Persona non grata declarations as general act of retorsion

Published: 11 December 2020 Author: Stefan Talmon

Shortly before noon on 23 August 2019, Zelimkhan K., also known as Tornike K., a Georgian citizen of Chechen ethnicity who had fled to Germany, was shot dead in an execution-style killing in Berlin’s central park, Kleiner Tiergarten. The victim had fought alongside Chechen rebels against Russian troops in the Second Chechen War from 1999 to 2009. The Russian Government had designated him a terrorist and issued a warrant for his arrest. The suspected killer, a Russian national, was arrested immediately after the crime and taken into custody. From the outset there was suspicion of Russian State involvement in the insidious murder.

On 4 December 2019, the Federal Prosecutor General took over the investigation because of a presumed political background of the crime. In a press release, the Federal Prosecutor General’s Office stated:

“There are sufficient factual grounds to suggest that the killing of Tornike K. was carried out either on orders of State authorities of the Russian Federation or of those of the Autonomous Chechen Republic as part of the Russian Federation.”

Under section 120 of the German Courts Constitution Act, the Federal Prosecutor General takes over murder investigations in cases of special importance, “if under the circumstances of the offence is capable of destroying, invalidating or undermining a constitutional principle of the Federal Republic of Germany”.

This step by the Federal Prosecutor General triggered the Federal Foreign Office on the same day to call in the Russian Ambassador to Berlin and to inform him that two members of the diplomatic staff of the mission, who were suspected of working for the Russian Military Intelligence Service, were declared persona non grata and given seven days to leave Germany. Later in the day, a Federal Foreign Office spokesperson issued the following statement:

“In accordance with Article 9 of the Vienna Convention on Diplomatic Relations [VCDR] of 18 April 1961, the Federal Foreign Office has declared two members of staff at the Russian Embassy in Berlin to be personae non gratae with immediate effect.

With this step, the Federal Government is responding to the fact that, despite repeated high-level and urgent demands, the Russian authorities have not cooperated sufficiently in the investigations into the murder of Tornike K. at the Tiergarten in Berlin on 23 August 2019.

This expectation was last conveyed to Ambassador Nechajev by State Secretary Michaelis in talks at the Federal Foreign Office on 20 November 2019. In spite of this, the Russian side has, as in the previous months, treated the Federal Government’s calls to support the investigation in a dilatory fashion.

In the Federal Government’s view, credible and immediate cooperation on the part of the Russian authorities remains necessary. This is required all the more urgently given the fact that the Federal Public Prosecutor General has taken over the investigations in this case as there are sufficient grounds to believe that the killing was carried out either on behalf of state authorities of the Russian Federation or of those of the autonomous Chechen Republic as part of the Russian Federation.

The Federal Government reserves the right to take further steps in this matter as the investigations proceed.”

The Russian Ministry of Foreign Affairs denied any Russian Government involvement in the murder and denounced what it called a “politicized approach” to the murder investigation. On the same day, the spokesperson for the Russian Foreign Ministry declared: “We view the German claims regarding the expulsion of two employees of the Russian Embassy in Berlin to be groundless and unfriendly. We will be forced to implement a set of measures in response.” The measures in response to the German action took some time. On 12 December 2019, the Russian Ministry of Foreign Affairs published the following press release on the Foreign Ministry summoning the German Ambassador:

“On December 12, Ambassador of the Federal Republic of Germany to Russia Geza Andreas von Geyr was summoned to the Russian Foreign Ministry to face a resolute protest over the ungrounded decision adopted by the German Government on December 4, 2019, to declare two employees of the Russian Embassy in Berlin personae non gratae.

In this connection, guided by the principle of reciprocity and Article 9 of the Vienna Convention on Diplomatic Relations of 1961, the Russian side has decided to declare two employees of the German Embassy in Russia personae non gratae as a response measure. They are ordered to leave this country within seven days. A note to this effect has been presented to the German Ambassador.”

This, in turn, led the German Federal Foreign Office to issue a statement in response to Russia’s announcement, which reads in part:

“The German Government has noted with regret the decision by the Russian Government to declare two members of staff of the German Embassy in Moscow personae non gratae. This sends the wrong signal and is unwarranted. […].”

The case is of interest for Germany’s use of personae non gratae declarations as a general act of retorsion, rather than one limited to the field of diplomatic relations. An act of retorsion is defined as an unfriendly, but lawful act taken in response to another State’s unfriendly or illegal act. Acts of retorsion are usually used to express displeasure at another State’s behaviour, exert pressure, or induce the other State to end unlawful or unfriendly conduct. Declaring a member of the diplomatic staff of a mission persona non grata is the classic example of an act of retorsion. According to Article 9 (1) VCDR, the receiving State may at any time declare that the head of mission or any member of the diplomatic staff of a mission is persona non grata without having to explain its decision.

According to the International Court of Justice (ICJ), persona non grata declarations are a “means of defence against, and sanction for, illicit activities by members of diplomatic […] missions”. They provide a remedy “when members of an embassy staff, under the cover of diplomatic privileges and immunities, engage in such abuses of their functions as espionage or interference in the internal affairs of the receiving State.” In addition, such declarations are issued if diplomatic agents are suspected of supporting terrorist or subversive activities in the receiving State or have broken the receiving State’s laws and regulations. In the present case, there was however no suggestion of an abuse of diplomatic functions or privileges. The Russian diplomats were expelled on the ground that the Russian authorities had failed to cooperate with the murder investigation. On 4 December 2019, Chancellor Angela Merkel defended the expulsion, saying “We took this step because we did not see that Russia was supporting our investigation of this murder.”

In the case concerning United States Diplomatic and Consular Staff in Tehran, the ICJ stated:

“The rules of diplomatic law, in short, constitute a self-contained régime which,  on the one hand, lays down the receiving State’s obligations regarding the facilities, privileges and immunities to be accorded to diplomatic missions and, on the other, foresees their possible  abuse by members of the mission and specifies the means at the disposal of the receiving State to counter any such abuse.”

The fact that diplomatic law constitutes a self-contained regime, however, does not mean that acts of retorsion foreseen in diplomatic law may not be exported to other areas of international relations. Article 9(1) VCDR expressly provides that no explanation or justification must be given for persona non grata declarations. Diplomatic agents can thus be declared persona non grata for any reason. Such declarations can therefore be used – like the recall of an ambassador for consultations or the severance of diplomatic relations – to signify a deterioration of bilateral relations more generally, or to express the sending State’s displeasure at the conduct or policy of the receiving State. The problem with persona non grata declarations which are not linked to any genuine diplomatic wrongdoing is that they are regularly self-defeating. The sending State is not obliged to accept such a declaration and will usually reciprocate in kind, as was done by Russia in the present case.

Category: Diplomatic and consular relations

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Author

  • Stefan Talmon is Professor of Public Law, Public International Law and European Union Law, and Director at the Institute of Public International Law at the University of Bonn. He is also a Supernumerary Fellow of St. Anne’s College, Oxford, and practices as a Barrister from Twenty Essex, London. He is the editor of GPIL.

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