A Cold War like Thriller in Summer – Icy Times Between Vietnam and Germany

If “all options are on the table” in the international arena, it is a reliable indicator that the stakes are high. We still recall when President Trump put all options on the table in August last year responding to North Korean missile tests. Just a few days before, Germany, usually not known for Trumpish rhetoric, also placed “all options on the table” in a dispute with Vietnam. This was not because Germany was concerned about a nuclear escalation. Germany was responding to a kidnapping of a Vietnamese citizen and asylum seeker, which Germany’s foreign minister accurately described as something “we believe one sees only in sinister thrillers about the cold war.”

Trinh Xuan Thanh, a former high-profile constructive executive, for whom Vietnam issued an international arrest warrant for corruption, sought refuge in Germany. Thanh however never showed up for the hearing scheduled in his asylum case. Instead, a few days later, he appeared haggard-looking on Vietnamese television. Vietnam stated Thanh had voluntarily turned himself in.  Germany presents a different version of Thanh’s return, accusing Vietnam of abduction. Purportedly, witnesses saw armed men dragging Thanh into a rental car in the middle of Berlin. After a stopover at the Vietnamese embassy, it is believed that he was clandestinely transported by ambulance to Eastern Europe from where he was flown to Vietnam.  Germany had no doubts that Vietnamese officials were responsible. On February 5, the second trial against Thanh concluded. While he escaped the impending death penalty, he received two life sentences for embezzlement.

These are only the core facts of this surreal story with many more thriller-like details, leading Germany to put “all options on the table”. Germany initiated criminal investigations (leading to a first arrest). Germany suspended a public official pending an inquiry into his involvement in the kidnapping. Germany harshly and repeatedly denounced the kidnapping as an “unprecedented and blatant violation of German law and international law”, see here, here, here. Germany found it “just unacceptable that foreign States on German territory under German sovereignty trample German law.” As a consequence, Germany first demanded Thanh’s return to further examine his case. Realizing the futility of this claim, Germany requested an apology and a guarantee of non-repetition. Furthermore, Germany declared Vietnamese diplomats persona non grata. Finally, in reaction to Vietnam’s failure to meet Germany’s demands, Germany eventually suspended her Strategic Partnership with Vietnam.

Violation of international law by Vietnam

Assuming Germany’s allegations prove true, there is little doubt that Germany’s outrage is legally well-founded. An abduction carried out by Vietnamese agents within German territory violates Germany’s sovereignty and territorial integrity deriving from Article 2(1) UN Charter. Also, the embassy’s involvement amounts to a violation of the Vienna Convention on Diplomatic Relations, in particular Article 41, which states that it is the duty of all persons enjoying diplomatic privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State.  And finally, it is established that abductions violate the abductee’s right to liberty and security as guaranteed in Article 9(1) ICCPR, also when conducted extraterritorially.

One might ask if Vietnam’s action may be justified. Thinking creatively, two facts may be relevant here: Germany has not followed numerous Vietnamese requests for extradition of Thanh. Second, Vietnam presses apparently legitimate charges of corruption against him, uncontested by Germany. However, none of these arguments is convincing. First, in absence of an extradition treaty between Germany and Vietnam, Germany has no obligation to extradite Thanh. Second, even though it ultimately did not materialize, Thanh faced a real risk of being subjected to the death penalty in Vietnam. Thus, the obligation of non-refoulement even prohibited Germany from extraditing him. Moreover, Germany was not categorically unwilling to extradite Thanh, but rather was conducting high-level negotiations about an extradition consistent with human rights. (This also explains why Germany speaks of “an extreme breach of trust.”) Finally, even if Germany was wrongfully denying extradition and impeding Vietnam’s claim to justice, no circumstances of precluding wrongfulness permitted those means of archaic self-help Vietnam resorted to. Under current international law, justice has to cooperate and wait. Calls to pierce State sovereignty to fight impunity still have their limits at State borders (see for the discussion on State immunity). Even the abduction of Eichmann, one of the main organizers of the Holocaust, prompted Argentina to strongly protest against the violation of its sovereignty and complain to the Security Council. The Security Council agreed and requested Israel to make appropriate reparation. And Israel accepted that it “infringed fundamental rights of the State of Argentine.” International law‘s position has not changed despite recent extraordinary rendition practice in the fight against global terrorism – and hence gave valid reason to Germany to put “all options on the table.”

Germany‘s Reaction

However, it is also beyond doubt that Germany’s “all options” have their limits in international law. This case illustrates however that defining those limits may prove difficult. First, Germany accepts and closely follows the trial against Thanh, and has limited herself to requesting due process guarantees. This appears as an implicit acceptance of the heavily criticised, but accepted doctrine of male captus bene detentus. Apparently, Germany’s “options” do not include contesting Vietnam’s right to conduct the trial. Moreover, the incident allows us to assess the limits of a state’s freedom to choose an adequate form of reparation and to respond to internationally wrongful acts.

Choosing Reparation

Since the famous Chorzow Factory decision of the PCIJ it is generally accepted that every breach of an international obligation entails the obligation to repair the damage caused by said breach. Reparation has to wipe out all consequences of the wrongful act. To that end, the ILC’s Articles on State Responsibility establish a clear hierarchy between the different forms of reparation, giving primacy to restitution over compensation and satisfaction. In principle the injured state can overturn this primacy by choosing another mode of reparation. This right to choose however only applies “in most circumstances”. Or as the ILC goes on to explain in more detail: “there are cases where a State may not, as it were, pocket compensation and walk away from an unresolved situation, for example one involving the life and liberty of individuals […]“. (ILC ARS Commentaries, Art 34, para 4 and Art 43, para 6)

Germany gave up on her initial request to have Thanh returned in favour of demanding an apology and a guarantee of non-repetition. Thus, even though Germany did not take money and run, she chooses satisfaction over restitution, turning her back on Thanh, who at the time Germany made her choice still faced the death penalty. How does such a reaction square with the ILC’s remarks?

