TŐKEY, Mária[1]:
 

Fight against terrorism in the light of Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons,
including Diplomatic agents

 

1. Introduction

Nowadays within one or two weeks you hear that a terrorist attack has happened again anywhere in the world.

The terrorist attacks that took place in New York, Washington D.C. and Pennsylvania on 11 September 2001 shocked the entire world. Acts of international terrorism have become one of the most serious threats to the international peace and security in the twenty-first century. Such acts further constitute a challenge to all countries and all the humanity. The Security Council of the United Nations called on all States to intensify their efforts towards the elimination of international terrorism.[2]

Although the countries with the higher security measures were careful to prevent such attacks, unfortunately they couldn’t be ready enough. More dozens of people died in Madrid when the terrorist exploded on train. In Russia the terrorist took children as hostages. We can also mention here the continuous explosions in South Asia. 

The problem of terrorism appeared in the 1920s and 1930s. The International Criminal Union dealt with the problem of terrorism. The issue appeared on the agenda in Brussels in 1930 and later in Paris and Copenhagen some provisions were adopted in connection with combating terrorism.[3] In 1937 two antiterrorist conventions were adopted under the aegis of the League of Nations. The first one was the Convention for the Prevention and Punishment of Terrorism. According to the Convention the common task of every country is to fight against terrorism. The second one was the Convention on International Criminal Court.  Unfortunately, none of these Conventions entered into force because they were not ratified by the required number of States.

After the WW II the UN established a Committee out of 35 member states, including Hungary. In its later regulations the UN prohibited the states to prepare, encourage and take part in terrorist attack on the territory of another country. In 1954 a draft Codex was prepared which defined that it was an international crime if the authorities of any country fulfilled terrorist attack on the territory of another country. The Codex also dealt with combating against terrorist attack made by individuals.[4]

In the 60s of XX century the UN adopted a dozen of so-called sectoral conventions and protocols dealing with terrorism.[5] These conventions are sectoral because they cover only a narrow field of regulation. The need for the development of a comprehensive antiterrorist treaty appeared in the 90s,[6]but today it just a plan because the States that take a part in preparation do not agree in one of the most important issue: the meaning of the term “terrorism”.

Besides the conventions, we can also mention some other important legal instruments, inter alia bilateral extradition agreements, Vienna Convention on diplomatic relations (1961), Vienna Convention on consular relations (1963) and lot of decisions of the Security Council and General Assembly dealing with specific events.[7]

Henceforth the author would like to deal with the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, including Diplomatic Agents, adopted by the UN at New York in 1973.

 

1.     Background for the adoption of the Convention

 1.1.          Indirect reasons

 The issue of terrorism appeared in the 20s and 30s of the XX century.

On 9^th October 1934 in Marseille Alexander, the king of Yugoslavia, and Jean-Louis Barthou, the French Foreign Minister, became the victims of a political murder. The Yugoslavian king was murdered by Macedon terrorist whose accomplices were the members of the Croatian ustasha group. (The terrorist attack was planned by Croatian ustasha group and Macedonian terrorists). 

In the result of this event in 1937 the League of Nations adopted a convention against terrorism which remained only a draft as it wasn’t ratified by the required number of countries.

 

1.2.          Direct reasons

 After the adoption of Vienna Convention on Diplomatic Relations (hereafter Vienna Convention) in 1961 the situation altered dramatically. Kidnappings, murders and violent assaults against diplomatic agents as well as against mission premises became frequent phenomena. In some cases the diplomats were selected for the attack due to their status.

According to the survey held in 1967, at least thirteen diplomatic, „quasi-diplomatic”[8] and consular persons have been killed since 1947, including five Americans, five nationals assigned to the United States, one British, one Spaniard and one Turk. Five of these were killed in the Middle East, five in Vietnam, one in Ethiopia, one in Mexico, and one in the Soviet Union.[9]

The Article 22 and 29 of Vienna Convention require that the receiving State is obliged to protect the mission premises and its members.

