Written by: Sintarda Hari (Law Student, Sriwijaya University)
Legal Literacy - This article analyzes the Abuse Diplomatic Rights of Asadollah Assadi According to Vienna Convention 1961. Let's take a look at the explanation!
Chronology of the Case of Abuse of Diplomatic Rights of Asadollah Assadi
Asadollah Assadi is an Iranian diplomat to Austria who is also known as a member of Iranian intelligence. In July 2018, he was arrested in Germany while on his way back to Vienna. He was then extradited to Belgium. At that time, Assadi was not working alone because he had previously met with his two agents in Luxembourg. The two agents were arrested by the Belgian authorities because they were planning to carry out a bombing against the Iranian government opposition, MEK.
Iran protested Assadi's arrest and called it a "false flag" action by the MEK to fight the Iranian government. However, Iran also considers Assadi to be a "rogue diplomat."
The View of the 1961 Vienna Convention on Asadollah Assadi's Actions in Abusing Diplomatic Privileges
When we discuss a form of diplomatic action between countries, it is certainly inseparable from diplomatic activities. Diplomacy itself is intended for countries that are interconnected to be able to negotiate so that they can achieve their respective national goals. Several experts have tried to provide a definition of this diplomacy, one of which is from Sir Ernest Satow:
Diplomacy is the application of intelligence and tact to the conduct of official relations between the Governments of Independent States, extending sometimes also to their relations with vassal states or more briefly still, the conduct of business between States by peaceful means
This relationship is formed through a diplomatic mission by the position of a diplomat who must first be recognized to carry out their diplomatic duties according to their capacity so that diplomatic privileges can be granted to them based on norms international law. This needs to consider factors in the diplomatic objectives themselves, such as:
- Strengthening relations between existing nations or countries to establish a form of cooperation or friendship.
- The relationship that is formed needs to be built by exchanging Diplomatic missions.
- Diplomatic officials who are sent as diplomatic representatives of a country to the receiving country must have adequate capacity as a state representative and have their status recognized as a diplomatic representative.
Therefore, it is important for each country that has committed itself to a diplomatic relationship to be able to respect each jurisdictional area where the diplomatic representative is located in good faith.
In this case, Assadi does not reflect this action, and he is an Iranian diplomat to Austria, not Belgium, Germany, or France. However, a Diplomatic official has diplomatic immunity as a privilege attached to him, which is stated in the regulations in the Vienna Convention 1961 in Article 29.
This protection is also complemented by guarantees of movement and freedom to travel in the territory of the receiving country as mentioned in Article 26. From this, it is stated that it is the obligation of the accrediting country to take all necessary measures to protect diplomatic officials from acts of violence and to grant freedom to the diplomatic representatives it receives to move freely within the jurisdiction of the receiving country, in this case Austria.
The problem with the Asadollah Assadi case is that, as a representative for Austria, the country where he is accredited, namely Austria, is obliged to protect the diplomat by fulfilling his privileges. However, when Assadi was arrested, he was not arrested within Austrian jurisdiction, but in Germany while he was in transit and not performing his duties as a diplomatic representative, i.e., on vacation. Therefore, the Belgian and German authorities believed they had the right to arrest Assadi.
Therefore, regarding immunity, diplomatic, in diplomatic law, the presence of diplomatic representatives in a third country is also regulated in the 1961 Vienna Convention.
Diplomatic immunity and privileges for a representative in transit in a third country (while traveling to or from their post or residing in a country that is not their country of accreditation) are unclear if they are in the receiving country.
Nevertheless, substantial immunity is generally granted to diplomatic representatives who are in transit. It is indeed customary international law practiced by many countries in the world that a third country grants privileges or at least the right of free passage to a representative while in transit.
However, if we relate it to the Assadi case, he as an Iranian diplomatic representative was only assigned or stationed in Austria as a representative, while his position while in transit abroad, in this case Belgium and Germany, is as a traveler. Thus, this is an exception, so incognito, their presence in a third country is not as a diplomatic representative or carrying out official duties.
Assadi's Diplomatic Revocation by Austria in the View of the 1961 Vienna Convention
Immunity can occur to the diplomat without the accrediting country having to prosecute the diplomat (Article 32). This article clearly states that the receiving country has the right to waive the immunity of a diplomatic representative in its country, but this must also be based on:
The waiver of immunity must be expressly stated
- If a diplomatic agent or person enjoying immunity from jurisdiction under Article 37 initiates proceedings, he is precluded from invoking immunity in respect of any counter-claim directly connected with the principal claim.
- The waiver of immunity from jurisdiction in respect of civil or administrative proceedings shall not be held to imply the waiver of immunity in respect of the execution of the judgment, for which a separate waiver shall be necessary. From what has been explained above, it is clear that immunity from the jurisdiction of diplomatic officials and persons enjoying such immunity under Article 37 may be waived by the sending State.
Therefore, if we refer to the case of Assadi here, the Austrian government itself has decided to revoke the diplomatic immunity possessed by Asadollah Assadi, especially after they found out that he was arrested by German authorities who were later extradited to Belgium. Thus, based on Article 37 of the 1961 Vienna Convention, Austria, as the accrediting state of Asadollah Assadi, has the right to revoke the immunity that Assadi has as a diplomatic official.
References
- Dr. Wiryono Prodjodikoro, SH, Principles of International Public Law, PT. Pembimbing Masa, 1st printing, Jakarta, 1973.
- Ian Browlie, Principles of Public International Law, Oxford University Press, Third Edition, Oxford, 1979.
- Syahmin, Diplomatic Law in the Framework of Analytical Studies, PT RajaGrafindo Persada, Jakarta, 2008.
- Matthew Levitt, Iran Deadly Diplomats, CTC Sentinel, Volume 11, Issue 7, 2018.
*This article is the opinion personal opinion of the author and does not represent the views of the editors Legal Literacy Indonesia.
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