“International Law and Iranian Democracy”

July 10th, 2009

With the chances of the June 12th Presidential election in Iran being overturned quickly disappearing, it is worthwhile to look back at what has happened so far, and what the likely effects of those events will be. One interesting and under discussed issue, in the U.S. at least, has been the seizure of United Kingdom Embassy personnel by Iranian authorities on the charge of helping to incite the recent democratic protests. Although no UK nationals were arrested, eight Iranian nationals were taken into custody. All but one was released, but it is possible that despite the UKs heated protests the individual will stand trial—and the penalty may be death.

Already the Iranian authorities have turned to a repeated and disturbing tactic; namely, taping the confessions of alleged perpetrators and then broadcasting them publicly as evidence. Citizens of the UK, for example, will remember the capture of fifteen British Naval personnel by Iran in March of 2007. Although those soldiers did not have to stand trial (they were released to the UK as a “gift”) that release came only after taped confessions had been extracted and played publicly as proof that their vessel had strayed into Iran’s territorial waters. In the current crisis, it’s worth asking: Given that the taped confession of a British national would be more convincing to a skeptical Iranian public, why arrest an Iranian national and let the British employees go free?

The most obvious answer is diplomatic immunity, a principal of international law that goes back to antiquity. Indeed, the protection of ambassadors and other representatives is one of the oldest and most widely accepted norms of international law. In modern times, these understandings have been encapsulated in the Vienna Convention on Diplomatic Relations (1961) and Consular Relations (1963), and have been nearly universally ratified. They also generally reflect established customary international law, which makes them applicable even to countries that have chosen not to join the conventions.

However, under the Convention on Diplomatic Relations, even though the arrested Iranians were employed by the UK embassy, they are entitled to significantly less protection than the Britons working there. Indeed, the Convention on Diplomatic Relations evinces a strong preference for diplomats and staff to be from the sending state, stating in its Eighth Article that diplomatic staff “should in principle” be nationals. One of the reasons for the Conventions is to prevent the scapegoating of diplomatic personnel from unpopular countries. As a result, the Iranians working at a foreign embassy are likely only entitled to whatever protection their government chooses to give them—which is bound to be minimal. However, even the Iranian government’s decision to abide technically by the rule of law may reap unintended negative consequences. An Iranian public that has witnessed a brutal crackdown on its own citizenry will have little difficulty finding more of the same here.

The timing is serendipitous, however, because President Obama’s careful diplomacy has ensured that Iran will face further difficulty convincingly alleging foreign intervention. By deliberately declining to condemn Iran following the initial election results, President Obama made sure that later accusations of meddling would ring hallow.

Ultimately, of course, the question is larger than the fate of one Iranian employee of one foreign embassy. Iranians will have to decide for themselves what the protests have meant, and what the authorities violent response to them will mean for their future. In coming to a decision on that question, the most persuasive evidence will likely be the experiences of the many Iranians who participated in the protests and who witnessed violent suppressions--not of members of fringe radicals or CIA agitators, but of their own neighbors and friends. But cagey diplomacy and international law have a part to play as well.