Can the U.S. Legally Deny a Visa to Sudan’s President Bashir? Nope.

by Julian Ku

U.S. Ambassador to the U.N. Samantha Power and the U.S. State Department are using unequivocal language to condemn Sudan’s President Omar Bashir’s application for a visa to attend the U.N. General Assembly meetings in New York.  But this tough talk is probably just hot air, since it is likely the U.S. is going to grant him the visa.  Here is the State Department’s reaction:

State Department spokeswoman Marie Harf declined to comment Monday on whether the visa would be granted but said “we condemn any potential effort” by him to attend the U.N. meeting.

She said before visiting the United Nations in New York, Bashir should present himself to the International Criminal Court [ICC] in the Hague, which has indicted him for war crimes in Sudan’s Darfur region.

The U.S. ambassador to the United Nations, Samantha Power, echoed those comments, saying Bashir’s proposed trip would be “deplorable, cynical and hugely inappropriate.”

Why didn’t Harf or Power just say that the U.S. would deny Bashir the visa? Because the U.N. Headquarters Agreement with the U.S. makes it pretty clear that the U.S. should not “impose any impediments to transit to or from the headquarters district of (1) representatives of Members or officials of the United Nations….”

The only exception to this I am aware of is the so-called “security exception” imposed by the U.S. Congress when it approved the Headquarters Agreement in 1947.  But that exception is about the right of the U.S. to protect its security, and it is hard to see that Bashir is a security threat.  (Neither, it appears was Yassir Arafat, who was denied a visa back in 1988, but whose status as a member of a UN state or organization was a little questionable).  For some good analysis of the issues, see Fred Kirgis here.

Now the U.S. might then go ahead and arrest Bashir upon entry, although that would implicate other laws and probably still violate the Headquarters Agreement. I doubt that the U.S. (as a non-party to the ICC) has any obligation to arrest Bashir, but I think they could do so consistent with U.S. law assuming President Obama lifts Bashir’s head of state immunity.  This would cause huge chaos in Sudan, but it would be legal under US law.

It is possible that despite the Headquarters Agreement, the U.S. may simply not grant him the visa. If so, it will be interesting to see whether the U.N. Legal Counsel raises the same objections that it did back in the Arafat kerfuffle (doubtful).  Maybe some backdoor dealings with the UN Secretariat could help smooth the way for the U.S. to deny Bashir the visa. But the UN might feel it is setting a bad precedent there as well.

If Bashir persists, this could cause some serious headaches for all concerned.  Which is why the U.S. is trying to talk him out of applying for that visa.  It’s their best hope of keeping him out of New York.

http://opiniojuris.org/2013/09/16/can-u-s-legally-deny-visa-sudans-president-bashir-nope/

11 Responses

  1. Julian,
    Is it possible for the US to grant a visa but declare ahead of the visit that it does not consider Bashir to be protected by head of state immunity vis-a-vis the ICC? Bashir would then be in a position to judge the risks of making the trip…

  2. Ian,

    Why should the US tip off Bashir? If it would deny him immunity, why not wait and arrest him at the airport? It’s not like the US has anything to gain helping Bashir avoid arrest; after all, it’s the US that has led the fight in describing Darfur as a genocide.

  3. Response…
    Since the UN supports and promotes the ICC, I would think it would have an even greater interest in supporting Bashir’s arrest than the US. To oppose any such arrest would suggest that the UN does not support the ICC.

  4. Thanks for everyone’s comments. I think the U.S. could declare that it will not recognize Bashir’s head of state immunity, not for Bashir’s benefit, but to scare him off from coming.  Whether he gets separate immunity as a representative to the U.N. is another matter (I’m not sure about that). But maybe they should leak that they are thinking of arresting him.  Even if they did arrest him, he could probably tie them up in court for quite a while battling his “rendition” etc. 

    The UN is in a tough spot. They really have pushed hard for a broad uncompromising interpretation of the Headquarters Agreement. They would have to carve out an exception here, which they are loathe to do, but it does seem like this would the case to do it.    