It is clear that Germany cannot be obliged to demand Thanh’s freedom by way of restitution. For the injured state, reparation is a right not an obligation. Germany also does not owe release efforts to Thanh. She has no extraterritorial human rights obligations towards him, now in Vietnam. She played no part in his abduction and there are no indications that she violated a positive obligation to protect Thanh. Germany also complied with her procedural obligation to investigate human rights violations on her territory. Moreover, Germany does not have any obligations towards any third party in that matter either.

But still, according to the ILC, Germany is not free to choose the reparation she wants. This of course for an obvious reason: choosing other forms of reparation over restitution would be detrimental to the individual’s position. Taking our case as example, Vietnam has the obligation towards Germany to return Thanh to German territory as restitution. By giving up on this claim, Germany absolves Vietnam from this obligation, leaving Thanh to face the death penalty or life imprisonment. This constellation may be best explained by the notion of abuse of rights: Even if a state does not owe a certain behaviour to anyone, it must make use of its rights in a way that does not infringe the valid interests of others without good reason. Hence, the right to choose a form of reparation is subject to a balance of interests of the parties affected. By indicating that Germany has to accept that a trial is happening, a German spokesperson hinted to the fact that it is hard to obtain restitution from Vietnam. Should that be the only reason for Germany‘s choice of reparation, this will hardly hold up in a balance of interests, considering the fact that an individual’s freedom and life were in danger.

In sum, it is Germany’s sovereign decision whether she seeks reparation at all. It is also her sovereign decision by what means and with how much effort she tries to enforce her right to reparation. However, Germany may not exercise her right to reparation in a way that she enriches herself – even if only immaterially – to the detriment of the valid interests of a third party. Thus, in our case, while Germany in a mitigative manner pushed for due process rights in the trial, Germany could not have simply taken the easy way out by choosing satisfaction and leaving Thanh to his fate.

Of course, these are only first thoughts on a subject which received little attention in academic discourse so far and calls for a thorough review of international practice. Coming back to the Eichmann case, Argentina did not demand Eichmann‘s return either. Yet, it can easily be imagined that due to the advancement of human rights and the individual’s heightened position in international law today a similarly high profile case nowadays would be treated differently. For example, Libya demanded the return of Abu Anas al-Liby whom the United States kidnapped from Libyan territory in a counterterrorism operation.

Suspension of the Strategic partnership – Enforcement of what?

Finally, Germany suspended the strategic partnership with Vietnam, which was founded on the Hanoi-Declaration 2011. Unfortunately, only sparse reliable information is available on what this meant in practice. If it was only the Hanoi-Declaration that was suspended, there is good reason to assume that the suspension would only constitute an unfriendly, though lawful retorsion. Throughout its provisions, the Hanoi-Declaration merely expresses the intent to deepen cooperation between Germany and Vietnam, stopping short of entering into hard legal commitments. The suspension constitutes hence a strong political sign, but no countermeasure.

It is however worth asking which obligation violated by Vietnam Germany thus sought to enforce. Arguably, primarily, the suspension was directed at enforcing the new legal relation arising due to Vietnam breaching its obligation to respect Germany’s sovereignty; an obligation owed to Germany individually, which Germany is entitled to invoke responsibility for according to Article 42 ARS – and if so wished even through countermeasures. The same is true for Vietnam’s violation of the law of diplomatic relations. It is also owed to Germany individually. The nature of the law of diplomatic relations as so-called “self-contained regime” does not stand against this. It only prohibits any means targeting diplomatic institutions and personnel themselves (except by the means foreseen in the VCDR). The “self-contained regime” however must not be confused with a prohibition to take enforcement measures (retorsion or countermeasures) for the law of diplomatic relations by other means.

Finally, Germany‘s reaction could also be read as an attempt to induce Vietnam’s compliance with Thanh’s human rights, in particular Article 9(1) ICCPR, which is continuingly violated throughout Thanh’s captivity. This would mean that Germany attempted to enforce human rights of a Vietnamese citizen against his home State. Controversial questions on Germany’s entitlement to invoke those violations and if so by what means arise. While Germany arguably may invoke Vietnam’s responsibility pursuant to Article 48 I ARS, the permissible means pose more difficulties. Beyond the categories specified in Article 48 II ARS one rapidly comes across rough grounds – the fiercely debated question whether third States may take countermeasures to enforce erga omnes obligations has been deliberately left unanswered by the ILC (see Article 54 ARS). Germany, similarly, leaves those controversial questions open. By taking political means only and by remaining vague on the norms she aims to enforce, Germany (maybe unintentionally, but skilfully) avoids going through the door she opened putting “all options on the table”. Still, the case shows how closely related the enforcement of sovereignty and human rights may be.

Conclusion

In short, a surreal story resembling sinister thrillers about the cold war serves as another example of the complex interplay between sovereignty and human rights and gives reason to dedicate further thought to legal consequences of transboundary abductions. While it is beyond doubt that those abductions constitute serious violations of international law, the international community still struggles with how to adequately respond. In this respect, nothing appears to have changed since the Eichmann case: the Security Council found a violation of international law, but evaded the question of what should be the concrete consequence. The answer to that question is still to be determined.