Published: 05 December 2019 Authors: Mary Lobo and Stefan Talmon DOI: 10.17176/20220127-111809-0
On 31 March 2019, the German ambassador to Rwanda returned to Germany prior to the expiry of his regular term after the Rwanda Government informed the German Federal Foreign Office that it would no longer work with him. In the media, it was reported that in a “private email” at the end of 2018 the ambassador had expressed criticism of the Rwandan President Paul Kagame which had led to diplomatic tensions between Germany and Rwanda. It was further reported that in the past the ambassador had held meetings with Rwandan opposition politicians and had voiced concerns about the human rights situation in Rwanda. Commenting on the matter, the Rwandan Minister of Foreign Affairs stated on 5 April 2019:
“We informed his government of the unacceptable behaviour of the ambassador, gave them evidence of this behaviour and requested them to take appropriate action. They decided to recall him before the end of his term.”
This was echoed by the Rwandan Minister of State in charge of the East African Community, who stated:
“[H]e was not expelled because of a private email that was intercepted. In fact, he was recalled by his own government because of a message which was not private, but rather sent to the German community in Rwanda, in which there were inappropriate remarks against the head of State.”
“He made inappropriate remarks about Rwanda and about our President. We wrote to Germany showing why we could no longer work with him and they decided to recall him. But our relationship with Germany remains strong.”
This incident raises two questions. First, whether an ambassador may criticize the government of the receiving State and, secondly, whether it makes any difference that this is made in a “private” email rather than an official embassy communication.
The extent to which an ambassador may make remarks critical of the government of the receiving State, or undertake actions which could be so interpreted, is limited by his functions, particularly those expressly spelled out in the Vienna Convention on Diplomatic Relations (VCDR). According to Article 3 VCDR, the functions of a diplomatic mission consist, inter alia, of promoting friendly relations between the sending State and the receiving State. Where a diplomat is accused of insulting the receiving State and its president, this function is unlikely to be well fulfilled.
Article 41(1) of the VCDR requires ambassadors “to respect the laws and regulations of the receiving State” and “not to interfere in the internal affairs of that State.” In Rwanda, it is illegal to insult or defame the President. Although the language used by the Rwandan Minister of State did not specifically allege that the German ambassador had flouted the law, it did suggest that his language was unacceptably critical of the President. It is therefore possible that the ambassador’s behaviour was treading very close to the line of defaming the Rwandan President in violation of the laws of the receiving State. Furthermore, the ambassador’s consistent concern for human rights and public interactions with opposition figures could be interpreted as potentially interfering with the internal affairs of Rwanda. States interpret Article 41(1) of the VCDR differently, and those that are particularly keen to avoid scrutiny are likely to more easily find interference with their internal issues.
The critical remarks were apparently made in a “private” email which the ambassador sent to the German community in Rwanda. However, there is no such thing as a “private” email of an ambassador, unless a message concerns purely personal or family matters. If a person sends an email in his capacity as an ambassador it is considered official correspondence whose content is attributable to the sending State. For that reason, an email sent by the German ambassador to the association of Germans living in Rwanda cannot be considered a private communication.
If Rwanda considered the German ambassador’s remarks offensive or a violation of its laws, or his behaviour interference in the internal affairs of the country, it could have declared him persona non grata at any time without having to explain that decision. Article 9 of the VCDR provides in the relevant part:
“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 […]. In any such case, the sending State shall, as appropriate, either recall the person concerned or terminate his functions with the mission.
2. If the sending State refuses or fails within a reasonable period to carry out its obligations under paragraph 1 of this article, the receiving State may refuse to recognize the person concerned as a member of the mission.”
Such a persona non grata declaration is usually accompanied by an order for the individual concerned to leave the country within a certain timeframe.
Article 9 of the VCDR is commonly employed following allegations of spying or other criminal activity that cannot be prosecuted because of diplomatic immunity, or as retaliation for actions taken by or in the sending State. For example, when on 9 November 2008 Colonel Rose Kabuye, the Rwandan chief of protocol at the President’s Office, was apprehended at Frankfurt airport in execution of a French arrest warrant for charges in connection with the Rwandan genocide, Rwanda angrily responded by recalling its ambassador from Berlin and declaring the German ambassador persona non grata, giving him 48 hours to leave the country. Two months later, however, the two countries issued a joint declaration stating that,
“Germany and Rwanda share a long history of friendly relations. In the mutual interest of both countries and their peoples, they want to look forward and have agreed to work together to iron out matters disagreed upon. Following this, and as a visible sign of their resolve, Germany and Rwanda have agreed to post to each other’s capitals new heads of their respective missions in the near future.”
New ambassadors were appointed in due course and relations returned to normal.
Whilst the declaration of an ambassador as persona non grata does not sever diplomatic relations between the States concerned, it does suggest a certain level of tension or even hostility. Where the receiving State is unhappy with the conduct of a foreign diplomat but does not want to strain relations with the sending State publicly, the receiving State may ask for the diplomat to be recalled. Such an informal procedure is just as effective as a formal persona non grata declaration. The purposes of diplomacy would not be well served by refusing to recall a diplomat who has become unacceptable to the receiving State. It would therefore be very rare for a sending State to deny an informal request for the recall of an ambassador.
While Germany played along with the Rwandan account of events, it was not happy with the situation. On 2 April 2019, the Rwandan ambassador to Germany was summoned to the Federal Foreign Office but no details of the meeting were provided. The Federal Foreign Office did not adopt the Rwandan terminology of the ambassador being “recalled” but spoke instead of the ambassador “returning” to Germany. A spokesperson for the Federal Foreign Office declared that the ambassador had “excellently represented the interests of Germany in Rwanda. His duties included speaking up for human rights, democracy and the rule of law.” A new German ambassador to Rwanda was appointed only at the end of the old one’s regular term of office.
The new German ambassador presented his credentials on 10 September 2019 “looking forward to good cooperation.” This suggests that both countries are keen to maintain a positive relationship even if this means limiting criticism of more controversial aspects of the Kagame Government in Rwanda.
Category: Diplomatic and consular relations