  5. If the U.S. has a relevant “obligation” under the U.N. Charter, article 103 of the Charter assures that such an obligation has primacy over the bilateral HQ agreement.
    Under U.N. S.C. Res. 1593, para. 2 (2005), the U.S. has been urged to “cooperate fully with and provide any necessary assistance to the Court and the Prosecutor.”  If this is not a direct obligation, perhaps it is an implied obligation under the Charter.  And then there is U.N. S.C. Res. 1591, para. 3(a)(ii), (c), and (d) — which creates an express obligation: “all States shall take the necessary measures to prevent entry into or transit through their territories of all persons as designated by the Committee” as persons who have committed “violations of international humanitarian or human rights law or other atrocities.”

  6. 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 (i.e. Obama cannot lift Bashir’s immunity – I am not sure what Julian meant by this?).
    The UN SC referral 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, arguably, 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 lawfully execute the arrest warrant (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.
     
    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.

  7. So, Maya, you ducked the unavoidable obligation of the U.S. and “all States” under UN S.C. Res. 1591. para. 3(a)(ii), (c), and (d): “all States shall … prevent entry into or transit through their territories.”  Under Article 48 of the UN Charter (which is the basis for the U.S. obligation under the Charter, not the Rome Statute), the U.S. has a mandatory “shall” obligation to carry out the decision of the Security Council, and Article 103 of the Charter mandates that the Article 48 obligation must prevail over any other international agreement.  Therefore, under the United Nations Charter, in the context of UN S.C. Res. 1591, the U.S. must not allow the accused who is on the list enter U.S. territory or transit through U.S. territory. I asume that he is on the relevant list.
    If he arrives somehow at Kennedy Int’l airport, the U.S. has a duty to deny him “entry” into the U.S. (and, by fiction, he wouold not have gained entry until he passes through customs and immigration).  At that point, the U.S. could consent to police and/or military personnel from the Netherlands to bring the accused into custody and render him to the ICC.
    Also, there is absolutely no immunity for a sitting head of state or public official under international law.  Even the controversial ICJ majority opinion in the Belgian v. Congo case affirmed that there is no such immunity re: an international crimnal tribunal — and there is no such immunity under the Genocide Convention or the customary international law reflected therein, the 1949 Geneva Conventions or the customary international law reflected therein, the 1950 Principles of the Nuremberg Charter and Judgment approved by the General Assembly (e.g., principles I and III), etc.  The ICTY famously ruled that Milosevic had no immunityand that art. 7 of the statute of the ICTY “reflects a rule of customary international law.”  There are many other recognitions of nonimmunity.  See, e.g., Paust, Bassiouni, et al., International Criminal Law 39-44 (4 ed. 2013).
    Moreover, the U.S. has a duty under the Genocide Convention and the 1949 Geneva Conventions to bring an accused into custody and either initiate prosecution or exradite, aut dedere aut judicare, and the U.S.could render the accused to the ICC to fulfill those treaty obligations and related obligations under relevant customary international law or could consent to arrest by Dutch officers and transfer to the Netherlands when, by fiction, he has not yet gained entry into the U.S. (otherwise he would be clearly entitled to an extradition hearing).
     

  8. @Jordan
    “unavoidable obligation of the U.S. and “all States” under UN S.C. Res. 1591. para. 3(a)(ii), (c), and (d): “all States shall … prevent entry into or transit through their territories.”
    This applies to those individuals designated by the UNSC committee. Omar Bashir has not been designated to the list and the list has not changed since 2006. 
    LIST OF INDIVIDUALS SUBJECT TO THE MEASURES IMPOSED BY PARAGRAPH 3 OF RESOLUTION 1591 (2005)
    Paragraph 3 a) ii is instructive:
    ii. to designate those individuals subject to the measures imposed by subparagraphs (d) and (e) of this paragraph and to consider requests for exemptions in accordance with subparagraphs (f) and (g);

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