Let Bashir Come To New York

and then send him to the ICC in handcuffs

Posted by Mark Hackett on August 7th, 2015

According to the Sudanese government's U.N. deputy ambassador, Sudanese President Omar al-Bashir, who has been indicted by the International Criminal Court (ICC) on war crimes and genocide charges, is planning to travel to New York in September to speak at the United Nations.

A provisional U.N. agenda for a sustainable development summit lists Bashir as scheduled to speak on September 26. The goal of the summit is to formally adopt a plan for global sustainable development for the next 15 years. 

Despite the Sudanese government's ongoing attempts to strengthen Bashir's legitimacy as a leader, the world's highest ranking war criminal remains a fugitive from justice. On June 15, 2015 he was forced to flee from an African Union summit when a South African court ordered that he not be allowed to leave the country. His ability to travel abroad remains extremely limited as he fears arrest. 

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A Weird Place To Be

In the coming weeks and as more details emerge about Bashir's potential visit to the U.N., we can expect a slew of articles making legal and moral arguments for what the U.S. should do. Let's be clear, the U.S. sits in what can only be described as a weird legal position when it comes to this situation. As the host country of the U.N. headquarters, a non-member of the ICC, and with a number of national laws and treaties that conflict with each other, there is no clear guidance to what the U.S. should do.

In 1947, the U.N. and U.S. signed an agreement concerning the U.N. headquarters in New York City. This treaty covers a variety of important topics in how the U.S., as the "host country" of the U.N. headquarters, acts with regards to just about everything the U.N. does at it's headquarters. In Article IV of this agreement, it is clearly stated that no U.S. federal, state, or local authority can interfere with "representatives of Members or officials of the United Nations" and their transit on American territory to the U.N. Previous arguments have been made that, due to this treaty, the U.S. cannot arrest Bashir if he comes to the U.S. for U.N. business. 

The United States is also not a member of the ICC, a court created by the United Nations to prosecute the most serious human rights abuses in the world when state judicial systems are unable to do so. States that are party to the ICC are legally obligated to arrest individuals indicted by the ICC if such a person enters their territory. Since the U.S. is not a member of the ICC, past arguments have been made stating that the US has no legal obligation to arrest Bashir. 

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As far as national laws go, the United States does have several laws and government agencies that deal with issues just like this. While the United States may not be a member of the ICC, under existing federal law the U.S. government would be required to pursue the arrest of Bashir and could do so with three laws in mind: 18 USC § 1091 Genocide18 U.S.C. 2441, and 18 U.S.C. § 2339(a). Various units within U.S. government agencies would be responsible for pursuing his arrest should Bashir be on U.S. territory, including the Human Rights Violators and War Crimes Unit underneath the U.S. Immigration and Customs Enforcement department, elements of the Justice Department, and the FBI's Genocide and War Crimes Unit.

To put the issue simply, federal law requires that the appropriate government agencies take action should Bashir arrive on U.S. soil. The U.S. treaty with the U.N. though makes it clear that American authorities cannot interfere with UN member states and their representatives as they travel near and within the UN headquarters. Luckily, the answer to this dilemma is simpler than one might think.

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What Can The U.S. Do?

If Bashir actually does attend the U.N. summit in New York, the U.S. government has four primary options:

  1. Neither grant nor deny a visa for Bashir, thereby ensuring he doesn't get one and can't attend to the summit
  2. Grant a visa and allow Bashir to attend
  3. Deny the visa request so he cannot attend
  4. Grant a visa, arrest Bashir when his plane lands in New York, and send him to the ICC

There are of course many other scenarios that could play out, but these are the most likely based on the lack of international effort and interest to date in arresting Bashir. 

Last year when Bashir attempted to make a visit to the U.N., a paralyzed and uncoordinated State Department simply failed to do anything (option 1). A visa was not granted to Bashir so he did not attend, but it seems that this was not a purposeful decision. The Obama administration's ongoing lack of any coherent Sudan foreign policy gave no guidance to the State Department, who's spokeswoman in turn couldn't even answer a reporter's questions about Bashir's visa request. 

