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?

NYT’s Kristof: Obama’s Sudan Policy is a Failure

by Julian Ku

I don’t want to get into a pointless back and forth with Kevin on the significance of Bashir’s visit to Kenya. I don’t think the details of his visit change my views much. It still seems much more like a slap in the face than a sign of the ICC’s power. But I think we can agree to disagree on this one (UPDATE: See Kenya’s Defense of the Visit as Necessary to Regional Peace).  After all, there are more important issues afoot.  For instance, yesterday’s NYT contained a (to me) stunning column by columnist Nicholas Kristof calling Obama’s Sudan policy a “failure” that could lead to a horrific bloodbath as soon as next year.  Here’s a line to remember:

For all his faults, President Bush inherited a war in Sudan and managed to turn it into peace. Mr. Obama inherited a peace that could turn into the world’s bloodiest war next year.

I have never claimed to be a Sudan expert, but folks like Kristof (who style themselves as Sudan experts of some sort) are beginning to raise the alarm.  The question though is, what exactly is the flaw in the Obama policy?  Is it not being tough enough on Sudan? Or is it being too tough? Kristof can’t seem to decide. His complaint seems to be that Obama is unengaged. (This seems to be a common complaint about Obama, and I think it is unfair. I am not an Obama supporter, but he does have a lot on this plate right now).

In any event, I think we can all agree that the goal here is to prevent the outbreak of another civil war, which Kristof seems to think is imminent.  I can’t see how the ICC arrest warrant helps this goal, at least in the short term.  The better strategy (which does seem to be the Obama policy), is to acknowledge the ICC arrest warrant, but to de-emphasize its importance.  I doubt fulfilling the arrest warrant will be a condition or a requirement of any new peace deal or even any new engagement with the U.S.    I agree that this is pretty horrible on a moral level.  But when you have no other options (and military action is not an option for this president), you have to live with horrible if it prevents mass murder and genocide.

I Bravely Defend Obama’s Sudan Policy Against Mia Farrow

by Julian Ku

Actress Mia Farrow has a scathing op-ed in the WSJ today denouncing Obama’s Sudan policy. The crus of her critique is that Obama is not pushing hard to send Bashir to the ICC.

Last week U.S. Special Envoy to Sudan Scott Gration told the Senate Foreign Relations Committee that although he remains supportive of “international efforts” to bring Sudanese President Omar al-Bashir to justice, the Obama administration is also pursuing “locally owned accountability and reconciliation mechanisms in light of the recommendations made by the African Union’s high-level panel on Darfur.”

Mr. Bashir is indicted by the International Criminal Court (ICC) for war crimes and crimes against humanity, but the African Union Panel on Darfur has clearly aligned itself with Khartoum. One panel member, former Egyptian Foreign Minister Ahmed Al Sayed, said in an interview with an Egyptian newspaper, “The prosecution of an African head of state before an international tribunal is totally unacceptable. Our goal was to find a way out.”

The African Union panel is led by former South African President Thabo Mbeki, who in 2008 dismissed the ICC indictment, saying that it is “the responsibility of the Sudanese state to act on those matters.” Then, late last year his panel proposed a counter initiative to the ICC in the form of a hybrid, Sudan-based court with both Arab and African judges to be selected by the African Union.

But all this is moot since Mr. Bashir swiftly rejected Mr. Mbeki’s proposal. Perversely, Mr. Gration has now thrown U.S. government support to a tribunal that does not and probably will never exist. Even if it did, the “locally owned accountability” he refers to is not feasible under prevailing political conditions, as any Sudan-based court will be controlled by the perpetrators themselves.

Farrow has a point about the sketchy effectiveness of the AU’s mechanism. Moreover, it is hard to reconcile the Obama administration’s support for the AU panel in light of the ICC Statute, which doesn’t (I believe) permit substitutions like this.

