U.N. Human Rights Committee’s Concluding Observations on U.S. Human Rights

As discussed in a prior post, in March 2014, the United Nations’ Human Rights Committee (the Committee) issued a negative evaluation of how the United States of America (U.S.) was implementing and complying with the International Covenant on Civil and Political Rights (ICCPR or Covenant), which is regarded as an important part of the International Bill of Rights. That prior post reviewed the background of the ICCPR and the events leading up to the Committee’s evaluation. Another post looked at the Committee’s recent hearings regarding U.S. human rights.

Now we examine the Committee’s report of concluding observations that resulted from the hearings and all the evidence on that subject.

The Committee’s Concluding Observations[1]

After considering the written materials and the testimony and remarks at the hearing, on March 26, 2014, the Committee adopted its 11-page report (Concluding observations on the fourth report of the United States of America). Given the hostile nature of the Committee members’ comments during the hearing, it is not surprising that the report was very critical of the U.S.[2]

With respect to various topics, the Committee expressed its regrets or concerns about the U.S. record and then made the recommendations outlined below.

Applicability of the Covenant at national level.[3] The U.S. should: “(a) Interpret the Covenant in good faith, in accordance with the ordinary meaning to be given to its terms in their context, including subsequent practice, and in the light of its object and purpose and review its legal position so as to acknowledge the extraterritorial application of the Covenant under certain circumstances . . . .(b) [I]dentify ways to give greater effect to the Covenant at federal, state and local levels, taking into account that the obligations under the Covenant are binding on the State party as a whole. . . . (c) [E]nsure that effective remedies are available for violations of the Covenant, including . . . proposing to the Congress implementing legislation to fill any legislative gaps. . . . [and considering] acceding to the Optional Protocol to the Covenant providing for an individual communication procedure. [4] (d) Strengthen and expand existing mechanisms mandated to monitor the implementation of human rights at federal, state, local and tribal levels . . . . (e) Reconsider its position regarding its reservations and declarations to the Covenant with a view to withdrawing them.”[5]

Accountability for past human rights violations. The U.S. should: “[E]nsure that all cases of unlawful killing, torture or other ill-treatment, unlawful detention, or enforced disappearance are effectively, independently and impartially investigated, that perpetrators, including, in particular, persons in command positions, [6] are prosecuted and sanctioned, and that victims are provided with effective remedies. The responsibility of those who provided legal pretexts for manifestly illegal behavior should also be established. [7] The State party should also consider the full incorporation of the doctrine of ‘command responsibility’ in its criminal law and declassify and make public the report of the Senate Special Committee on Intelligence into the CIA secret detention programme.”

Racial disparities in the criminal justice system and Racial profiling. The U.S. should: “[R]obustly address racial disparities in the criminal justice system . . . [and] effectively combat and eliminate racial profiling by federal, state and local law enforcement officials . . . .”[8]

Death penalty. The U.S. should: “(a) take measures to effectively ensure that the death penalty is not imposed as a result of racial bias; (b) strengthen safeguards against wrongful sentencing to death and subsequent wrongful execution by ensuring inter alia effective legal representation for defendants in death penalty cases, including at the post-conviction stage; (c) ensure that retentionist states [those that maintain the death penalty] provide adequate compensation for the wrongfully convicted; (d) ensure that lethal drugs for executions originate from legal, regulated sources, and are approved by the U.S. Food and Drug Administration (FDA) and that information on the origin and composition of such drugs is made available to individuals scheduled for execution; [9] (e) consider establishing a moratorium on the death penalty at the federal level and engage with retentionist states with a view to achieving a nationwide moratorium;” [f] Consider acceding to on the Second Optional Protocol to the Covenant aiming at the abolition of the death penalty on or before July 11, 2116, the 25th anniversary of its entry into force.

Targeted killing using unmanned aerial vehicles (drones). The U.S. should: “revisit its position regarding legal justifications for the use of deadly force through drone attacks [and] . . . (a) ensure that any use of armed drones complies fully with its obligations under article 6 of the Covenant, including in particular with respect to the principles of precaution, distinction and proportionality in the context of an armed conflict; (b) subject to operational security, disclose the criteria for drone strikes, including the legal basis for specific attacks, the process of target identification and the circumstances in which drones are used; (c) provide for independent supervision and oversight over the specific implementation of regulations governing the use of drone strikes; (d) in armed conflict situations, take all feasible measures to ensure the protection of civilians in specific drone attacks and to track and assess civilian casualties, as well as all necessary precautionary measures in order to avoid such casualties; (e) conduct independent, impartial, prompt and effective investigations of allegations of violations of the right to life and bring to justice those responsible; (f) provide victims or their families with an effective remedy where there has been a violation, including adequate compensation, and establish accountability mechanisms for victims of allegedly unlawful drone attacks who are not compensated by their home governments.”

Gun violence. The U.S. should: “[T]ake all necessary measures to abide by its obligation to effectively protect the right to life. . . . [including] (a) continue its efforts to effectively curb gun violence, including through the continued pursuit of legislation requiring background checks for all private firearm transfers in order to prevent possession of arms by persons recognized as prohibited individuals under federal law . . . ; and (b) review Stand Your Ground Laws to remove far-reaching immunity and ensure strict adherence to the principles of necessity and proportionality when using deadly force in self-defence.”

Excessive use of force by law enforcement officials. The U.S. should: “(a) step up its efforts to prevent the excessive use of force by law enforcement officers by ensuring compliance with the 1990 UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officers; (b) ensure that the new CBP [U.S. Customs and Border Protection] directive on use of deadly force is applied and enforced in practice; and (c) improve reporting of excessive use of force violations and ensure that reported cases of excessive use of force are effectively investigated, alleged perpetrators are prosecuted and, if convicted, punished with appropriate sanctions, that investigations are re-opened when new evidence becomes available, and that victims or their families are provided with adequate compensation.”

Legislation prohibiting torture. The U.S. should: “[E]nact legislation to explicitly prohibit torture, including mental torture, wherever committed and ensure that the law provides for penalties commensurate with the gravity of such acts, whether committed by public officials or other persons acting on behalf of the State, or by private persons. . . . [and] ensure the availability of compensation to victims of torture.”[10]

Non-refoulment [ban on returning persecuted to persecutor]. The U.S. should: “[S]trictly apply the absolute prohibition against refoulement under articles 6 and 7 of the Covenant, [11] continue exercising the utmost care in evaluating diplomatic assurances, and refrain from relying on such assurances where it is not in a position to effectively monitor the treatment of such persons after their . . . return to other countries and take appropriate remedial action when assurances are not fulfilled.”

Trafficking and forced labour. The U.S. should: “[C]ontinue its efforts to combat trafficking in persons, inter alia by strengthening its preventive measures, increasing victim identification and systematically and vigorously investigating allegations of trafficking in persons, prosecuting and punishing those responsible and providing effective remedies to victims, including protection, rehabilitation and compensation. [T]ake all appropriate measures to prevent the criminalization of victims of sex trafficking, including child victims, to the extent that they have been compelled to engage in unlawful activities. [R]eview its laws and regulations to ensure full protection against forced labour for all categories of workers and ensure effective oversight of labour conditions in any temporary visa program. [R]einforce its training activities and provide training to law enforcement and border and immigration officials, . . . [and] other relevant agencies. . . .”

Immigrants. The U.S. should: “review its policies of mandatory detention and deportation of certain categories of immigrants in order to allow for individualized decisions, to take measures ensuring that affected persons have access to legal representation, and to identify ways to facilitate access of undocumented immigrants and immigrants residing lawfully in the U.S. for less than five years and their families to adequate health care, including reproductive health care services.”

