UN General Assembly Should Allow US to Deny Al Bashir Access

by John Cerone

[John P. Cerone is Visiting Professor of International Law at the Fletcher School of Law & Diplomacy (Tufts University) and Professor of Law at the New England School of Law.  He has also served as Special Advisor to the US delegation to the UN Human Rights Council and as a legal advisor to international criminal courts.]

Omar al Bashir, President of Sudan and fugitive from international criminal justice, must not be allowed to address the United Nations General Assembly.  To permit him to appear on the rostrum would undermine the credibility of the United Nations as a whole, and in particular in the realm of human rights.

Beginning on September 24, an unprecedented number of Heads of State and Government began to converge as the General Debate opened for the 68th session of the United Nations General Assembly.  Mr. Bashir has recently confirmed his intention to travel to New York to participate in the session.

The General Assembly has it within its power to waive the US obligation to admit Mr. Bashir onto US territory.  Arresting him in the US is not an option, as Mr. Bashir is immune from arrest under obligations owed to Sudan.  And even if the US was prepared to violate these obligations, or to attempt to craft legal arguments to circumvent them, arresting a visiting Head of State who had lawfully been admitted to the US in order to address the UN General Assembly could precipitate a constitutional crisis in the United Nations.

However, unlike the obligation to respect his immunity, which is an obligation owed to Sudan, the obligation to facilitate his travel to the UN is an obligation owed to the UN as an organization, and not to Sudan.

The Headquarters Agreement, which requires the United States to facilitate the travel of Member State officials to UN Headquarters, is a bilateral treaty that was approved by the UN General Assembly in 1947.  There are only two parties to the treaty – the US and the UN as an organization, and the rights accorded to the UN under the treaty are for the benefit of the organization.  (Sudan is not a party to that treaty, and any rights incidentally conferred on third parties could be suspended by the mutual consent of the two parties to the treaty.)

It is arguable that the Secretary General could, on his own initiative, waive the UN’s right to have the visa issued.  He could point to the fact that the Security Council, in referring the Darfur situation to the International Criminal Court (ICC) in 2005, “urge[d] all States and concerned regional and other international organizations to cooperate fully” with the Court.  However, it is understandable that the Secretary General would be reluctant to do so without the support of the General Assembly.   It was the General Assembly that authorized the UN Secretary General to conclude the treaty and it is the General Assembly that can authorize the Secretary General to waive, or suspend, the US obligation, under Sections 11 & 13 of the Headquarters Agreement, to facilitate al Bashir’s travel to Headquarters.

The General Assembly could authorize the Secretary General to waive the US obligation by a majority vote of those Member States present and voting.  (This matter is not listed in the Charter as an “important question” under art. 18(2), which would require a 2/3 majority vote among those present and voting.)  Of the 193 UN Member States, 122 are parties to the ICC Statute.   In addition, other states that are not parties to the ICC Statute supported the Security Council referral of the situation in Darfur to the ICC.  It is also likely that a number of states would abstain in such a vote, bringing down the number of votes required to achieve a majority (abstaining states are not counted as among the states “present and voting”).

Allowing the US to deny a visa to this one individual in these very narrow circumstances would in no way restrict Sudan’s ability to address the Assembly.  The Assembly could even decide to permit Mr. Bashir to appear by video telecast from Khartoum.  The General Assembly is, after all, the master of its own procedure.  But the one thing the General Assembly must do is to prevent access by an individual who is wanted by the ICC on charges of genocide and other international crimes, and who is refusing to cooperate with the Court.

We should of course be mindful that, owing to his failure to appear before the Court, the trial phase of his case has not yet begun, and there has thus been no opportunity for the charges against him to be proven or disproven.  I would not recommend the extraordinary step of allowing the US to block a Head of State from participating in the General Debate merely on the basis of unproven criminal charges were that Head of State cooperating with the ICC.  As such, allowing the US to deny a visa in the instant case would not constitute a worrying precedent.  The circumstances are extremely narrow (outstanding ICC arrest warrants for genocide and other international crimes, and a complete refusal to cooperate by the suspect), and the decision to waive or suspend would be left to the Assembly on a case by case basis.