According to article 22 of Vienna Convention the receiving State has a special duty to take the appropriate steps to protect the premises of the mission and prevent any disturbance of peace of the mission or impairment of its dignity. There were more cases in international practice when the receiving country didn’t fulfil the Article of Vienna Convention or didn’t fulfil it in a proper way. 

We can mention a case which took place in August 1958 when two armed Hungarian „defectors” entered in Hungarian Embassy in Bern and start shooting at staff. The Hungarian Ambassador informed the Swiss authorities and demanded to send the aggressors away. The Swiss police took steps only with delay. There was a real firing between the aggressors and the staff of Embassy during which one of the aggressors was seriously injured and later died. The Hungarian Government protested against delay of the police in Swiss Government.[10]

There are two aspects of inviolability according to Article 29 of Vienna Convention. First is the duty of the receiving State to abstain from exercising sovereign rights and in particular law enforcement rights. Second is the positive duty to treat the diplomatic agent with due respect and to protect him from physical interference by others with his person, freedom or dignity.[11]

The international law clearly provides that diplomatic personnel enjoys diplomatic inviolability and that, as a result of such inviolability, the hosting government is under a special obligation to protect them. Receiving states may be held strictly responsible for the murder or killing of diplomats within their territories. If such murders occur despite their protective efforts the host government may be called upon to effort satisfactory redress in the form of official apologies, prosecution and punishment of the offenders, and/or indemnities and reparations.[12] In a terrorist bombing in Damascus, the Syrian Government expressed both sympathy and abhorrence over the death of an employee in the U.S.I.S. building. When a Spanish diplomat was gunned down on a Mexican street in 1950, the Cuban responsible for the shooting was ultimately sentenced to sixteen years in prison. In the third case Iraq paid monetary compensation to Great Britain for the murder of British Military Attaché of British Embassy in Baghdad.[13]

An assailant made an attack on Gyulai Ida, the Embassy’s councillor, on 10^th January 1951 in Hungarian Embassy in Washington. The Foreign Ministry protested against the attack in the United States Embassy in Budapest and express critics for the Embassy dadn’t got proper protection. The Foreign Minister pressed the American authorities to investigate the event in detail and to punish the perpetrator very seriously. The accused was exonerated after more years of criminal proceeding.

A „fascist group” made an armed attack on 2^nd June 1961 against Hungarian Embassy in Buenos Aires. One member of the staff was seriously injured. The Foreign Ministry pressed the authorities in nota verbale to call the perpetrators to account for the attack and to pay compensation.[14]

The extent of the duty to protect diplomatic agents came into question before the adoption of the Vienna Convention because of the growth in practice of taking diplomats as hostages in order to extort political or financial benefit/gain from the receiving State. Here we can mention the UN International Law Commission’s Commentary according to which the receiving State might be obliged, in case of threat to the safety of a diplomat, to provide an armed guard to protect him. The interpretation of the Commentary arose also practical problems, e.g.: should the receiving State pay the ransom if the diplomat was kidnapped or should it violate its own constitution or endanger national security by negotiating with terrorist in the interest of hostage releasing?[15]

There were seventeen separate diplomatic kidnappings in 1970 and it became apparent to the Western governments that their diplomats were the most favoured targets. Most of these cases happened in Latin- American States.

The kidnappings of diplomats may be categorized either according to their purpose or according to their outcome. According to their purpose the diplomatic kidnappings were undertaken for traditional ransom and in several cases for political reason (exchange of a certain number of designated „political prisoners” for the diplomat’s release).  

According to their outcome the diplomatic kidnappings may be divided into four groups:[16]

1)     Those in which a kidnapping attempt was made but failed:

One of such cases took place in Argentina in 1970 when four men, members of a rightwing extremist group (MANO) ambushed two Soviet diplomats in a garage. One of the diplomats fell from the car as it drove off and the other was rescued when the car crashed after a police chase. The terrorist group earlier had threatened to kill the Soviet Ambassador to Argentina in reprisal for the leftist kidnapping of a Paraguayan Consul. The Soviet Union issued a formal note of protest to the Argentine Government which responded with an apology and a statement that blamed the action on gangsters and armed delinquents. Similar case took place in Brazil where several armed men planned to kidnap Curtis C. Cutter, the U.S Consul, but their attempt was aborted.  