Domestic violence. The U.S. should: “[S]trengthen measures to prevent and combat domestic violence, as well as to ensure that law enforcement personnel appropriately respond to acts of domestic violence. [E]nsure that cases of domestic violence are effectively investigated and that perpetrators are prosecuted and sanctioned. [E]nsure remedies for all victims of domestic violence, and take steps to improve the provision of emergency shelter, housing, child care, rehabilitative services and legal representation for women victims of domestic violence. [T]ake measures to assist tribal authorities in their efforts to address domestic violence against Native American women.”

Corporal punishment. The U.S. should: “Take practical steps, including through legislative measures where appropriate, to put an end to corporal punishment in all settings. [E]ncourage non-violent forms of discipline as alternatives to corporal punishment and . . . conduct public information campaigns to raise awareness about its harmful effects. [P]romote the use of alternatives to the application of criminal law to address disciplinary issues in schools.”

Non-consensual psychiatric treatment. The U.S. should: “[E]nsure that non-consensual use of psychiatric medication, electroshock and other restrictive and coercive practices in mental health services is generally prohibited. Non-consensual psychiatric treatment may only be applied, if at all, in exceptional cases as a measure of last resort where absolutely necessary for the benefit of the person concerned provided that he or she is unable to give consent, for the shortest possible time, without any long-term impact, and under independent review. . . . [P]romote psychiatric care aimed at preserving the dignity of patients, both adults and minors.”

Criminalization of homelessness. The U.S. should: “[E]ngage with state and local authorities to: (a) abolish criminalization of homelessness laws and policies at state and local levels; (b) ensure close cooperation between all relevant stakeholders . . . to intensify efforts to find solutions for the homeless in accordance with human rights standards; and (c) offer incentives for decriminalization and implementation of such solutions, including by providing continued financial support to local authorities implementing alternatives to criminalization and withdrawing funding for local authorities criminalizing the homeless.”

Conditions of detention and use of solitary confinement. The U.S. should: “[M]onitor conditions of detention in prisons, including private detention facilities, with a view to ensuring that persons deprived of their liberty be treated in accordance with the requirements of articles 7 and 10 of the Covenant [12] and the UN Standard Minimum Rules for the Treatment of Prisoners. . . . [I]mpose strict limits on the use of solitary confinement, both pretrial and following conviction, in the federal system, as well as nationwide, and abolish the practice in respect of anyone under the age of 18 and prisoners with serious mental illness. . . . [B]ring detention conditions of prisoners on death row in line with international standards.”

Detainees at Guantanamo Bay. The U.S. should: “[E]xpedite the transfer of detainees designated for transfer, including to Yemen, as well as the process of periodic review for Guantánamo detainees, and ensure either their trial or immediate release, and the closure of the Guantánamo facility. [E]nd the system of administrative detention without charge or trial and ensure that any criminal cases against detainees held in Guantánamo and military facilities in Afghanistan are dealt with within the criminal justice system rather than military commissions and that those detainees are afforded the fair trial guarantees enshrined in article 14 of the Covenant.” [13]

NSA surveillance. The U.S. should: “(a) take all necessary measures to ensure that its surveillance activities, both within and outside the [U.S.], conform to its obligations under the Covenant, including article 17; [14] in particular, measures should be taken to ensure that any interference with the right to privacy complies with the principles of legality, proportionality and necessity regardless of the nationality or location of individuals whose communications are under direct surveillance; (b) ensure that any interference with the right to privacy, family, home or correspondence be authorized by laws that (i) are publicly accessible; (ii) contain provisions that ensure that collection of, access to and use of communications data are tailored to specific legitimate aims; (iii) are sufficiently precise specifying in detail the precise circumstances in which any such interference may be permitted; the procedures for authorizing; the categories of persons who may be placed under surveillance; limits on the duration of surveillance; procedures for the use and storage of the data collected; and (iv) provide for effective safeguards against abuse; (c) reform the current system of oversight over surveillance activities to ensure its effectiveness, including by providing for judicial involvement in authorization or monitoring of surveillance measures, and considering to establish strong and independent oversight mandates with a view to prevent abuses; (d) refrain from imposing mandatory retention of data by third parties;(e) ensure that affected persons have access to effective remedies in cases of abuse.”

Juvenile justice and life without parole sentences. The U.S. should: “prohibit and abolish all juvenile life without parole sentences irrespective of the crime committed, as well as all mandatory and non-homicide related sentences of life without parole. . . . [15] ensure that all juveniles are separated from adults during pretrial detention and after sentencing and that juveniles are not transferred to adult courts. . . . [encourage] states that automatically exclude 16 and 17 year olds from juvenile court jurisdictions . . . to change their laws.”

Voting rights. The U.S. should: “ensure that all states reinstate voting rights to felons who have fully served their sentences, provide inmates with information about their voting restoration options and remove or streamline lengthy and cumbersome state voting restoration procedures, as well as review automatic denial of the vote to any imprisoned felon, regardless of the nature of the offence. [T]ake all necessary measures to ensure that voter identification requirements and the new eligibility requirements do not impose excessive burdens on voters resulting in de facto disenfranchisement. [P]rovide . . . full voting rights of residents of Washington, D.C.”

Rights of indigenous people. The U.S. should: “adopt measures to effectively protect sacred areas of indigenous peoples against desecration, contamination and destruction and ensure that consultations are held with the communities that might be adversely affected by State party’s development projects and exploitation of natural resources with a view to obtaining their free, prior and informed consent for the potential project activities.”

Other. The U.S. should: “widely disseminate the Covenant, the text of the . . . [recent U.S. report to the Committee], the written responses that . . . [the U.S.] has provided in response to the list of issues drawn up by the Committee and the present concluding observations so as to increase awareness among the judicial, legislative and administrative authorities, civil society and non-governmental organizations . . . [in the U.S.] as well as the general public.” “[For] its fifth periodic report, . . . continue its practice of broadly consulting with civil society and non-governmental organizations. [P]rovide, within one year, relevant information on its implementation of the Committee’s recommendations regarding accountability for [past human rights violations, gun violence, detainees at Guantanamo Bay and NSA surveillance]. [Submit] its next periodic report . . . [on March 28, 2019 with] specific, up-to-date information on all . . . [the Committee’s] recommendations and on the Covenant as a whole.”

Conclusion

One of the overriding issues in the Committee’s review was the geographical coverage of the entire treaty, whether it applies to U.S. conduct outside the U.S. territory, but where it has jurisdiction. The proper conclusion to this issue, in this blogger’s opinion, is that it does so apply or does have extraterritorial application. This conclusion was succinctly stated by the Committee’s Chairperson, Sir Nigel Rodley, during the hearing as noted in a prior post.

Essentially the same conclusion was reached in an October 2010 memo by Harold Koh, then the U.S. State Department’s Principal Legal Adviser.[16] After what he described as an “exhaustive review,” he stated, “an interpretation of Article 2(1) [of the ICCPR] that is truer to the Covenant’s language, context, object and purpose, negotiating history, and subsequent understandings of other States Parties, as well as the interpretations of other international bodies, would provide that in fact, . . . [a] state incurs obligations to respect Covenant rights — is itself obligated not to violate those rights through its own actions or the actions of its agents– in those circumstances where a state exercises authority or effective control over the person or context at issue.”[17]

Civil society organizations in the U.S. lauded the Committee’s “scathing report” and characterized the review as an opportunity for the Obama Administration to meaningfully improve its human rights legacy. The Electronic Frontier Foundation, among other groups, welcomed the Committee’s explicit recognition of the extraterritorial nature of the State’s obligations and its specific recommendations regarding surveillance, and urged immediate implementation by the United States.

