The International Criminal Court (ICC) was established to prosecute individuals alleged to have committed war crimes, crimes against humanity and genocide.
From the ICC’s inception, the US objected to the possibility that US nationals could be subject to its jurisdiction.
The administration of former US president George W Bush waged an aggressive campaign to persuade states to sign “Article 98”, or bilateral immunity agreements. Those that signed agreed not to transfer US nationals to the ICC.
Between 2002 and 2009, sanctions were implemented on states that refused to sign.
These bullying tactics attracted global condemnation, not least because the US was seeking immunity for its personnel while waging an illegal war of aggression in Iraq.
US diplomatic cables published by WikiLeaks show that the controversy surrounding Article 98 agreements led the US to negotiate and sign many of them in secret. However, in many countries the agreements needed to be submitted for parliamentary ratification to become law.
This created a dilemma for countries that wanted to keep the agreements secrets. The cables show, in some cases, a dilemma for US diplomats worried that opposition to the agreements could threaten the US’s strategic interests.
Cables reveal the government of Bahrain signed a secret Article 98 agreement with the US in February 2003. By May 2004, a cable from the US Embassy in Manama reported, only five officials at the Bahraini foreign ministry knew of the agreement's existance.
Both the US Embassy and the Bahraini government assessed 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 photographs of US soldiers abusing Iraqi prisoners in 2004 made news of a secret immunity agreement all the more incendiary.
The May 2004 cable reported that a Bahraini government official 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 Bahrain’s foreign minister was “struggling to find a way to carry this out without causing a political explosion”.
Therefore, US pushed for the agreement to be brought into force “through a secret exchange of notes” ― an executive agreement that would not 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 US Undersecretary of State for Arms Control John Bolton that, “two-thirds of all the Article 98 agreements had entered into force via diplomatic notes”.
However, some members of Bahrain's government said this method was not legal, and negotiations stalled. The US kept up the pressure, refusing to rule out sanctions on military aid if Bahrain failed to ratify the agreement.
Pressure brings risks
The Deputy Chief of Mission at the US Embassy in Bahrain Robert Stephen Ford cautioned Washington that such measures could damage the US’s close military and political ties with Bahrain.
Ford wrote in a March 2004 cable that the programs that would be affected by the sanctions, International Military Education Training and Foreign Military Financing assistance, were “key to boosting Bahraini forces' interoperability with our own in such operations”.
In a subsequent cable the US ambassador went further, writing that Washington’s pressure for formal ratification “ought to be reconsidered”.
Ford 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 said 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”.
Ford further warned that the “abuse of Iraqi prisoners in Abu Ghraib has 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.
Ford 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 US 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.
The Defense Cooperation Agreement was secretly extended by the Bush administration in 2002 until 2016.
The risk, from the ambassador’s point of view, was that news of the secret Article 98 agreement could bring unwelcome attention this secret agreement, which provides the basis for the US’s naval presence in the Middle East.
The experience of other US allies in the region showed that Article 98 agreements would not easily be passed. When Kuwait’s agreement was submitted for ratification in April 2007, a cable reported that “parliamentarians objected strongly”.
The cable report that opponents of the agreement said it was a violation of Kuwait’s ICC obligations and would place the US “above the law”. Others compared the treatment of US nationals under the agreement to the detention and alleged torture of Kuwaiti citizens held at Guantanamo prison. Opponents 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.”
The agreement was not ratified until the next year, after the king of Jordan had “read the riot act” to parliamentarians, the embassy reported.
Despite Ford’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.
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 US that its congress would not pass an Article 98 agreement.
The US agreed with this assessment and the US Embassy in Asuncion 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”.
In June 2005, Paraguay's government came under criticism from local media and neighbouring countries for granting immunities to US soldiers taking part in joint US-Paraguay military exercise over an 18-month period.
As a result, Argentina, Brazil, Paraguay, and Uruguay agreed to a declaration at the 2005 Market of the South (Mercosur) summit, which committed them to not 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 then-president Nicano Duarte publicly said Paraguay would not sign an Article 98 agreement, his government told the US it would seek ways to give the US the immunities it was seeking.
A cable from the US Embassy sent shortly after the Merscur summit reported that “Paraguay's lawyer for Article 98 negotiations with the U.S. conveyed concern that [the Merscur] declaration could pose a further obstacle to concluding an agreement”.
A July 7 cable warned the commander general United States's 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.
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 jeopardise “the most permissive environment for exercises in the region”.
The cable said, “[w]e 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.
[This is the second part of a four-part series on WikiLeaks revelations on how the US has sought to avoid any international prosecutions for its war crimes. you can read part one here.]