Welcome to Bashir in Wonderland, Alice

by Kevin Jon Heller

According to Reuters, the US is dropping hints that it will grant Omar al-Bashir a visa to travel the UN for the annual meeting of the General Assembly:

A senior State Department official said Bashir would “not receive a warm welcome” if he were to travel to the U.N. meeting. The official said Bashir had applied for a visa to attend the opening of the annual U.N. General Assembly.

“I am not going to speak to the specifics of this case, but typically as a host nation the United States is generally obligated to admit foreign nationals, but visas broadly speaking can be restricted,” the official added.

I completely agree with Julian that denying Bashir a visa would violate the UN-US Headquarters Agreement. But to say, as one intelligent commentator did on twitter earlier, that “the USG really has no choice in the matter”? Isn’t this the same USG that just a week ago insisted that it was willing to violate Art. 2(4) of the UN Charter by attacking Syria in order to supposedly “uphold” international law? So the USG can violate the UN Charter’s prohibition on force — a peremptory norm, no less — in order to uphold the customary prohibition on chemical weapons, but it cannot violate an agreement with the UN in order to uphold the customary prohibition — also a peremptory norm — against genocide? Even though the US has always led the charge to describe Bashir as a genocidaire and has supported the ICC’s efforts to prosecute him?

The mind reels.

http://opiniojuris.org/2013/09/17/welcome-bashir-wonderland-alice/

5 Responses

  1. So why not arrest him and ship him to The Hague?

  2. As I’ve explained in the comment to Julian Ku’s post and over at Justice in Conflict in more detail, I think the US would be violating Bashir’s immunity ratione personae if it arrested him. Kevin, If I understand your position correctly, you are arguing the US should simply not grant Bashir a visa – a violation of the agreement, but defensible given the immensity of the crime of which he is accused (let’s also emphasize this – it is just an accusation, which – given the ICC’s track record – does not presuppose guilt). This is an interesting argument, but of course it’s completely extra-legal and says nothing about international law. While I tend to agree that this will be resolved at the political level (Bashir will probably not attend, even if a visa is granted), I would be curious to hear your and other people’s thoughts about what should happen if and when a visa were granted and Bashir did then come to the US. Julian Ku is saying arrest would not be allowed because of the Headquarters Agreement, but I think the more plausible argument is immunity ratione personae – what do you think?

  3. And Kevin and Maya, as noted in my two posts in connection with Julian’s post, the U.S. has a mandatory Charter-based obligation to refuse entry or transit to the accused, there is no immunity re: an international criminal tribunal (which is where he would ultimately end up), and there is a treaty-based and customary duty of the U.S. aut dedere aut judicare re: the accused. The Charter-based duty, which rests ultimately and unavoidably on Article 48, must prevail under Article 103 over any alleged conflicting obligation under the HQ agreement.

  4. Jordan, you are conflating issues. To state that there is no immunity re an international tribunal may be true, but first you have to get the accused to the tribunal. Immunity is a procedural question, not a substantive one. What is at stake here is whether the arrest warrant can lawfully – in international law terms – be executed. That is not the same question as refusing a visa, refusing entry or the obligation to extradite. 

  5. Could the UNSC resolution urging states to cooperate with the ICC on the Sudan case be invoked as a defence by the US when accused of violating immunities and the HQ agreement?

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