2)     Kidnappings which were „successful” in sense that a diplomat was kidnapped and the ransom was paid or political prisoners were exchanged for his release.

Four of these cases took place in Brazil when the Brazilian Government acceded to the demands of the robbers. In 1969 the United States Ambassador in Brazil was kidnapped by four armed men. The robbers issued a manifesto that contained two demands and a threat to kill the Ambassador if their demands were not met. The guerrilla bands in their manifesto demanded to release fifteen political prisoners and flown to political exile in Chile, Mexico or Algeria, and to publish the full text of the anti-Government manifesto throughout the mass media. Similar cases happened to Giovanni Enrica Bucher, Swiss Ambassador and Ehrenfried von Hollebennel, a German Ambassador. 

Three more cases took place in the Dominican Republic, in Guatemala and Colombia. The last case differed from the previous examples because $300.000 ransom was demanded for the freedom of diplomat instead of the release of political prisoners. 

3)     The kidnapping occurred but demands were not met and the diplomat was nonetheless released unharmed.

After kidnapping of Waldemar Sanchez, a consul of Paraguay, the hostage takers demanded the release of two political prisoners. Three other cases took place in Spain and Turkey. In December 1970 a Honorary West German consul in San Sebastian was kidnapped and the members of E.T.A group sought to prevent a predicted verdict of six death sentences.

4)     The most tragic cases happened when the kidnapping took place but subsequent demands were not met and the diplomatic agent was murdered.

The most famous case took place on 31 March 1970 when the members of F.A.R. (Rebel Armed Forces) group kidnapped Count Karl von Spreti, the German Ambassador to Guatemala. The Foreign Ministry of Guatemala gave the assurances to the Government of German Federal Republic that it would do everything to obtain Ambassador’s safe return. The diplomat takers demanded the release of political prisoners but later their demand extended on ransom. The Guatemalan Government refused to accept the conditions and demands of the guerrillas. It said that the original communication only specified the release of seventeen political prisoners in return for von Spreti’s freedom and did not include a demand of monetary ransom. The Government of Guatemala further took the position that Article 29 did not require to violate their own constitution or endanger national security. So the Ambassador was killed. The Government of the Federal Republic of Germany protested that Guatemala was expected to do everything to obtain the release and because they missed it, Guatemala violated its obligations under the Vienna Convention. Germany virtually broke diplomatic relations with Guatemala and reduced its diplomatic relations with Guatemala to a minimum.[17]

The following event happened in 1970 in Uruguay. Dan A. Mitrione, a United States advisor and Diás Gomine, a Brazilian consul, were kidnapped by Tupamaro, an urban guerrilla group. The Tupamaros demanded the release of all political prisoners. They also stated that if the prisoners were not released, both Mitrione and Diás Gomide would be submitted „to justice”. The President of Uruguay refused to negotiate with the Tupamaros and denounced their demands as „extortion against the lawfully constituted government”. As the demand wasn’t met the guerrillas killed the hostages.

 

2.     The Convention

 2.1.          The draft

 In May 1970 the representative of the Netherlands addressed a letter to the President of the Security Council concerning the need for action to ensure the protection and inviolability of diplomatic agents in view of the increasing number of attacks on them.

At its twenty- second session, in 1970, the Commission received the letter from the President of the security Council. The Chairman of the Commission replied by a letter which referred to the Commission’s past work in this area,[18] and ?insured the representative of the Netherlands stating that the Commission would continue ?to be concerned with the matter.

At the twenty- third session, in 1971, the Commission ?considered whether it would be possible to produce draft articles regarding such crimes as the murder, kidnapping and addaults ?upon/against diplomats and other persons entitled to special protection under international law. The Commission decided that, if the General Assembly requested it to do so, it would prepare at its 1972 session the draft Convention.         

The General Assembly in its resolution 2780 requested the Secretary- General to invite comments from Member States on the question of the protection of diplomats to transmit them to the Commission till 1 April 1972 and also requested the Commission to study as soon as possible the question of the protection and inviolability of such persons with a view to preparing a set of draft articles dealing with offences committed against such agents for submission to the Assembly at the earliest date. 

