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Libya’s Magic Security Situation and al-Senussi’s Right to Counsel

by Kevin Jon Heller

One of the most distressing aspects of the admissibility decision in al-Senussi is PTC I’s remarkable unwillingness to question Libya’s strategic invocation of its precarious “security situation.” As described by Libya, that situation really is magic — somehow managing to prevent the Libyan government from doing anything to protect al-Senussi’s rights without preventing the government from prosecuting al-Senussi.

Consider the issue I discussed in my previous post – Libya’s failure to provide al-Senussi with an attorney. Here are the PTC’s two relevant statements, from paras. 292 and 307:

In the Chamber’s view, the fact that Mr Al-Senussi’s right to benefit from legal assistance at the investigation stage is yet to be implemented does not justify a finding of unwillingness under article 17(2)(c) of the Statute, in the absence of any indication that this is inconsistent with Libya’s intent to bring Mr Al-Senussi to justice. Rather, from the evidence and the submissions before the Chamber, it appears that Mr Al-Senussi’s right to legal representation has been primarily prejudiced so far by the security situation in the country.

It appears, by Libya’s own admission, that the fact that Mr Al- Senussi is yet to obtain legal representation is primarily due to “security difficulties”.

The first thing to be said is that Libya blaming its failure to provide al-Senussi with counsel on its security situation is not an “admission” – it is Libya’s preferred framing of the issue. Libya is desperate to prevent the ICC from reaching the opposite conclusion: namely, that al-Senussi lacks counsel because the government has done everything in its power to prevent him from obtaining one. Were the PTC to (correctly) blame Libya for al-Senussi’s lack of counsel, Libya would have two problems: (1) the case for unwillingness would be greatly strengthened, because Libya’s intentional denial of al-Senussi’s right to counsel would threaten the viability of his prosecution once the accusation stage is complete; and (2) the case for inability would also be greatly strengthened, because Libya would not be able to plausibly maintain that once the security situation improves, there will be no impediment to providing al-Senussi with counsel.

To put it mildly, PTC I’s mantra-like invocation of Libya’s “security situation” is less than convincing. To begin with, the PTC never explains why the security situation in Libya prevents the government from providing al-Senussi with counsel. The PTC simply cites Libya’s reply and a Human Rights Watch press release, neither of which justifies its conclusion The one paragraph in Libya’s reply concerning al-Senussi’s lawyer (para. 146) claims only that “several local lawyers have indicated their willingness to represent Mr. Al-Senussi in the domestic proceedings.” The reply does not name those lawyers, nor does it provide any evidence in support of its claim that they exist. Moreover, the Human Rights Watch press release is revealingly entitled “Libya: Ensure Abdallah Sanussi access to a lawyer.” It does not attribute al-Senussi’s lack of counsel to the security situation in Libya; on the contrary, it specifically mentions the numerous times the Libyan court overseeing al-Senussi’s detention has ignored his request for an attorney, to which he is entitled even at the investigative stage of the proceedings.

Even more problematic, nothing in the record suggests that the security situation in Libya will somehow magically improve between now and the beginning of al-Senussi’s trial. As even casual Libya observers know, the security situation is getting worse by the day. Indeed, Judge van den Wyngaert, though joining in the admissibility decision, took the unusual step of appending a declaration to the decision expressing concern about the recent kidnapping of Libya’s Prime Minister and stating that she “would have preferred to seek submissions from the parties and participants as to whether Libya’s security situation remains sufficiently stable to carry out criminal proceedings against Mr Al-Senussi.” Even if it attributes al-Senussi’s lack of counsel to the “security situation,” therefore, PTC I has absolutely no reason to accept Libya’s assertions that it will be able to provide al-Senussi with counsel prior to trial.

And that, of course, is the problem with PTC I’s new “at the time of the admissibility decision” test for complementarity, which I criticized in my previous post. Al-Senussi’s lack of counsel may not threaten his prosecution right now — but it eventually will. And that is true regardless of whether al-Senussi’s lack of counsel reflects Libyan strategy or the security situation in Libya.

