Escape at the embassy: precedents and chances for the citizens of different countries

Igor Glebov, Doctor of Law, Honored Lawyer of the Russian Federation and Chairman of the International Committee for the Defense against Unjust Persecution of Citizens Abroad, Vladimir Sidorov, propose to create a so-called "panic button", a set of measures for every Russian traveling abroad. It is necessary to precisely define the legal concept of "asylum" and help those who find themselves in a difficult situation, using the entire arsenal of the Russian state power - this is the main idea of the analytical article that was received by NI.

November 2019 Russian citizen Maria Lazareva received asylum at the residence of the Russian Embassy in Kuwait. She headed the Kuwaiti investment company KGLI and the private equity fund TPF, which financed the development of Kuwait's port infrastructure. Local corrupt officials decided to take this business away and "ordered" the fabrication of charges against Lazareva of allegedly embezzling public funds. In May 2018, she was sentenced to 10 years of hard labor and imprisoned. In June 2019, the case fell apart, the verdict was overturned by the appeal instance, after which a new case was fabricated, allegedly for money laundering, and in November 2019 Lazareva was assigned 15 years of hard labor. Fabrication of cases and gross violations of the rights of the accused have been established at the international legal level by UN experts, lawyers from the United States, Britain and Russia. Suffice it to say that the only prosecution witness was convicted by a Kuwaiti court for perjury and falsification of documents, escaped from custody and is on the wanted list. But it is on his false testimony that all charges are built. On the eve of the next sentence, Lazareva was accepted under diplomatic protection at the residence of the Russian Embassy.

From the point of view of Russian domestic law, the actions of the Russian embassy, which has accepted a Russian citizen under protection in its residence, are completely legitimate. The use of this concept on the part of Russia is complicated by the fact that traditionally the USSR and Russia, as its successor, tried to avoid the practical granting of diplomatic asylum in their embassies, and did not participate in the contractual forms of the right of diplomatic asylum, in contrast to granting asylum on their territory for foreigners - political and territorial.

The politicized attitude towards diplomatic asylum is now changing to a pragmatic approach to assessing specific situations in which the Russian state in a number of cases is forced to provide diplomatic asylum to its citizens. For example, back in the 1990s, the Russian embassy in Yemen granted asylum to an employee of Rosvooruzheniye, from which he was taken out after a long stay there by agreement with the local authorities. In 2015, dozens of Russian citizens who were in danger of persecution due to riots in Yemen received asylum at the Russian embassy in Yemen; there, during the bombing of the capital, former President of Yemen A.A. Salih took refuge. In 2019, Julian Assange intended to apply to the Russian embassy in the UK for asylum . Similar situations periodically arise at the embassies of many countries around the world.

The custom of diplomatic asylum has a history as old as that of embassies. More than three millennia ago, the oldest materially preserved Egyptian-Hittite treaty of 1259 BC. gave the ambassadors the right to shelter and return to their country her subjects, who were guilty before the local rulers.

Russia has an ancient legal priority in the formation of this institution. The treaties of the Russian princes Oleg, Igor and Svyatoslav with Byzantium already at that time contained rules on the status of Russian ambassadors and rules for the delimitation of jurisdiction in relation to the subjects of both countries in cases of their committing offenses.

In 1540 in Venice, six masters (officials), accused of high treason, took refuge in the French embassy. The Venice Council demanded their extradition, citing the fact that state criminals did not use diplomatic asylum, and deployed cannons in front of the embassy. Those who took refuge were handed over to the local authorities and then executed. In response, King Francis I of France deprived the Venetian ambassador of audiences for two months.

In 1601 French musketeers in Madrid killed and wounded several Spanish soldiers in a street fight, after which they took refuge in their embassy. An armed crowd of Spaniards burst into the embassy and arrested the Musketeers. The international dispute was judged by Pope Clement VIII, who made Spain return the Musketeers to the disposal of the French ambassador.

In 1808 at the residence of the Russian embassy in Vienna, two Russian soldiers who escaped from French captivity took refuge. The Austrian authorities laid siege to the embassy building and demanded the extradition of the fugitives as deserters, but the Russian envoy in Vienna, Prince Kurakin, managed to defend the inviolability of Russian subjects and return them to their homeland.

