Talk About the Imperial Presidency!

by Kevin Jon Heller

President Obama has issued the following memorandum concerning US participation in the UN’s Mali stabilisation mission:

By the authority vested in me as President by the Constitution and the laws of the United States of America, and consistent with section 2005 of the American Servicemembers’ Protection Act of 2002 (22 U.S.C. 7424), concerning the participation of members of the Armed Forces of the United States in certain United Nations peacekeeping and peace enforcement operations, I hereby certify that members of the U.S. Armed Forces participating in the United Nations Multidimensional Integrated Stabilization Mission in Mali are without risk of criminal prosecution or other assertion of jurisdiction by the International Criminal Court (ICC) 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.

This is, of course, completely wrong. At most, the Article 98 agreement between the US and Mali would prohibit the ICC from asking Mali to surrender a US soldier wanted for war crimes. It would not in any way prohibit the Court from prosecuting a US soldier it managed to get its hands on without Mali’s help. (Or even if Mali decided its obligation under the Rome Statute took precedence over its Article 98 agreement with the US and handed a US soldier over despite the agreement.)

I realize Obama is a communist/marxist/fascist/socialist dictator, but he has not yet been crowned King of the ICC. Until he has, the Rome Statute remains more important than his presidential memoranda.

http://opiniojuris.org/2014/02/03/talk-imperial-presidency/

7 Responses

  1. Touché, as usual.

  2. I understand the objection, but for what it’s worth – it’s not his language, it’s the language of the ASPA. See 22 U.S.C. § 7424(c)(2).
    http://codes.lp.findlaw.com/uscode/22/81/II/7424
    (b) Restriction Members of the Armed Forces of the United States may not participate in any peacekeeping operation under chapter VI of the charter of the United Nations or peace enforcement operation under chapter VII of the charter of the United Nations, the creation of which is authorized by the United Nations Security Council on or after the date that the Rome Statute enters into effect pursuant to Article 126 of the Rome Statute, unless the President has submitted to the appropriate congressional committees a certification described in subsection (c) of this section with respect to such operation. (c) Certification The certification referred to in subsection (b) of this section is a certification by the President that – (1) members of the Armed Forces of the United States are able to participate in the peacekeeping or peace enforcement operation without risk of criminal prosecution or other assertion of jurisdiction by the International Criminal Court because, in authorizing the operation, the United Nations Security Council permanently exempted, at a minimum, members of the Armed Forces of the United States participating in the operation from criminal prosecution or other assertion of jurisdiction by the International Criminal Court for actions undertaken by them in connection with the operation; (2) members of the Armed Forces of the United States are able to participate in the peacekeeping or peace enforcement operation without risk of criminal prosecution or other assertion of jurisdiction by the International Criminal Court because each country in which members of the Armed Forces of the United States participating in the operation will be present either is not a party to the International Criminal Court and has not invoked the jurisdiction of the International Criminal Court pursuant to Article 12 of the Rome Statute, or has entered into an agreement in accordance with Article 98 of the Rome Statute preventing the International Criminal Court from proceeding against members of the Armed Forces of the United States present in that country; or (3) the national interests of the United States justify participation by members of the Armed Forces of the United States in the peacekeeping or peace enforcement operation. – See more at: http://codes.lp.findlaw.com/uscode/22/81/II/7424#sthash.5fAT5q3T.dpuf

  3. Jens,

    Fair enough — but he should still make clear that the ASPA does not actually reflect the Rome Statute!

  4. ASPA is a product of the sick created by a child

  5. Thought Obama was going to roll back what was spewed during the Bush Jr era. Recall John Bolton et al and how they ganged up on Afghan interim government back in 2002 to sign similar agreement… 
    When it comes to international criminal justice, USG loss its moral standing a long time ago…

  6. Kevin,
    Agreed!  A clarification or objection would be ideal, or at least an avoidance via certification under 22 U.S.C. § 7424(c)(3):  “the national interests of the United States justify participation by members of the Armed Forces of the United States in the peacekeeping or peace enforcement operation.”  It was a small victory getting that language in there, so a pity not to use it.  But honestly, I’m guessing the major “sin” from the perspective of those objecting to agreements called “Article 98 agreements” as counter to the project of the ICC is the agreements themselves, not subsequent references to them.  And I think as a practical matter, the certification isn’t really misleading, albeit potentially confusing – US servicemembers are essentially without risk from an assertion of the ICC’s jurisdiction – complementarity, prosecutorial discretion, and judicial discretion (or politics, if you prefer) should more than adequately patch up a theoretical hole left by the US-Mali agreement.

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