli war crimes to the ICC. Until recently, neither Israel nor Palestine was party to the Rome Statute, so such crimes did not fall under the Court’s jurisdiction. Knowing that Palestinian membership of the ICC would change this, the Obama administration has fought publicly and privately with Israel against Palestinian attempts to join. According to a February 2010 cable from the US embassy in Tel Aviv, the IDF’s military advocate, General Mandelblit, told the US ambassador to Israel that the ICC was “the most dangerous issue for Israel.” The cable said that Palestinian justice minister Ali Kashan had met with ICC prosecutor Luis Moreno Ocampo to ask him to investigate alleged Israeli war crimes in the occupied territories. Mandelblit “warned that [Palestinian Authority] pursuit of Israel through the ICC would be viewed as war by the [government of Israel]” and urged the US ambassador to “help the PA understand the gravity of its actions.” The ambassador reassured Mandelblit that “the US had consistently pressed the [Palestinian Authority] to cease such action.”53

In the past, the Palestinian Authority (PA), led by President Mahmoud Abbas, has toed the US-Israeli line on war crimes investigations. In 2009, the PA agreed to support a postponement of the referral to the UNSC of the Goldstone Report into Operation Cast Lead. The United States and Israel feared that the referral would lead to an investigation into war crimes alleged to have been committed by Israel during the 2008–09 assault on Gaza. Leaked intelligence documents published by Al Jazeera and the Guardian in 2015, the “Spy Cables,” suggest Abbas was concerned that the referral would “play into the hands of” his rivals, Hamas.54

However, in December 2014, after a resolution calling for the establishment of a Palestinian state failed at the UNSC, Abbas submitted an application for Palestinian membership of the ICC. In early January 2015, UN Secretary-General Ban Ki-moon announced that Palestine’s membership would take effect from April 1, and alleged Israeli crimes committed after June 13, 2014, were thereby brought under the Court’s jurisdiction.

The Obama administration condemned the Palestinian application as counterproductive, maintaining the US position that Palestine is not a sovereign state and is therefore not eligible to join the ICC. Israel retaliated by announcing that it would withhold $127 million in tax revenues due to the Palestinian Authority.

On January 16, 2015, ICC prosecutor Fatou Bensouda announced that the ICC would open a “preliminary examination” into Israel’s 2014 military offensive against Gaza, which killed over 2,100 Gazans, including 500 children. The Israeli government has stated that it will not cooperate with the investigation, and Israeli foreign minister Avigdor Lieberman has warned that Israel will now “act to dissolve the ICC.” The US Department of State issued a statement saying that it “strongly” disagreed with the ICC prosecutor’s decision, and promised to “continue to oppose actions against Israel at the ICC as counterproductive to the cause of peace.”55 There have also been calls from US senators to block $440 million of US aid to Palestine if it pursues criminal proceedings against Israelis at the ICC.56

In short, while the Obama administration’s limited cooperation with the ICC may have improved the international image of the United States, it does not represent a genuine embrace of the Court and its mandate. Taken as a whole, Obama’s actions show that the US is still committed to the double-standard that US enemies should be subject to the dictates of international law, while the United States and its allies should not.

[1]Lesley Wroughton, “US, Afghans Agree Most of Pact, Elders to Make Final Decision,” Reuters, October 13, 2013, at reuters.com.

[2]Josh Dougherty, “When Victimless Crimes Matter and Victims Don’t: The Trial of Bradley Manning,” Iraq Body Count, August 2, 2013, at iraqbodycount.org.

[3]Glen Greenwald, With Liberty and Justice for Some: How the Law is Used to Destroy Equality and Protect the Powerful(New York: Metropolitan, 2011).

[4]White House, “Statement of President Barack Obama on Release of OLC Memos,” April 16, 2009, at whitehouse.gov.

[5]White House, “Statement by the President Report of the Senate Select Committee on Intelligence,” December 9, 2014, at whitehouse.gov.

[6]John R. Bolton, “‘Legitimacy’ in International Affairs: The American Perspective in Theory and Operation,” November 13, 2003, at 2001-2009.state.gov, cited in Erna Paris, The Sun Climbs Slow: The International Criminal Court and the Struggle for Justice(New York: Seven Stories Press, 2009), p. 79.

[7]http://wikileaks.org/cable/2002/12/02TEGUCIGALPA3350.html.

[8]http://wikileaks.org/cable/2002/10/02COLOMBO2003.html.

[9]http://wikileaks.org/cable/2002/12/02COLOMBO2323.html.

[10]http://wikileaks.org/cable/2006/06/06MASERU261.html.

