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Should Omar al-Bashir Be Arrested?

Sudanese President Omar al-Bashir is a war criminal. That he is responsible for the deaths of hundreds of thousands in Darfur and elsewhere is disputed by few besides Turkish Prime Minister Recep Tayyip Erdoğan and blogger Juan Cole. Regardless, the International Criminal Court (ICC) has indicted Bashir and ordered his arrest.

Bashir will now put the White House’s embrace of the United Nations to the test. Sudan has announced that it is seeking a U.S. visa for Bashir to come to the United Nations General Assembly later this month. The question now arises: While it seems clear the United States should issue the visa as part of its role as host of the United Nations, many activists are also suggesting that Bashir should be arrested when he steps onto U.S. soil. The ICC has issued a statement “remind[ing] the United States of America of the two outstanding warrants of arrest against Omar Hassan Ahmad al-Bashir and the requests for arrest and surrender.”

What should the United States do?

I tend to agree with Julian Ku—law professor, prolific blogger on issues relating to sovereignty, and a college classmate—in his opinion expressed at Opiniojuris:

If the U.S. arrests Bashir, they are violating at least one, and maybe two, important international legal obligations.  And, as the ICC chamber makes clear, the U.S. has no legal obligation to detain Bashir.  So from a purely legal point of view, this is a no-brainer: the U.S. should grant Bashir a visa, and let him come and go unmolested. In this light, we seem to be back to the “illegal but legitimate” conversation that we were having over a possible U.S. strike into Syria.  Kevin’s post on that comparison makes a similar point. But here is a difficult question for international lawyers.  Arresting Bashir would plainly be illegal, but it would almost certainly be legitimate to most people, like Mia Farrow… Still, is legitimacy enough to act illegally?  And if it is, why wasn’t that standard good enough to justify a US strike into Syria?

Regardless, the Bashir visit should provide the plainest test to those in Obama’s constituency that place the ICC, responsibility to protect, and the sense of the United Nations above other considerations. Bashir should be treated like a pariah and U.S. officials should not make him feel welcome, but neither should they molest him. That might be unfortunate, but so long as the UN remains in New York, it is fact. That Obama’s ICC-embracing constituency will see that their emperor has no clothes is the only silver lining to the situation.



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