Published: 24 July 2018 Author: Stefan Talmon
On 1 July 2018, Assadollah Assadi, an Iranian diplomat based at the Embassy of the Islamic Republic of Iran in Vienna, was arrested at a rest area on the A3 motorway in south-east Germany on a European arrest warrant issued by Belgian law enforcement authorities. The Belgian authorities sought the extradition of Assadi for his role in commissioning a Belgian-Iranian couple to carry out an explosive attack on an annual meeting of an Iranian opposition group in France on 30 June 2018. For that purpose, he was said to have handed the couple an explosive device with a total of 500 grams of the explosive TATP in Luxembourg City at the end of June 2018. On the day of the attack, Belgian security forces had arrested the couple en route to France and secured the device.
On 3 July 2018, the Austrian Federal Ministry for Foreign Affairs summoned the Iranian ambassador to Vienna and requested that Iran lift the immunity of Assadi within 48 hours. However, the Iranian Government did not accede to the request. On the contrary, on 4 July 2018, the Iranian Government summoned the French and Belgian ambassadors and Germany’s chargé d’affaires (in the absence of the German ambassador) to Tehran in protest at the arrest of the Iranian diplomat in Germany. In a press release the Iranian Foreign Ministry stated:
“In a meeting with the French ambassador and the German chargé d’affaires, Iranian Deputy Foreign Minister for Political Affairs Abbas Araqchi expressed Tehran’s strong protest over the detention of the Iranian diplomat. He underlined that diplomats have immunity under the Vienna Convention, calling for the immediate and unconditional release of the Iranian diplomat.
Araqchi dismissed the move as a scenario aimed at undermining Iran-Europe relations, saying the move was timed to coincide with Iranian President Hassan Rouhani’s trip to Europe and comes on [the] threshold of a foreign ministerial meeting between Iran and the P4+1 group of countries. He said the move aims to eclipse that meeting in line with the objectives of the US and the Israeli regime. […]
On the same note, the Belgian ambassador to Tehran was also summoned to the Foreign Ministry and received notice of Iran’s objection to calls that the diplomat in question be transferred from Germany to Belgium.
In the meeting, the French and Belgian ambassadors as well as the German chargé d’affaires stressed that they would immediately notify their respective governments of Iran’s objection.”
The objection, however, was not heeded. On 6 July 2018, the German Federal Prosecutor General of the Federal Court of Justice charged Assadi, inter alia, with spying and conspiracy to murder. In a statement the Federal Prosecutor General said:
“Since 2014, the accused Assadollah A. has been accredited as a Third Counsellor at the Iranian Embassy in Vienna. According to the findings, he was an employee of the Iranian Ministry of Intelligence ‘MOIS (Ministry of Intelligence and Security)’. The tasks of the ‘MOIS’ primarily include the intensive observation and fight against opposition groups inside and outside of Iran.
The accused was brought before the investigating judge of the Federal Court of Justice on 9 July 2018, who read the arrest warrant to the accused and ordered his pre-trial detention. The investigation and the warrant of the investigating judge of the Federal Court of Justice do not preclude the requested extradition of the accused to the Belgian law enforcement authorities.”
Germany and Iran are both parties to the 1961 Vienna Convention on Diplomatic Relations (VCDR). Assadi had been accredited as a Third Counsellor at the Iranian Embassy in Vienna since 23 June 2014. Diplomatic immunity, as a rule, applies only in the receiving State. There is no obligation on third States to accord immunity to foreign diplomats solely on the basis of their status as a diplomat or because they are carrying a diplomatic passport. In a case concerning the former Syrian Ambassador to the German Democratic Republic the German Federal Constitutional Court held:
“Diplomatic immunity applies only in the receiving State. Third States have not consented to the activities of diplomats who have no duties to fulfil there. Since earliest times there has been agreement on this principle in the literature, as well as on the questions it raises […]. This principle is confirmed through the exceptions regulated by Article 40 of the VCDR. Such special rules would not be necessary if diplomatic immunity applied erga omnes.
Diplomatic law as a self-contained regime, with its integrated possibilities of protection and reaction, is in principle not designed to cover the relations between diplomats and third States. […]
The principle of the non-erga omnes effect of diplomatic immunity is confirmed by judicial State practice, which does not guarantee immunity for diplomats in third States […].”
The Federal Constitutional Court, however, also referred to Article 40, paragraph 1, of the VCDR which, by way of exception, imposes an obligation on third States to accord inviolability and immunities to foreign diplomats in transit. Article 40, paragraph 1, reads in part:
“If a diplomatic agent passes through or is in the territory of a third State, which has granted him a passport visa if such visa was necessary, while proceeding to take up or to return to his post, or when returning to this own country, the third State shall accord him inviolability and such other immunities as may be required to ensure his transit or return.”
Any diplomat holding a Schengen visa does not require a special passport visa to enter or transit Germany.
The obligation of third States arises where a diplomat is en route to the receiving State or his home State, though it is not necessary that the diplomat is travelling directly between these two States. The wording of Article 40, paragraph 1, of the VCDR is wide enough to cover cases where the diplomat is proceeding to return to his post from a State other than his home State. Thus, the High Court of England and Wales held that:
“A foreign diplomat who is not accredited [to the United Kingdom] is immune from any criminal proceedings in England if he is returning from England to his post abroad, whether or not he is in England in transit between his own country and the country of his accreditation.”
