The biggest piece of news this morning, of course, will be the ICC’s announcement as to whether they will finally hand down an arrest warrant for Sudanese President Omar Al-Bashir. You can watch live at 7:45 AM EST at this link, courtesy of the Genocide Intervention Network. There’s plenty of useful background available, and Michelle at Stop Genocide has done a particularly good series summarizing the debate about whether the Darfur conflict constitutes genocide under international law.
Before the announcement, though, I want to quickly note a United States Supreme Court decision from yesterday which holds that there may be a duress exception to the rule that aliens who have engaged in persecution are ineligible for asylum in the United States. Justice Kennedy’s majority opinion essentially remands the matter to the Bureau of Immigration Affairs to determine whether federal law precluding asylum for anyone who “ordered, incited, assisted, or otherwise participated in” persecution admits of such an exception.
The Appellant in yesterday’s case, Daniel Negusie, was a prisoner who later became a prison guard during the conflict between Ethiopia and Eritrea. He concedes he kept prisoners from showering and getting fresh air, and sometimes forced them to stand outside in the sun, but argues that he sometimes allowed prisoners to bathe and was, regardless, forced to persecute the prisoners by his superiors.
While the Court’s decision does not carve out an exception for persecution committed under duress, it may be the precursor to doing so on a subsequent appeal if the Bureau does not. If so, the scope of the exception will be critical – as the linked article points out, lots of people get caught up in conflict and forced to participate in ways they never would have on their own. However, duress in these circumstances is an easy claim to make, and even in criminal law duress does not excuse certain kinds of conduct. Accordingly, the Court and the Bureau will have to carefully consider how to craft a duress exception that will let in those victims genuinely forced to participate in persecution against their will and still ensure that we don’t provide asylum to the guilty.