In modern contractual practice, diplomatic asylum means providing a person with shelter in the premises of a diplomatic mission, consular office or on a warship under the flag of the sending state. Thus, the countries of Latin America recognize this institution, relying on regional practice and the content of the 1954 Caracas Convention of the Organization of American States on Diplomatic Asylum. Article 1 of this Convention establishes that "the State exercising territorial jurisdiction must respect the asylum granted in missions, on military ships, in military camps or on aircraft, to persons wanted for political reasons or for political offenses". History knows cases of using this form of asylum for persons persecuted for religious, racial and other reasons.

At the same time, paragraph 3 of Art. 41 of the Vienna Convention on Diplomatic Relations prohibits the use of the premises of a diplomatic mission for purposes incompatible with its functions. The general requirement for the state that has granted asylum is that it must not allow those who have received it to engage in activities that run counter to the purposes and principles of the UN (Article 4 of the UN Declaration on Territorial Asylum, 1967).

The modern doctrine of understanding and application of the law of diplomatic asylum was formed in each country, taking into account national embassy customs and systems of domestic law. The variety of situations, positions of different countries as a whole form a mosaic of international law norms of diplomatic asylum.

The United States has provided asylum at its embassies since the 18th century. The origins of the US position on this issue were first formulated in a letter from the State Department to Venezuela: "The degree of justice of diplomatic protection should be determined by the minister himself in accordance with the requirements of each specific state." Based on this position, the United States used the institution of diplomatic asylum, sheltering in its embassies everyone who was of interest to them.

In 1891, the ousted President of Chile, Balmaceda, took refuge in the Argentine embassy, and his family in the American one. In January 1917, ousted President Gonzales, his family and retinue received refuge in Costa Rica.

In 1928, the Havana Convention on Diplomatic Asylum was adopted, which was ratified by 13 countries including, and the United States, while their participation was reduced to the desire to be able to provide their citizens with diplomatic asylum in Latin America, limiting the use of this institution on the territory of the United States itself. In 1932 in Bolivia, the president and his family received asylum at the American embassy. During the coup d'état in Nicaragua. This also happened after the suppression of the anti-Soviet putsch in Hungary in 1956, the fall of the Allende regime in Chile in 1973, American citizens and political partners. The American Embassy, at the request of the Pope, granted diplomatic asylum in Budapest to Cardinal Mindszenty (from 1956 to 1971); in 2012, dissident Chen Guangcheng received US diplomatic asylum in Beijing. In 2002, a group of 28 North Korean dissidents received protection from the diplomatic missions of Germany, the United States and Japan in China and then, in agreement with the local authorities, were taken to South Korea. In this case, the United States used the resource of the UN High Commissioner for Refugees, through which family members of Koreans were expatriated.

Although Great Britain has a reserved attitude to this institution, it actually provides asylum in its diplomatic missions. The Commonwealth Secretary stated that British embassies traditionally deal with issues of "temporary diplomatic asylum in accordance with international law, the Vienna Convention on Consular Relations 1963 and the UKBA's asylum policy.

With regard to Russia, Russian legislation obliges diplomatic missions "to provide measures to protect citizens of the Russian Federation and to provide them with patronage in the manner determined by the legislation of the Russian Federation and international treaties of the Russian Federation." In addition, in Russian normative legal acts, the concept of asylum is used in connection with the need to protect "by diplomatic and international legal means, the rights, freedoms and interests of citizens and legal entities of the Russian Federation abroad", as well as to ensure the protection of cultural values, material, financial and other interests of Russian citizens outside the territory of Russia.

1. Asylum motive . Diplomatic missions are generally not very enthusiastic about providing shelter to persons without diplomatic status in their secure premises. However, if the personality of the asylum seeker has business and personal qualities that are important in the understanding of the sending state, then the embassies are more willing to meet the applicants. For example, during the Spanish Civil War (1937), up to 20 thousand "Spanish revolutionaries" were hiding in the residences of 14 embassies in Madrid. The political weight and personal connections of the asylum seeker are essential. So, in Haiti, after a coup d'état (1967), the family of the dictator Duvalier and his entourage hid in foreign embassies. Erich Honnecker, after the reunification of Germany in 1989, was taken to the USSR, in 1991 he received asylum at the Chilean embassy in Moscow, from where he was extradited to the FRG in 1992, then amnestied, emigrated to Chile, where he died two years later.