PTC I’s Inconsistent Approach to Complementarity and the Right to Counsel

by Kevin Jon Heller

Pre-Trial Chamber I has granted Libya’s challenge to the admissibility of the case against Abdullah al-Senussi. This is obviously a major win for the Libyan government, especially given that the very same PTC denied its admissibility challenge regarding Saif Gaddafi.

There is much to like in the PTC’s decision. It takes a very broad approach to the “same conduct” requirement with regard to the definition of a “case” — something I’ve long advocated. (Indeed, I’ve advocated jettisoning the rule entirely.) It reaffirms that states are not obligated to prosecute international crimes as international crimes; ordinary crimes are sufficient. And it once again rejects the idea that the failure of a domestic proceeding to live up to international standards of due process makes a case admissible, rightly emphasizing that due process is relevant only insofar as the failure of a domestic prosecution to live up to national standards of due process threatens the viability of that prosecution.

That said, there is one very problematic aspect of the PTC’s decision in al-Senussi: its treatment of al-Senussi’s right to counsel is completely inconsistent with its decision in Gaddafi. In Gaddafi, PTC I held that Libya’s failure to provide Gaddafi with an attorney meant that it was “unable” to prosecute him within the meaning of Art. 17(3) of the Rome Statute (emphasis mine)…

More SCSL Hypocrisy Concerning Customary International Law

by Kevin Jon Heller

In my previous post on the Taylor appeal, I noted two troubling aspects of the Appeals Chamber’s judgment concerning customary international law: (1) its erroneous belief that legal principles that narrow criminal responsibility have to have a customary foundation; and (2) its hypocritical affirmation that recklesness is the mens rea of aiding and abetting (which goes beyond the ICTY and ICTR) despite the principle having no basis in custom whatsoever.

In this brief post, I want to note that the SCSL’s hypocrisy toward custom extends to its analysis of Taylor’s disproportionate sentence. The judgment focuses on the principle that conviction as an accessory “generally warrants a lesser sentence than that to be imposed for more direct forms of participation.” That principle has been consistently applied by the ICTY and ICTR, leading to significant differences in sentences at both tribunals. (I mention the relevant studies in my article.) It was also honored, though clearly in the breach, by the Trial Chamber in Taylor. The Appeals Chamber, however, categorically rejects the principle — once again, as with specific direction, on the ground that it lacks an adequate foundation in customary international law:

667. The Appeals Chamber has considered the ICTY/ICTR jurisprudence cited by the Defence and adopted by the Trial Chamber, which is based on the holding of the ICTY Appeals Chamber in Vasiljević. This Appeals Chamber does not consider that holding persuasive. A number of the national laws relied on in the Vasiljević Appeal Judgment do not support the principle that aiding and abetting as a form of criminal participation warrants a lesser punishment, but only establish that an accused‘s minor participation in the commission of the crime may be a mitigating circumstance…. This Appeals Chamber notes that the Vasiljević Appeals Chamber did not declare its holding reflective of customary international law, nor did it pronounce it a general principle of law.

The Appeals Chamber is probably correct that the principle lacks an adequate customary foundation. Its analysis of whether it qualifies as a general principle of criminal law, however, is more questionable. The Appeals Chamber dismisses that possibility by citing common-law systems that do not formally distinguish between principals and accessories, making both potentially subject to the same punishment. (Most civil-law systems do formally distinguish between them in terms of sentence.) But the Appeals Chamber studiously avoids inquiring whether, in practice, common-law systems nevertheless generally sentence accessories more leniently than principals. My guess is that nearly all of them do.

My point here, though, is not to defend the principal/accessory distinction as a general principle of criminal law. Instead, it’s to note that, in terms of custom, the Appeals Chamber’s approach to sentencing is no less hypocritical than its approach to substantive criminal law. Contrast what it says about the principal/accessory distinction with what it says about extraterritoriality as an aggravating factor, which the defence (correctly) alleged in its appeal brief lacks any foundation whatsoever in customary international law (and has never been applied by any international tribunal):

The Appeals Chamber considers that it was unnecessary for the Trial Chamber to refer to public international law in order to take into consideration the extraterritorial nature and consequences of Taylor‘s acts and conduct. The Appeals Chamber accepts the Trial Chamber‘s finding that the extraterritorial nature and consequences of Taylor‘s acts and conduct are directly related to Taylor and the gravity of his culpable conduct, justifying holding him responsible.

