A Spanish court yesterday issued arrest warrants for 20 of the top military leaders of El Salvador’s civil war, accusing them of crimes against humanity and state terrorism in meticulously planning and carrying out the killings of six Jesuit priests in November 1989.
Among the men named in the indictment were Rafael Humberto Larios, who was the Salvadoran defense minister at the time; Juan Orlando Zepeda, the vice defense minister; Rene Emilio Ponce, leader of the Army’s Joint Chiefs of Staff; and Inocente Orlando Montano, the vice minister of public safety. Mr. Ponce, who is believed to have given the order for the killings, died this month in El Salvador. Mr. Montano is in custody.
The Jesuit priests were the leader and professors at the Universidad de Centro America (UCA) in San Salvador, the capitol of El Salvador. The Rector of the University of Central America, the Rev. Ignacio Ellacuría, had organized an open public forum about the country’s problems. All six were noted professors who had published papers about the country’s problems, and most of them also had served as pastors in communities around the capital city.
At the time of the murders, El Salvador was engaged in a civil war with leftist guerillas, and supporters of the Salvadoran government said that UCA was the “logistical center of Communist subversion.” The Jesuits at UCA were “agents of the Marxist conspiracy at the service of the Kremlin.” Ellacuria, they said, directed “all Marxist-Leninist strategy in Central America.” The Jesuits, according to these government supporters, were “the intellectual authors who have directed the guerillas.” 
This important development raises many issues that will be discussed in subsequent posts: (a) the work of the priests and UCA in the life of El Salvador; (b) the facts relating to the murders; (c) the criminal prosecution of some of the military officers in El Salvador; (d) the investigation and report about this horrendous crime by the Truth Commission for El Salvador; (d) the subsequent general amnesty adopted by the Salvadoran legislature; (e) the investigation and report about this crime by the Inter-American Commission on Human Rights; (f) the background of the case before the Spanish court; (g) the important work by international human rights non-governmental organizations like the Center for Justice & Accountability that has been a leader in the case in Spain; and (h) the international law principle of universal jurisdiction and Spain’s implementation of that principle.
As a result of my involvement with El Salvador over the last 26 years, my six visits to the country and to UCA itself and my investigation of the above issues, the latest development in the Spanish case is very important to me legally, spiritually and emotionally. Through all of these activities, I have come to see that there is an ever-evolving interactive global struggle against impunity for violators of human rights and that many courts, other international and domestic governmental and non-governmental institutions and people play different and important roles in this process. 
 Malkin, From Spain, Charges Against 20 in the Killing of 6 Priests in El Salvador in 1989, N.Y. Times (May 31, 2011); Center for Justice & Accountability, Spanish Judge Issues Indictments and Arrest Warrants in Jesuits Massacre Case (May 30, 2011), http://www.cja.org/article.php?id=1004.
 Martha Doggett, Death Foretold: The Jesuit Murders in El Salvador (Washington, D.C.; Georgetown Univ. Press 1993) [“Doggett”]; Jon Sobrino, et al., Companions of Jesus: The Jesuit Martyrs of El Salvador (Maryknoll, NY; Orbis Books 1990).
 See Post: My First 10 Years of Retirement (April 23, 2011); Post: International Criminal Justice: Introduction (April 26, 2011); Post: The Sanctuary Movement Case (May 22, 2011); Post: Becoming a Pro Bono Asylum Lawyer (May 24, 2011); Post: My Pilgrimage to El Salvador, April 1989 (May 25, 2011).
As previously mentioned, the International Criminal Tribunals for the Former Yugoslavia (ICTY) and for Rwanda (ICTR) were created by the U.N. Security Council with limited lives for limited purposes.
In December 2010 the Security Council dealt with the problems associated with the limited lives of these two tribunals by creating The International Residual Mechanism for Criminal Tribunals (IRMCT). The Mechanism will have two branches for the just mentioned two tribunals after their closure. The branch for the ICTR will commence operations on July 1, 2012; the one for the ICTY, July 1, 2013.
The IRMCT’s two branches will prosecute and try those individuals who had been indicted, but not tried, by the ICTR and ICTY. For those “who are among the most senior leaders suspected of being most responsible for the crimes . . . considering the gravity of the crimes charged and the level of responsibility of the accused,” the authority of the IRMCT is unlimited. For lesser officials, it has a similar authority, but only “after it has exhausted all reasonable efforts to refer the case” to an appropriate national court.
