North Africa, West Asia

After Khashoggi: how diplomatic space became a crime scene

In a world where autocratic regimes are on the rise worldwide, a criminal turn of diplomatic missions may be underway.

Can Ture
9 October 2019
Turkish police outside the entrance of Saudi Arabia's consulate in Istanbul, Friday, October 12, 2018.
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Picture by Depo Photos/ABACA/ABACA/PA Images. All rights reserved.

This is the first part of a two part series on international law and how diplomatic space becomes a crime scene. Read part two here.

The exiled Turkish journalist Can Dundar received a message last October on Twitter with his name mentioned in the post: “Could you please drop by the consulate? We want to try something”, referencing the murder of Jamal Khashoggi, the journalist who had been the victim of a gruesome manslaughter in the Saudi Consulate in Istanbul shortly before. They implied that Dundar could share the same fate.

It has been a year since the killing of Khashoggi in a building protected by diplomatic immunity. The murder sent shockwaves to the world and, especially, political dissidents living in exile. Turkish President R. Tayyip Erdogan called the Khashoggi assassination “a clear violation and blatant abuse of the Vienna Convention on Consular Relations” adding that failure to punish those responsible for the murder could set a very dangerous precedent.

Although crime under diplomatic shield is nothing new in history, in a world where autocratic regimes are on the rise worldwide, a criminal turn of diplomatic missions may be underway. Afforded to diplomatic persons, buildings, vehicles and carriages by internationally acknowledged conventions, vast exemptions from penal law offer all kinds of opportunity to states that seek to silence their critics overseas.

This has been the case for Saudi authorities possibly responsible for Jamal Khashoggi’s death. Despite the controversy among Turkish diplomats and international law experts about the scope of the Saudi Consul General’s diplomatic immunity, Turkish police could not enter the consulate compound until Saudi Arabia’s official permission, which came 13 days after the incident. What is more, Consul General Mohammad al-Otaibi fled the country before his residence was investigated and the government spokesman Omer Celik said that Otaibi could not have been prevented from leaving the country due to his diplomatic immunity.

Unlike Turkish authorities, the EU High Representative for Foreign Affairs and Security Policy, Federica Mogherini responded in a different tone, calling the incident a “shocking violation of the 1963 Vienna Convention on Consular Relations.” Michelle Bachelet, UN High Commissioner for Human Rights, called on Saudi authorities to waive the immunity on its diplomatic buildings and officials, saying, “Immunity should not be used to impede investigations.”

But what is the legal base of diplomatic immunity? Where does it stem from and what is its scope?

Diplomatic immunity in international law

Although the emergence of diplomatic protections stretches back to antiquity, they are largely codified into law in the modern era. These protections are based mainly on the 1961 Vienna Convention on Diplomatic Relations and the 1963 Vienna Convention on Consular Relations, with the former regulating conduct with top diplomats such as embassy staff; and the latter lower-rank diplomatic officials. In terms of protections and privileges, embassy staff get the lion’s share: According to the Vienna Convention on Diplomatic Relations (VCDR), diplomats and their families cannot be detained or arrested, brought to court or testimony, their premises cannot be violated, cannot be taxed and their communications cannot be intervened with.

It is scary for a civilian to think that a person holding these protections, theoretically, may well attempt to enjoy their freedom by blowing up a mall, committing mass murder, dealing drugs or any other brutal act without consequences. Why are diplomats, no matter how sensitive their job, conferred almost limitless immunity from law? The answer goes centuries back.

Vienna Conventions embody centuries old practices followed against foreign missions. Until the medieval ages, protection of foreign envoys were established through religious commands. The church determined foreign representatives’ fates. In the medieval Arab world, similarly, life or death of an envoy was up to the Caliph’s blessing. Middle Age Europe marked the institutionalization of religion-based practice; and the code of conduct with foreign envoys crystallized into principles. This was evident in the case of Bernadino de Mendoza, who took part in a plot against Queen Elizabeth I in England where he served as ambassador of Spain. Instead of being tried before an English court, Mendoza was expelled from the country with the idea that his sovereign should determine the verdict about his deed.

Events in early twentieth century and, later, during the Cold War period paved the way to the adoption of internationally binding rules concerning the protection of diplomatic agents. Tensions between Eastern and Western Bloc states, hostile behavior against diplomatic agents and premises possibly not only accelerated the adoption of Vienna Conventions but also shaped them.

