New York Times, The Opinion Page
The fugitive president of Sudan, Omar Hassan al-Bashir, plans to attend a United Nations gathering later this month in New York City on the future of global development. To travel here, he needs a visa. His application for a visa gives President Obama an opportunity to take a landmark stance in the slow evolution of international efforts to prevent genocide.
A century ago, when more than one million Armenians were exterminated, the word “genocide” did not exist. Killing millions of people was a domestic affair in which no foreign country could intervene.
Only after the Holocaust did this state of affairs change. In 1948, the United Nations General Assembly adopted a genocide convention, which rejected the idea that “rulers” are immune from accountability for killing their people, and envisioned an “international penal tribunal” to try them. It took until 1988 for the United States to ratify the convention.
Ten years after that, in 1998, 120 countries voted to establish the permanent International Criminal Court to prosecute war crimes, crimes against humanity and genocide. The United States has not signed on. Nonetheless, in 2005, President George W. Bush accepted a United Nations Security Council resolution that referred the Darfur case to the I.C.C.
In 2008, as the I.C.C. chief prosecutor, I requested arrest warrants against Mr. Bashir for genocide. Mr. Bush pushed for the deployment of peacekeepers to Darfur and for humanitarian assistance. I.C.C. judges issued arrest warrants in 2009 against Mr. Bashir for crimes against humanity and war crimes and in 2010 for genocide. The challenge now is to arrest him.
Sadly, Mr. Bashir’s ability to commit atrocities in full sight of the international community has kept ahead of humanity’s ability to protect genocide victims. Rape and hunger are his new silent weapons, replacing open attacks on villages. To avoid the international spotlight, the Sudanese government expels aid workers and denies access to refugee camps. Mr. Bashir has tried to shift attention from his criminal actions by making the argument that the I.C.C. is biased against Africans.
Who will arrest Mr. Bashir? While he is in power, Sudanese forces certainly will not arrest him, and the Security Council did not authorize the use of force to execute the arrest warrant. The only remaining option is to arrest him when he is visiting foreign countries.
Mr. Bashir tried to visit South Africa in 2009 and 2010, but was informed that he would be arrested if he did. Earlier this year, the South African government relented, offering him immunity so he could attend an African Union meeting in Johannesburg. However, a South African judge ordered his arrest; Mr. Bashir managed to get away as the court proceedings were underway.
In 2013, Sudan’s government requested a United States visa in his name, to attend the annual General Assembly meetings in New York. The American ambassador to the United Nations, Samantha Power, said “it would be more appropriate” for Mr. Bashir to travel to The Hague, where the I.C.C. is based, than to New York.
Sudan ultimately called off the trip. And the Obama administration hasn’t given any indication as to what it will do this time. Under the convention that designated New York as the headquarters of the United Nations, the United States is supposed to grant visas to leaders traveling to United Nations events, with a very limited exception for national security.
In effect, Mr. Bashir is betting that support from some African leaders, the intelligence his government can provide about terrorist organizations in East Africa, and America’s need to manage Sudan’s ongoing conflict with South Sudan, will make the United States look away.
Contrary to conventional wisdom, the United States doesn’t have to let Mr. Bashir in. If it does, it should arrest him when he arrives. Under the Nuremberg Charter, the genocide convention and the I.C.C. statute, there is no immunity for heads of state who face charges before international tribunals.
Furthermore, a federal law, the American Service Members Protection Act, authorizes federal support of international efforts “to bring to justice” foreigners accused of atrocities. Under that law, a Rwandan warlord, Bosco Ntaganda, was surrendered to the I.C.C. in 2013.
Mr. Obama has a political choice. The United States should grant Mr. Bashir his visa, and then, upon his arrival, arrest and surrender him to the I.C.C., where he could present any legal arguments he wishes about innocence, immunity or alleged prosecutorial bias. This would represent an important stand. The United States should do everything it can to isolate Mr. Bashir and express its solidarity with the people of Darfur and its commitment to prevent and punish genocide.