[11]Ian Traynor, “East Europeans Torn on the Rack by International Court Row,” Guardian, August 17, 2002, cited in Paris, The Sun Climbs Slow, p. 70.

[12]Institute for the Study of Human Rights, “US & ICC: Bilateral Immunity Agreement Campaign: Reaction to BIAs,” n.d., at amicc.org.

[13]http://wikileaks.org/cable/2003/04/03ZAGREB798.html.

[14]http://wikileaks.org/cable/2008/03/08CHISINAU314.html.

[15] http://wikileaks.org/cable/2004/06/04GUATEMALA1361.html.

[16]http://wikileaks.org/cable/2003/12/03SANAA3010.html.

[17]http://wikileaks.org/cable/2004/07/04SANAA1733.html.

[18]http://wikileaks.org/cable/2004/05/04MANAMA676.html.

[19]http://wikileaks.org/cable/2004/06/04MANAMA831.html.

[20]http://wikileaks.org/cable/2005/02/05MANAMA158.html.

[21]http://wikileaks.org/cable/2004/03/04MANAMA368.html.

[22]http://wikileaks.org/cable/2004/03/04MANAMA368.html.

[23]http://wikileaks.org/cable/2004/06/04MANAMA831.html.

[24]Anna Fifield and Camilla Hall, “US and Bahrain Secretly Extend Defence Deal,” Financial Times, September 1, 2011.

[25]http://wikileaks.org/cable/2007/04/07KUWAIT487.html.

[26]http://wikileaks.org/cable/2005/07/05AMMAN5624.html.

[27]http://wikileaks.org/cable/2005/08/05AMMAN6612.html.

[28]http://wikileaks.org/cable/2006/11/06MANAMA1925.html.

[29]http://wikileaks.org/cable/2005/07/05ASUNCION869.html.

[30]http://wikileaks.org/cable/2005/07/05ASUNCION860.html.

[31]http://wikileaks.org/cable/2006/07/06ASUNCION750.html.

[32]http://wikileaks.org/cable/2005/07/05ASUNCION860.html.

[33]Elise Keppler, “The United States and the International Criminal Court: The Bush Administration’s Approach and a Way Forward Under the Obama Adm,” Human Rights Watch, August 2, 2009, at hrw.org.

[34]http://wikileaks.org/wiki/CRS:_Article_98_Agreements_and_Sanctions_on_U.S._Foreign_Aid_to_Latin_America,_March_22,_2007.

[35]http://wikileaks.org/cable/2005/11/05SANJOSE2717.html.

[36]Council on Hemispheric Affairs, “Costa Rica’s Fateful Move: San José Expands Its Role in US-Led Counter-Narcotics Efforts,” August 4, 2010, at coha.org.

[37]http://wikileaks.org/cable/2004/03/04BRASILIA745.html.

[38]http://wikileaks.org/cable/2004/12/04BRASILIA3154.html.

[39]http://wikileaks.org/cable/2005/12/05SANTIAGO2573.html.

[40]http://wikileaks.org/cable/2005/12/05SANTIAGO2573.html.

[41]http://wikileaks.org/cable/2006/01/06SANTIAGO130.html.

[42]http://wikileaks.org/cable/2004/11/04QUITO3028.html.

[43]http://wikileaks.org/cable/2004/11/04QUITO3103.html.

[44]http://wikileaks.org/cable/2005/03/05QUITO590.html.

[45]http://wikileaks.org/cable/2005/04/05QUITO773.html.

[46]http://wikileaks.org/cable/2005/05/05QUITO1048.html.

[47]http://wikileaks.org/cable/2005/05/05QUITO1169.html.

[48]http://wikileaks.org/cable/2005/09/05QUITO2235.html.

[49]http://wikileaks.org/cable/2006/05/06QUITO1157.html.

[50]http://wikileaks.org/wiki/CRS:_Article_98_Agreements_and_Sanctions_on_U.S._Foreign_Aid_to_Latin_America,_March_22,_2007.

[51]Glenn Greenwald, “US Continues Bush Policy of Opposing ICC Prosecutions,” Salon, February 28, 2011, at salon.com.

[52]Colum Lynch, “Exclusive: US to Support ICC War Crimes Prosecution in Syria,” Foreign Policy, May 7, 2011, at foreignpolicy.com.

[53]https://wikileaks.org/cable/2010/02/10TELAVIV417.html.

[54]Jeff Rathke, “Statement on ICC Prosecutor’s Decision,” Press Statement, US Department of State, January 16, 2015, at state.gov.

[55]Allyn Fisher-Ilan, “US Senator Threatens Aid Cut to Palestinians Over ICC Move,” Reuters, January 19, 2015, at reuters.com.

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