(Photo: Alvaro Ybarra Zavala / Getty Images)
It appears that Sudanese President Omar al-Bashir has his heart set on visiting the Big Apple. Bashir, indicted by the International Criminal Court (ICC) for a trinity of atrocity crimes (genocide, war crimes and crimes against humanity) has applied for a visa in order to visit the United States and speak at the UN’s General Assembly.
US officials have responded to Bashir’s alleged plans with a barrage of criticism. A spokeswoman for the US State Department condemned Bashir’s plans, exclaiming: “Before presenting himself to UN headquarters. President Bashir should present himself to the ICC in The Hague to answer for the crimes of which he’s been accused.”
At the same time, President of the ICC’s Assembly of States Parties Tiina Intelmann was quick to remind “States Parties on whose territory the indictee might appear while in transit of their obligation to arrest and surrender Mr.Omar Al-Bashir to the ICC.”
But will Bashir visit the US? And if he does, will the US send him packing for The Hague?
A good ploy but a bad plan?
Bashir’s alleged travel plans smell more of a ploy than a plan. And it’s not a particularly smart ploy, either.
Bashir has been a primary beneficiary of the wave of venomous criticism from African states towards the ICC in the wake of the election of Uhuru Kenyatta and William Ruto as Kenyan President and Vice President. Bashir previously received support in his fight against the ICC from African states – but nothing like what Kenyatta has received. And now that it’s a matter of “Africa against the ICC”, Bashir has much more momentum in his favour in his battle to undermine the Court.
At the same time, however, Bashir has benefitted significantly from a lack of interest amongst Western states as to whether or not he should end up in The Hague. Sure, there has been lofty rhetoric about the importance of holding those responsible for atrocities in Darfur to account. And there were public condemnations of the Sudanese President and his alleged role in the litany of atrocities committed in the region.But Western states, notably the UN Security Council’s P3 (the US, France and the UK), have given Bashir’s fate scant attention in the last few years.
Omar al-Bashir – thumbing his nose at the US and the UN?
This wasn’t by accident. Their silence came in return for Bashir’s role in ‘allowing’ South Sudan to separate peacefully in 2011 (the UK even proposed offering Bashir a deferral of any prosecution via an invocation of Article 16 of the Rome Statute as a reward for his ‘good behaviour’). Much to the chagrin of human rights and international justice advocates, it seemed entirely possible that Bashir might retire and live out his days without fear of the ICC.
Now, however, Bashir has made his fate a front-page issue in a country where influential civil society groups have long pressed for his arrest. An issue that the US administration might have otherwise ignored, they now must speak to feverishly. In the wake of the US’s awkward failure to achieve any semblance of justice for victims of chemical weapons attacks in Syria, a potential Bashir visit may present an irresistible target.
Will he stay or will he go – and if he goes, could it be to The Hague?
One possible situation that some hope to see transpire is that Bashir does travel to the US but is subsequently arrested and transferred to the ICC. This brings up the question: can the US send Bashir packing to The Hague?
This same issue recently emerged as a point of contention when the US had to decide whether they could transfer the notorious Bosco Ntaganda to the ICC. They did because they could. Under the American Servicemembers Protection Act, the US is not prohibited from cooperating with the ICC – only from providing funds to the Court. If they managed to arrest Bashir, they could most certainly transfer him to The Hague.
(Cartoon: MIGS Concordia)
It also doesn’t matter that the US isn’t a member-state of the ICC. As with Ntaganda, the administration could decide to cooperate with the Court in this particular instance. Legally, the US could also argue that, because it was the UN Security Council that referred the situation in Darfur to the ICC through Resolution 1593, the obligation to surrender Bashir is binding upon all member states of the UN (and not just the ICC). It would be fascinating to see this legal argument in action. But even in the hypothetical situation in which Bashir travels to the US and is surrendered to The Hague, it seems unlikely that the US administration would invoke it as it could create a precedent that the US would probably want to avoid.
It remains unclear whether the US will or won’t grant Bashir a visa. As Julian Ku points out, this is likely because denying Bashir a visa might actually be illegal. But the US is very unlikely to arrest Bashir for one simple reason: it’s very unlikely that Bashir will ever step foot on US soil.
