On December 12th the International Criminal Court’s Assembly of States Parties (ASP) officially elected by acclamation Ms. Fatou Bensouda as the new Prosecutor of the Court for a period of nine years starting next June.
Ms. Bensouda endorsed “the legal mandate entrusted to the Prosecutor to end impunity for those responsible for the gravest offenses, bringing justice to their victims, and preventing future crimes.” She also pledged to continue working in close cooperation with the other organs of the Court, the ASP and civil society and to do so in a consistent, predictable and transparent manner.
The day after her election, she told the ASP that she would strengthen efforts to bring to justice perpetrators of sexual and gender crimes. Too often, she said, such crimes go unreported and unpunished and the victims trivialized, denigrated, threatened and silenced.
The election of Ms. Bensouda was applauded by a close observer of the Court: “Her wealth of experience, her talent and commitment to justice, her tremendous personal charisma and gravitas and her inclusive and collaborative working style” should produce an effective tenure as the Prosecutor.
Although the U.S. is not a party to the Court’s Rome Statute, U.S. representatives are attending the New York meeting of the ASP. At a side event, U.S. Ambassador at Large for War Crimes Issues Stephen J. Rapp described extensive U.S. efforts to ensure justice for victims by ensuring protection for witnesses. He also said the U.S. is involved in all of the situations now under investigation by the Court.
 ICC Press Release, The Assembly of States Parties to the Rome Statute opens its tenth session (Dec. 14, 2011); Bensouda, Election Speech (Dec. 12, 2011). See Post: International Criminal Court: New States Parties, Judges and Prosecutor (Nov. 22, 2011); Comment [to same post]: List of Possible New ICC Prosecutor Is Narrowed to Two People (Nov. 28, 2011); ); Comment [to same post]:Consensus on New Prosecutor (Dec. 1, 2011).
 Lederer, Next ICC Prosecutor warns against sex crimes, Assoc. Press (Dec. 13, 2011).
 Sadat, View from New York: ICC ASP session, IntLawGrrls (Dec. 13, 2011).
In May 2011 Justus Majyambere, a major in the Rwandan Defense Forces, apparently visited the U.S. Military Staff College at Fort Leavenworth, Kansas as an official representative of his government. The purpose of the visit was to obtain ideas for starting a military college in Rwanda.
That sounds like a positive development.
But Majyambere is under indictment by a Spanish court for alleged involvement in the killing of nine employees of a Spanish NGO in Rwanda and the Democratic Republic of the Congo. Therefore, he is under an Interpol “red notice,” a worldwide bulletin that is roughly equivalent to an arrest warrant. As a result, he reportedly was arrested upon his recent arrival in the U.S., but mysteriously was not detained and sent to Spain.
If all of this is true, it is contrary to repeated statements by U.S. Ambassador-at-Large for War Crimes, Stephen Rapp, about U.S. supporting the arrest of fugitives from international criminal justice. It is also contrary to the global goal of punishing and deterring violations of international humanitarian and human rights law.
 See Post: The International Criminal Court and the Obama Administration (May 13, 2011); Post: The International Criminal Court: Possible U.N. Security Council Referral of Syrian Human Rights Abuses to ICC (June 18, 2011).
As previously mentioned, the International Criminal Court (ICC) has jurisdiction over the crime of genocide, crimes against humanity and war crimes, and one of the ways in which it can obtain jurisdiction over a specific situation is by referral from the U.N. Security Council.  The Council already has done so with respect to Sudan (Darfur) and Libya.
Now the U.S. is considering asking the U.N. Security Council to refer possible Syrian human rights abuses to the ICC for investigation and possible prosecution. On June 17th U.S. officials said the possible referral was in reaction to the regime’s killing 1,100 civilians since March and another 20 on Friday.
Russia and China, two other permanent Security Council members with veto power, have expressed opposition to pressuring Syria through the Council. But the U.S. now is pressing Russia to support a Council resolution on Syria.
Earlier in June Syrian opposition and human-rights groups presented the ICC’s Prosecutor with information about alleged crimes against humanity by the Syrian regime. This information had details about attacks on civilians: over 1,100 killings, 3,000 injured and 900 forced disappearances. The report also alleged the regime’s use of torture, snipers, attack helicopters and tanks against civilians. 
In May U.S. Ambassador-at-Large for War Crimes, Stephen Rapp, reiterated U.S. support for the ICC. He mentioned how the U.S. as a non-member was cooperating with the ICC: participating as an observer at meetings of the Court’s Assembly of States Parties, assisting the Court with information-sharing, witness relocation and protection and the arrest and transfer of ICC fugitives. The U.S. also supported the Security Council’s referral of the Libyan situation to the ICC.
 See Post: The International Criminal Court: Introduction (April 28, 2011).
 See Post: The International Criminal Court: Investigations and Prosecutions (April 28, 2011); Post: The International Criminal Court: Libya Investigation Status (May 8, 2011); Post: The International Criminal Court: Three Libyan Arrest Warrants Sought (May 16, 2011).
 Solomon, U.S. Pushes to Try Syria Regime, Wall S. J. (June 18, 2011); Shanker, War Crimes Charges Weighed as Crisis Continues in Syria, N.Y. Times (June 19, 2011); Reuters, Russia’s Medvedev Opposed to U.N. Vote on Syria: Report, N.Y. Times (June 19, 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).)