The importance and impact that the Nuremberg trial has had on the world since 1945 has been unprecedented. These trials paved the way for the formation of the International Criminal Court, the United Nations and the recognition for the basis of Human Rights. “The International Military Tribunal at Nuremberg was a catalyst for the international human right revolutions and growth of international criminal law in the twentieth century. After Nuremberg, the protection of human rights and respect for the humanitarian law of war was viewed as a standard for judging the legitimacy of a State. Virtually every area of public international law has been affected by Nuremberg”1.
However, the emergence of the cold war halted any progress towards establishing a permanent ICC. It was not until the early ninety’s after the conflict in Yugoslavia and genocide in Rwanda unfolded when the talks at the United Nations of a permanent ICC had been revived. In the summer of 1998 a conference regarding a permanent ICC was held in Rome. One-hundred and sixty nation states worked on the draft of the treaty that would establish the ICC. One-hundred twenty nations out of the initial one-hundred sixty ratified this agreement which has come to be known as the Rome Statue.2
Although the Clinton administration initially supported the creation of an ICC and was an active supported during the draft process, it was not satisfied with some elements of the treaty provisions and voted against it in 1998. On December 31, 2000, President Bill Clinton signed the Rome Statute but advised the then President Elect George W. to not ratify the agreement until the provisions of the treaty had been amended. Although the treaty was signed, it did not hold the United States government accountable because it was not a binding document until it had been ratified.
In May of 2002, under the Bush administration as United States was engaged in a war in Al-Qaeda and the Taliban in Afghanistan, President Bush made an announcement that he would not seek to ratify the Rome statue previously signed by President Clinton. The administration took an aggressive stance on their position. The aim of the administration was as follows;
1. US administration sought protection of its own citizens from being tried by the ICC for any crimes that may be committed, therefore, a bilateral immunity agreement had to be signed for all members of the ICC promising to never surrender US citizens to the courts and to extradite them to US jurisdiction
2. US administration objected to the term of “aggression” as a prosecutable crime, therefore the US opposes any arrangement which does not give the Security Council the exclusive authority to determine when aggression has occurred
3. US objection to the clause that allows the ICC prosecutor to launch an investigation and proceedings on his or her own initiative without the consent or referral of the UN Security Council3
The Bilateral Immunity Agreement (BIA) were the creation of the Bush administration which set guidelines on how individuals that have committed a crime and were sought by the ICC would be conducted. This was to protect American citizens from being tried at the ICC without the permission of the United States government. “The Bush administration conducted a vigorous campaign of trying to conclude BIA’s to remove US nationals from the reach of the Court. By the end of its term, the Bush administration had concluded BIA’s with over 100 nations, 14 of which have ratified the agreement.4
In 2009, shortly after President Barack Obama took office his administration had decided that the United States would like to participate in Assembly of State Parties (ASP) which is the governing body of the ICC in the role of an observer. It had been eight years since the United States had participated in the ASP’s and “The administration defined its presence in the ASP as both a moral and security imperative. Additionally, the United States made commitments of assistance in the investigation and prosecution of the Lord’s Resistance Army and its leader Joseph Kony.5