The Protection of Diplomatic Personnel

J. Craig Barker

• Publisher: Routledge
• Year: 2016
• eBook ISBN: 9781317018780
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Law Theory & Practice
• Index: Politics & International Relations

The recent emergence of many new states and the creation of a large number of international institutions have resulted in considerable growth in the number of persons having diplomatic status. However, an unfortunate side-effect of this growth has been a corresponding increase in the number of attacks on diplomatic personnel, as symbolic figures diplomats are targets for all types of political violence. This book provides an in-depth examination of the legal and non-legal regimes directed towards the protection of diplomatic personnel around the world. It examines the theoretical and practical justifications for the granting of special protection to such personnel and also particular recent developments in international law relating to the prevention of terrorism and the development of international criminal law, including the International Criminal Court.

1 The Nature of the Problem

DOI: 10.4324/9781315553825-1

The institution of diplomacy has always been regarded as of fundamental importance to the proper functioning of international relations. In spite of the overwhelming advances in technology, which have, in the last century, changed the whole landscape of international relations, states remain firm in their belief that the exchange of diplomatic representatives is critical to the methodology of inter-state relations. Similarly, international institutions rely heavily on the sending and receiving of representatives, many of whom benefit from diplomatic status. Indeed, the emergence of many new states and the creation of a large number of international institutions in the last fifty or sixty years has resulted in a considerable growth in the volume of diplomatic activity and, consequently, the number of persons endowed with diplomatic status.

While states may regard embassies and diplomatic personnel as essential, they are often regarded with suspicion and, on occasion, outright hostility by members of the public. It is rare for ordinary citizens in receiving states to encounter diplomats on a regular basis. The work of embassies is, more often than not, conducted behind closed doors, many of which are heavily guarded. Accordingly, what little knowledge a local population has of the work of embassies and their staff is coloured by media-led portrayals of opulence and abuse leading many to regard diplomats as being above the law. Nevertheless, diplomatic law has evolved over many centuries so as to provide for the inviolability of diplomatic personnel. Diplomatic law also places a special duty on receiving states to ensure that diplomatic personnel are protected against all forms of attack.

1.1 Inviolability and the Special Duty of Protection

Although conducted for many centuries on an ad hoc basis, the process of exchange of diplomatic representatives between states is now a permanent one with states routinely establishing permanent diplomatic missions on one another's territory. It has always been recognised that, in order for this process to be effective, there has to be some special status accorded to those individuals who undertake such exchanges. As will be explained in Chapter 3 of this book, the earliest civilisations recognised the sanctity of messengers and provided them with the privilege of personal inviolability, the right never to be infringed or dishonoured. Throughout the ensuing centuries, this right has been maintained and developed. As the infrastructures of permanent diplomatic relations in the form of permanent diplomatic missions were established, this inviolability came to be accorded to those infrastructures as well as to diplomatic agents personally. To this extent, it is true to say that diplomatic inviolability is the cornerstone of modern diplomatic privileges and immunities.

The Vienna Convention on Diplomatic Relations 1961,¹ which codified the law of diplomatic privileges and immunities, reflects this truism. Accordingly, Article 22 of the Convention, which deals with the premises of the mission, asserts in paragraph one that they shall be inviolable. Similarly, Article 29 of the Convention confirms the inviolability of the person of the diplomatic agent. The archives and documents of the mission,² its official correspondence³ and the private residence, private correspondence and property of the diplomatic agent⁴ are also declared by the terms of the Convention to be inviolable.

1 500 UNTS 95 (hereinafter, the VCDR). 2 VCDR, Article 24. 3 VCDR, Article 27(2). 4 VCDR, Article 30.

Insofar as the concept of inviolability is considered to be a right not to be interfered with, it is constituted as a negative obligation on the receiving state. Thus, with respect to the premises of the mission, it is specifically provided that: “The agents of the receiving state may not enter them, except with the consent of the head of the mission”. Similarly, in relation to the inviolability of the diplomatic agent, Article 29 further provides that: “He shall not be liable to any form of arrest or detention”. However, diplomatic law recognises a further, positive, obligation on receiving states in relation to the protection of the premises of the diplomatic mission and the person of the diplomatic agent. Thus Article 22(2) of the Convention imposes a “special” duty on the receiving state “to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity”.

In the same way, Article 29 of the Convention, having established the inviolability of the person of the diplomatic agent and his right not to be arrested or detained, continues in the following terms: “The receiving state shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity”.

The protection to be accorded to diplomatic missions and diplomatic agents is, accordingly, two-fold. First, there is an obligation on the state itself not to interfere with the mission premises or the person of the diplomatic agent. Secondly, there is an obligation placed on the receiving state to seek to ensure that no one else within its territory interferes with the mission premises or the person of the diplomatic agent.

In spite of these clearly stated rules of diplomatic law, a multiplicity of factors including, but not limited to, the continuation of the Cold War, the emergence of a number of revolutionary regimes and the development of international terrorism, have contributed to what has been referred to as “the new barbarism”.⁵ As will be illustrated in this chapter, one of the first victims of the new barbarism in international relations was international diplomacy and, more particularly, the persons called upon to conduct international diplomacy on the ground. Thus, while it may be unusual for diplomatic personnel to find themselves the victims of what might be described as ordinary criminal activity, it is undoubtedly the case that systematic and organised attacks against diplomats have been regular occurrences during the last thirty to forty years.