The IRMCT also will have an appeals chamber to handle appeals from any trials that it conducts as well as trials conducted by the ICTR and ICTY, but that did have appeals lodged or completed when the two tribunals closed.
It is anticipated that the just-captured Ratko Mladic will be tried by the ICTY.
 See Post: International Criminal Justice: Introduction (April 26, 2011); Post: The International Criminal Court and the Obama Administration (May 13, 2011).
On May 26, Ratko Mladic was arrested in Serbia and will be extradited to The Hague in the Netherlands. He is the former Bosnian Serb general held responsible for the massacre of some 8,000 Muslim men and boys at Srebrenica in 1995. At The Hague he will face charges of genocide, crimes against humanity and war crimes by the International Criminal Tribunal for the former Yugoslavia (ICTY).
 Reuters,Ratko Mladic to Face Tribunal on Genocide Charges, N.Y. Times (May 26, 2011); Bilefsky & Carvajal, Serbia Says Jailed Mladic Will Face War Crimes Trial, N.Y. Times (May 26, 2011); Rhode & Burns, Executions Were Mladic’s Signature, and Downfall, N.Y. Times (May 26, 2011); ICTY, Statement of the Office of the Prosecutor on the Arrest of Ratko Mladic, (May 26, 2011) http://www.icty.org/sid/10670 (contains link to full text of indictment of Mladic); Editorial, End of the Line, N.Y. Times (May 26, 2011); Carvajal, Serbian Court Backs Transfer of Mladic to Hague, N.Y. Times (May 27, 2011); Carvajal, Left Ill by Fugitive Life, Mladic Hopes to Avoid Hague, N.Y. Times (May 27, 2011).
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.
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. 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.
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.
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.”
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, March 2010, June 2010 and December 2010 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. 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.”
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.
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.
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). 
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. 
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. 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].”
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] . . . .”
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.
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.
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.
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.
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.
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.”
 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).)
 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”).
 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).
 U.N. Security Council 6491st meeting (Feb. 26, 2011).
 ___Cong. Record S1068-69 (March 1, 2011) (S. Res. 85).
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).)
Since the end of World War II, we the peoples of the world, acting through our nation-state governments, have codified or created numerous international human rights norms. This started with 1945’s Charter of the United Nations and 1948’s Universal Declaration of Human Rights and the Convention on the Prevention and Punishment of the Crime of Genocide. Other multilateral human rights treaties have followed, including the International Convention on Civil and Political Rights, the International Convention on Economic, Social and Cultural Rights and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Given the world’s nation-state sovereignty basis, we the peoples of the world have grappled with the very real problem of how to enforce such norms in order to punish violators, to deter future violations, to provide redress to victims and survivors, and to investigate and promulgate the “truth” about past violations. The response has been the creation of various mechanisms, none of which is perfect: state reporting to U.N. Charter and treaty bodies for review, comment and recommendations; complaints by states and individuals to such bodies for recommended solutions; international investigations of specific countries or problems; civil litigation for money damages against violators in domestic courts and international courts like the Inter-American Court of Human Rights; and truth commissions.
Another response has been seeking to subject violators to criminal sanctions (imprisonment) in national courts under the international law principle of universal jurisdiction whereby a nation’s courts have legitimate criminal jurisdiction over genocide, crimes against humanity and war crimes no matter where in the world such crimes were committed. Criminal sanctions have also been imposed by international criminal tribunals like the Nuremberg and Tokyo War Crimes Tribunals at the end of World War II and more recently by so called ad hoc tribunals created by the U.N. Security Council (the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR)). Even more recently the International Criminal Court (ICC) has been created. Collectively these mechanisms often are referred to as international criminal justice.
In future posts we will examine a Spanish court’s use of the universal jurisdiction principle to commence criminal investigations. In other posts we will analyze the International Criminal Court and its relations with the United States.
 David Weissbrodt, Fionnuala Ní Aoláin, Joan Fitzpatrick, and Frank Newman, International Human Rights: Law, Policy and Process, ch. 1 (4th ed. 2009) [“Weissbrodt”].