At a press briefing on May 29, Richard
Boucher, the spokesperson for the U.S. State Department,
said, in answer to a question about the status of
foreign diplomats in Iraq, "There are diplomats who
were previously accredited to the Saddam regime, who
have been residing in former mission residences, who
are still there. We do not regard those as diplomatic
missions. They're accredited to a regime that is
no longer existent, and, therefore, their accreditation
would have lapsed." Later in the same briefing Mr.
Boucher asked rhetorically, "Do [these diplomats in
Baghdad] have diplomatic accreditation? Do they have
diplomatic status? Do they have diplomatic immunity?
No. They don't."
[1] He did not explain why the regime change
in Iraq would result in a loss of immunity for the
diplomats.
Diplomatic and consular immunities are
regulated, respectively, by the 1961 Vienna Convention
on Diplomatic Relations [2] and the 1963 Vienna Convention on Consular
Relations.
[3] These are multilateral treaties to which
Iraq and the United States, among many others, are
parties. Mr. Boucher's statements raise issues under
the Convention on Diplomatic Relations ("the Convention").
Its purpose "is not to benefit individuals but to
ensure the efficient performance of the functions
of diplomatic missions as representing States." [4] Under articles 29-31 of the Convention, diplomatic
agents and their property enjoy broad immunities from
interference and from the criminal and civil jurisdiction
of the receiving State, though their immunities may
be waived by the sending State under article 32.
Article 3 of the Convention sets out
a non-exclusive list of the functions of a diplomatic
mission: "(a) representing the sending State in the
receiving State; (b) protecting in the receiving State
the interests of the sending State and of its nationals,
within the limits permitted by international law;
(c) negotiating with the Government of the receiving
State; (d) ascertaining by all lawful means conditions
and developments in the receiving State, and reporting
thereon to the Government of the sending State; [and]
(e) promoting friendly relations between the sending
State and the receiving State, and developing their
economic, cultural and scientific relations."
The Convention addresses only tangentially
how it is to operate in time of war, limiting itself
to a few issues that could arise between two States
at war or otherwise at odds with each other. [5] It has been observed that "Practical considerations
will almost always favour the continuation of relations,
though not necessarily the retention of a permanent
mission. This has become more obvious in the light
of some recent cases where diplomatic relations subsisted
even while armed conflict was taking place between
sending and receiving States - as between India and
Pakistan in 1965 and 1971."
[6]
The operation of the Convention during
armed conflict and military occupation is a legal
matter as well as a practical one. When Iraq invaded
Kuwait in 1990 and occupied the country, it took steps
to close the foreign diplomatic and consular missions
there. The United States and others sponsored a U.N.
Security Council resolution that was adopted with
no negative votes, as Resolution 674. In it, the
Security Council, acting under Chapter VII of the
U.N. Charter, condemned the Iraqi authorities and
occupying forces for violating the Vienna Conventions
on Diplomatic and Consular Immunity and the Geneva
Convention Relative to the Protection of Civilians
in Time of War.
[7] The Security Council demanded that Iraq
fulfill its obligations under those Conventions and
that it rescind its orders for the closure of diplomatic
and consular missions in Kuwait and for the withdrawal
of the immunity of their personnel. [8] The resolution did not expressly
tie those demands to the illegality of Iraq's invasion,
but rather expressed them as reflections of Iraq's
treaty obligations as the State then in control of
Kuwait.
Nothing in the Convention on Diplomatic
Relations expressly addresses retention or loss of
immunities if the government of the receiving State
has been deposed. The only mechanism it provides
for terminating the immunities of a foreign diplomat
is for the receiving State to declare him or her persona
non grata, under article 9. The Convention does
say in article 4 that the agreement of the receiving
State must be given before the sending State may send
a new head of mission. It also says in article 13
that the head of the mission is considered as having
taken up his [or her] functions in the receiving State
upon presentation of credentials to the receiving
State's Ministry of Foreign Affairs.
It could be argued that when the regime
that approved and accepted a diplomat's credentials
has been deposed, those credentials are no longer
in force. On the other hand, it is apparent from
the functions of a diplomatic mission, set forth above,
that a diplomatic mission has important responsibilities
on behalf of the sending State that do not depend
on the continuing existence of the government that
originally accredited the officials of the mission.