Shorter Appeals Chamber: an aggravating factor that increases Taylor’s sentence does not have to have a customary foundation, as long as it’s “directly related” to his culpability, but a sentencing principle that decreases Taylor’s sentence does have to have a customary foundation, even if it is also “directly related” to his culpability.

Such is the Appeals Chamber’s understanding of customary international law. It’s only important when a principle might work in the defendant’s favor. As long as a principle harms the defendant, custom is irrelevant.

Welcome to nullum crimen sine lege through the SCSL looking glass.

Has the ICC Learned Its Lesson from Melinda Taylor’s Detention?

by Kevin Jon Heller

The Pre-Trial Chamber has ordered the Registrar to arrange a privileged visit between al-Senussi and his ICC lawyer, Ben Emmerson, in Libya. On the positive side, the PTC seems to have learned something from Libya’s abhorrent detention of Melinda Taylor. Witness the following language in the order:

15. Taking into account the purpose of the visit, the provisions of the ad hoc arrangement should be appropriate to ensure, in particular, the right of Mr Al-Senussi to communicate freely with his counsel in confidence, in  accordance with article 67(l)(b) of the Statute.

16. Therefore, the arrangement should include all practical arrangements necessary to ensure the unhindered entrance of the Defence team and their belongings to Libya as well as their appropriate treatment and protection during their stay on Libyan territory. This treatment should explicitly include, at a minimum, immunity from arrest and detention and from search of personal baggage for the individuals participating in the visit, the inviolability of the Defence documents, and the non-interference with and guarantee of the privileged nature and communication between Mr Al-Senussi and his Defence during the meeting. The Chamber recalls that, in conformity with international law, such privileges and immunities are without prejudice to the obligation of those participating in the visit to respect the national laws of Libya. If Libya has reasonable grounds to believe that the Defence of Mr Al-Senussi has violated Libyan law, Libya shall, however, not take any action that may impact on the necessary treatment that must be accorded to the Defence under the Statute, unless and until the Presidency of the Court has, upon prompt official request by Libya, waived the relevant immunity.

It’s good to see the PTC insisting on a privileged meeting and immunity for Emmerson and the other members of the defence team. But I’m baffled by the fact that the order is directed to the Registrar and not to Libya; indeed, the PTC denied the defence’s request for finding Libya in breach of its obligation to cooperate with the Court. The Registrar, however, is not the problem. Libya is. The Registrar has not prevented Emmerson from meeting with al-Senussi in the seven months since the PTC first requested a privileged visit. Libya has.

There is no reason to believe that Libya will suddenly start to cooperate with the Registrar. The only consistent aspect of Libya’s behavior has been its contempt for the Court. Will the PTC ever get around to ordering Libya to respect al-Senussi’s right to counsel?

Stay tuned.

BREAKING: Bashir Problem Now a Non-Problem

by Kevin Jon Heller

For the non-twitterati, Omar al-Bashir has — unsurprisingly — cancelled his trip to the UN. That decision reflects an underappreciated “soft power” aspect of the ICC: even an unexecuted arrest warrant limits the freedom of a suspect facing charges. There may be no reasonable prospect of Bashir being arrested anytime soon. But there is also no reasonable prospect that he will be traveling outside of Asia, Africa, and the Middle East anytime soon either, making it much more difficult for him to function as an effective head of state. With luck, his political party will eventually decide he’s more trouble than he’s worth — at which point he may well end up in the ICC’s dock. (A lesson Mr. Milosevic learned the hard way.)

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…  (Continue Reading)

Bashir Calls Everyone’s Bluff, Says He is Coming to UN General Assembly Meetings in New York City*

by Julian Ku

Wow! I kind of assumed all the posturing and tough talk from U.S. and ICC officials would scare off Sudan’s President Bashir from visiting NY next week to address the UN General Assembly.  But it appears he really is coming.