The U.S. press coverage of this important international critique of U.S. human rights was pathetic. I did not find any such coverage in the Washington Post and the Wall Street Journal, two respected national newspapers.

The New York Times, on the other hand, had limited coverage. Before the hearings, the Times published one article on the then likely U.S. rejection of the treaty’s having extraterritorial effect along with the actual text of the contrary opinion on that issue by Harold Koh. Later the Times had an article about the first day of the Committee’s hearings that was primarily about the U.S.’ actual rejection of the treaty’s extraterritoriality with two short paragraphs about other issues. Finally the Times had an exceedingly short article about the Committee’s report that touched only on a few of its issues (drone strikes; the virtual lack of any U.S. investigation and prosecutions for alleged unlawful killings; use of torture and authors of legal memoranda purportedly justifying torture in the so called “war on terror;” and the call for publication of the U.S. Senate’s investigation of the CIA’s secret rendition program (turning over suspects to other countries)).

Finally, the Committee’s critique can be taken as an agenda for change by U.S. human rights advocates. Such change will not happen quickly given the dysfunctionality of the U.S. political system and culture. As President Obama frequently says, change does not come easily.                                                                 —————————————————————–

[1] This summary of the Committee’s concluding observations is based upon the observations themselves plus extensive articles about them in the Guardian, Reuters, Human Rights Watch, Amnesty International, the American Civil Liberties Union and a very short New York Times article.

[2] Before making its criticisms, the Committee noted its “appreciation [for] the many [U.S.] efforts undertaken, and the progress made in protecting civil and political rights.” The Committee then welcomed the U.S. Supreme Court’s abolition of the death penalty for offenders who were under the age of 18 when the crimes were committed (Roper v. Simmons (2005)); the U.S. Supreme Court’s recognition of extraterritorial habeas corpus for aliens detained at Guantanamo Bay (Boumediene v. Bush (2008)); the expansion of rights for such detainees (Presidential Executive Orders 13491 and 13493); and the U.S. President’s support of the U.N. Declaration of the Rights of Indigenous Peoples.

[3] This issue concerned Article 2(1) of the ICCPR, which states, “Each State Party . . . undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” (Emphasis added.)

[4] The Optional Protocol to the ICCPR allows alleged victims of an alleged violation by a State Party of any of the rights set forth in the Covenant to submit a communication of complaint to the Committee, and after it has received a response from that State Party, the Committee shall submit ”its views” [akin to an advisory opinion] on the matter to the alleged victim and State Party.

[5] The U.S. reservations and understandings to its ratification of the treaty were covered in a prior post.

[6] “Persons in command positions” presumably include former President George W. Bush, Vice President Dick Cheney and Secretary of Defense Donald Rumsfeld.

[7] “Those who provided legal pretexts” presumably include John Yoo, Alberto Gonzalez and four other lawyers who in the George W. Bush Administration were authors of legal memoranda justifying the so-called “enhanced interrogation” techniques. At least some of these memoranda are available online. The issue of their legal responsibility for such memoranda has been raised in at least three proceedings. First, under Spain’s previous version of its universal jurisdiction statute, a Spanish court opened a criminal investigation regarding these six lawyers, but later the case was stayed when the Spanish court asked the U.S. for information about any U.S. investigation of such allegations. Second, Mr. Yoo was sued in U.S. federal court for money damages and declaratory relief by an individual who had been arrested and detained for interrogation in a military brig in the U.S. for three and a half years, but the U.S. Court of Appeals for the Ninth Circuit in May 2012 held that Mr. Yoo was entitled to immunity and thus reversed the district court’s denial of Yoo’s dismissal motion. Third, in January 2010, the U.S. Department of Justice’s Office of Professional Responsibility concluded that Yoo and another lawyer had used flawed legal reasoning in these memoranda, but that this had not constituted professional misconduct This issue also has been raised in other contexts. In the midst of all this, Yoo continues vigorously to assert the validity of the memoranda and thus his innocence.

[8] One of the Committee’s concerns that prompted this recommendation was, in the Committee’s words, “surveillance of Muslims undertaken by . . . the New York Police Department (NYPD) in the absence of any suspicion of wrongdoing.” On April 15th (or nearly three weeks after the issuance of the Committee’s report), the NYPD announced that it was terminating this program. This decision was welcomed by Muslim Advocates and the Center for Constitutional Rights of New York City while lamenting that the NYPD did not say it was ending its broad surveillance practices.

[9] There is litigation in U.S. courts over lethal drugs used in executions under death penalty laws. In Oklahoma, for example, a state trial court on March 26, 2014, decided that a state law mandating secrecy for the identity of suppliers of such drugs was unconstitutional. On April 21st the Oklahoma Supreme Court stayed two executions so that the court could resolve “grave constitutional claims.” Since then there has been an unseemly intra-state squabble over whether that court had the power to stay the executions with the Oklahoma Governor vowing to conduct the executions as previously scheduled, a state legislator introducing a resolution to impeach the court’s judges who voted for the stay and the Supreme Court itself on April 23rd vacating the stay.

[10] The U.S. has a criminal torture statute, 18 U.S.C. sec. 2340A. It states, “Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.” (Emphasis added.) Thus, this criminal statute does not apply if the torture occurs in the U.S. In addition, the U.S. has the Torture Victims Protection Act (TVPA) that provides for a civil action for money damages by an “individual” who has been subjected to “torture” against an “individual, who, under actual or apparent authority, or color of law, of any foreign nation” committed the torture. (Emphasis added.) Thus, this statute does not apply if the torture is committed by someone acting under U.S. law.

[11] The ICCPR’s Article 6 bans arbitrary deprivation of life and any derogation from the genocide treaty while its Article 7 bans torture or cruel, inhuman or degrading treatment or punishment.

[12] The ICCPR’s Article 7 bans “torture . . . [and] cruel, inhuman or degrading treatment or punishment while its Article 10 requires all inmates to be “treated with humanity and respect for the dignity of the human person,” separation of accused persons from convicts and juveniles from adults and in facilities whose aims shall be “reformation and social rehabilitation” of inmates.

[13] Article 14 of the ICCPR contains detailed provisions that in the U.S. would be regarded as constitutional criminal due process rights.

[14] Article 17 of the ICCPR says “[e]veryone has the right to the protection of law against . . . arbitrary or unlawful interference with his privacy, family, home or correspondence, . . . [and] unlawful attacks on his honour and reputation.”

[15] The Committee’s report recognized with satisfaction that the U.S. Supreme Court had decided under the U.S. Constitution’s Eighth Amendment’s ban on “cruel and unusual punishment” that (a) sentences of life without parole for juveniles for non-homicide crimes were not permitted (Graham v. Florida (2010)); and (b) mandatory sentences of life without parole for juveniles for homicide were not permitted (Miller v. Alabama (2012)).

[16] Koh is one of the U.S.’ preeminent international lawyers. He has taught at the Yale Law School since 1985 except for his years as the State Department’s Legal Adviser (2009-2013) and as U.S. Assistant Secretary of State for Democracy, Human Rights and Labor (1998-2001). He served as the Dean of the Yale Law School (2004-2009) and returned to Yale in 2013 as the Sterling Professor of International Law. He has received many awards and holds degrees from Harvard University (B.A. and J.D.) and the University of Oxford (B.A. and M.A.)

