Chelsea (formerly Bradley) Manning was sentenced to 35 years in prison on August 7 for leaking classified US government documents to WikiLeaks.
These documents revealed evidence of war crimes and human rights abuses carried out at the behest of the US government. Diplomatic cables leaked by Manning also show the lengths to which the Bush administration 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 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, it led US forces led to withdraw. Immunity is a sticking point in negotiations between the US and Afghanistan over an agreement to keep US forces in the country beyond 2014.
However, the US has a poor record of prosecuting its citizens for such crimes. There have been some prosecutions of low-ranking troops in relation to war crimes committed in Iraq, but Iraq Body Count said, “no soldier or official involved in the Iraq war has faced the level of vindictive punishment that US prosecutors have sought to impose on Bradley Manning”.
Moreover, the politicians responsible for starting an illegal war of aggression and the senior military officials who executed it, “essentially enjoy total immunity from prosecution for anything related to the Iraq war”.
When states are “unwilling or unable” to prosecute individuals alleged to have committed war 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 which has been ratified 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 jurisdiction 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 committed by an individual of a state, or on the territory of a state, which is a party to the Rome Statute.
The US wanted also wanted the United Nations Security Council (UNSC) to have the power to initiate and veto prosecutions, but this was rejected by other delegates.
Unhappy with the outcome of the negotiations, then-US president Bill Clinton signed the Rome Statute in 2000, but only so the US 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. Undersecretary 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.”
In other words, the US 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 which is a party to the Rome Statute.
Even where it has jurisdiction, the chances that the ICC would ever indict a US national are slim as the court depends on the financial and political support of the West. In its 11-year history, the court has indicted only Africans.
But members of the Bush administration wanted to eliminate any possibility that they could one day find themselves at The Hague.
In August 2002, Bush enacted the American Service-Members' Protection Act (ASPA), which authorised 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 provisions passed in 2004 extended the scope of the sanctions to certain types of economic aid. NATO countries and designated “major non-NATO allies” were exempted from these measures. The restrictions could be waived 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 bilateral immunity agreement with the US, by which they agreed not to surrender Americans to the ICC without the consent of the US government.
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 US would “help those countries that sign Article 98 agreements and cut aid to those that do not”.
However, the “carrots” on offer often amounted to no more than vague promises of favourable 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”.
The Maldives was promised it would “gain significant credit with the U.S. the sooner it joined with us on this vital issue”.
Lesotho, which was struggling to cope with an AIDS epidemic, was told in June 2006 that its “high profile” status as a non-signatory of an Article 98 agreement had led to a request for aid from the US being denied.
However, if Lesotho signed, the US ambassador told the prime minister, he would “receive a warmer welcome whenever he travelled to the U.S.”
As the cables show, governments were subjected to sustained pressure. After Romania capitulated and became the first European country to sign, foreign minister Mircea Geoana said: “I can’t remember anything they put so much weight or interest into.”
The US’s bullying tactics 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”.
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”.
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”.
Other countries told the US that they could not get parliamentary approval for an Article 98 agreement because of the ongoing war in Iraq, particularly after photographs of US soldiers abusing Iraqis at Abu Ghraib prison were published in 2004.
Needless to say, it was difficult to sell the idea that the US 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.
Reflecting the double standard inherent in the US’s attitude towards 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, in part because “events at Abu Ghraib have given powerful ammunition to Article 98 critics”.
The cable said the Guatemalan government had “requested that [the US] keep the agreement confidential while it devises a strategy for Congressional approval”.
And it was a similar story in Yemen, which had signed a secret agreement in 2003 via an exchange of diplomatic notes.
When US diplomats brought up the “importance of Article 98 ratification” the following the 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 U.S.’”