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Sudan’s President Omar al-Bashir, shown here on Aug. 27, has applied for a visa to come to the annual United Nations General Assembly next week. However, the International Criminal Court has indicted Bashir on genocide charges and the U.S. has not yet said whether he will be allowed in the country.
Mohamed Nureldin Abdallah/Reuters/Landov
Sudan’s President Omar al-Bashir, shown here on Aug. 27, has applied for a visa to come to the annual United Nations General Assembly next week. However, the International Criminal Court has indicted Bashir on genocide charges and the U.S. has not yet said whether he will be allowed in the country.
Mohamed Nureldin Abdallah/Reuters/Landov
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,” says Scheffer. “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 non-cooperation 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. But 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 poltically, particularly in Africa, if they were to do that,” he says.
The ICC is already facing a lot of criticism from African countries who 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.
SAN FRANCISCO, Calif., (Aug. 20, 2013) — In court papers filed today (PDF), the United States Department of Justice requested that George W. Bush, Richard Cheney, Donald Rumsfeld, Colin Powell, Condoleezza Rice and Paul Wolfowitz be granted procedural immunity in a case alleging that they planned and waged the Iraq War in violation of international law.
Plaintiff Sundus Shaker Saleh, an Iraqi single mother and refugee now living in Jordan, filed a complaint in March 2013 in San Francisco federal court alleging that the planning and waging of the war constituted a “crime of aggression” against Iraq, a legal theory that was used by the Nuremberg Tribunal to convict Nazi war criminals after World War II.
“The DOJ claims that in planning and waging the Iraq War, ex-President Bush and key members of his Administration were acting within the legitimate scope of their employment and are thus immune from suit,” chief counsel Inder Comar of Comar Law said.
The “Westfall Act certification,” submitted pursuant to the Westfall Act of 1988, permits the Attorney General, at his or her discretion, to substitute the United States as the defendant and essentially grant absolute immunity to government employees for actions taken within the scope of their employment.
In her lawsuit, Saleh alleges that:
– Richard Cheney, Donald Rumsfeld and Paul Wolfowitz began planning the Iraq War in 1998 through their involvement with the “Project for the New American Century,” a Washington DC non-profit that advocated for the military overthrow of Saddam Hussein.
– Once they came to power, Saleh alleges that Cheney, Rumsfeld and Wolfowitz convinced other Bush officials to invade Iraq by using 9/11 as an excuse to mislead and scare the American public into supporting a war.
– Finally, she claims that the United States failed to obtain United Nations approval prior to the invasion, rendering the invasion illegal and an act of impermissible aggression.
“The good news is that while we were disappointed with the certification, we were prepared for it,” Comar stated. “We do not see how a Westfall Act certification is appropriate given that Ms. Saleh alleges that the conduct at issue began prior to these defendants even entering into office. I think the Nuremberg prosecutors, particularly American Chief Prosecutor Robert Jackson, would be surprised to learn that planning a war of aggression at a private non-profit, misleading a fearful public, and foregoing proper legal authorization somehow constitute lawful employment duties for the American president and his or her cabinet.”
The case is Saleh v. Bush (N.D. Cal. Mar. 13, 2013, No. C 13 1124 JST).
See the attached certification, publicly filed on ECF / PACER system.
For further information contact:
COMAR LAW
901 Mission Street, Suite 105
San Francisco, California 94103
http://warisacrime.org/content/obama-doj-asks-court-grant-immunity-george-w-bush-iraq-war