[17] The Koh memorandum also stated that the contrary 1995 opinion by the Department’s Legal Adviser was “not compelled by either the language or the negotiating history of the Covenant . . . [and] that the 1995 Interpretation is in fact in significant tension with the treaty’s language, context, and object and purpose, as well as with interpretations of importantU.S. allies, the Human Rights Committee and the ICJ [International Court of Justice], and developments in related bodies of law [and, therefore,] was no longer tenable.” Nevertheless, the U.S. continues to rely on the 1995 opinion for its resistance to extraterritorial application of the ICCPR. The Koh memorandum was published by the New York Times along with a discussion of the document a week prior to the Committee’s hearings, and it is safe to assume that copies of same were provided to all the Committee members before the hearings.

International Criminal Court: The U.S. and the ICC

International Criminal Court
International Criminal Court

We just reviewed the status of the investigative situations and cases of the International Criminal Court (ICC) and other ICC developments. Now we look at developments in U.S.-ICC relations.[1]

U.N. Security Council. On October 17, 2012, the U.N. Security Council had a general discussion on the promotion and strengthening of the rule of law in the maintenance of international peace and security with emphasis on the role of the ICC.

Susan Rice
Susan Rice

U.S. Ambassador to the U.N., Susan Rice, said at that meeting that “strengthening the global system of accountability for the worst atrocities remains an important priority for the [U.S.]. President Obama has emphasized that preventing mass atrocities and genocide is a core national security interest and core moral responsibility for our nation. We are committed to bringing pressure to bear against perpetrators of atrocities, ensuring accountability for crimes committed, and prioritizing the rule of law and transitional justice in our efforts to respond to conflict.”

Rice added that the U.S. “recognize[s] that the ICC can be an important tool for accountability. We have actively engaged with the ICC Prosecutor and Registrar to consider how we can support specific prosecutions already underway, and we’ve responded positively to informal requests for assistance. We will continue working with the ICC to identify practical ways to cooperate – particularly in areas such as information sharing and witness protection – on a case-by-case basis, as consistent with U.S. policy and law.”

Another important point for Rice was the need “to improve cooperation and communication between the Security Council and the Court. For example, the Council should monitor the developments in situations it refers to the Court, since the ICC may face dangers in conducting its work. However, we must also recognize that the ICC is an independent organization. This status raises concerns about proposals to cover its expenses with UN-assessed funding.” In addition, she said, the “interests of peace, security and international criminal justice are best served when the Security Council and the ICC operate within their own realms but work in ways that are mutually reinforcing. We should not accept the false choice between the interests of justice and the interests of peace.”

Assembly of States Parties. The U.S. continues to participate as an observer at meetings of the Court’s governing body, the Assembly of States Parties. At its November 2012 meeting, for example, major speeches were made by U.S. Ambassador-at-Large Stephen J. Rapp of the Department of State’s Office of Global Criminal Justice and Harold Koh, who then was U.S. Department of State Legal Advisor.

Stephen Rapp
Stephen Rapp

 

Ambassador Rapp said the U.S. had “worked diligently to promote an end to impunity” and had been “supporting the work of the ICC in each of its current cases.” He then outlined the following priorities for the Court and its supporters:

  • “First, it is essential that the fugitives who currently remain at large in the ICC’s cases are apprehended . . . and that the witnesses who testify and the victims who wish to participate in the proceedings are assured of their safety.” The U.S. uses “an array of tools to advance the causes of apprehension and witness protection.”
  • Second, “it is crucial that members of the international community continue to reinforce the legal norms and prohibitions that lead to the creation of institutions such as the ICC.” One example is the U.S. establishment of the Atrocities Prevention Board that was discussed in a prior post.
  • Third, “we must continue to strive to improve our system of international justice. . . . [The ICC needs] to build a solid jurisprudence, navigate challenges that arise in international cooperation, and establish legitimacy . . . as a fair and efficient criminal justice institution that makes prudent decisions in the cases it pursues, and those it declines to pursue.”
  • Fourth, “we all must continue to recognize that the ICC cannot and must not operate alone. States retain primacy, both legal and moral, in ensuring justice for grave crimes. Justice closer to the victims is always preferable, in a system that can account for local laws and custom, in a familiar language, and in an accessible setting. Even where the ICC does operate, tremendous work will remain to be done at the national level. . . . [The U.S.] looks forward to continuing to collaborate in promoting this crucial work.”[2]
Harold Koh
Harold Koh

Legal Advisor Koh said the Court was “an important forum” for advancing U.S. national security and humanitarian interests. It “can help increase stability and thus decrease the need for more costly military interventions in the future.”

Koh reviewed the five stages of the historical development of international criminal justice: (1) International Criminal Justice 1.0: The Nuremberg Trials that worked to establish the principles of legitimacy, professionalism, cooperation, and legality; (2) International Criminal Justice 2.0: The Ad Hoc Tribunals; (3) International Criminal Justice 3.0: The Hybrid Tribunals; (4) International Criminal Justice 4.0: The ICC; and (5) International Criminal Justice 5.0: The Future.

After reviewing the history of U.S. relations with the ICC, Koh discussed four important issues for the Court’s future. First, it needs to continue to develop the practice of positive complementarity so that the ICC is the court of last resort with fewer cases. Second, the ICC established important precedents with its first conviction (Lubanga of the DRC) and establishment of procedures and principles for reparations for victims in that case. Third, the ICC must build up its resources and capacities; it must function in a fair and transparent manner with able and unbiased prosecutors and judges; national judicial systems must be bolstered to reduce the ICC’s burdens; it must improve cooperation with states and enhance the efficiency and effectiveness of its prosecutions; and it should be cautious about moving forward with the amendment on the crime of aggression that was adopted at the Kampala Review Conference.

Koh concluded with more general comments about the future. He said the challenge is “to build the accountability agenda of the past seventy years into a sustained ‘Smart Power Approach’  to international criminal justice that sees accountability as part of a broader approach to diplomacy, development, rule of law, and atrocities prevention.”

New U.S. Statute To Assist ICC. On January 15th, President Obama signed The Department of State Rewards Program Update and Technical Corrections Act of 2012 (S.2318). The President said the new law “will enhance the ability of the U.S. Government to offer monetary rewards for information that leads to the arrest or conviction of foreign nationals accused by international criminal tribunals of atrocity-related crimes, and of individuals involved in transnational organized crime.” The President added, “This powerful new tool can be used to help bring to justice perpetrators of the worst crimes known to human kind. . . . We have made unmistakably clear that the United States is committed to seeing war criminals and other perpetrators of atrocities held accountable for their crimes, and today’s legislation can help us achieve that goal.

The new law declares “the sense of Congress that the rewards program of the Department of State should be expanded in order to … target other individuals indicted by international, hybrid or mixed tribunals for genocide, war crimes, or crimes against humanity.” It then goes on to authorize the State Department to pay rewards for “the transfer to or conviction by an international criminal tribunal … of any foreign national accused of war crimes, crimes against humanity, or genocide, as defined under the statute of such tribunal.”

Two provisions of the law show a continuing wariness about the ICC. One requires that 15 days before announcing a reward for the arrest of a particular foreign national accused of those crimes, the State Department must submit a report to Congress explaining why the arrest would be in the national security interest of the United States. The other declares that the law does not authorized activities precluded under the American Servicemembers’ Protection Act.