Sudanese President Omar Hassan al-Bashir, wanted by the International Criminal Court on genocide charges, said on Sunday he planned to attend this week’s U.N. General Assembly and had already booked a hotel in New York.

Washington has led calls for Bashir to face international justice over bloodshed in the now decade-old conflict in Sudan’s Darfur region, and a senior State Department official said last week that Bashir would “not receive a warm welcome” if he travelled to New York.

Although I think the U.S. has a legal obligation to allow Bashir to attend the meetings (and leave) unmolested, I am surprised the U.S. didn’t simply deny him the visa and dare the U.N. General Assembly or Secretariat to complain about it.  Were they really going to file protests about this? Were states in the GA really going to go nuts over this? And hasn’t anyone asked the U.N. Secretary General to state his views, so as to give the U.S. cover to deny him the visa?

Maybe the U.S. is going to take up the ICC’s invitation to arrest Bashir. But I just can’t imagine they would want that hassle just now.  Arresting a head of state is a dicey business, especially when you have no legal obligation to do so, and you would probably be violating other legal obligations to carry out the arrest (and you may spark more conflict back in Sudan as well).  It seems it would have been easier just to deny him the visa.

More likely then, the U.S. is really going to let Bashir attend, and although he won’t get a warm welcome, the U.S. will probably not arrest him.  U.S. Ambassador to the U.N. Sam Power may have a meltdown, especially if Bashir has reserved a room at the Waldorf Astoria (where she has a posh penthouse residence). Would love to see what happens if they bump into each other in the elevators…  And Mia Farrow has vowed to chase him down, so things could get ugly over there.

Seriously, though, I do think that an unmolested Bashir visit to the UN GA meetings would be further evidence for Eric Posner’s thesis that the ICC is facing serious decline (if not Doom) (But see Kevin’s rebuttal here).  I don’t think that the decline is the ICC’s “fault” (and I don’t think Posner thinks that either).  Rather, the decline of the ICC may simply be the result of the lack of political will in the U.S. Government, the other UN member states, and in the UN’s key institutions.  If Bashir is allowed to come to NY for the UN meetings, the lack of will among all of these players will be quite self-evident. Maybe we shouldn’t bother with the ICC if no one is going to actually support it when that support is needed.

*Right after this post went up, Mark Kersten reports that he hears that the visa hasn’t come through yet, which makes this post a bit premature, but hopefully still interesting!

Eric Posner on the Coming Death of the ICC

by Kevin Jon Heller

Eric Posner has a new Cassandra column at Slate, this latest one foretelling the doom of the ICC. There isn’t much point in disagreeing with his basic thesis; no one knows at this point — not him, not I — whether the ICC will succeed. It is possible, however, to take issue with a number of assertions that Posner makes in his article. Some are unfair; others are simply wrong.

If anyone ought to be prosecuted for war crimes, it’s this reviled leader, who almost certainly directed poison gas attacks against civilians. But as Joshua Keating explained in Slate, it’s not going to happen. This, just the latest blow to the ICC, illustrates once again why the prospect of international justice through global courts is ever receding—and why the court’s own days may be numbered.

This assertion falls into the unfair category. As Alana Tiemessen pointed out on twitter, the ICC can hardly be blamed for the failure of the Security Council (for now) to refer Assad to the Court. And, of course, the assertion simply ignores the fact that the Security Council has referred controversial situations to the Court in the past. Posner could have acknowledged Darfur and Libya. He could have acknowledged how the Darfur referral has made it considerably more difficult for Bashir to function as Sudan’s head of state. (See, e.g., the ongoing controversy over his desire to travel to the US to attend the UN General Assembly, which will never happen.) If Posner wanted to say something critical, he could have pointed out that the real problem is the Security Council’s failure to back up its referrals, either financially or in terms of enforcement. But that would have simply highlighted the fact that the problem is the Security Council, not the ICC.

Instead, the worst of the bad guys were tried at Nuremberg and in Tokyo. But the postwar proceedings faced a problem. Hitler’s and Tojo’s invasions of innocent countries—and even Hitler’s massacre of civilians at home—did not violate any rule of international law that came with personal criminal liability. Leaders were tried and punished nonetheless, but doubts about legitimacy lingered, since the trials lacked a basis in international law even while they condemned defendants for violating it.

