در رگ تاک

Interview with American Heral Tribune

In June of 2018, Iranian diplomat Assadollah Asadi was arrested in Germany on his way back to Vienna. He has been accused of involvement in a plot to bomb a rally of supporters of the People’s Mojahedin Organization (MEK), a terrorist group that seeks the overthrow of the Iranian government. Mr. Assadi has been incarcerated since his arrest, without trial.

There are many troubling aspects to this arrest. In order to better understand them, we contacted Dr. Maghami, a distinguished Professor of International Law. His responses to our questions are below.

Alireza Niknam: As you know, Assadollah Asadi, a diplomat of the Islamic Republic of Iran, was arrested on his way back to work in Vienna while crossing Germany in July 2018, and his case was sent to court in July 2020 after two years. Was the German Government authorized to do so under the 1961 Vienna Convention?

Dr. Amir Maghami: Article 40 of the Vienna Convention explicitly states that an official person that is the subject to this Convention, even in a third country, and when he intends to continue his journey to his country or to be on a mission, enjoys diplomatic law immunities. It must also bear in mind that diplomatic law and the immunities arising from them have fundamental importance in order to respect equal sovereignty of states and also provisions of the convention must be interpreted in the framework of this principle and importance of protecting the abilities of diplomats for doing his tasks. It seems that in the present case, acts of Austrian, Belgian, and German states constitute a series of breaches of international law. So if we can say that Mr. Asadi was in returning to his post, the fact that he was at a third state, not exclude his enjoyment of diplomatic immunities.

Given the text of Article 40 of the Convention and the emphasis on the duty of the third State vis-à-vis a diplomat returning to his workplace, has there not been a clear violation of the Convention concerning our country’s diplomats?

This conclusion depends on the reason for Mr. Asadi's presence in Belgium. If, at the time of detention, he was returning to work or his presence in a third country was due to transit, the detention may be considered a violation of Article 40 of the Convention.

In your opinion, to what extent can this action of the German and Belgian Governments lead to a wrong practice in the field of diplomatic law results in the practical rejection of the relevant Convention?

The German Constitutional Court has previously ruled that if a diplomat is present in Germany as a third country for personal purposes, he or she will not be immune because he or she has not been introduced to Germany as a diplomat. But if Mr. Asadi were to return to his mission, Germany's wrongful act in the present case would jeopardize any diplomat anywhere in the world. Because for any reason, diplomats may be forced to stay in a third country, and thus their detention in third countries is conceivable and could affect their function as a representative of the government.

Have the actions of German and Belgian Governments been contrary to the purpose of the Convention on Diplomatic Relations enshrined in its preamble, that is to develop friendly relations between States and to ensure the effective functioning of diplomatic agents?

The important point about the present case is that there are no justifiable reasons for Mr. Asadi's detention, and Mr. Asadi may not even be considered a suspect or accused. Therefore, the increase in such cases will definitely disrupt the role and function of diplomats in maintaining international peace and security.

In your opinion, legally speaking, what should be the response of the Islamic Republic of Iran to this violation of international law?

I believe that if the Islamic Republic of Iran believes that Article 40 of the Vienna Convention has been violated, it should do so in accordance with the Protocol for the Settlement of Disputes of this Convention, to which all three States of Iran, Belgium, and Germany are parties; File a lawsuit before International Court of Justice and request the provisional measure to suspend German illegal acts of the detention order in a request for an interim injunction.

https://ahtribune.com/interview/4445-illegal-arrest-of-assadollah-asadi.html