5 Frey and Frey (1999), The History of Diplomatic Immunity (Ohio State University Press, Columbus, Ohio) p. 479.

1.2 Attacks on Diplomatic Personnel 1961–1979

The first major attack on a diplomatic premises after the conclusion of the Vienna Convention on Diplomatic Relations 1961 was the 1965 attack on the US Embassy in Saigon, in which three Embassy employees were killed.⁶ However, it was in Latin America that the most serious threat against diplomatic personnel was beginning to develop. It was in that part of the world that a new revolutionary tactic of kidnapping diplomatic personnel began to emerge. According to one commentator, “guerrillas of all political ideologies, and Marxists in particular … realized that abducting diplomatic representatives can be a highly effective weapon in their war against usually superior military and police forces”.⁷

6 Loeffler (1998), The Architecture of Diplomacy: Building America's Embassies (Princeton Architectural Press, New York) pp. 239-240. 7 Stechel (1972), “Terrorist Kidnapping of Diplomatic Personnel” 5 Cornell International Law Journal 189, pp. 202-3.

The assassination of John Gordon Mein, United States Ambassador to Guatemala, on 28 August 1968 was the first such incident. Ambassador Mein was killed during a failed kidnapping attempt by a leftist guerrilla organisation, commonly believed to be the Rebel Armed Forces (FAR). The event took place in the context of a near civil conflict in Guatemala and was one of a number of attacks against leading figures in Guatemala City.

The apparent benefits of targeting diplomatic personnel in this way were quickly identified from the “successful” outcome of the kidnapping of another American Ambassador the following year. Charles Burke Elbrick, the American Ambassador to Brazil, was abducted on 3 September 1969 in Rio de Janeiro by members of the October 8^th Revolutionary Movement (MR-8), a Marxist revolutionary group.⁸ The US Administration put pressure on the Brazilian government to accede to the demands of the kidnappers. The Brazilian government bowed to US pressure and Ambassador Elbrick was released.⁹ However, the apparent success of the tactic of kidnapping diplomatic personnel led to several more such incidents, and Brazil was forced to continue to give in to the demands of the kidnappers. This resulted in 129 political prisoners being released in return for kidnapped diplomats in Brazil in 1979 and 1980.¹⁰

8 The event and four-day ordeal of Ambassador Elbrick was the subject of a book entitled O Que É Isso, Companheiro? (What's Up, Comrade?) by Fernando Gabeira, an undercover journalist who took part in the kidnapping. The book was itself adapted in the film Four Days in September (Dir Bruno Barreto, 1998). 9 See Sullivan (1995), “Embassies at Risk: Learning From Experience” in Sullivan (ed.), Embassies Under Siege (Brassey's, Washington and London), pp. 2-3. 10 Infra.

The kidnapping and murder of Count Karl von Spreti, the West German Ambassador to Guatemala, signalled a new approach to the problem of the kidnapping of diplomats. Von Spreti was abducted on 30 March 1970 and his body was recovered on 5 April of that year. A week before von Spreti's abduction, the Paraguayan Ambassador to Argentina had been abducted and subsequently released after the Argentinian government had refused to give in to the demands of the hostage takers. On this occasion, however, the hard line adopted by Guatemala in the face of a demand for the release of 25 prisoners and a $700,000 ransom resulted in the ambassador's death.¹¹ Apparently seeking to avoid the possibility of a right wing coup d’état, the Guatemalan government chose not to deal with the FAR, taking the decision to risk the life of von Spreti in order to secure vital national interests.¹² The response of the West German government was an immediate and forceful condemnation of the failure of Guatemala to face up to its responsibility under international law. In particular, the West German government condemned Guatemala's failure to provide for von Spreti's protection before the kidnapping and in respect of its failure subsequently to secure the release of von Spreti.¹³ West Germany then recalled its staff from its embassy in Guatemala and requested the removal of the Guatemalan Ambassador from Bonn.¹⁴

11 For details of this case see the BBC archive for 5 April 1970, available at http://news.bbc.co.uk/onthisday/hi/dates/stories/april/5/newsid_2522000/2522703.stm. 12 Ibid. 13 Przetacznik (1983), Protection of Officials of Foreign States According to International Law (Brill, New York), p. 42. 14 Ibid. See also Stechel, op cit, pp. 205-206.

The Organisation of American States (OAS) sought to respond directly to the problem of diplomatic kidnappings in the form of the OAS ...

Table of contents

• Cover
• Half-Title Page
• Dedication Page
• Title Page
• Copyright Page
• Table of Contents
• Table of Authorities
• Preface
• Chapter 1: The Nature of the Problem
• Chapter 2: The Scope of the Work
• Chapter 3: Historical and Theoretical Perspectives on the Protection of Diplomatic Personnel
• Chapter 4: The Law Providing for the Protection of Diplomatic Personnel
• Chapter 5: The Prevention and Punishment of Crimes Against Diplomatic Personnel
• Chapter 6: Protecting Diplomatic Personnel in an Age of Terror – The Necessity of a Multi-facteted Approach
• Chapter 7: Conclusions
• Annex 1
• Annex 2
• Annex 3
• Annex 4
• Bibliography
• Index