Both unfair and wrong. Posner simply elides the difference between aggression, crimes against humanity, and war crimes with regard to retroactivity…

Saif Does Not Appear in Tripoli — and Won’t Anytime Soon

by Kevin Jon Heller

In today’s weekly news wrap, Jessica flagged an article that said Saif was due to appear in court in Tripoli for the beginning of the pre-trial phase of the case against him, al-Senussi, and 36 (!) other defendants. The article was inaccurate, and was later updated to make clear that Saif was appearing in Zintan on unrelated charges — not in Tripoli. Indeed, the Zintan militia holding Saif recently made it abundantly clear that it has no intention of handing Saif over to the central government anytime soon — if ever. Just check out the militia’s statements:

“It is impossible to hand him over to Tripoli”, said a senior Zintani local official today under conditions of anonymity. “And you can put three red lines under the word ‘impossible’,” he added.  The reason, he said, was because “Tripoli is under the control of outlaws”.

He was believed to be referring to the alleged dominance of the Justice and Construction Party and the Muslim Brotherhood over the government and Congress and the large presence in the city of military units from Misrata and elsewhere.


Today’s categorical statements reconfirm remarks by Zintan Local Council leader Mohamed Wakwak two months ago. At the beginning of July, he told this newspaper that Saif Al-Islam would not be handed over, in this case because Tripoli was in the hands of secularists and unbelievers.

It doesn’t get much more unequivocal than that!

As an aside, I did a six-minute interview about Saif and Libya with ABC 24 last night — Australia’s 24-hour public news channel. If you’d like to watch the clip, you can find it here. Live television is terrifying!

Should the U.S. Accept the ICC’s “Invitation” to Illegally Arrest Bashir?

by Julian Ku

An ICC chamber, at the request of the ICC Prosecutor, has issued a decision “remind[ing]” U.S. authorities of the two Arrest Warrants issued by the ICC, and “invit[ing]” U.S. authorities to apprehend Bashir and turn him over to the ICC.  This is not exactly surprising.

Still, it is worth noting that the ICC chamber reviews the legal landscape and it concludes (rightly in my view) that the U.S. has no legal obligation to arrest Bashir if he comes to the U.S.  This is true both because the U.S. is a non-party to the Rome Statute, but also because the UN Security Council’s referral of Sudan to the ICC was carefully worded so as to not place obligations on non-parties to the ICC.  That UNSC Resolution merely urges UN member states to cooperate fully.  It doesn’t require cooperation. I will also note, in response to Prof. Jordan Paust’s comments to an earlier post on this subject, that although the UNSC Res. 1591 did obligate member states to deny transit to certain individuals related to the Sudan conflict, Bashir does not appear to be on that list of people.   

So, as I argued in a prior post, the US-UN Headquarters Agreement almost certainly requires the U.S. to allow Bashir to attend and then leave the UN General Assembly meetings  The U.S. is further obligated to accord Bashir immunity as a head of state under customary international law.  Arresting Bashir would require the U.S. to violate both of these legal obligations (although arguably the head of state immunity cannot be invoked in this context).

If the U.S. arrests Bashir, they are violating at least one, and maybe two, important international legal obligations.  And, as the ICC chamber makes clear, the U.S. has no legal obligation to detain Bashir.  So from a purely legal point of view, this is a no-brainer: the U.S. should grant Bashir a visa, and let him come and go unmolested.

In this light, we seem to be back to the “illegal but legitimate” conversation that we were having over a possible U.S. strike into Syria.  Kevin’s post on that comparison makes a similar point. But here is a difficult question for international lawyers.  Arresting Bashir would plainly be illegal, but it would almost certainly be legitimate to most people, like Mia Farrow.  (I am in the minority of folks who think such an arrest is unwise since its repercussions in Sudan might be severe.) Still, is legitimacy enough to act illegally?  And if it is, why wasn’t that standard good enough to justify a US strike into Syria?

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.

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.