On April 3rd this new law was used when the U.S. offered to pay up to $5 million for information leading to the arrest, transfer or conviction of four ICC fugitives: Joseph Kony, Dominic Ongwen and Okot Odhiambo of the Lord’s Resistance Army in Uganda and Sylvestre Mudacumura of the Democratic Republic of the Congo. The names will be broadcast on radio and appear on reward posters printed in the languages of the fugitives’ countries, he said. “The offer of rewards for I.C.C. fugitives will be the biggest step we’ve taken toward engagement and support” for the court, Ambassador Rapp said.


[1] The website of the American Non-Governmental Coalition for the International Criminal Court (AMICC) has additional details about U.S. relations with the ICC, Congress and the ICC, U.S. law regarding the ICC, analysis and opinion about the U.S. and the ICC.

[2]  As a prior post reported, Ambassador Rapp also addressed the Assembly on the subject of complementarity.

 

 

 

 

 

 

 

 

 

 

The U.S. State Department Suggests Former President of Mexico Is Immune from Suit in U.S. Federal Court for Alleged Human Rights Violations

Ernesto Zedillo

On September 16, 2001, ten anonymous Mexican nationals sued Ernesto Zedillo, the former President of Mexico, in U.S. federal court in New Haven, Connecticut. The complaint asserted claims for money damages in excess of $10 million under the Alien Tort Statute (ATS) and the Torture Victims Protection Act (TVPA) over the December 22, 1997, Mexican militia’s attack on civilians in the village of Acteal in Chiapas, Mexico. On January 6, 2012, Zedillo moved to dismiss the complaint on the ground that as a former Mexican president, he was immune from the lawsuit. All of this was explained in a prior post and a January 10th comment thereto.

Not much happened in this lawsuit until September 7, 2012, when the U.S. Government filed its suggestion that Zedillo should be immune from the suit and the case be dismissed. The Government did so in a letter from Harold Koh, the Department of State’s Legal Advisor and a former Dean of the Yale Law School, to the U.S. Department of Justice and in a formal pleading in the lawsuit entitled “Suggestion of Immunity Submitted by the United States of America.”

The letter stated that the U.S. State Department had determined that Zedillo was immune from the suit. It did so after “[t]aking into account principles of immunity articulated by the Executive Branch in the exercise of its constitutional authority over foreign affairs and informed by customary international law, and considering the overall impact of this matter on the foreign policy of the [U.S.].”

The letter and the formal filing set forth the following principles of the common law of officials immunity:

  • Under the law and practice of nations, a foreign sovereign is generally immune from lawsuits in the territory of another sovereign.
  • Until the 1976 enactment of the Foreign Sovereign Immunities Act (FSIA), U.S. federal courts routinely “‘surrendered’ jurisdiction over suits against foreign sovereigns ‘on recognition, allowance and certification of the asserted immunity by the political branch of the government charged with the conduct of foreign affairs when its certificate to that effect was presented to the court.'”
  • Under the U.S. Constitution, the executive branch of the federal government had the responsibility for foreign affairs.
  • A “sitting head of state’s immunity is based on his status as the incumbent office holder and extends to all his actions.” (Emphasis added.)
  • For a former official, on the other hand, immunity “is based upon the character of that official’s conduct and extends only to acts taken in an official capacity” with a presumption that “actions taken by a foreign official exercising the powers of his office were taken in his official capacity.”
  • Such a presumption “is particularly appropriate when a former head of state is sued, because holders of a country’s highest office may be expected to be on duty at all times and to have wide-ranging responsibilities.”
  • That presumption is corroborated when “the foreign government itself has asserted that the actions of its official were taken in an official capacity.”

Here, the Mexican government had asserted that Zedillo’s actions that are challenged in this lawsuit were taken in his official capacity as President of Mexico. Indeed, according to the letter, this assessment of Zedillo’s actions is confirmed by the allegations of the complaint.

The letter’s reasons and conclusion are endorsed by the Suggestion of Immunity Submitted by the United States of America.

A Duke University Law Professor, Curtis A. Bradley, observed that the courts had the authority to make the ultimate decision on immunity for former officials and that the courts usually side with the State Department’s determination. This was certainly true in the ATS and TVPA case against a former Somali general as seen in a prior post.

I cannot see any legitimate basis for any challenge to this suggestion of immunity and anticipate that the District Court will conclude that Zedillo is immune and dismiss the case.

 

U.S. District Court Decides that Former Somali Government Official Is Not Entitled to Common Law Immunity and Is Liable for $21 Million of Compensatory and Punitive Damages

Mohamed Ali Samantar

As discussed in a prior post, the U.S. Supreme Court in 2010 decided that former Somali General Mohamed Ali Samantar was not covered by the immunity provisions of the Foreign Sovereign Immunities Act (FSIA) and remanded the case to the U.S. District Court for the Eastern District of Virginia to determine if he was entitled to common law immunity.

This was in a case brought by four Somalis against Samantar for money damages under two U.S. statutes–the Alien Tort Statute (ATS) and the Torture Victims Protection Act (TVPA). The complaint alleged that Samantar aided and abetted, and had command responsibility for, extrajudicial killing; arbitrary detention; torture; cruel, inhuman or degrading treatment; crimes against humanity; and war crimes in Somalia from 1969 through 1991.[1]

U.S. District Court, Alexandria, VA

After remand, U.S. District Judge Leonie Brinkema of the Eastern District of Virginia in Alexandria [2] first decided that Samantar was not entitled to any common law immunity. She then decided that $21 million of compensatory and punitive damages were appropriate. Those decisions will now be reviewed.

No Common Law Immunity

On February 14, 2011, the U.S. Government provided the court with a letter from Harold Koh, the State Department’s Legal Adviser, stating that the Department had determined that Samantar did not enjoy immunity from this lawsuit. The key reason for this decision was the lack of any recognized Somali government that could assert or waive any immunity he might enjoy.

The formal U.S. filing with the court provided the relevant common law of immunity for former foreign government officials or what the filing called “Foreign Official Immunity Doctrine.” Here are the key points of that common law or doctrine without the filing’s citations of legal authority:

  • Under the law and practice of nations, a foreign sovereign is generally immune from lawsuits in the territory of another sovereign.
  • Until the 1976 enactment of the Foreign Sovereign Immunities Act (FSIA), U.S. federal courts routinely “‘surrendered’ jurisdiction over suits against foreign sovereigns ‘on recognition, allowance and certification of the asserted immunity by the political branch of the government charged with the conduct of foreign affairs when its certificate to that effect was presented to the court.'”
  • “This deferential judicial posture was not merely discretionary [for the courts], but was rooted in the separation of powers.” Under the Constitution, the executive branch of the federal government had the responsibility for foreign affairs.
  • “The immunity of a foreign state was, early on, generally understood to extend not only to the state, heads of state, and diplomatic officials, but also to other officials in an official capacity.”
  • Any immunity protecting foreign officials for their official acts ultimately belongs to the sovereign, not the official. Thus, the foreign state must claim or waive any such immunity for the official. Where there is no recognized government, there is no one that can assert such a claim or make such a waiver.
  • When a former foreign official becomes a resident of the U.S., as Samantar had since 1997, the U.S. has a right to exercise jurisdiction over that individual.
  • The U.S. Supreme Court in this case agreed with the government’s position that FSIA did not apply to the issue of immunity for current or former foreign government officials. Instead, that issue was left to the State Department, whose decisions should be accepted by the courts.
Judge Leonie Brinkema

On February 15, 2011 (the day after the above government filing), Judge Brinkema issued a one-page order. It stated, “The government has determined that the defendant does not have foreign official immunity. Accordingly, defendant’s common law sovereign immunity defense is no longer before the Court . . . .” The court then directed the parties to agree upon a date to argue the remaining issues in the defendant’s dismissal motion.