According to Article 1 of the Charter of the United Nations, one of the principal purposes of the organization is “promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.”  At last year’s general debate, the overwhelming majority of world leaders addressing the Assembly underscored the importance of the UN’s human rights work.

On Sunday, Mr. Bashir announced that he has booked his flight to New York and that he fully intends to participate in the General Debate.  The General Assembly must act now to uphold its commitment to the rule of law and to the fundamental purposes of the organization as set forth in the Charter.

http://opiniojuris.org/2013/09/25/un-general-assembly-allow-us-deny-al-bashir-access/

4 Responses

  1. John: interesting, but I do not agree that he has immunity from a criminal sanctions process that involves custody, transfer, and prosecution before the ICC, especially since there is absolutely no immunity under any international criminal treaty for a head of state (e.g., Genocide Convention, art. IV; Geneva Conventions; CAT, arts. 1, 5-7 — and the customary international law reflected in each) and Article 27(1)-(2) (which mirrors customary international law with respect to sanctions processes of international criminal tribunals) expressly denies immunity with respect to the ICC sanctions process.
    The United States would not be prosecuting him in a domestic forum.  The ICC would be prosecuting him, and it would not matter that the United States is not a party to the Rome Statute of the ICC, since it can cooperate with the Prosecutor and the Court, as a three-judge statement reminds and as the U.N. S.C. has urged.

  2. Thanks for the feedback Jordan.  I’ve understood the abrogation of immunity in the Genocide Conv’n to apply to substantive immunity (or immunity of the conduct) as opposed to the personal immunity of sitting Heads of State.  An arrest by the US would seem to be an exercise of its criminal law enforcement jurisdiction, from which the person of a sitting HoS would be immune.  As a matter of treaty law, it would seem that the ICC treaty would be inapplicable as between the US and Sudan, and thus would not modify this relationship.
     
    As for the recent “invitation” by PTC II to arrest al Bashir, my admittedly quick reading of that opinion gives me the impression that the judges intentionally avoided pronouncing on the question of whether al Bashir would be immune from arrest by the US authorities.   They also underscored that the US, as a non-party, has no obligations under the Rome Statute.  One might argue that the issuance of the invitation necessarily implies that they do regard al Bashir as having immunity vis-a-vis the US, but I’m not so sure…

  3. Well, since an extradition hearing is not a criminal prosecution in the U.S. it would seem that bringing an accused into custody for the purpose of extradition, or rendering to an international criminal tribunal, is not technically criminal law enforcement by the U.S. 
    And re: Art, IV of the Genocide Convention, it says “shall be punished” whether they are rulers, etc., so it seems that there is express nonimmunity with respect to punishment (which we do not do without a trial).  The duty to punish is also set forth in Arts. I, III, and V-VI — in mandatory shall be punished language and without any limitation re: personal status of accused.  Reading Articles I, and III-VI together, it seems clear to me that nonimmunity exists under the Convention for prosecution or extradition of sitting heads of state or other public officials.
    Another point is that since genocide is a jus cogens crime it is logical that the sanctions process set forth in mandatory language in the Convention is mirrored in jus cogens.  As jus cogens, it would trump the HQ Agreement and Art. 105 of the Charter.

  4. Great arguments!
    Nevertheless, the ICJ seems to be narrowly circumscribing the tangential consequences of conflicts with jus cogens norms (e.g. in Germany v. Italy, DRC v. Rwanda).
    In any event, I’m not convinced that there would be a true conflict here.  It seems that general principles of IL would require us to interpret the rules of suppression treaties, HoS immunity, and the HQ Agreement harmoniously if reasonably possible.

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