During the 109th Congress, another bill, H.R. 5995 (Engel), was introduced, which would have ended all restrictions on U.S. aid to countries that are members of the ICC and do not have Article 98 agreements. Had it been passed, the law would have required the repeal of the ASPA and the Nethercutt Amendment. The international agreements covered by Article 98, paragraph 2 of the Rome Statute are linked to several conditions, including Article 98 agreements, bilateral immunity agreements (BIA), impunity agreements and bilateral non-capitulation agreements. Since 2002, the United States has begun negotiations on these agreements with individual countries and has concluded at least 100 such agreements. The countries that sign these agreements with the United States agree not to leave the Americans to the jurisdiction of the International Criminal Court. The Coalition for the International Criminal Court lists more than 100 agreements in its fact sheet on the status of bilateral U.S. immunity agreements.
On the other hand, the bilateral immunity agreements proposed by the United States seek to obtain immunity from a large group of people, without reference to the traditional relations between CANAPÉ and SOMA. This broad layer of people would include anyone found in the territory of the state who enters into the agreement with the United States and who works or has worked for the U.S. government. Government experts said this could also include non-Americans and include citizens of the state in which they are located, effectively preventing that state from taking responsibility for its own citizens. Although the United States initially supported the idea of creating an International Criminal Court, fundamental objections to the proposed tribunal`s jurisdiction prompted the United States to vote against the Rome Statute. The main objections of the United States to the Rome Statute focus on the possible claim of the ICC`s jurisdiction to American soldiers who could be charged with “war crimes” resulting from the legitimate use of force or Of American civilians who could be charged with conduct related to the implementation of American foreign policy initiatives. As a result, the United States, through the United Nations Security Council, has requested immunity provisions for UN-authorized peacekeeping operations and has pursued bilateral agreements with countries parties to the ICC to exclude the extradition or transfer of U.S. citizens from any country to the ICC. Article 98, paragraph 2 Cooperation with respect to the lifting of immunity and consent to surrender: the Court cannot pursue an application for surrender that would require the required state to act in contradiction with its obligations under international agreements that require the agreement of a sending state for a person from that state to be returned to the Court unless the Court can , first, to seek the cooperation of the sending state in order to grant consent to the surrender. Article 98 of the agreement implies that each state promises that it will not hand over the citizens of the other signatories to the ICC, unless both parties agree in advance to the surrender.
Proponents of the policy say these agreements were not negotiated according to the status of routine military agreements (SOFA) to protect U.S. soldiers abroad from prosecution against foreign courts and are consistent with Article 98 of the Rome Statute. Critics have deemed the Article 98 agreements unnecessary and have accused the United States.