Samantar’s motions for reconsideration of this order and for a stay pending appeal were denied. Nevertheless, he appealed to the Fourth Circuit (No. 11-1479), and on May 16, 2012, the appeal was argued to the appellate court, which as of September 13th had not yet issued its decision. In my opinion, he has virtually no chance of success on this appeal.

The Court’s Determination of Damages

The district court on August 28, 2012, determined that each of the seven plaintiffs was entitled to $1 million of compensatory damages plus $2 million of punitive damages for a total judgment of $21 million. How the court came to this determination is a fascinating story.

After the court’s rejection of his immunity defense, Samantar moved for summary judgment on the grounds that the latest complaint failed to state a claim for his secondary liability, that the TVPA did not retroactively apply to acts before 1991 and that the claims were untimely and nonjusticiable. That motion was denied on December 22, 2011.

Two days before the scheduled start of a jury trial on February 21, 2012, Samantar advised the court that he had filed for bankruptcy in the Eastern District of Virginia (1-12-bk-11085). The automatic stay of this case by the bankruptcy filing was soon lifted, and the start of the jury trial in the main case was rescheduled for February 23rd.

On February 23rd Samantar’s attorney informed the court that Samantar intended to take a default rather than contest liability and damages. The court then asked the defendant questions about this decision and was satisfied that he knowingly and voluntarily had conceded liability.

On August 28th the court filed its Memorandum Opinion that made extensive findings and legal conclusions regarding Samantar’s liability under theories of aiding and abetting and command responsibility.

After noting that compensatory damages were recoverable for physical and psychological injuries, the court found that the plaintiffs had provided the following “credible and compelling testimony of cognizable injuries stemming from the alleged violations:”

  • Plaintiff Yousuf had endured torture and seven years of imprisonment, largely in solitary confinement that had affected his memory and emotional health. He suffers from depression and nightmares and still relives the five-step length of his cell.
  • Plaintiff Baralle was tortured and barely escaped execution. He continues to experience pain and occasional shaking on the left side of his body as well as flashbacks. His two brothers were executed, and Baralle and his family have taken responsibility for raising his brothers’ children.
  • Plaintiff Gulaid went before a firing squad, but escaped death. He continues to suffer nightmares, flashbacks and anxiety, memory loss, high-blood pressure and poor vision.
  • Plaintiff Aziz and his sister testified about the extrajudicial executions of their father, who was the family’s breadwinner, and their brother.

The court then found that each of the three plaintiffs suing in their own capacity and each of the four decedents’ estates would be awarded compensatory damages of $1 million.

After finding that there was evidence of Samantar’s conduct having been intentional, malicious, wanton and reckless and that ATC and TVPA cases commonly awarding punitive damages, the court determined that $2 million of such damages for each of the seven claimants was appropriate. Such amount, said the court, reflected the “seriousness of [his] . . . uncontested conduct;” [eased] . . . any burden on plaintiffs in having to bring this case;” and recognized the award of substantial compensatory damages, the lack of any financial gain by Samantar and his prospective bankruptcy.

The execution of the judgment was stayed pending resolution of the bankruptcy case.

Conclusion

The ability of the plaintiffs to collect any significant amount of their $21million judgment is highly questionable. On April 3, 2012, the Chapter 7 Bankruptcy Trustee reported Samantar had no assets available for distribution to creditors, but for unknown reasons that report was withdrawn on June 11th.

On August 23rd the plaintiffs commenced an adversary proceeding against Samantar in the bankruptcy court to have his judgment debt to them determined to be a non-dischargeable debt for willful and malicious injury under Bankruptcy Code § 727 (1:12-ap-01356). If the bankruptcy court agrees, this merely keeps open the possibility of future collections on the judgment if Samantar obtains any future assets or income.Judge L:


[1]  This case was supported by the Center for Justice and Accountability, an human rights NGO based in San Francisco, California.

[2]  Judge Brinkema presided over the criminal trial of Zacarias Moussaoui, who was convicted for conspiring to kill U.S. citizens in the 9/11 attacks. I appeared before her in another case, one involving Scientology.

The International Criminal Court and the Obama Administration

Barack Obama

The Obama Administration has adopted what it calls “an integrated approach to international criminal justice,” including the International Criminal Court. There are at least six points to this approach, the first three of which are specifically addressed to the ICC.[1]

First, the U.S. will not be seeking U.S. Senate consent to U.S. ratification of the Rome Statute. In January 2010, U.S. Ambassador at Large for War Crimes, Stephen Rapp, publicly stated that no U.S. president was likely to present the Rome Statute to the U.S. Senate for ratification in the “foreseeable future.” Rapp cited fears that U.S. officials would be unfairly prosecuted and the U.S.’s strong national court system as reasons it would be difficult to overcome opposition to ratification. He did not mention the virtual political impossibility in this Congress to obtaining the two-thirds (67) vote in the Senate that would be necessary for ratification.[2] In addition, in March 2011, the U.S. told the U.N. Human Rights Council at the conclusion of its Universal Periodic Review of the U.S. that the U.S. did not accept the recommendations by a number of States that the U.S. ratify the Rome Statute.[3]

Second, the U.S. Administration will not be seeking statutory changes to U.S. statutes and practices that are hostile to the ICC. This conclusion emerges by implication from the absence of any such proposed legislation and from the same political calculus just mentioned. The Obama Administration, therefore, is living with the laws on the books bolstered by a January 2010 legal opinion from the Justice Department’s Office of Legal Counsel that U.S. diplomatic or “informational” support for particular ICC investigations or prosecutions would not violate U.S. law. Other hand-me-downs of past U.S. actions hostile to the ICC are the U.S.’ 102 Bilateral Immunity Agreements or “BIA”s, whereby the other countries agreed not to turn over U.S. nationals to the ICC. The last of these was concluded in 2007. There is no indication that the U.S. will seek to rescind these agreements or to negotiate new ones.[4]

Third, the U.S. instead has been pursuing a policy of positive engagement with the ICC in various ways. Indeed, the U.S. National Security Strategy of May 2010 stated that as a matter of moral and strategic imperative the U.S. was “engaging with State Parties to the Rome Statute on issues of concern and [is] supporting the ICC’s prosecution of those cases that advance U.S. interests and values, consistent with the requirements of U.S. law.”[5]

Foremost for positive engagement is the U.S. participation as an observer at meetings of the ICC’s governing body, the Assembly of States Parties. The U.S. did so in November 2009,[6] March 2010,[7] June 2010[8] and December 2010[9] and has announced its intention to do so at the next meeting in December 2011.