The High Court also rejected the submission that Article 40 of the VCDR was not applicable in respect of visits to third States for personal reasons, stating that:
“there is nothing in the Article itself which entitles the court to take into consideration what the purpose of the diplomat’s presence is in this country, or in passing through this country. The question is whether they are passing through, or are here, and whether at the material time they are proceeding to take up or to return to their post, or are returning to their own country.”
If Assadi had passed through Germany, while proceeding from Luxembourg to return to his post in Austria, he would have been entitled to “inviolability and such other immunities as may be required to ensure his transit or return.” The fact that he was working for the Iranian Ministry of Intelligence and Security was immaterial for the question of him enjoying diplomatic immunity. Intelligence officers regularly work under the cover of diplomatic immunity. Similarly, the purpose of his journey was irrelevant for the application of Article 40 of the VCDR. Assadi could have been on holiday in Luxembourg, or he could have been delivering official papers or explosives there. Article 40, paragraph 1, of the VCDR stipulates only three conditions for its application: (1) the person in question must be duly accredited as a diplomatic agent in a receiving State; (2) he must pass through or be in the territory of a third State; that is to say, a State that is neither the sending nor the receiving State; and (3) he must – at the time of arrest – be proceeding to return to his post in the receiving State. Whether or not a diplomatic agent is proceeding to return to his post is a question of fact. Diplomatic agents vacationing in a third State or present there for personal reasons are not covered by Article 40, paragraph 1, of the VCDR. It was pointed out that regard should be given to normal routes of transit. However, much will depend on the circumstances of each case. Assadi was arrested at a rest area on the A3 motorway in south-east Germany. The A3 motorway is one of three motorways in Germany leading to Austria. There is thus a strong presumption that Assadi was on his way to return to his post.
Both Germany and Iran are parties to the Optional Protocol to the Vienna Convention on Diplomatic Relations, concerning the Compulsory Settlement of Disputes. Under Article I of the Optional Protocol Iran could unilaterally bring a violation of Article 40, paragraph 1, of the VCDR by Germany before the International Court of Justice.
The case could yet give rise to an interesting twist. On 3 July 2018, the spokesman of the Austrian Federal Ministry for Foreign Affairs declared that Assadi would be “deprived of his diplomatic status within 48 hours because of the existence of a European arrest warrant” against him. A receiving State cannot revoke the immunity of foreign diplomats under the Vienna Convention on Diplomatic Relations. Article 9 of the VCDR, however, allows the receiving State to declare a diplomat non grata with the ensuing consequence that the diplomat will lose his immunity. Article 9 provides:
“1. The receiving State may at any time and without having to explain its decision, notify the sending State that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable. In any such case, the sending State shall, as appropriate, either recall the person concerned or terminate his functions with the mission. A person may be declared non grata or not acceptable before arriving in the territory of the receiving State.
2. If the sending State refuses or fails within a reasonable period to carry out its obligations under paragraph 1 of the Article, the receiving State may refuse to recognize the person concerned as a member of the mission.”
Austria thus could at any time notify Iran that Assadi was persona non grata. As of 17 July 2018, Assadi was no longer listed by the Austrian Federal Ministry for Foreign Affairs in the “Directory of the Diplomatic Corps and other representations in Austria” as a member of the Iranian Embassy in Vienna. This raises the question of whether the termination of Assadi’s diplomatic status in Austria also ended Germany’s obligation under Article 40, paragraph 1, of the VCDR to accord him freedom from arrest. With Assadi no longer being recognized as a member of the Iranian mission there was no post for him to return to. The purpose of the privileges and immunities under the Vienna Convention on Diplomatic Relations “is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States.” As Assadi was no longer a member of the diplomatic staff of the Iranian mission in Vienna his detention could not impair the efficient performance of the functions of that mission. If Germany released Assadi for him to continue his transit to Austria he would probably be arrested there on the basis of the European arrest warrant issued by the Belgian authorities. Thus, Germany’s obligation under Article 40, paragraph 1, of the VCDR came to an end with the end of Assadi’s status as a member of the Iranian mission in Vienna.
This, however, does not alter the fact that Assadi’s initial arrest and detention violated Article 40 of the VCDR which entailed Germany’s international responsibility. A State responsible for an internationally wrongful act is, inter alia, under an obligation to make restitution, that is, to re-establish the situation which existed before the wrongful act was committed, provided and to the extent that restitution is not materially impossible. As Assadi is no longer a member of the diplomatic staff of the Iranian mission in Vienna, releasing him and letting him return to his post in Austria is no longer an option. This does not mean, however, that restitution is materially impossible. In a situation where a diplomatic agent wrongfully detained in a third State loses his status as a diplomat in the receiving State during the detention the diplomat must, by way of restitution, be allowed to return to his own country. This scenario is comparable to the situation where a diplomatic agent is declared non grata while en route to, but before arriving in the territory of the receiving State. The diplomat who learns about being declared persona non grata while in transit through a third State must enjoy in the third State inviolability and such other immunities as may be required to ensure his return to the sending State. Otherwise, such diplomats would be without any protection under the Vienna Convention. Iran could therefore request that Germany release Assadi and allow him to return to Iran. In light of Iranian diplomats frequently transiting through Germany Iran might also request appropriate assurances and guarantees of non-repetition and an expression of regret or a formal apology.