Published 28 April 2022 Authors: Stefan Talmon and Joshua Wirtz
On the evening of 19 November 2021, unknown perpetrators hurled an incendiary device at the entrance of Iran’s consulate in the northern German city of Hamburg, sparking a fire that was quickly doused. The attack resulted in some damage to the building, but no casualties were reported. Upon being called to the scene by passers-by, the police immediately launched a major manhunt; underground trains were stopped and searched. Two persons were briefly detained but later released when it turned out that they had nothing to do with the attack.
The next day, Iran condemned the attack on its consulate. The Iranian Foreign Ministry’s spokesperson declared:
[The] German government needs to fulfill its responsibilities in securing the Islamic Republic’s diplomatic missions in the European state in accordance with the Vienna Convention. The German government is expected to adopt consistent and effective strategies to prevent a recurrence of such attacks while carefully examining the details and dealing seriously with its perpetrator(s).
Iran also summoned the German ambassador to Tehran. At the weekly press conference on 22 November 2021, the spokesperson for the Iranian Foreign Ministry stated:
We condemned the attack. We summoned [the] German ambassador to Tehran to express our strong protest at the event and he conveyed Iran’s message of protest to Berlin. [The] German government is following up the incident. It should fulfill its obligation to take action seriously and responsibly to provide security for the diplomatic missions of Iran in Germany in line with the Vienna Convention.
Foreign consular premises in Germany have been attacked before. Such attacks are usually carried out to protest the policies of the sending State.
The incident in Hamburg raised the question of whether Germany had breached its obligations under the Vienna Convention on Consular Relations (VCCR). The Convention, to which both Germany and Iran are parties, provides in Article 31(3):
[T]he receiving State is under a special duty to take all appropriate steps to protect the consular premises against any intrusion or damage and to prevent any disturbance of the peace of the consular post or impairment of its dignity.
The protection of diplomatic and consular premises has also been on the agenda of the United Nations General Assembly since 1980. In the wake of the attacks on the diplomatic and consular missions of several States in Iran in November 1979, the General Assembly included a new item in its agenda concerning ‘effective measures to enhance the protection, security and safety of diplomatic and consular missions and representatives’. Having considered the new item, the Assembly adopted resolution 35/168 in which it strongly condemned all acts of violence against diplomatic and consular missions and urged
The Assembly also invited all States to report to the Secretary-General serious violations of the protection, security and safety of diplomatic and consular missions and representatives. It further invited the States in which violations took place to report on measures taken to bring the offenders to justice and to prevent a repetition of such violations, and eventually to communicate, in accordance with its laws, the final outcome of the proceedings against the offenders. The Secretary-General circulates these reports to all States. The General Assembly, at first annually and later on a bi-annual basis, considers effective measures to enhance the protection, security and safety of diplomatic and consular missions and representatives.
If the receiving State fails to protect the consular premises against damage, it will be under an obligation to make full reparation for the injury caused. In this situation, full reparation for the injury caused by the internationally wrongful act may take the form of an expression of regret or formal apology, the payment of compensation, and a guarantee of effective protection against any repetition of the incident.
The crucial question is thus whether Germany failed to fulfil its obligation under the Vienna Convention on Consular Relations to protect the Iranian consulate against any damage. The expression ‘special duty’ in Article 31(3) VCCR is used to ‘emphasize that the receiving State is required to take steps going beyond those normally taken in the discharge of its general duty to maintain public order’. The special duty to protect the mission premises against damage is, however, an obligation of conduct, not result.
There was no police guard at the Iranian consulate at the time of the attack. However, it is not common practice to station police in front of consular premises. The question is whether police protection would have been a necessary measure to provide for the safety and security of the Iranian consulate under the circumstances prevailing at the time. The attack coincided with Iranian opposition groups holding gatherings in Hamburg on 19 and 20 November 2021 in order to mark the anniversary of the bloody November 2019 protests in Iran when security forces killed hundreds of demonstrators. Gatherings by foreign opposition groups to mark certain events, or peaceful demonstrations against their home government do not automatically lead to attacks on the diplomatic or consular missions of the foreign State concerned, especially if such gatherings or demonstrations are not held in the immediate vicinity of the mission. Germany may therefore argue that without further evidence of a potential attack, additional police action was not necessary. In any case, it would be for Iran to prove that Germany failed to act with due diligence to prevent the attack on its consulate. There is no question of reversing the burden of proof in the context of Article 31(3) VCCR.
The German Federal Government, as a rule, tries to avoid getting into a dispute over whether it provided adequate protection to a foreign consular mission by paying, on an ex gratia basis, full compensation for any damage to the mission premises caused by persons acting for political motives. Any ex gratia payment, however, is made on the basis of reciprocity only.
Category: Diplomatic and consular relations
DOI: 10.17176/20220608-151115-0
