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18.20.3.1 Attempt to Assert Jurisdiction With Respect to Nationals of Non-PartyStates. The ICC may exercise jurisdiction if a situation has been referred to it by the U.N.Security Council acting under Chapter VII of the Charter of the United Nations. 272 The RomeStatute also provides that the ICC may exercise its jurisdiction if one or more of the followingStates are Parties to the Rome Statute or have accepted the jurisdiction of the ICC on an ad hocbasis:• the State on the territory of which the conduct in question occurred or, if the crime wascommitted on board a vessel or aircraft, the State of registration of that vessel or aircraft;or• the State of which the person accused of the crime is a national. 273The first of these provisions creates the possibility that the ICC would seek to exercisejurisdiction with respect to the actions of nationals of States that have not ratified the RomeStatute, even if the U.N. Security Council has not referred the situation. The United States has alongstanding and continuing objection to any assertion of jurisdiction by the ICC with respect tonationals of States not Party to the Rome Statute in the absence of consent from such States or areferral by the Security Council. 27418.20.3.2 Article 98 Agreements. The Rome Statute provides that the ICC maynot proceed with a request for surrender or assistance that would require the requested State toact inconsistently with its obligations under international law with respect to the State ordiplomatic immunity of a person or property of a third State, unless the Court can first obtain thecooperation of that third State for the waiver of the immunity. 275 The Rome Statute also272 Refer to § 18.12.4 (Authorizing International Criminal Tribunals).273 ROME STATUTE art. 12 (“In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction ifone or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court inaccordance with paragraph 3: (a) The State on the territory of which the conduct in question occurred or, if thecrime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft; (b) The State ofwhich the person accused of the crime is a national.”).274 See, e.g., 22 U.S.C. § 7421(11) (“It is a fundamental principle of international law that a treaty is binding upon itsparties only and that it does not create obligations for nonparties without their consent to be bound. The UnitedStates is not a party to the Rome Statute and will not be bound by any of its terms. The United States will notrecognize the jurisdiction of the International Criminal Court over United States nationals.”); William J. Clinton,Statement on the Rome Treaty on the International Criminal Court, Dec. 31, 2000, 2000-III PUBLIC PAPERS OF THEPRESIDENTS 2816 (“In particular, we are concerned that when the court comes into existence, it will not onlyexercise authority over personnel of states that have ratified the treaty, but also claim jurisdiction over personnel ofstates that have not.”). Cf. Extracts from Comments by Governments on the Draft Convention on GenocidePrepared by the Secretary-General, reprinted in U.N. SECRETARY-GENERAL, Historical Survey of the Question ofInternational Criminal Jurisdiction, U.N. Doc. A/CN.4/7/Rev.1, 137 (1949) (1. United States of America Thisarticle contains a broad jurisdictional provision. … A third reason for opposing the provision is that it wouldapparently seek to establish a rule of law applicable to nationals of States which have not consented to it, namely,such States as may not ratify the Convention.”).275 ROME STATUTE art. 98(1) (“The Court may not proceed with a request for surrender or assistance which wouldrequire the requested State to act inconsistently with its obligations under international law with respect to the Stateor diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation ofthat third State for the waiver of the immunity.”).1110