In the case of an occupied territory, such as Iraq,
[9] the occupying power takes over (temporarily)
many of the duties of the government it has deposed. [10] The diplomatic agents in Baghdad would have
a continuing interest in performing their normal functions
(for example, to protect the nationals of the sending
State) as best they can under the conditions of occupation.
Since the responsibilities of an occupying power do
not include accreditation of diplomats, sending States
would be without any diplomatic protection in their
efforts to protect their national interests in present-day
Iraq, if the State Department's view is correct.
When Mr. Boucher was asked if there are now no diplomatic
privileges in Iraq, he answered in the affirmative,
"because there's no government in Iraq to grant those
privileges." [11]
It could also be argued that because
a receiving State may at any time break off diplomatic
relations with any sending State, the overthrow of
a government of the receiving State ipso facto
results in such a breaking of relations with all sending
States unless or until a new government is in power
and is able to make a decision as to whether to continue
diplomatic relations. But the breaking of relations
is not a remedy designed for use against all missions
of all sending States. Instead, it is normally a
mechanism for situations of hostility or disapproval
between individual governments or between the receiving
government and an identifiable bloc of other governments.
Moreover, under article 45 of the Convention, when
diplomatic relations are broken, the sending state
may protect its interests in a way that would not
be available if no foreign state has diplomatic privileges
in the receiving state - it may normally entrust the
protection of its interests to a third State acceptable
to the receiving State.
[12]
Mr. Boucher was less certain about the
status of foreign embassy property in Baghdad than
about the status of diplomats, saying that he would
have to check on it. Under article 22 of the Convention,
"The premises of the [diplomatic] mission shall be
inviolable. The agents of the receiving State may
not enter them, except with the consent of the head
of the mission." The question of accreditation to
a former regime does not arise, since mission premises
are not accredited to the receiving State or government.
Under Article 45, the receiving State must protect
sending States' mission premises even in the case
of armed conflict.
It may be instructive to compare the
State Department's current position on diplomatic
immunities in Iraq with its position in Iran shortly
after the Shah was deposed and replaced by a government
controlled by the Ayatollah Khomeni in 1979.
[13] On February 14, 1979, three days after
Ayatollah Khomeni selected and appointed his own Prime
Minister, an armed group attacked the U.S. embassy
in Tehran. The U.S. ambassador surrendered and about
70 Americans were taken captive, but they were later
released on orders from Khomeni's headquarters. (It
was several months later that the embassy was forcibly
occupied for a long period, resulting in the Iran
hostages crisis.) It does not appear from the public
record that the U.S. ambassador, who had been accredited
to the Shah's regime, was accredited to the new regime
in the three days before the February 14 attack on
the embassy. Neither the United States nor Ayatollah
Khomeni's appointed government questioned the existence
of diplomatic immunities for the American diplomats
or for the embassy premises.
[5] Article 44 requires the receiving State to enable
diplomats and their families to leave the country
if there is a deterioration in relations or an armed
conflict between the sending and receiving States;
article 45 requires the receiving State to protect
a sending State's mission premises even in an armed
conflict.
[6] Eileen Denza, Diplomatic Law: A Commentary on
the Vienna Convention on Diplomatic Relations 393
(2d ed. 1998).
[7] 6 U.S. Treaties 3516, 75 U.N. Treaty Series 287.
[9] The U.N. Security Council has determined that
the United States and United Kingdom are occupying
powers in Iraq. See ASIL Insight, Security Council
Resolution 1483 on the Rebuilding of Iraq (May
2003).
[11] State Department press briefing, supra note
1.
[12] See also Article 44, summarized in note 5 supra.
[13] The facts in this paragraph are drawn from the
Report by the Foreign Affairs and National Defense
Division, Congressional Research Service, 97th
Cong., 1st Sess., The Iran Hostage
Crisis: A Chronology of Daily Developments 10-16
(Committee Print for House Committee on Foreign
Affairs, March 1981).
About the Author:
Frederic L. Kirgis is Law School Association Alumni
Professor at Washington and Lee University School
of Law. He has written a book and several articles
on United Nations law, and is a member of the Board
of Editors of the American Journal of International
Law.
The author is grateful to Professor Sean Murphy for
his extremely helpful comments on a draft of this
Insight. Any errors are the author's own.
_________________________________________________________________________
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