In 1991, Michel Aoun , the commander of the Lebanese army for nine months on humanitarian grounds, took refuge in the residence of the French ambassador in Beirut, from where he led an armed rebellion, then he was convicted and pardoned by the Lebanese justice. In 1991, in Ethiopia, the Italian Embassy in Addis Ababa granted asylum to members of the government of Mengistu Haile Mariam accused of genocide on humanitarian grounds.

Regardless of the semantic and linguistic shades of terminology, the peculiarities of national worldviews, we are dealing with the same material phenomenon - the protection of the individual on the territory of the embassy for certain officially expressed motives. So, the term "shelter" essentially means the same phenomenon as "shelter".

In cases where the legal expediency and the situation dictate a similar need, the use of a new concept in the international legal lexicon and diplomatic communication can be of mutual benefit to the states participating in a certain casual legal relationship. The parties can discuss the issue of mutually acceptable status of the protected person in a specific situation, then the concept of "shelter", "temporary refuge" or, most efficiently, "favorable residence" can be used to normalize the situation with the protection of the persecuted person on the territory of the diplomatic mission. Theoretically, this concept can be justified as a temporary or emergency diplomatic state ad hoc - for a specific case.

The term "favorable residence", as a justifying category, can be used for the period of providing the fugitive person with physical opportunity and procedural guarantees for effective legal protection from unjust prosecution and safe participation in an objective and impartial consideration of the case based on the rule of law and international standards of justice.

The effectiveness of the inviolability of persons who took refuge in the territory of the embassies. The more stable the state power in the host country, the less inclined it is to encroach on the inviolability of embassies. Most of the cases of direct incursions into the territory of embassies that have taken place in history belong to the periods of coups d'état, riots and revolutions, as well as to the crimes of dictatorial, tribalist and fascist regimes. The most indicative examples are the arrest in 1944 by the Nazis of Miklos Kallai, who was hiding in the Turkish embassy in Budapest, or in 1996 the capture and assassination by the Taliban of Afghan President Mohammad Najibula, who was officially under diplomatic protection at the UN mission in Kabul; and etc.

The perception by the state authorities of the effect of the inviolability of diplomatic missions is deeply rooted in the legal consciousness of nations, mainly because any violation of the embassy is perceived as a humiliating challenge to another country, as an excuse for, at least, a response, and as a maximum - a military operation to protect one's embassy. Therefore, all sorts of incidents and excesses associated with the involvement of the authorities of the receiving state in the violation of diplomatic immunity receive a rather powerful public and legal echo. For example, in 2002 a group of North Korean citizens In search of asylum, she entered the Japanese consulate in Beijing, but they were detained by Chinese police officers who broke into the consul's residence. The incident received widespread media coverage, accusing the consulate of conniving at Chinese violators of diplomatic immunity. As a result, Japanese consulate officials were disciplined and the Consul General was recalled.

Analysis of event material allows us to single out the following main factors of the effectiveness of the shelter on the territory of the embassies:

- the international weight of the country whose embassy has granted asylum. Thus, the granting of diplomatic asylum to the United States in all cases foreseeable in the nearest retrospect ended favorably both for the persons who used the asylum and for the bilateral relations of the countries. The last three cases of interstate friction over the US diplomatic asylum were noted only in the century before last. Despite the fact that the United States, like Russia, is reluctant to use this tool only in extraordinary cases, however, it happens very effectively. The use of asylum by the United States is perceived with particular understanding, for example, by the countries of Latin America, which have both their own contractual practice of asylum and a tradition of respecting the "Northern Neighbor";