Most of the members who participated in the discussion stated that the ?subject/question was of sufficient urgency and importance, that’s why in contrast with the traditional procedure of appointing a Special Rapporteur the Commission in 1972 set up a working Group[19] to review the problem involved and prepare a set of draft articles for submission to the Commission.

As the conclusion of the initial stage of Working Group’s work the first report was prepared (containing of 12 articles) which was submitted to the Commission. Following the Commission’s consideration of the draft articles, the working Group revised them and referred them back to the Commission in two further reports. The Commission considered those reports and after adopting the draft of twelve articles submitted it to the General Assembly as well as to Government for comments. 

At the twenty-eighth session, in 1973, the General Assembly considered the provisions of the draft convention in two stages.

The General Assembly adopted the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents by resolution 3166 of 14 December 1973.

The General Assembly adopted this Convention by that resolution instead of adoption of a convention.[20]

 

2.2.          Entering of the Convention into force

The Convention, which is subject to ratification, was opened for signature by all States. It remains open for accession by any State. After the deposit twenty-second instrument of ratification or accession, the Convention came into force on 20 February 1977. As of 6 January 2005, one hundred fifty-two States had become a party to the Convention.

Such  so-called problematic States ratified or accessed to the Convention – of course making several reservations to the Convention – as e.g. Iraq (28^th February 1978), Kuwait (1^st March 1989) and Pakistan (among the first, on 29^th March 1976). Such countries as Luxembourg (which is a member state to 8 other anti-terrorist conventions), Ireland (which is also a member state to eight other convention), Zambia, Zimbabwe, Venezuela, South Africa, Saudi Arabia, Singapore, Nigeria and Namibia didn’t ratify or access to the Convention.

 

2.3.          Some aspects of the Convention

 

The key provisions of the Convention require that persons alleged to have committed any one of specified offences against internationally protected person, including diplomatic agent should either be extradited or have their case submitted to the competent authorities for the purpose of prosecution. The offences,[21] including threats, attempts and participation as an accomplice, should be made crimes under the internal law of each State Party. 

The Convention prescribes the cooperation for Member States among them to prevent preparation of such crimes anywhere and for exchange of information to prevent the crimes or secure punishment of offenders.

Paragraph 2 of the Article 2 of the Convention requires each State Party to make these crimes punishable by appropriate penalties taking into account their grave nature. It does not require that the penalty should be greater on account of the fact that the victim was an internationally protected person. Its only the possibility for Member States to punish such crimes committed against internationally protected persons and not an obligation. Their obligation is only to punish the offences.

The Convention also deals with those instruments which should be implemented to ensure that the alleged offender is available for the purpose of criminal proceeding or extradition. The Convention also deals with extradition and presumption in connection with it;[22] the treatment of alleged offender and cooperation among States Parties to prevent preparation of crimes and for exchange of information to prevent the crimes or secure punishment of offenders. 

 

2.4.          Declarations, reservations and objections

 Although several countries made reservations to the Convention, it came into force in a few years.

The reservations made to the Convention may be divided into two groups.

To the first group those countries belong which made reservation to the Article 13 of the Convention, to the second group those countries belong which made reservation to other Articles of the Convention. Most of the countries belong to the first group.

The following countries made reservation to the Article 13[23] of the Convention: 

Algeria, Argentina, Belarus, Brazil, China, Cuba, Democratic People’s Republic of Korea, Ecuador, Ethiopia, Ghana, India, Iraq, Israel, Jamaica, Kuwait, Lithuania, Malawi, Malaysia, Mauritius, Mongolia, Mozambique, Pakistan, Peru, Romania, Russian Federation, Syrian Arab Republic, Trinidad and Tobago, Tunisia, Ukraine, Vietnam and Yemen.

Some countries gave reasons for their reservations and stated that the disputes might be submitted to arbitration or referred to the International Court of Justice only with the consent of all parties to the dispute in each individual case.

