1:25pm

Fri September 20, 2013
Parallels

Will The U.S. Grant A Visa To Sudan's Indicted Leader?

Originally published on Fri September 20, 2013 7:09 pm

As the host of the United Nations, the U.S. is supposed to let everyone come to the annual U.N. General Assembly, not just the people it likes.

But this year, the proposition is being put to the test. Sudan's president, Omar al-Bashir, was indicted three years ago by the International Criminal Court on genocide charges stemming from the mass killings in Sudan's western Darfur region.

Bashir has also applied for a visa to the U.N. meetings next week.

"Such a trip would be deplorable, cynical and hugely inappropriate," says Samantha Power, the U.S. ambassador to the U.N.

The State Department hasn't yet made a decision, and officials say they are considering many factors, including the outstanding warrant against him.

These are new legal waters, says Northwestern University's David Scheffer, a former U.S. ambassador at large for war crimes issues, who helped negotiate the treaty that set up the ICC.

"What some people might regard as odious characters certainly [have] appeared on the podium," Scheffer says. "But we have not had an indicted war criminal do so. That changes the game."

Diplomatic Immunity

World leaders are entitled to diplomatic immunities while at the U.N., but Scheffer says there are conflicting laws and treaty obligations to work through.

He thinks there are ways for U.N. Secretary General Ban Ki-moon to deny Bashir access or for the U.S. to arrest him.

One option is a U.N. Security Council resolution that requires Sudan to cooperate with the International Criminal Court.

"The mere fact that President al-Bashir is seeking to travel to New York, with or without a visa, is an act of noncooperation with the ICC because the only plane he should be getting on is one to the Hague," says Scheffer.

The U.N. secretary general is urging Bashir to surrender to the ICC in the Hague. And if he does show up in New York, U.N. member states and employees are being told to limit their contacts with him.

Briggite Suhr, who is with the Coalition for the International Criminal Court, an advocacy group, says that could be embarrassing for the Sudanese leader.

"Other heads of state would avoid meeting with him. Other heads of state or high U.N. officials would avoid being seen shaking his hand, would avoid standing next to him on a podium," she says. "Perhaps if he were to speak to the U.N., he would be speaking to a largely empty room."

Scheffer says the U.S. and U.N. should make all of this clear to Bashir to dissuade him from coming, rather than, as some suggest, lure him to New York to arrest him.

"That would be a very, shall we say, devious strategy on the part of both the U.S. and U.N. and might backfire politically, particularly in Africa, if they were to do that," he says.

The ICC is already facing a lot of criticism from African countries that feel they are unfairly singled out. Kenya, for one, is threatening to pull out. Its new president, Uhuru Kenyatta, is accused by the court of orchestrating the deadly violence after the 2007 election, an allegation he denies.

Suhr, of the coalition for the ICC, says the Kenyan issue and, in a different way, Sudan, puts the ICC in an awkward spot.

"It's one of those uncomfortable realities of how [the ICC] is situated in the world. It doesn't control what happens at the U.N. in that way. It doesn't have its own police force," she says. "It understands the existence of diplomatic immunity at the U.N. and it understands that it kind of sits at that crossroads."

She's encouraging the U.S. and the U.N. to look into legal alternatives. Perhaps, she says, a country could arrest him in transit on his way to or from the U.N.

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Transcript

AUDIE CORNISH, HOST:

From NPR News, this is ALL THINGS CONSIDERED. I'm Audie Cornish. This weekend, world leaders will begin converging on New York for the annual U.N. General Assembly. It's a chance for them to take the world stage and speak their mind. The United States, as host, is supposed to let everyone come, like them or not. But this year, that proposition is being put to the test. As NPR's Michele Kelemen reports, the president of Sudan, who's been indicted by the International Criminal Court, has applied for a visa.

MICHELE KELEMEN, BYLINE: U.S. Ambassador to the U.N. Samantha Power had a few choice words for Omar al-Bashir's request to attend this year's General Assembly.

SAMANTHA POWER: Such a trip would be deplorable, cynical and hugely inappropriate.

KELEMEN: But the U.S., as host of the United Nations, has to consider his visa request. State Department officials say they're looking at many factors, including the outstanding warrant against him on genocide charges for the conflict in Darfur. These are new legal waters, says Northwestern University's David Scheffer, a former U.S. ambassador at large for war crimes, who helped negotiate the treaty that set up the ICC.

DAVID SCHEFFER: What some people might regard as odious characters certainly have appeared on the podium. But we have not had an indicted war criminal do so. That changes the game.

KELEMEN: World leaders are entitled to diplomatic immunities while at the U.N., but Scheffer says there are conflicting laws and treaty obligations to work through. And he thinks there are ways for the U.N. secretary general to deny Bashir access and immunity. One is a U.N. Security Council resolution that requires Sudan to cooperate with the International Criminal Court.

SCHEFFER: The mere fact that President al-Bashir is seeking to travel to New York is an act of noncooperation with the ICC because the only plane he should be getting on is one to the Hague.

KELEMEN: The U.N. secretary general is urging Bashir to surrender to the ICC in the Hague. But if Bashir does show up in New York, U.N. employees are being told to limit their contacts with him. Brigitte Suhr, who is with the Coalition for the International Criminal Court, says that could be embarrassing for the Sudanese leader.

BRIGITTE SUHR: Other heads of state, or high U.N. officials, would avoid being seen shaking his hand, being seen standing next to him on a podium. Perhaps if he were to speak at the U.N., he would be speaking to a largely empty room.

KELEMEN: Law professor Scheffer says the U.S. and the U.N. should make this clear to Bashir, to dissuade him from coming; rather than, as some suggest, lure him to New York, to arrest him.

SCHEFFER: That would be a very - shall we say devious strategy on the part of both the United States and the U.N., and might backfire politically - particularly in Africa - if they were to do that.

KELEMEN: The ICC is already facing a lot of criticism from countries in Africa. Kenya is threatening to pull out. Its new president is accused by the court of orchestrating the deadly violence after the 2007 elections, an allegation he denies. Suhr - of the Coalition for the ICC - says the Kenyan issue, and in a different way Sudan, puts the ICC in an awkward spot.

SUHR: It's one of those uncomfortable realities of how it's situated in the world. It doesn't control what happens at the U.N., in that way. It doesn't have its own police force.

KELEMEN: And the U.S. is not a party to the court. But activists with the Enough Project are encouraging the U.S. to take a look at its own laws. Akshaya Kumar says the Genocide Accountability Act could be used against Bashir.

AKSHAYA KUMAR: There are a number of tools in the litigator's toolbox that they could use, if they wanted to go down that route. And we think the U.S. government should strongly explore them. And we in the activist and international legal community are looking at what things we can do independently.

KELEMEN: Kumar says refugees from Darfur - and other war-torn areas of Sudan - now living in the U.S. could bring civil cases against Bashir as they seek justice and accountability.

Michele Kelemen, NPR News, Washington. Transcript provided by NPR, Copyright NPR.