Pushing the limits of diplomatic immunity

JULY 5 — When Datuk Seri Anwar Ibrahim briefly sought refuge in the Turkish Embassy in Kuala Lumpur earlier this week, he was making a political point: The leader of Malaysia’s opposition was putting his government on the defensive and gaining valuable publicity at the same time.

But he accomplished much more than that. For, through the simple act of crossing a foreign embassy’s threshold, Anwar unwittingly touched on one of the most crucial principles of international law: the immunity enjoyed by embassies and their employees.

Contrary to popular opinion, embassies are not the sovereign territory of the country they represent. Even if governments may own the land and the buildings, this does not make their embassy a complete extension of their state.

Nevertheless, under ancient custom subsequently codified in the Vienna Convention on Diplomatic Relations of 1961, the premises of diplomatic missions are inviolable. This means that nobody can enter an embassy or an ambassador’s residence unless explicitly invited.

Embassies are exempt from search warrants and cannot be sued. The host state is obliged to provide for their protection.

Unsurprisingly, the principle has been abused before. Five centuries ago, the Spanish Embassy in London was a hotbed of Catholic plots against Protestant Britain.

Host countries have also broken their obligations. In 1963, the Indonesian government turned a blind eye when mobs sacked the British Embassy in Jakarta over the issue of Malaysian independence. The US embassy in Teheran was occupied by Iranian militants in 1979.

More recently, the Thai government blamed Cambodia for allegedly failing to prevent the destruction of its embassy in Phnom Penh.

However, these episodes are rare because all governments prefer to respect diplomatic immunity. And for a simple reason: If you want your own diplomats to work unhindered overseas, do not restrict foreign diplomats on your territory.

Matters get more complicated, however, when it comes to local residents who seek refuge in foreign embassies. Strange as it may seem, no “right” of political asylum exists in international law for such cases. An ambassador may decide to grant protection, or he may choose to eject those seeking refuge.

This does not mean that the right is unrestricted. An embassy which persistently acts as host for various local fugitives from justice may have its ambassador expelled or even see diplomatic relations severed. The test is always one of reasonableness, and very often governments prefer to fudge the issue, rather than establish precedents.

So, when Morgan Tsvangirai, the Zimbabwe opposition leader, recently sought refuge in the Netherlands Embassy, the Dutch government did not specify his status; it merely said Tsvangirai was free to stay or go as he pleased.

Sometimes, the diplomatic standoff can be very long. In the most celebrated case of all, Cardinal Jozsef Mindszenty, the head of the Catholic Church in Hungary, took refuge inside the US Embassy in Budapest for 15 years.

At first glance, Anwar’s arrival at the Turkish Embassy created no new precedents in international law. But there were particular features to the story which did raise eyebrows among lawyers.

Some of Anwar’s associates claimed that he came “at the invitation of the Turkish Ambassador”. They also said “several” other embassies had made similar offers, but that Anwar “chose” Turkey, allegedly because he is an economic adviser to the Turkish government.

The claim, if proven, can be serious. For it is one thing to grant protection to a citizen who asks for it, and quite another to actively offer protection: The first option can be a humanitarian act; the latter constitutes interference in a country’s internal affairs.

The Turkish Embassy was not very clear about its intentions either: It first claimed Anwar enjoyed “protection”, but then said it would like him “to be out of the premises as soon as possible”.

After a few days of confusion, matters were patched up. Barlas Ozener, the Turkish Ambassador in Kuala Lumpur, now claims he never invited anyone to seek refuge. And Anwar, who left the embassy on Monday, is yet again subject to his country’s laws.

So, in a time-honoured fashion, the really sensitive issues of diplomatic immunity were fudged. But the concept is about to be tested again:

On Thursday, hundreds of ordinary Zimbabweans were gathering outside the US Embassy in their capital, no doubt seeking asylum. And, at least for the moment, the US authorities prefer not to reveal what they may do. — Singapore ST

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