- the credibility of officials of the accrediting state involved in the diplomatic settlement of cases related to the granting of asylum. For example, the personal involvement of President George W. Bush and his envoy H. Kissinger contributed to the favorable resolution of the situation with the granting of asylum by the US Embassy in Beijing to the Chinese dissident Fan Lichzhi and his wife (2003). In the situation with E. Huseynov, who was granted asylum at the Swiss Embassy in Azerbaijan in 2014, the main role was played by direct personal contacts between the presidents of Azerbaijan and Switzerland and, of course, the coordinated activity of the foreign ministries of both states. At times, the outcome of an effective asylum operation is determined by the personality of the main negotiator. A striking example is the humanitarian activity during the 1973 military coup in Chile by Swedish Ambassador H. Edelstamom, who was previously famous for saving hundreds of Jews from Nazi captivity in Norway during the First World War.

- the character of public opinion around the situation related to the granting of diplomatic asylum. The states concerned when such situations arise, as a rule, resort to intensive influence on public opinion. And the side that wins is where the level of support for its efforts from the media, nongovernmental, religious and other public organizations turns out to be more powerful. In a number of cases, a broad public media campaign is supplemented by legal measures, political and economic methods of pressure. Thus, the House of Representatives of the United States ultimately obtained the corresponding concessions from the USSR after the 1982 resolution on “concern over the infringement of the right to emigrate” from the USSR of Pentecostal families, the so-called. "Siberian Seven", which have been hiding since 1978 on the territory of the US Embassy in Moscow. In this case, confessional channels also play a special role. Religious leaders often act as arbitrators, mediators, guarantors, sureties. For example, the aforementioned Pope Clement VIII, and modern Catholic leaders in the situation with the President of Burundi, Sylvester Ntibantunganya, who took refuge in the American embassy in 1996;

- the presence of a clear legal position of the interested state in international organizations and supported by the diplomatic corps of the allies. Many disputes over diplomatic asylum were resolved with the keen participation of UN agencies, international human rights organizations and public centers of influence;

- circumstances and terms of stay in the diplomatic mission .

In more than half of the cases we analyzed, the authorities of the host country recognized the admissibility of the actions of the sending state that had granted diplomatic asylum on the territory of the embassy, as well as providing the applicants with the opportunity to safely leave the country. This was often preceded by protracted negotiations with the imposition of a number of conditions to the applicants, such as: "ban on political activity" in the case of Fang Lizhi (2003); "removal from the capital" - Zhang Xun, a Chinese general who took refuge in the Dutch embassy in 1917 in Pekin; or - "not to return to the American continent for a year" in the case of Mario G. Menocal, the former president of Cuba, who after a coup d'etat in 1931 received asylum at the Brazilian embassy, and then was deported to Europe under this condition. In a number of cases, the opportunity for applicants to safely leave the shelter at the embassy appeared in connection with a fundamental change in circumstances in the host country. These were either a change in the political regime or a reshuffle in the ranks of the ruling circles.

In about 15% of cases, diplomatic asylum ended unfavorably for those who took refuge, with the removal of protection and extradition to the authorities of the state concerned, as, in particular, for J. Assange, who was hiding in the Ecuadorian Embassy in London (2019). Violent actions of local authorities to seize those who had taken refuge in the embassies are extremely rare, in most cases they led to the severance of diplomatic relations, for example, after the assault by the police of the Spanish embassy in Guatemala (1980).

Asylum times in diplomatic missions range from part-time to 30 years in the case of Ethiopian leaders who have been at the Italian embassy from 1991 to the present. Most of the controversial situations of diplomatic asylum were resolved by the sending and receiving states within a year or two years.

- the possibility of a compromise . The fate of those hiding in embassies often depends on the multi-pass, behind-the-scenes agreements of the countries concerned. Each of the parties, to varying degrees, strives to "save face" in the event of one or another outcome.

Any state has the right to decide on the issue of granting asylum on the basis of its legal consciousness and sovereignty, therefore, the mere request for asylum does not mean its automatic granting. Along with this, nothing prevents states from creating new bilateral and multilateral treaties on the limits and conditions of diplomatic protection of their citizens abroad, including the granting of asylum in the residences of embassies. The institution of diplomatic asylum, in the event of its international legal reformatting, could be a powerful tool for protecting the rights of citizens staying abroad in situations where the host country violates the norms and principles of international law in relation to ensuring rights, freedoms and personal security human. A promising area of interstate cooperation could be the development and adoption of international legal norms aimed at providing diplomatic asylum on humanitarian grounds in cases of unjust persecution of citizens and the lack of guarantees of the rule of law for them.

