Sudanese president's bid to come to UN puts US in awkward spot

NEW YORK -- Sudanese President Omar al-Bashir, wanted by the International Criminal Court (ICC) since 2009 on charges of orchestrating war crimes and genocide in Darfur, is hoping to pay a visit to the United Nations General Assembly this year, putting the U.S. in the awkward position of deciding whether to grant him diplomatic immunity for the visit.

Washington has granted access to world leaders it publicly disdains in previous years – including Mahmoud Ahmadinejad of Iran and Fidel Castro of Cuba. But if the U.S. grants Bashir a visa, it would be the first time a head of state declared a fugitive from the law by the ICC sets foot in the U.N.

While the U.N. is designated as international territory and U.S. law does not apply on its grounds, visiting leaders must transit through nearby airports, and in many cases – including Bashir’s – obtain visas ahead of time.

Any state signatory to the Rome Statute, the founding document of ICC, is obligated to arrest Bashir and turn him over to the court if he enters that country’s territory. Although the U.S. is not a member of the ICC, it still has the option of detaining Bashir upon his arrival because of the court's outstanding arrest warrant.

Washington has previously led calls for Bashir to face international justice, and has transferred ICC suspects to the court before. When Bosco Ntaganda, a Congolese rebel commander, handed himself in to the U.S. Embassy in the Rwandan capital Kigali in March, officials sent him to The Hague within days.

But in becoming the host country for the United Nations headquarters, Washington agreed not to put up obstacles to foreign dignitaries coming to the U.S. to attend the General Assembly.

It is unclear if Washington's hands are tied in terms of Bashir's proposed visit, but it is clear how the U.S. government feels about the possibility of him setting foot on its territory.

The new U.S. Ambassador to the United Nations, Samantha Power, said Monday that Bashir’s proposed trip would be “deplorable, cynical and hugely inappropriate,” after Washington confirmed that it had received Bashir’s visa application.

The Sudanese Foreign Ministry hit back Wednesday. “The president’s visit will be to the U.N. headquarters,” the Foreign Ministry said in a statement. “The hosting nation — the United States — does not have the legal right to object to the participation of any official from a full member state in the international organization in U.N. activities.”

The statement added that the “government of the United States is not qualified morally, politically or legally to give advice on respecting international humanitarian law and human rights.”  

On Thursday, U.S. State Department spokeswoman Marie Harf said that Washington is still considering Sudan’s request, and that Bashir's alleged perpetration of war crimes would be a factor in deciding whether or not he is granted a visa.

"There are a variety of considerations in play with respect to President Bashir’s visa request, including the outstanding warrant for his arrest," she said during a daily media briefing.

"We’re not going to sort through these considerations publicly. We’re going to continue to do so privately and deliberately," she said.

Brigitte Suhr, the director of regional programs at the Coalition for the ICC, an umbrella organization of non-government organizations that support international justice, said that the situation is “new territory” for the ICC.

“We have encouraged the U.N. and the U.S. to explore any legal possibilities for an exception to the diplomatic agreement,” she told Al Jazeera.

“It’s awkward, and if they can’t do anything, it’s an uncomfortable place for the U.S. government and I’m sure an uncomfortable place for the U.N. But do they have a legal ground to refuse his presence?”

The NGO the International Justice Project says U.N. Secretary-General Ban Ki-moon has the right to waive Bashir's diplomatic immunity, as well as the U.S.' visa obligations under its agreement with the U.N. The group told Al Jazeera that it sent a letter to Ban Friday calling on him to revoke Bashir's right to attend the General Assembly.

The U.N. did not immediately respond to a request for comment.

There is one precedent for such a move. Back in 1988, the administration of President Ronald Reagan refused Palestinian Liberation Organization leader Yasser Arafat a visa to enter the U.S. for a special General Assemby debate on Palestine on the grounds that Arafat supported acts of terrorism.

The General Assembly voted in protest to convene the three-day session in Geneva to give Arafat the right to speak. According to the New York Times, moving the session to Geneva cost the U.N. more than $470,000 – with the U.S. footing a quarter of the bill.

Suhr said that the conventions of the ICC – which was founded in 1998 – and the U.N. may come into line in the future.

“These are two parallel areas of law that haven’t quite evolved in exactly the same way and are currently inconsistent,” she said.

“As we go forward, I think we'll see in history that that will change. That if you are under arrest warrant by the ICC, you do not get to waltz in and out of the U.N.”

The ICC did not immediately respond to a request for comment.