On the other hand, I just don’t understand why Farrow and activists like her believe that the ICC trial of Bashir will end up somehow ending the suffering in Sudan.  Essentially, she is arguing that only regime change can solve the problems here.  But she is proposing the removal of Bashir without any political mechanism to replace him and to prevent someone worse from coming to power (e.g. an occupation force).  The Obama policy is realistic (although perhaps not exactly legal).  Farrow’s faith in the ICC as something that can bring peace to Sudan is deeply misplaced

The ICC Begins to Fade in Importance in Sudan

by Julian Ku

The reaction of key countries to the recent Sudan elections electing Sudan’s President al-Bashir are in.  The bottom line seems to be- the elections were deeply flawed, but not so much so that they should be denounced or set-aside.  In the meantime, start planning for the all important referendum on Southern Sudan’s independence, which will require Bashir’s cooperation.  This appears to be the view of the U.S. government, anyway, and it seems largely echoed by the EU.  Interestingly, neither the E.U. nor the U.S. seems to be emphasizing (or even mentioning) the fact that Sudan is continuing to defy its international obligations to turn over individuals demanded by the ICC, including its President.  The focus remains, as it should be, on preserving the delicate peace process in Sudan. But if the U.S. and E.U. do not demand compliance with the ICC, then it is clear that the ICC (at least in the near term) has no chance of completing its prosecutions in Sudan.

The Emerging Consensus on U.S. Policy Toward the ICC: CFR Issues Report on Kampala

by Julian Ku

In many ways, it is more important to note the continuity between Obama and Bush administration policies than to dwell on their differences. Given the political antecedents of the two administrations, the areas where they have adopted the same policy is a sure-fire sign that there is broad consensus in the U.S. on a policy.  I think we are getting close to such a consensus with respect to U.S. policy toward the ICC.  Here are the likely areas of the emerging U.S. consensus (after the jump):

ICC Prosecutor Wants Security Council Action on Sudan

by Julian Ku

This sounds impressive, but somehow it feels like the ICC Prosecutor is going in circles on Sudan.

THE HAGUE, Netherlands — The International Criminal Court prosecutor wants judges to report Sudan to the U.N. Security Council for refusing to hand over a government minister and a militia leader accused of atrocities in Darfur.

Luis Moreno Ocampo said in a written request to the court’s judges publicized Thursday that Sudan is refusing to arrest Humanitarian Affairs Minister Ahmed Harun and Janjaweed militia leader Ali Kushayb.

Indeed, this whole exercise of continuing to seek the arrest of Sudanese government officials seems completely independent from the continuing efforts to seek a negotiated resolution to the various Sudan conflicts.  The ICC Sudan process may not be hampering a long-term peaceful settlement of the Sudan problem, but it is certainly not even a part of the Obama Administration’s policy, or anyone’s, policy toward Sudan, as Nick Kristof seems to admit.

A Powerful Dissenting Opinion on the ICC’s Decision to Authorize an Investigation into Kenya

by Julian Ku

When the ICC Pre-Trial Chamber approved the Prosecutor’s request for authority to investigate alleged “crimes against humanity” in Kenya, I didn’t notice this long and powerful dissenting opinion (around p. 84) by one of the judges (Hans-Peter Kaul).  The standard for authorizing an investigation is pretty easy to satisfy (at least it sounds that way to me), so the dissent here was striking.    I’ll leave it to others to decide as to whether Judge Kaul is right (check out the ICC’s new YouTube channel for more discussion). He sure has me halfway convinced.  Some choice excerpts (emphasis added) after the jump.

Should the ICC Oppose Sudan’s Election?

by Julian Ku

Sudan is preparing for a national election next month. It may not be the solution for Sudan, given that it is still very doubtful that there is enough cohesiveness for a genuine democratic result.  Still, I wonder if the ICC’s Prosecutor may be going a little far here.

A day after Sudan president Omar al-Bashir threatened to cut the fingers off election observers, the International Criminal Court’s chief prosecutor, Luis Moreno-Ocampo, called Sudan’s upcoming vote “a Hitler election.”

Mr. Moreno-Ocampo, who seeks to prosecute Mr. Bashir for crimes committed in Sudan’s troubled Darfur region during a war that killed at least 1.9 million people, today said election observers face “a big challenge” in Sudan.