In addition to observing the debates and discussion at these meetings, the U.S. has made positive contributions. The U.S. experience in foreign assistance judicial capacity-building and rule-of-law programs, Ambassador Rapp has said, could help the ICC in its “positive complementarity” efforts, i.e., its efforts to improve national judicial systems. Similarly the U.S. experience in helping victims and reconciling peace and justice demands has been offered to assist the ICC.[10] At the June 2010 Review Conference the U.S. made a written pledge to “renew its commitment to support projects to improve judicial systems around the world.” Such improvements would enable national courts to adjudicate national prosecutions of war crimes, crimes against humanity and genocide and thereby make ICC involvement unnecessary. The U.S. also pledged at the Review Conference to “reaffirm President Obama’s recognition . . . that we must renew our commitments and strengthen our capabilities to protect and assist civilians caught in the [Lord Resistance Army’s] wake [in Uganda], to receive those that surrender, and to support efforts to bring the LRA leadership to justice.”[11]

The June 2010 meeting was the important Review Conference that adopted an amendment to the Rome Statute with respect to the crime of aggression; this will be discussed in a future post. Immediately after the Review Conference Ambassador Rapp and State Department Legal Advisor Koh said that U.S. participation at the Review Conference “worked to protect our interest, to improve the outcome, and to bring us renewed international goodwill.” All of this reflected U.S. (a) “support for policies of accountability, international criminal justice, and ending impunity,” (b) the U.S. “policy of principled engagement with existing international institutions” and (c) ensuring that lawful uses of military force are not criminalized.[12]

At the December 2010 meeting, Ambassador Rapp emphasized three ways for the world community to help the important work of the ICC. First was protecting witnesses in cases before the ICC and in other venues from physical harm and death and from bribery attempts. Second was enforcing the ICC arrest warrants and bringing those charged to the Court to face prosecution. Third was improving national judicial systems all over the world. In this regard the U.S. endorsed the recent discussion in the Democratic Republic of the Congo about creating a “mixed chamber” of Congolese and foreign judges in its national judiciary with jurisdiction over genocide, crimes against humanity and war crimes.[13]

The U.S. also is meeting with the ICC’s Prosecutor and other officials to find ways the U.S. can support current prosecutions (consistent with U.S. laws). [14]

As another means of positive engagement with the ICC,  the U.S. has continued to support the March 2005 U.N. Security Council referral of the Sudan (Darfur) situation to the ICC, and the U.S. has refused to support any effort to exercise the Council’s authority to suspend any ICC investigations or prosecutions of Sudanese officials for a 12-month period. In January 2009, Susan Rice, the U.S. Ambassador to the U.N., stated that the U.S. supports “the ICC investigation and the prosecution of war crimes in Sudan, and we see no reason for an Article 16 deferral” by the Council. Following the ICC’s issuance of an arrest warrant for Omar al-Bashir, President of Sudan, in March 2009, Ambassador Rice reiterated U.S. support for the Court on Darfur and the requirement of Sudan to cooperate with the ICC. [15]

More recently, the U.S. supported the use of the ICC with respect to Libya. The previously discussed U.N. Security Council Resolution 1970 that referred the Libyan situation to the ICC Prosecutor was prepared by the U.S. and 10 other Council members.[16] During the Council’s discussion of the resolution, U.S. Ambassador Susan Rice stated, “For the first time ever, the Security Council has unanimously referred an egregious human rights situation to the [ICC].”[17]

Three days after the Security Council resolution on Libya, the U.S. Senate unanimously approved a resolution deploring the situation in Libya and Colonel Gadhafi. This resolution also stated that the Senate “welcomes the unanimous vote of the United Nations Security Council on resolution 1970 referring the situation in Libya to the [ICC] . . . .”[18]

Another means of the U.S.’ positive engagement with the ICC is U.S. public diplomacy supporting the Court–publicly support the arrest and prosecution of those accused by the ICC’s Prosecutor and publicly criticizing those who seek to thwart such arrests. In any event, the U.S. has ceased its hostility and harsh rhetoric against the Court.[19]

Fourth, the U.S. will continue to offer financial support and advice to strengthen other national court systems, particularly in the Democratic Republic of Congo. As previously mentioned, this policy is part of the U.S. positive engagement with the ICC, but it is also part of the broader approach to international criminal justice.[20]

Fifth, the U.S. will continue to support the final work of the ad hoc criminal tribunals for Rwanda and the former Yugoslavia that were established by the U.N. Security Council with limited time periods of existence. The U.S. will do so by providing funding, by supporting their work diplomatically and politically and by providing evidence and concrete support to the prosecutors and defendants. In particular, the U.S. will work in the Security Council “to create a residual mechanism for the ad hoc tribunals that will safeguard their legacy and ensure against impunity for fugitives still at large” after those tribunals cease to exist.[21]

Ambassador Rapp also has noted that the era of the U.N.’s establishing ad hoc and short-lived tribunals like the International Criminal Tribunal for Rwanda to address specific problems was over. Only the ICC would be in business for future problems. Therefore, the U.S. needed to be positively engaged with the ICC.[22]

Sixth, the U.S. has said that it must work with countries that exercise universal jurisdiction (like Spain) when there is some relation between the country and the crime. Exactly what that means is not clear. Ambassador Rapp publicly has endorsed the principle of universal jurisdiction as another way to hold human rights violators accountable. On the other hand, as will be discussed in a future post, Spain has at least two pending criminal cases against high-level U.S. officials under Spain’s statute implementing this jurisdictional principle.[23]

In conclusion, we have seen that there is substance to the claim that the Obama Administration has developed “an integrated approach to international criminal justice.” Although I personally believe the U.S. should become a full-fledged member of the ICC, I recognize the current political impossibility of that happening and believe that the U.S. is doing everything that it can to support the important work of the ICC and other courts that are tackling, in the words of Article 1 of the Rome Statute, the “most serious crimes of international concern.”


[1] Koh, The Challenges and Future of International Justice (Oct. 27, 2010), http://www.state.gov/s/l/releases/remarks/150497.htm; U.S. White House, National Security Strategy at 48 (May 2010), http://www.whitehouse.gov/sites/default/files/rss_viewer/national_security_strategy.pdf. See Post: The International Criminal Court: Introduction (April 28, 2011)(overview of structure and operation of ICC).

[2] Belczyk, US war crimes ambassador says US unlikely to join ICC in ‘forseeable future,’ Jurist (Jan. 28, 2010), http://jurist.law.pitt.edu/paperchase/2010/01/us-war-crimes-ambassador-says-us.php.

[3] On January 4, 2011, the Human Rights Council’s Working Group on the Universal Periodic Review of the U.S. issued its final report on the UPR of the U.S. It set forth all the recommendations of the States without endorsement by the Working Group as a whole. This report again included the specific recommendations for the U.S. to ratify the Rome Statute. (U.N. Human Rights Council, Report of the Working Group on the Universal Periodic Review–United States of America ¶¶ 92.1, 92.2, 92.16, 92.25, 92.28, 92.36 (Jan. 8, 2011), http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G11/100/69/PDF/G1110069.pdf?OpenElement.) On March 8, 2011, the U.S. submitted its response to this final report. Among other things, the U.S. specifically rejected the recommendations that the U.S. ratify the Rome Statute. (U.N. Human Rights Council, Report of the Working Group on the Universal Periodic Review–United States of America: Addendum: Views on conclusions and/or recommendations, voluntary commitments and replies presented by the State under review ¶¶  29, 30  (March 8, 2011), http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G11/116/28/PDF/G1111628.pdf?OpenElement.) Nevertheless, the Council adopted the Working Group report in March 2011. (U.N. Human Rights Council, HR Council Media: Human Rights Council concludes sixteenth session (March 25, 2011).)

[4] AMICC, The Obama’s Administration’s Evolving Policy Toward the International Criminal Court  (March 4, 2011), http://www.amicc.org/docs/ObamaPolicy.pdf; Congressional Research Service, International Criminal Court Cases in Africa: Status and Policy Issues (March 7, 2011), http://fpc.state.gov/documents/organization/158489.pdf. See Post: The International Criminal Court and the G. W. Bush Administration (May 12, 2011).