While doing nothing again is still an option, it is frankly an embarrassing and irresponsible one. Bashir's laundry list of crimes goes well beyond those the ICC indicted him on (genocide and war crimes). The Bashir regime's well-known ongoing support of over a dozen internationally-recognized terrorist organizations, many of which are the targets of U.S. sanctions and military action, makes him a direct security threat to both the U.S. and U.N. His support of rebel groups in South Sudan and elsewhere in central Africa, such as the LRA, have greatly hindered and harmed the U.N.'s ability to operate. Sudanese government forces and proxies underneath Bashir's command have also intimidated and killed U.N. personnel in Sudan.

While all of these crimes give U.S. authorities ample space to pursue Bashir's arrest, it would appear that none of them overcome the hurdle that is the UN Headquarters Agreement, mentioned above. Underneath this agreement, U.S. laws are supplanted for official representatives of U.N. member states who are on official visits to U.N. Headquarters. 

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What Should The U.S. Do?

On June 15, 2015, Bashir was whisked away to a South African military airport. A judge had recently ordered the South African government to prevent Bashir from leaving the country as a court continued to hear arguments about whether or not South Africa was legally obligated to arrest him. 

With half a day remaining in the African Union summit he was attending and as rumors swirled that the South African court hearing the case was about to issue an arrest warrant against Bashir, the South African government ensured that Bashir escaped through the Waterkloof Air Base outside of Pretoria. By the time his plane was halfway back to Sudan, the court openly called for his arrest. 

While Bashir's fleeing South Africa was a major blow to the ICC and victims of Sudanese government war crimes, it brought about several interesting developments. This is the closest Bashir has ever come to facing justice for his crimes and world leaders took notice. The U.N.'s very own Secretary General expressed deep concern that the ICC warrant was not executed by South Africa and stated that it should have been. The U.S. State Department, which has often stated that it does not wish to see regime change in Sudan, also called for the South African government to support international efforts in seeking justice for victims of Sudanese government war crimes. 

Both the U.N. Secretary General and the U.S. government are in a position to make statements such as these because the U.N. Security Council has already put it's stamp of approval on arresting Bashir. The primary debate around whether or not the the U.S. can legally arrest Bashir if he is on American soil en route to the U.N. has revolved around the U.N. headquarters agreement.

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But the U.N. Security Council already referred the situation in Darfur, Sudan to the ICC, which in turn issued the arrest warrants against Bashir and other Sudanese war criminals. The U.N. Security Council's decision to send the Darfur case to the ICC for investigation and action put Bashir's fate in the hands of the ICC. And on August 5, 2015 United Nations spokesperson Farhan Haq said the decision to arrest Bashir during his planned visit to New York next month falls in the hands of the U.S. government. He also made it clear that the U.N. Secretary General has repeatedly expressed support for the ICC and that UN member states must take all arrest warrants "seriously." 

U.S. law is clear that federal agencies can arrest known war criminals and extradite them to international tribunals and courts. The U.S. then does not have to be a member of the ICC to arrest Bashir on behalf of the ICC.

U.S. law and policy already allows the U.S. to cooperate with the ICC, so it would not be unreasonable, or even unusual, for the U.S. to turn over an ICC fugitive to the international court. In fact, the U.S. has already assisted the ICC in handing over a known war criminal to the court. Bosco Ntaganda, a rebel commander accused of massacring civilians in the Democratic Republic of Congo, surrendered to the American embassy in Rwanda in 2013. The U.S. government promptly turned him over to the ICC. 

So where does this leave the U.S. on what to do? The real issue here is one that is rarely discussed: timing. The ICC was established long after the UN Headquarters Agreement was signed, which explains the clashing of the agreement with international law and U.S. federal law.

