Can the U.S. Legally Deny a Visa to Sudan’s President Bashir? Nope.

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.