The early 1960s saw the codification of de facto practices followed for centuries into international law. Until then, the issue had been brought up by the Congress of Vienna in 1815 and the 1928 Havana Convention; however, both acknowledged a partial version of the modern system of immunity and privileges. While the regulations of the Congress of Vienna were limited to simplifications of complex rules of conduct of missions with receiving sovereign state, forms of diplomatic immunity adopted by the Havana Convention were binding only for the Pan-American Union states.

UN Conventions, adopted in 1961 and 1963, have near-universal acknowledgement today. They have constituted the legal base of exemptions for foreign diplomats from the jurisdiction of the hosting state, with varying degrees of immunity provided for officials at different ranks. The most extensive type of immunity in the Vienna Convention of Diplomatic Relations (VCDR) is accorded to top diplomatic officials, i.e. Ambassadors and their families. An embassy staff with diplomatic rank cannot be detained nor brought to court without their sovereign state’s immunity waiver. On paper, there is no obstacle for a diplomatic embassy agent to commit any crime with full impunity. "It is immunity from criminal jurisdiction and also from civil administrative jurisdiction and you are not obliged to give evidence", says Steven Ratner, an international law professor at the University of Michigan.

However, Ratner does not think that the host states are desperate in the face of diplomatic crime: "If the host state becomes aware that a crime is about to be committed on its soil, it can certainly intervene to prevent that from happening, but what it normally cannot do is enter the embassy. If the host state becomes aware that somebody on their soil will be attacked or murdered or harmed, they can send police to prevent that from happening just like for a very routine crime."

Unless the sending country waives its envoy’s immunity following the involvement in any kind of crime, which is the only condition for potential punishment of the lawbreaker along with the persona-non grata (unwelcome person) announcement by the receiving state, a criminal diplomat can walk free facing no consequences. Although it has happened very rarely so far, the Khashoggi incident forebodes that states disrespectful to the international law may resort to diplomatic repression for their political ambitions.

For lower-rank diplomats, however, the regime of immunity and privileges is a little different. Consular agents hold a softened version of full diplomatic immunity enjoyed by ambassadors. Consular staff, according to the Vienna Convention for Consular Relations (VCCR), are covered for "acts performed in the exercise of consular functions", i.e. acts related to their job responsibilities. For instance, a fistfight outside working hours or an action unrelated to a diplomat’s job does not qualify him or her for protection from prosecution.

However, this level of immunity, often termed as “functional immunity”, still covers consular staff for certain types of crime committed during their work environment. The other major difference from full immunity is that, according to the article 41 of the VCCR, consular officers are not covered for "grave crime and pursuant to a decision by the competent judicial authority". This exception, for instance, allowed Turkey to arrest, in 1991, an Iraqi attaché who opened fire at Turkmen protesters outside the consulate building in Istanbul and US officials to detain Yugoslav consul general in Chicago, in 1988, on money laundering charge. Lastly, service staff, no matter if at the embassy or consulate, have no protection whatsoever. This category includes security officers, kitchen employee, janitors and so on.

“When two Turkish citizens were killed outside the Iraqi Consulate in Istanbul in 1991 by the Iraqi security personnel firing from inside the consulate, Turkish police, after obtaining a court warrant, entered the building and apprehended the shooter. The police were obliged by the Vienna Convention to keep out of the archive room and offices and they did so”, explains Süha Umar, an experienced diplomat and a former member of the Turkish Foreign Ministry, in an interview.

“This has also been the case in the Khashoggi incident and Turkey had the right and authority to take steps that could both prevent the murder and take those responsible to the court. The Vienna Convention of Consular Relations allows for the entry into consulate buildings in case there is convincing evidence of a grave crime committed. So, it is reasonable to presume that it was either a political decision not to take such an action or that Turkish authorities did not have enough evidence. However, if there was enough evidence but still Turkey did not take any action then Turkey’s credibility in the international arena would be at stake,” adds Umar.

The principle of inviolability of diplomatic premises has long been a contested issue. Ratner points out to the common misconception that diplomatic missions are sovereign territories of the sending state: "It is a piece of Turkey in which Saudi Arabia has a mission. They bought or leased the land and it has certain protections, not full protections. It has to comply with local laws, like fire codes and other things like that. But the people inside have certain protections from local law. But that is not Saudi sovereign territory."

However, host states are not desperate against diplomats who have committed crime. Host states usually ask the sending state for the removal of its diplomat’s immunity in case of a misconduct. If it is turned down or ignored, the criminal diplomat may be expelled from the country by being declared persona-non grata. The phrase is the diplomatic expression that the host country no longer acknowledges the person as the legitimate representative of the sending state.

