In June of this year, Sudanese President Omar Hassan al-Bashir not-so-narrowly avoided arrest during his trip to South Africa for the African Union Summit. With the help of government officials - including President Jacob Zuma - President Bashir’s plane took off just as the South African court handed down its ruling that the country must live up to its commitment to the International Criminal Court (I.C.C.) and arrest the wanted war criminal.
Wanted by the I.C.C. on charges of war crimes, genocide and crimes against humanity, Bashir has been flouting international law for years. With his continued travel - particularly the trip to South Africa - he has boldly told the world he does not recognize the authority of the Court, nor the laws it is tasked with upholding.
Talk of his arrest has been amplified recently, as in early August Sudan’s Deputy United Nations Envoy announced Bashir’s plans to attend the U.N. Sustainable Development Summit this month in New York. The Sudanese government itself denies such travel plans, including in a statement last week by a Senior Sudanese Diplomat to the Sudan Tribune which specified that their foreign minister, Ibrahim Ghandour, would be leading the delegation.
Whether Bashir follows through with this trip, real questions have arisen as to how the international community ought to respond when a wanted war criminal wants to attend a U.N. summit. In this situation, the U.N. placed responsibility on the United States, which has thus far made no official statement on the situation. What would happen should Bashir actually travel to New York is all still up in the air.
William R. Pace, Convenor of the Coalition for the International Criminal Court (CICC), whom I spoke with recently, underscores just how absurd it would be to allow Bashir to speak before the U.N. Bringing this situation into context, he suggests, “if we take the extreme cases, would anyone be surprised how unacceptable it would be to have a Hitler or a Pol Pot be allowed to come to a UN meeting because they are the head of a state or head of a government?”
Yes, Bashir is that extreme. He has committed, and is continuing to commit, egregious crimes against his own citizens - from Darfur in the west to the Blue Nile in the east. According the Global Centre for R2P, just in the last four years, 1.2 million people have been internally displaced in the South Kordofan and Blue Nile Regions alone, with hundreds of thousands more fleeing to the equally unstable South Sudan. There is also continued violence in the Darfur region, with a death toll Sudan researcher Eric Reeves says is nearing 500,000. These are deaths either directly caused by Bashir’s military and the Janjaweed (a government-backed militia responsible for horrific atrocities in the Darfur region), or indirectly by forced starvation and lack of access to medicine. “I don’t think any fair expert in the world doesn’t argue that what is still going on in the Sudan, in terms of the crimes against populations in Sudan, [is] horrific and unacceptable,” says Pace.
The Question of Jurisdiction
The question of jurisdiction here is surprisingly not as centered on the I.C.C. as one might believe. To be exact, the jurisdicion over Bashir's arrest is based not on the governing documents of the Court, but on the U.N. Charter. The case against Omar al-Bashir was originally referred to the I.C.C. through Security Council Resolution 1593, issued in 2005. This referral was established under Chapter VII of the U.N. Charter, and made the point to encourage all states - even those not party to the Rome Statute - to cooperate with the I.C.C. Thus, the responsibility to arrest Bashir is not a matter of being a member of the Court, but being a member of the U.N. itself.
Hennie Strydom, Professor of International Law at University of Johannesburg, explains further that the, “duty to co-operate with the court and the prosecutor to bring al-Bashir to justice...may well remain an obligation under Article 25 of the U.N. Charter and may override considerations of immunity.” In referencing Article 25, Strydom is underscoring that all member states are bound to uphold the Charter and the the decisions of the Security Council.
With this understanding of jurisdiction in this case - placing the responsibility on all U.N. members, not just those party to the I.C.C. - a few options emerge as to how the international community might respond to a wanted war criminal traveling to the UN headquarters:
1. Issue Bashir a Visa and Let Him Attend the UN Summit
The easiest move for the U.S. government is to simply allow President Bashir’s visit and his movement within the city of New York. The 1946 Convention on the Privileges and Immunities of the United Nations, signed by the U.S. upon the establishment of U.N. headquarters in New York, allows for the free movement of state representatives to and from the U.N. Allowing Bashir to attend the summit would be a matter of the U.S. upholding this convention.