“It’s like monitoring a Hitler election,” he said at a press conference in Brussels, according to Agence France-Presse.

What exactly is the proper international policy toward Sudan? The ICC arrest warrant locks everyone into a confrontational position, but since there will be no arrest of Bashir anytime soon, all of Sudan will have to lurch along without any political resolution for the foreseeable future.  The U.N. is going to monitor the election. Should they even bother?

The Elephant in the ICC’s Case Against Bashir: Head of State Immunity

by Julian Ku

Dapo Akande, who seems to know more about head of state immunity than anyone else, has an interesting post on the recent ICC Appeals Chamber non-decision decision in the case against Sudan’s President Bashir.  He points out that the Appeals Chamber failed to even mention the question of head of state immunity, which is important in this case because as a non-party to the ICC, Sudan has a pretty good argument that Bashir still has head of state immunity. It is at least a non-trivial argument which would undermine every other issue in the case against Bashir, if resolved in Bashir’s favor.  How could it not be addressed?  And when will it ever be addressed? I suppose if Sudan or Bashir ever show up to defend themselves.  It would be embarrassing if, after all of this, the ICC managed to arrest Bashir only to have its Appeals Chamber decide that he had immunity after all.

The Standard for Determining Intent to Commit Genocide

by Julian Ku

As Kevin notes, the ICC Appeals Chamber has overruled the Pre-Trial Chamber on the question of whether Sudan’s President Bashir can be charged with genocide.  In a very useful note, Chile Eboe-Osuji points out here that the Appeals Chamber did not in fact provide the Pre-Trial Chamber with guidance on what standard it should adopt to determine whether there was sufficient evidence of the “intent” to commit genocide to issue an arrest warrant.  As he puts it,

Curiously, though, the Appeals Chamber declined to give guidance to the Pre-Trial Chamber as to the correct applicable standard for the issuance of a warrant of arrest. Rather, the Appeals Chamber left it up to the Pre-Trial Chamber to devise the correct standard, as they reconsidered the case. This is not very helpful.

Read the whole post to see his best guess as to what the standard will be.  I would be curious to see if folks have different views than his.

The Obama Strategy on Sudan: How to Downplay the ICC

by Julian Ku

Looking at the long-awaited new Obama Sudan Strategy, there is much to admire.  It is sensible, forward-looking, and realistic.  It also appears to be pretty much the same policy President Bush pursued, which then Obama campaign adviser Susan Rice (and current UN Ambassador) trashed back in 2008.  For instance, it emphasizes ending the violence and war through a peace agreement, and barely mentions the elephant in the room.  How do you make a peace deal with a government headed by an individual wanted for war crimes and crimes against humanity?

EU Promises to Enforce ICC Arrest Warrants

by Kevin Jon Heller

I noted a few days ago that the Security Council is unlikely to pass a resolution deferring the Prosecutor’s investigation of Bashir, given the number of non-permanent and permanent members of the Council who are supporters of the ICC.  I think that position is even more sound in light of the European Union’s promise today — on the 10th anniversary of the signing of the Rome Statute, obviously not a coincidence — to enforce all arrest warrants issued by the Court:

The European Union (EU) has vowed to ensure swift enforcement of all arrest warrants issued by the International Criminal Court (ICC) and called on non-signatories of the Rome Convention to urgently sign into the treaty, PANA reports.

In a statement marking the 10th anniversary of the Rome Statute of the International Criminal Court, the EU stated that the rest of the world was under obligation to bring to an end, impunity "for the most serious crimes which shock the conscience of humanity".

"ICC is a key tool, both in combating impunity when the most serious crimes, striking at the very essence of humanity are committed and in preventing the use of violence," said EU Presidency in the statement issued Thursday.

[snip]

"The EU undertakes to do everything in its power to support the court and help ensure that all arrest warrants are swiftly enforced," the EU President, currently held by France, said in the 10-point statement.

The fact that the President of the EU is French is particularly significant, of course, given that France has a veto at the Security Council…