Use the Sanctions Power Against Bashir

Use the Sanctions Power Against Bashir

Recent commentary on Bashir’s request for a US visa to attend the 68th General Assembly has focused on US obligations to grant Bashir a visa under Section 11 of the UN – US Headquarters Agreement. See Julian’s post here. Pursuant to this agreement, there is little doubt that the US must permit his transit to the UN despite the fact that there are two outstanding ICC arrest warrant against him. Because the US is not a party to the ICC it has no obligations to cooperate with the ICC, although the US has been reminded, most recently by the Pre-Trial Chamber of the ICC that when the situation in Darfur was referred to the Court by the SC with the US’s support, Resolution 1593 (2005) “urge[d] all States and concerned regional and other international organizations to cooperate fully” with the Court.”    Thus while the US should cooperate, is not legally obliged to.  Moreover, it is common knowledge that many other countries on the transit route could intervene, and transfer him to the ICC in The Hague to stand trial.  And they may do so.

A mechanism that could be quickly employed to prohibit Bashir’s travel, however, is to place him on the “blacklist” under the existing sanctions regime against Sudan (Resolution 1591).  Pursuant to Para. 3(d), “all States shall take the necessary measures to prevent entry into or transit through their territories.”  The Committee’s guidelines are available here, and indicate the criteria for adding names to the blacklist.  At present, there are only four individuals on the list.  Indeed, it is not clear why the Sanctions Committee has not added Bashir, although one suspects the reason must be political.  Other individuals have been listed for their direct responsibility for violations of international humanitarian, human rights law and other atrocities. Bashir clearly meets these criteria as well.

If Bashir were added to the blacklist, all countries would be under an obligation to prevent his travel.  Moreover, because the Security Council would be acting under Chapter VII, this obligation would trump other treaties, including the UN-US Headquarters Agreement.  It was precisely this dynamic that led to litigation in European Courts when sanctions were implemented at the expense of human rights obligations.  While the Kadi and Nada decisions indicate that there needs to be a means to review listings by a judicial like process (at least for enforceability in the European context) one would be hard pressed to believe Bashir would raise such an argument.

The jurisdictional thresholds for the ICC and the Sanctions Committees are different.  The ICC proceeds against individuals who are alleged to have committed the gravest international crimes.  In contrast, under Article 41 of the UN Charter, individuals are added to blacklists because they violate the terms of existing sanctions and/or contribute to the threat to peace and security.  Automatic cross listing between the ICC and sanctions committees is not the right way to proceed because it may interfere with the presumption of innocence, but where a head of state has openly flouted a ICC warrant, and where he independently meets the criteria for inclusion on the travel ban and asset freeze, what better opportunity for the Security Council and the ICC to act together?  It would demonstrate coherent policy on peace and security issues, and joint condemnation of international crimes.

This is an important moment for the UN Security Council to back the ICC.  The Sudan Sanctions Committee should expeditiously add Bashir to the sanctions list which would place all states under a clear obligation to prevent his travel around the globe.  In addition to the chair, currently Her Excellency Mrs. Maria Cristina Perceval (Argentina), and two vice chairs, Australia and Azerbaijan, all Security Council members are on the sanctions committees.  One hopes that Russia and China will not stand in the way.

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Response… The UN and its subsidiary organs established that the prohibition of genocide is a customary norm and that there is no such thing as head of state immunity from arrest or prosecution for serious international crimes.
I don’t see how you could create a loophole that violates the norm by invoking a treaty agreement or a Security Council resolution. Either of those methods would render the instrument itself null and void under the terms of Article 53 of the VCLT.
The supremacy clause in the UN Charter only resolves to conflicts under conventional law arising between another international agreement. But the Security Council and the rest of the UN Organization remain unconditionally bound by the terms of any customary norms.