There are countries which by right of paragraph 3 of Article 13[24] withdrew their reservation made to this Article of the Convention. These countries are inter alia Hungary, Bulgaria and Poland.

Iraq, Jordan, Syrian Arab Republic, Yemen and Kuwait made reservations in connection with Israel and stated that their accession to the Convention should in no way constitute a recognition of Israel or a cause for the establishment of any relations of any kind therewith. The Government of Israel sent the following communication to the Secretary-General: „The instrument deposited by the Government of Iraq contains a statement of political character in respect to Israel. In the view of the Government of Israel, this is not the proper place for making such political pronouncements. That pronouncement by the Government of Iraq cannot in any way affect whatever obligations are binding upon it under general international law or under particular treaties.

To the second group those cases belong in which the reservations were made not to the Article 13 of the Convention. 

For example, Burundi in respect of cases where the alleged offenders belong to a national liberation movement recognized by Burundi or by an international organization of which Burundi is a member, and their actions are part of their struggle for liberation, the Government of the Republic of Burundi reserved the right not to apply to them the provisions of paragraph 2 of Article 2,[25]  and paragraph 1 of Article 6[26]  of the Convention.

Some states made objection to this reservation of Burundi. The Government of the Federal Republic of Germany considered the reservation made by the Government of Burundi to be incompatible with the object and purpose of the Convention. The Government of the State of Israel also regarded the reservation entered by the Government of Burundi as incompatible with the object and purpose of the Convention and added that it was unable to consider Burundi as having validly acceded to the Convention until such time as the reservation was withdrawn.[27] The same opinion had the Italian Government and the Government of the United Kingdom of Great Britain and Northern Ireland.

Iraq stated that sub-paragraph b) of paragraph 1 of article 1[28] of the Convention should cover the representatives of the national liberation movement recognized by the League of Arab States or the Organization of African Unity. The Government of the Federal Republic of Germany, the Italian Government, the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of State of Israel made objection to this reservation of Iraq and stated that they didn’t regard as valid the reservation made by Iraq in respect of paragraph (1) (b) of article 1 of the said Convention.

Portugal made a reservation and stated that it didn’t extradite anyone for crimes which carry the death penalty or life imprisonment under the law of the requestion State nor did it extradite anyone for violations which carry security measure for life.

Colombia and Malaysia made declaration in which they understand the phrase „alleged offender” in Article 1(2) of the Convention to mean the accused under their national laws.[29] France understands that only acts which may be defined as acts of terrorism constitute crimes within the meaning of article 2 of the Convention.

 

4. The practice after the Convention entered into force

 4.1.          Cases

 The most famous case, known as Hostage Case (Case concerning United States Diplomatic and Consular Staff in Tehran),[30] took place on 4^thNovember 1979 in Tehran when group of armed men entered the Embassy of the United States and took several diplomats and consuls as hostages.  The attack against Embassy was not official but individual one. It doesn’t mean that Iran is not responsible for the events. According to the Vienna Convention Iran had to take necessary steps to protect the embassy and the diplomats. The International Court of Justice in this case found that:” Iranian Government failed altogether to take any ”appropriate steps” to protect the premises, staff and archives of the United States” mission against attack by the militants, and to take any steps either to prevent this attack or to stop it before it reached its completion.

The second such case took place in Peru when in December 1996 guerrillas seized control of the residence of the Japanese Ambassador to Peru during a diplomatic reception in Lima. Guerrillas took 480 hostages, including twelve ambassadors and the Foreign Minister of Peru. The guerrillas demanded the release from prison of 458 members of their group. They threatened to begin killing the hostages if their demands were not met. The Government of Peru planed a siege which was successfully done in April 1997. Only one hostage and two soldiers died in the operation.[31]

In the near future a Jordanian Muslim group fulfilled an attack against an Israel diplomat in Amman. The diplomat was seriously injured. The members of the group shooted at diplomat when he left the garage of a supermarket. The Jordanian Muslim Armed Movement group assumed responsibility for this terrorist attack. That was the second attack against Israeli diplomat in Jordania. Two week before this event the terrorists shooted at Joram Havivian, the Israeli consul to Jordania, in Amman. The terrorist threatened the Israeli diplomats that any of them may be the military target. The Israeli minister of Foreign Affairs decided to call back the families of all diplomats and all women members from the Aman Embassy.[32]