In fact, the U.N. Headquarters Agreement may not even apply to Bashir. As a fugitive from justice and illegitimate government official (Bashir has never actually been legitimately elected and himself seized power in a coup), the argument can easily be made that he is not a true representative of Sudan, which is a U.N. member state. Additionally, with the U.N. Security Council referral of Darfur, Sudan to the ICC, the U.N. Secretary General on record of calling for Bashir's arrest elsewhere in the world, current U.S. policy and recent action concerning the ICC, and Bashir posing a clear, ongoing security threat to both the U.S. and U.N., it appears that the U.S. has plenty of political cover and legal authority to provide Bashir a visa and arrest him upon arrival in New York. And that's exactly what the U.S. government should do.

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Will There Be Any Fallout If The U.S. Arrests Bashir?

Absolutely. Here's three things we should expect if Bashir is arrested:

Retaliation Against The Sudanese People. Bashir's abysmal failures as a leader have often times translated into massive military campaigns against unarmed civilians in the periphery regions of the country. He has also kicked international aid groups out of Sudan due to the ICC arrest warrants against him. Should Bashir be arrested, it is likely that the hardliners in the Sudanese government will only double down on these tactics. 

While U.S. sanctions against Sudan have severely weakened the government's ability to kill and pillage on an even larger scale, just about every other element of U.S. foreign policy towards Sudan remains ineffective. The Sudan peace process has been dead for years, largely due to the Sudanese government's desire for continued conflict. To minimize retaliation against the Sudanese people, the U.S. should once again lead the international community and regional partners in pursuing real protection and democratic reform in Sudan. The back seat approach of the Obama administration when it comes to Sudan is clearly not working. The U.S. is long overdue for a change in policy and approach. 

Retaliation Against U.S. & U.N. Personnel in Sudan. Just as the Sudanese government would likely retaliate against marginalized peoples in Sudan, Sudanese officials are just as likely to retaliate against U.S. and U.N. personnel in Sudan. The Sudanese government has already proven through action that it approves and supports attacks against international embassies and U.N. personnel, so it is possible that the arrest of Bashir would trigger further attacks. It is likely that the U.S. embassy in Khartoum and U.S. citizens in Sudan would need to be evacuated, while the U.N., particularly it's outgunned peacekeeping force in Darfur, would come under more hostile actions from the Sudanese government. 

Outcry From Some States & UN Officials. While Sudan's number of true allies in the world is slim, there remains a sizable block of states and UN officials that would prefer Bashir not be arrested for a variety of reasons that range from their own interests to ensuring that the U.N. Headquarters agreement remains the highest ranking authority out of the slew of contradictory laws and norms the U.S. faces. It is expected that most of the outcry would come from African Union states since that organization is actively campaigning against the ICC.

The U.S. should remain clear in it's reasoning for arresting Bashir: he and his fellow war criminals are a major threat to global security and the U.N. Security Council and Secretary General have already laid the groundwork for his arrest via the ICC referral and the Secretary General's expressed support for justice. This is something the U.S. has to do for the good of everyone, including countries who have suffered from the Sudanese government's long-reach via terrorism and support for ongoing conflict in South Sudan, Central African Republic, Libya, and elsewhere.

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These Risks Are Worth It

Let's be clear: these aren't small risks. By arresting Bashir, the U.S. government may be placing the lives of a lot of people in danger. Sadly, the lives of all the people who could be affected by this are already in immense danger. Sudanese government attacks against civilians in the periphery regions of the country, where support for Bashir's arrest is highest, continue to escalate at a truly alarming rate. Governments around the world still have travel alerts out on Sudan because foreigners face immense dangers while in the country. Serving for the U.N. in Sudan only gets more dangerous with each year that passes. And the terrorist groups the Sudanese government supports continue to spread across north Africa and into the Middle East.

As a genocidal dictator and key supporter of international terrorism, Bashir is not a legitimate representative of the Sudanese people. He has never been legitimately elected and remains a fugitive on the run, not just from the ICC, but also from so many Sudanese people who have struggled to survive in Darfur, South Kordofan, and Blue Nile. The U.S. should provide him with a travel visa to the U.S., promptly arrest him when he arrives, and send him straight to the ICC. Millions of Sudanese and thousands of people around the globe have died over the past 25 years due to Bashir's actions. How many more must die before he his stopped by being brought to justice?

Tags: Sudan, Bashir, United Nations

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