This Note discusses one method to permanently delegitimize Article 98 agreements: exercising International Criminal Court (ICC) jurisdiction over Americans to prosecute them for alleged crimes committed in Afghanistan (“the Situation in Afghanistan”). Since their inception, Article 98 agreements have threatened the ICC’s mission by limiting states parties’ ability to assist the ICC in exercising jurisdiction over Americans. This Note considers potential proceedings against an American in the Situation in Afghanistan as a case study to demonstrate how, in practice, Article 98 agreements undermine the ICC’s anti-impunity mission. First, this Note describes the principles and procedures followed by the ICC. Second, this Note discusses the United States’ legal justifications for Article 98 agreements and responds to these justifications with the most prevalent critiques of Article 98 agreements. Although the legal bases for the agreements under Article 98(2) of the Rome Statute are controversial, this Note assumes that the agreements are legally valid as originally intended by the parties. However, this Note also assumes that Article 98 agreements are never binding on the ICC and thus cannot prevent the ICC from exercising its territorial jurisdiction. Finally, this Note explores the allegations against Americans in the Situation in Afghanistan and considers how Article 98 agreements are likely to hamper the ICC’s proceedings. This Note concludes that the Situation in Afghanistan is an opportunity to demonstrate the need to permanently delegitimize Article 98 agreements, and that it can serve as a catalyst for change, even if Americans are not prosecuted.
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