 

 5.        Conclusions

 In the 1960s and 1970s the number of crimes made against diplomats dramatically increased. Most of these crimes were attacks, kidnappings and murders. It was urgent for all countries to take steps to prevent such crimes and existing legal rules were not enough. So the States recognized the necessity of adoption of a new Convention which deters the terrorist groups to fulfil crimes against internationally protected persons, including diplomats and to use such persons as target to press the receiving State to meet their demands e.g: release the political prisoners or pay huge ransom. In 1973 the Convention was adopted and it entered into force in some years, in 1977. Taking into account common interests the States didn’t obstruct its entering into force. Unfortunately we couldn’t say the same about the drafts from 1937.

The Convention covers the most frequent crimes committed against diplomats and requires the State Parties to establish their jurisdiction on the mode that none of perpetrators avoid responsibility. It also mentions extradition that establishes common actions and possibility of cooperation between the State Parties. 

Ustor Endre put the question: had a receiving State a requirement to regulate the protection of diplomat in criminal rules?  Ustor gave the following answer to this question: we can find in the internal criminal law of more States clear provisions which punish crimes made against diplomats in separate articles or punish these crimes seriously; but we couldn’t consider it as general rule and because there are no rules for it in Vienna Convention it means that there is no such requirement for the Member States.[33]

Although the Convention doesn’t require the State Parties to adopt separate or stricter rules to protect diplomats; it is (significant) breakthrough that with adoption of the Convention the Member States have to provide criminal protection for diplomats and other internationally protected persons. According to the above mentioned paragraph 2 of Article 2 of the Convention “each State Party shall make these crimes[34] punishable by appropriate penalties which take into account their grave nature”.

Similar to other antiterrorist Conventions the main goal of this Convention is also the coordination of fight against terrorism. It requires as closer as possible cooperation between Member States. The quicker stream of information and the technical development help to deepen the connection between the States. Unfortunately the quicker stream of information is favourable also to terrorism: it opens easier possibilities for planning coordinated, wide-ranging actions. It should make the States to cooperate with each other on a higher level. 

Unfortunately, in spite of the fact that the Convention was adopted more than 30 years ago there are lots of cases in which crimes are made against diplomats in order to extort political or/and financial benefit from the receiving State. The Convention is only one tool in the fight against terrorism but it is not enough. Maybe the main challenge of the XXI century is the issue how to save information and use it for our benefit. 

 

 

6.        Bibliography

1. 1977. évi 22. törvényerejű rendelet a nemzetközileg védett személyek, köztük a diplomáciai képviselők ellen elkövetett bűncselekmények megelőzéséről és megbüntetéséről szóló, New Yorkban, az Egyesült Nemzetek Közgyűlése XXVIII. ülésszakán, az 1973. évi december hó 14. napján elfogadott egyezmény kihirdetéséről. (Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents)
2. Péter Kovács: The United Nations in the Fight against International Terrorism. Miskolc Journal of International Law. Vol. 1 (2004) No.1.
3. Ustor Endre: A diplomáciai kapcsolatok joga. Közigazgatási és Jogtudományi Könyvkiadó. Budapest, 1965
4. Eileen Denza: Diplomatic Law. Clarendon Press. Oxford, 1998
5. Baumann: The Diplomatic Kidnappings. Martinus Nijhoff. The Hague, 1973.
6. Diplomacy in a Dangerous World. Protection for Diplomats Under International Law. Westview Press. Boulder and London, 1986.
7. Multilateral treaties deposited with the Secretary-general Status as at 31 December 2003. Volume II, Part I.
8. Yearbook of the International Law Commission. 1972. Vol. II pp. 222, 309-323.
9. The work of the International Law Commission. Sixth edition. Vol. 1. United Nations. New York, 2004.

10.  www.mult-kor.hu

11.  www.freeweb.hu/beluard/index6_32.htm

12.  www.honvedelem.hu