Though simple, this would obviously not be the choice of any in the genocide prevention community, or likely anyone who believes in justice. This would be a cowardly move on the part of the U.S. government, and one that might ultimately set back the cause of international justice. Furthermore, this would do little to improve international opinion of the U.S. when it comes to respect for international law.
2. Block Bashir’s Visit
There are basically two ways to outright block President Bashir’s trip: 1) regulating airspace and 2) refusing to issue him a visa. Discussions are ongoing about how states might use their airspace to limit the travel of wanted war criminals. This was a problem for Bashir during his attempt to travel to Indonesia this past spring. He was ultimately unable to make the trip due to multiple states - whose airspace he would need to fly through - denying his entry. This also became a problem for him as Saudia Arabia blocked his plane from their air space as he tried to travel to Iran last month. We have yet to see how the air space discussion ultimately plays out, but states that are willing do have the power to limit Bashir’s travel in this way. Should he enter their airspace, states could require the plane to land, thus opening the door to an arrest.
Refusing to issue Bashir a visa is another option, though arguably a bit more complicated legally than blocking air space. Going back to the 1946 Convention, the U.S. agreed to issue visas promptly to state representatives traveling to the U.N. headquarters. In not issuing Bashir a visa in 2013, the U.S. was technically in violation of this convention. With more attention on the situation this time around, this option would be more difficult to repeat. To block his visa this time around would be an overt declaration by the U.S. that war criminals such as Bashir are not welcome here.
3. Issue Him a Visa, and Then File Genocide Charges in the New York Court System
It has been suggested by some in the genocide prevention community that New York prosecutors ought to start thinking about how they can mount a case against President Bashir within the U.S. court sytem. Under the U.S. Code Chapter 50A, the court has the ability to charge someone who is on U.S. soil with the crime of genocide, regardless of where said crimes were committed. Thus, ostensibly once Bashir enters the country, charges could be filed and he could be tried right here in New York.
The potential for the success of such a move is questionable at best, but perhaps whether the court could successfully prosecute him is not the point. Maybe there is merit in the attempt itself. Even a failure here would be a move toward justice. South Africa's near miss in arresting Bashir still stands as a courageous charge against impunity, and one that ought to be lauded.
4. Issue Him a Visa and Then Facilitate an Extradition to a Country That is Party to the ICC.
While this move would involve bending a few rules, such as overlooking the aforementioned 1946 convention, there is the possibility that.
Among the countries with which the U.S. has solid extradition agreements is South Africa. In fact, rumor has it there were discussions in 2013 as to whether the U.S. might arrest Bashir upon his arrival and subsequently hand him over to South Africa. As Americans have become more supportive of the Court - having assisted in delivering Bosco Ntaganda to the Hague in 2013 - taking on a support role and coordinating with I.C.C. members to bring Bashir to justice becomes more plausible.
Moving Toward Justice
There is such a complicated balance between the immediate need of the people of Sudan to be free of such a violent leader, and the patience needed in the realm of international justice. Anyone who has been following the I.C.C. since its inception is keenly aware of just how long it takes to bring someone like Bashir to justice. There is always the desire for immediate action, yet.
There is hope though, as Pace notes, “Unlike those other tribunals, [the I.C.C.] is a permanent institution, a permanent treaty...that nearly two-thirds of the international community has ratified. And so, it may take another length of time, but I think the fact that it is there and Bashir is extremely limited in how and where he can go in this world is significant.”
So, where does this leave us? What can we hope for in this situation? The dream scenario, for myself at least, would be the arrest of Bashir. Ideally, on September 26 he would be on his way to a nice private cell at The Hague. I would hope there is real movement to make this a reality, whether states are successful or not.
In the meantime, this is an opportunity for states to begin making a plan for when this situation arises again. This is not the last time Bashir is going to threaten to travel to New York. Further, as the I.C.C. begins to gain more traction, he will likely not be the only wanted war criminal to attempt to attend U.N. meetings and summits.
Historically, matters of international concern have been left until the situation becomes too dire to ignore. Let's not do that this time. Let's continue to look at this situation as if Bashir is actually coming..
Sudan, Omar al-Bashir, International Law, ICC