Article 98(2) of the Rome Statute: America's original intent

The author argues that Article 98(2) only covers those agreements of bilateral or multilateral character between or among nations (whether party or non-party to the Rome Statute) and/or international organizations (such as the ICC or the UN) that provide for non-surrender to the ICC of a nation's military or official personnel and related civilian component sent abroad on official mission by such nation. The agreements were not intended to cover individuals acting abroad in a private capacity or independently for foreign government or international organization purposes. Indeed, in contributing to the drafting of that provision of the Statute, the US delegation did not seek to protect the entire body of US nationals, such as the many US nationals who are engaged outside the United States as humanitarian aid workers, as journalists, as staff of the UN or intergovernmental relief agencies, as representatives of NGOs, as expatriate employees of private companies, or as tourists. In contrast, the bilateral non-surrender agreements negotiated by the current US Administration are intended to cover not only current or former government officials, government employees (including contractors), and military personnel, but also all US nationals, including those acting in a strictly private capacity. To find a solution to the inconsistency between Article 98(2) and these agreements, the author suggests that existing bilateral US non-surrender agreements should be rectified with a US public declaration confirming that the reference to 'nationals' in such agreements is interpreted by the US Government to mean the US civilian component of a military deployment. New or amended agreements negotiated by the United States with foreign governments or international organizations should limit the scope of application to official and military personnel of the 'sending State', covering them for actions they undertook in their official capacity. Consequently, employees of private contractors would be covered by the agreements to the extent that they are accurately described as persons directly contracted by the sending State to undertake work associated with official missions and are held legally accountable (including under criminal law) before US courts for their performance.