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.
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.
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.