[5] U.S. White House, National Security Strategy at 48 (May 2010), http://www.whitehouse.gov/sites/default/files/rss_viewer/national_security_strategy.pdf.

[6] AMICC, Report on the Eighth Session of the Assembly of States Parties, The Hague, November 2009 http://www.amicc.org/docs/ASP8.pdf; Stephen J. Rapp, Speech to Assembly of States Parties (Nov. 19, 2009), http://www.icc-cpi.int/iccdocs/asp_docs/ASP8/Statements/ICC-ASP-ASP8-GenDeba-USA-ENG.pdf.

[7] AMICC, Report on the Resumed Eighth Session of the Assembly of States Parties, New York, March 2010 (March 31, 2010), http://www.amicc.org/docs/ASP8r.pdf; U.S. Dep’t of State, Statement by Stephen J. Rapp . . . at the Session of the Assembly of States Parties of the [ICC], (March 23, 2010), http://usun.state.gov/briefing/statements/2010/138999.htm; U.S. Dep’t of State, Statement by Harold Honju Koh . . . at the . . . Session of the Assembly of States Parties of the [ICC], (March 23, 2010), http://usun.state.gov/briefing/statements/2010/139000.htm.

[8] AMICC, Report on the Review Conference of the International Criminal Court (June 25, 2010), http://www2.icc-cpi.int/Menus/ICC/Home; http://www.amicc.org.

[9]  U.S. Mission to the U.N., Statement of the U.S.A. by Ambassador Stephen Rapp  to the Assembly of States Parties, (Dec. 7, 2010), http://www.amicc.org/docs/ASP_Rapp_Statement_12072010.pdf;  AMICC, Report on the Ninth Session of the Assembly of States Parties, December 2010, http://www.amicc.org/docs/ASP9.pdf.

[10] AMICC, Report on the Resumed Eighth Session of the Assembly of States Parties, New York, March 2010 (March 31, 2010), http://www.amicc.org/docs/ASP8r.pdf; U.S. Dep’t of State, Statement by Stephen J. Rapp . . . at the Session of the Assembly of States Parties of the [ICC], (March 23, 2010), http://usun.state.gov/briefing/statements/2010/138999.htm; U.S. Dep’t of State, Statement by Harold Honju Koh . . . at the . . . Session of the Assembly of States Parties of the [ICC], (March 23, 2010), http://usun.state.gov/briefing/statements/2010/139000.htm.

[11] AMICC, Report on the Review Conference of the International Criminal Court (June 25, 2010), http://www2.icc-cpi.int/Menus/ICC/Home; http://www.amicc.org. The U.S. pledge about the LRA was prompted by the enactment of the Lord’s Resistance Army Disarmament and Northern Uganda Recovery Act of 2009. (Wikisource, Lord’s Resistance Army Disarmament and Northern Uganda Recovery Act of 2009, http://en.wikisource.org/wiki/ Lord’s_Resistance_Army_Disarmament_and_Northern_Uganda_Recovery_Act_of_2009; U.S. White House, Statement by the President on the Signing of the Lord’s ResistanceArmy Disarmament and Northern Uganda Recovery Act of 2009 (May 24, 2010), http://www.whitehouse.gov/the-press-office/statement-president-signing-

Lords-resistance-army-disarmament-and-northern-uganda-r.

[12] U.S. Dep’t of State, U.S. Engagement with The International Criminal Court and The Outcome of The Recently Concluded Review Conference (June 15, 2010), http://www.state.gov/s/wci/us_releases/remarks/143178.htm.

[13] Id. The ICC currently is investigating and prosecuting cases from the DRC. See Post: The International Criminal Court: Investigations and Prosecutions (April 28, 2011).

[14]  Id.

[15]    E.g., Statement by President Obama on the Promulgation of Kenya’s New Constitution (Aug. 27,2010), http://www.whitehouse.gov/the-press-office/2010/08/27/statement-president-obama-promulgation-kenyas-new-constitution(“I am disappointed that Kenya hosted Sudanese President Omar al-Bashir in defiance of International Criminal Court arrest warrants for war crimes, crimes against humanity, and genocide. The Government of Kenya has committed itself to full cooperation with the ICC, and we consider it important that Kenya honor its commitments to the ICC and to international justice, along with all nations that share those responsibilities”); U.N. Security Council, Press Release: Briefing Security Council on Sudan, United Nations, African Union Officials Tout Unified Strategy, Linking Peace in Darfur to Southern Sudan Referendum (June 14, 2010),  (U.S. Ambassador Rice told Security Council that there was a need “to bring to justice all those responsible for crimes in Darfur, calling on Sudan to cooperate with the [ICC] and expressing deep concern at the Court’s Pretrial Chamber judges recent decision to refer the issue of Sudan’s non-cooperation to the Council”).

[16] U.N. Security Council  6491st meeting (Feb. 26, 2011). Other Council members (Bosnia & Herzogiva, Colombia, France, Germany, Libya and the U.K.) specifically commended the reference to the ICC. The other four Council members who did not join in drafting the resolution were Brazil, China, India and the Russian Federation. In the meeting, the Indian representative noted that “only” 114 of the 192 U.N. Members were parties to the Rome Statute and that five of the 15 Council members, including three permanent members (China, Russia and U.S.), were not such parties. He went on to emphasize the importance of Article 6 of the resolution’s exempting from ICC jurisdiction nationals of States like India that were not parties to the Rome Statute and its preamble’s stating that the Statute’s Article 16 allowed the Council to postpone any investigation or prosecution for 12 months. (Id.) The Brazilian representative was serving as President of the Council and, therefore, may not have participated in drafting the resolution, but she noted that Brazil was a “long-standing supporter of the integrity and universality of the Rome Statute” and expressed Brazil’s “strong reservation” about Article 6’s exemption of nationals of non-States Parties. (Id.) This suggests that the inclusion of Article 6 was the price of obtaining “yes” votes for the resolution from India, China and the Russian Federation. See Post: The International Criminal Court: Investigations and Prosecutions (April 28, 2011).

[17] U.N. Security Council  6491st meeting (Feb. 26, 2011).

[18]  ___Cong. Record S1068-69 (March 1, 2011) (S. Res. 85).

[19] Koh, The Challenges and Future of International Justice (Oct. 27, 2010), http://www.state.gov/s/l/releases/remarks/150497.htm.

[20] ICC, Review Conference of the Rome Statute: Pledges (July 15, 2010), http://www2.icc-cpi.int/iccdocs/asp_docs/RC2010/RC-9-ENG-FRA-SPA.pdf.

[21] Belczyk, US war crimes ambassador says US unlikely to join ICC in ‘forseeable future,’ Jurist (Jan. 28, 2010), http://jurist.law.pitt.edu/paperchase/2010/01/us-war-crimes-ambassador-says-us.php.

[22] Id. With the existence of the ICC, there is no need to create future ad hoc tribunals. This fact also avoids the administrative problems ad hoc tribunals face when they near the end of their lives and professional and other staff leave to pursue other opportunities with greater future prospects. (See Amann, Prosecutorial Parlance (9/12/10), http://intlawgrrls.blogspot.com (comments by officials of ICTY and ICTR).)

[23] Belczyk, US war crimes ambassador says US unlikely to join ICC in ‘forseeable future,’ Jurist (Jan. 28, 2010), http://jurist.law.pitt.edu/paperchase/2010/01/us-war-crimes-ambassador-says-us.php.