A colossal embarrassment was avoided when Sudanese President Omar Al-Bashir, wanted by the International Criminal Court on charges of genocide, apparently changed his mind about coming to the United States to address the United Nations.
But what is to be done to avoid future similar situations that call into question the commitments of the United States and UN to human rights, genocide prevention, and international justice and accountability?
First, the UN General Assembly and/or the UN Secretary General could act to wave the U.S. obligation to facilitate Bashir’s travel to UN Headquarters. As argued by law professor John Cerone on Opinio Juris “The General Assembly could authorize the Secretary General to waive the US obligation by a majority vote of those member States present and voting.” Given the 122 countries that are party to the ICC Statute and the number of delegations likely to have walked out on Bashir, this does not seem such an unachievable number.
Second, the UN Security Council could strengthen and expand the resolution referring the case of Darfur to the ICC. Under the original referral, UNSC Resolution 1593, the Security Council “urges” UN member states to cooperate fully. Ahead of Bashir’s visit, the Second Chamber of the ICC “invite[d]” the United States to arrest Bashir and turn him over to the ICC. Upgrading the language from “urges” to “requires” and expanding the mandate of the ICC to all of Sudan, so that it covers areas like South Kordofan and Blue Nile continuing to face assaults on civilians, would give the UN and the United States stronger grounds for denying entry to Bashir in the future. As argued by others on the Opinio Juris blog, the Security Council, through recommendation of the Sudan Sanctions committee, could also add Bashir’s name to the list of individuals who states are obligated to deny transit to under UNSC Resolution 1591.
On the subject of the ICC, the United States, a signatory of the ICC, could give itself stronger grounds by moving to the next step and officially becoming a member. As Bashir himself told reporters:
“Those people [US government] we put them in a corner….We [can] go to the US and no one can do anything to us because there is no law in America that affords US authorities the right to take any action against me because it is not a member of the Rome Statute. “
While the UN Security Council referral provides some unprecedented grounds for the United States denying Bashir a visa, becoming a direct member of the ICC would make for a much stronger argument.
Of these options, UN General Assembly action seems the most promising. The UN Security Council, as evidenced by Syria, is almost hopelessly split, with Russia and China continuing to protect Bashir. ICC ratification remains a highly controversial topic in a U.S. Congress that is just as if not more divided than the UN Security Council. Legally, experts seem to agree that the UN Headquarters Agreement would trump any other international obligations with the possible exception of the UN General Assembly transit waiver mentioned above.
But the close debacle of Bashir’s visit challenging the basic foundations of the UN to protect peace and human rights is all the more reason to unleash debate and action to reform the existing legal basis. Further, progress and discussion of any of these options can serve to add to the diplomatic pressure and isolation that has helped keep Bashir away. In addition to growing protests within Khartoum, the uncertainty created by advocacy groups and the absence of a clear answer on the visa question by the United States as well as the prospect of standing before a half empty hall no doubt also played a significant role in his decision. To avoid future embarrassment the United States should lead stepped up diplomatic efforts to isolate Bashir and bring him to justice.
A final way to get at the ongoing conundrum of a sitting head of state charged with genocide is for the United States to assist civil society and peaceful political opposition within Sudan. The protests and crackdown in Khartoum in recent days are the bloodiest seen in years and add to a growing discontentment with the exploitation and war-mongering of Bashir’s regime. The alienation of many Sudanese across the country by Bashir’s government lies at the heart of the fighting and atrocities committed in Sudan over the past decades. Supporting democratic governance and the voice of the oppressed in Sudan can go a long way toward further isolating Bashir and dissuading him from grandstanding on the international stage.
On the international level member states of the UN General Assembly should be pushed to take action to provide grounds for preventing any future Bashir visits or those by any leader wanted on charges of genocide.
Within the United States steps should be taken to increase diplomatic pressure on other countries toward greater isolation of Bashir and efforts to deliver him to the ICC. A comprehensive approach should be taken to the ongoing suffering in Sudan under Bashir including increased support for peaceful opposition. The latter suggestions are all provided for in the Sudan Peace, Security, and Accountability Act of 2013. The legislation already has 87 co-sponsors and the near miss with Bashir and the latest crackdowns in Sudan provide a stark reminder of why such action is needed.