The PNG procedure is advantageous in that it helps both parties avoid a possibly formalized conflict. Ambassador Umar says, “When diplomatic status is abused, it is resolved in principle through negotiations between the concerned states. As an alternative, the host state may ask for the withdrawal of the involved or all personnel in that mission and even may ask for the closure of the mission. The sending state must comply with the demand. Otherwise that mission or consulate will not be able to carry out its duties.” If the diplomat remains in the country, it may lead to the revocation of the diplomatic status or, at worst case, termination of bilateral relations between the two countries.

Once diplomats gained immunity with legal assurances in the post-war era, things turned around. While it was diplomats who were in need of protection until then, abuse of diplomatic immunity raised the question of diplomatic crime worldwide, which reached its dramatic climax with the Khashoggi assassination. If you think that last year’s incident is a rare example, and that white collar officials at such senior posts would not dare risk their prestigious position for any criminal activity, below is a rundown of diplomatic crime in the last century.

A long history of diplomatic crime

In the past decades, exemption from any judiciary action allowed many diplomats to leave the hosting country, without facing any penal consequence for their criminal activities. Many individuals from jaywalkers to rapists, smugglers and, as in Khashoggi case, professional assassins have managed to evade justice under diplomatic shield. The recent past demonstrated that, on certain occasions, diplomatic immunity has been the synonym of bypassing local law, urging experts, in turn, to compare it to impunity.

Examples are abundant. Members of Russian, US, German and Brazilian embassies were reported to have drunk-driven; others of Saudi Arabia and Sierra Leone were accused of human-trafficking and sexual assault; diplomats of Zambia, Cameroon, Egypt, Equatorial Guinea were involved in shoplifting; other local law violations included neglect of minors and death threats; all only in the first decade of 2000s. Some of these crimes would have brought at least 12 months to their perpetrators; however, all of them were covered by diplomatic immunity.

“The most common issue is clearly parking tickets” says Ratner, “it is a big problem with the UN in New York. They get these tickets and they rip them up, and that gets an incident between the host state and the home state. There are probably some others. I think there are cases where embassies have been used for trafficking of persons or organized crime.” That the unpaid traffic fines by UN diplomats in NYC had added up to $18 million in 2007 based on their immunity might give one a rough opinion about the level of diplomatic immunity exploitation.

“The other big issue is spying”, says Ratner, adding, “but I am not sure I would call that abuse because it is well understood by the host state, that people within an embassy will be doing spying. Even though it is not allowed under the law of the host state, it is pretty much accepted.” Acts of espionage are usually taken for granted by the host state and a common practice, both in the past - especially during the Cold War - and today.

But what if espionage turns into attempt on lives? In 2011, Raymond Davis, an employee of the US consulate in Islamabad shot dead two Pakistani men. Although the US claimed diplomatic immunity for Davis and the President Barack Obama asked for his release reminding the “very simple principle of diplomatic immunity” none of these helped save Davis from arrest.

In the middle of the negotiations for his release, the US government had to admit that Davis was a CIA contractor. Thanks to the political pressure the US put on Pakistani authorities and diyyat, a financial compensation in sharia law, paid to family members of the killed men, rather than diplomatic immunity, Davis could eventually walk free. However, the primary argument of Pakistani officials to keep him behind bars was the difference between forms of immunity granted to top-level diplomats and consular staff. According to VCCR, a consular staff could be arrested in case of a grave crime, which Turkish officials were not aware of during the investigation of Khashoggi murder. After all, Davis was enlisted in the US consulate in Lahore, not its embassy in Islamabad.

Prof. Marlies Glasius from Faculty of Social & Behavioral Sciences at the University of Amsterdam cites two recent cases where Iranian and Turkish diplomats were either expelled or withdrawn by the their governments for their involvement in harassment of individuals on foreign soil.

Abuse of diplomatic immunity goes so far as to include brazen cases, such as Philippines running commercial business on tax-free real estate meant for official operations and evading tax payment, and Zairean diplomats who fled without paying $400.000 rent debt to the landlord and cannot be sued based on diplomatic immunity.

It is, however, not only individuals abusing diplomatic immunity, but also states that are disturbed by activity of their critics within the borders of another country. In order to intimidate or stop them to express their views, diplomatic missions have often been turned into outposts of domestic politics and used for purposes far beyond their traditional role as information purveyor or conflict resolution in the international arena.

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