There is likely to be a big public fuss and lots of diplomatic haggling to prevent Bashir’s visit and for all those involved to save face. If Bashir skips his trip, the US will cry victory as a defender of international justice. Bashir will probably come up with some excuse as to why he can’t visit America. But Sudan’s President will have pushed the envelope once again and, in doing so, he will likely garner support from some of his fellow statesmen bent on undermining the ICC.
Everyone wins. Except for justice.
Justice in Conflict 
Mark, I am going to re-post and edit a comment I made at opiniojuris, which I think demonstrates that your assessment of Bashir’s immunity under international law is incorrect:
Bashir retains immunity ratione personae under international law vis-a-vis the US, as a non-State Party. Arresting him would be a serious violation of international law, and of course it makes no difference what US law says on this point.
UN SC resolution 1593 only urges non-State Parties to cooperate, but it does not and cannot impose an obligation upon non-State Parties to execute arrest warrants. What is more, non-State Parties would be violating international law if they followed the SC’s non-binding exhortation to ‘cooperate’ with the ICC. Immunity ratione personae of Heads of States is established customary law, and while it is still doubtful whether State Parties can even lawfully execute such arrest warrants (http://jicj.oxfordjournals.org/content/7/2/315.short), it is fairly clear that non-State Parties, who are under no obligation to cooperate with the ICC, must give precedence to their binding customary international legal obligations over non-binding recommendations of the Security Council. We have to make a clear distinction here between a non-State Party’s choice to cooperate, e.g. by providing evidence of guilt of an indictee to the ICC – which would of course be allowed under the terms of SC R 1593 – and a non-State Party’s overriding obligation to grant immunity ratione personae to a sitting Head of State.
In other words, in strictly legal terms, Bashir cannot be arrested by the US or any other non-State Party, without the law of international immunity being ignored. A separate question is whether these rules will be respected – Ina Tintelmann, HRW and international civil society are (and have been for some time) encouraging non-State Parties to arrest Bashir irrespective of the law, in the hope that this ‘progressive violation’ will then be validated by the ICC (which of course it will). This is how customary international law develops – you need a violation for it to evolve in the first place, and that can then be retroactively sanctioned by an international tribunal.
All that being said, I do tend to agree with this post’s suggestion that this issue will be resolved informally or politically. International law arguments will probably not win the day.
Why is all this even relevant? Its not like the man wants to go to Soho. He will be at the UN HQ which is errr legally not US territory?
Thanks very much for that useful comment, Maya. Would the Genocide Convention (which the US signed) not allow the US to arrest Bashir and send him to The Hague?
That’s a good question, and I am not entirely sure – but my intuition would be to say that the Genocide Convention is not in play here. He has been indicted under the Rome Statute and the arrest warrant pertains only to charges under that treaty. So it’s not a legal argument (though it certainly is a rhetorical tool), but maybe someone who knows more about the Gen Conv can chip in with a comment…
I asked Kevin Jon Heller about this and he said it was unlikely since the Genocide Convention gives jurisdiction to territorial state or an international tribunal to which the territorial state consents. I agree, though, that it could be used as a rhetorical justification and some legal argument could be made around it – even if it wasn’t airtight.
@Selemani – It’s a good question. The reason why it’s relevant is because Bashir would have to set foot on US soil (and enter US airspace) in order to get to the UN itself.
On the immunity issue, I agree fully with Maya’s analysis although various decisions of the PTC on cooperation by State Parties in the Darfur case which suggest otherwise might be seen (used) as evidence that the law is already changing. [The immunity issue is also relevant for States Parties under article 98 RS as the UNSC also did not clearly waive this immunity].
I also agree with Mark’s ultimate conclusion as to how this will be resolved.That said, were he to visit, two questions which might be of intellectual interest: 1. If he was arrested and surrendered by the US (or any other country), would Sudan, being obligated to cooperate fully with the Court including surrendering Bashir, have recourse? 2. If he does arrive at the UNHQ, under the SG’s guidance prohibiting non-essential contacts with such persons, what sort of interaction would he expect? I like to imagine him arriving, but Security and Safety refusing to open the door and the canteen refusing to serve him lunch. 🙂
“I like to imagine him arriving, but Security and Safety refusing to open the door and the canteen refusing to serve him lunch.” – Too funny, David!
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