In Russia, the intrastate legal regulation of the institution of diplomatic asylum currently requires a separate study. At the initial stage of posing this problem, it is necessary to determine the circle of persons entitled to asylum, the procedures for granting it and the specifics of the legal status of this category of persons. The legal model of diplomatic asylum can be constructed on the basis of the rules on political asylum in Russia for foreign citizens

At the same time, the right of diplomatic asylum is not limited to the Foreign Ministry's perception of the problem. The system of state bodies of foreign relations is much broader than the diplomatic department. Unfortunately, the domestic legislation does not contain an exhaustive list of these bodies, as well as the distribution of foreign policy powers between them.

It is quite obvious that practically all ministries and departments, state corporations, constituent entities of the Russian Federation and even municipal bodies can exert influence in the international arena on their counterparties from other countries. For example, the chambers of the Federal Assembly, the Government, the Ministry of Justice and the Ministry of Internal Affairs, the Prosecutor's Office and the Investigative Committee, the FSB and SVR, and all other government agencies. However, this potential is by no means always properly coordinated in cases where it is necessary to protect a particular Russian who is in trouble abroad. Only in the most high-profile situations, in isolated cases, attempts to somehow interdepartmental rally in the most egregious, "resonant" cases slip through. These combined efforts are working. But in general, This work does not have any consistency and purposefulness; no one is purposefully coordinating it at the level of branches of government and departments, despite the fact that the Russian Foreign Ministry is the "head" responsible for protecting citizens abroad.

It seems that the coordination function should be implemented at the level of the head of state.

Under the President of the Russian Federation, it is necessary to have a brain coordinating center for making multifaceted and purposeful decisions to protect Russian citizens in trouble abroad.

Classification of situations, methods of influence can be typical on the one hand, and on the other - unique. The functional nature and distribution of powers in this work is a fairly large-scale set of reflections, so here we will only limit ourselves to a statement of the fact - the urgent need to start state work on the legal registration of the institution of diplomatic asylum.

The power of influence of social forces, authoritative leaders in a particular country, influential persons, celebrities and professionals in their field is quite obvious. In situations where the fate of a Russian citizen has become dependent on unfair or malicious persecution abroad, a phone call, TV speech or other expression of a motivated opinion of a local public figure is enough for the local justice system to return to the ideals of the rule of law and justice. Such opportunities should not be missed. Religious leaders, generally recognized figures of culture, art, sports, as well as large capital owners, investors and business executives, each in his own line can stand up for an illegally persecuted person abroad. But again, this requires painstaking coordination work of society and the state.

The result of this joint work, in our deep conviction, should be a modern legal system, in which every Russian abroad would become the owner, figuratively speaking, of an “alarm button” of communication with a “hot line” for protecting their rights and interests abroad.

In cases of threat to life, liberty and security of the individual, every citizen has the right to count on diplomatic asylum. To develop such a system and put it into operation as instruments of human rights protection seems to be a worthy and highly urgent task of strengthening Russian statehood and the international prestige of the Russian Federation.

In a commentary to Novy Izvestia, co-author of the study, Vladimir Sidorov, noted:

- New article with Professor Glebov - we (thanks to Alexander Beck!) Analyzed the practice of granting asylum in embassies. We found more than 100 cases (including massive ones). Practice, studied over 300 years, shows that in more than 70% of cases, people who remain under protection in embassies end up positively and people return to their countries. History knows a lot of unique cases when, for example, the Sultan of Zanzibar (an archipelago in the ocean next to Tanzania) was overthrown by a coup and remained in the German Embassy. The approaching warship sent sailors to this embassy, who carried an inflatable boat in their hands, which, according to all conventions, should not touch water and land. The unfortunate fugitive sultan was put into this boat and carried to the ship in their arms and the man was rescued. 1896... It was the shortest war in the world...