Published: 14 May 2020 Author: Stefan Talmon
On 8 May 2020, the day which marked the 75th anniversary of Victory in Europe Day, the Maltese ambassador to Finland, Michael Zammit Tabona, posted the following statement on his private Facebook page:
“75 years ago we stopped Hitler. Who will stop Angela Merkel? She has fulfilled Hitler’s dream! To control Europe.”
The post was deleted the next day and the ambassador was forced to resign. On 10 May 2020, the Maltese Ministry for Foreign and European Affairs issued a press release which reads as follows:
“The Ministry for Foreign and European Affairs confirms the resignation of Mr Michael Zammit Tabona, who served as Malta’s Ambassador (non-resident) to Finland over the past six years.
While accepting his resignation with immediate effect, Minister Evarist Bartolo stressed that Mr Zammit Tabona’s comments on German Chancellor Angela Merkel was [sic] not representative of the friendship and mutual respect between Malta and Germany.
In this regard, Minister Bartolo reiterates the Maltese Government’s commitment to deepen the strong and longstanding bilateral relations between the two countries.”
The Maltese Foreign Affairs Minister said that an apology for the ambassador’s “insensitive” comment would be sent to the German embassy in Valletta.
This raises the question of whether Malta was required to give a formal apology in terms of international law. A formal apology is one of the modalities of satisfaction which may be given verbally or in writing by an appropriate official or even the head of State. Satisfaction is a form of reparation which the responsible State may have to provide in discharge of its obligation to make full reparation for the injury caused by an internationally wrongful act, if the injury cannot be made good by restitution or compensation. A formal apology by Malta would thus require an internationally wrongful act committed by that country against Germany. An internationally wrongful act of Malta would have required that the action of the ambassador constituted a breach of an international obligation of Malta and was attributable to Malta.
By comparing the German chancellor to Adolf Hitler, the Maltese ambassador might have committed an affront to the dignity of Germany. The dignity of States is one of the basic rights of States inherent in their legal personality. The German Federal Administrative Court held that “the inviolability of the dignity of […] States involved in relations governed by international law is the necessary essential institutional minimum requirement for the peaceful coexistence of States.” Traditional international law has ascribed certain legal consequences to the dignity of States, including the obligation that the government of a State, its organs and agents do not libel or slander a foreign head of State. It may be questioned whether the statement of the Maltese ambassador actually meets the strict legal requirements of libel and slander. Mere criticism of policy, expressions of moral indignation or even pejorative remarks about a foreign head of State will usually not amount to a violation of the dignity of a State. In any case, the statement concerned the German chancellor; that is, the head of government, not the head of State. It is, however, only the head of State who personifies the State in international law.
There is no indication that the ambassador was acting on the instructions of his government. This is irrelevant though, as the conduct of an ambassador, as an organ of the State, is generally considered an act of that State under international law. However, as the non-resident ambassador to Finland Mr. Zammit Tabona was clearly exceeding his functions and authority when comparing the German chancellor to Adolf Hitler in a Facebook post. Conduct of a State organ exceeding his authority is to be considered an act of the State only if the person was acting in his official capacity. Mr. Zammit Tabona was not acting in his capacity as ambassador but as a private individual when posting the statement on his private Facebook page. His comments, while embarrassing to Malta, could not be attributed to the country.
In the absence of a violation of international law attributable to Malta, there was thus no need for a formal apology in terms of international law. Any apology sent by the Maltese Minister for Foreign and European Affairs to the German embassy in Valletta must therefore be considered an act of political prudence.
Category: State responsibility