Inviolability and the Protest at the Bahraini Embassy

This week Channel 4 News broadcast a remarkable story about a dissident who climbed onto the roof of the Bahraini Embassy in London. The man, Moosa Mohammed, was part of a larger group protesting planned executions in Bahrain, executions which have been condemned by human rights organisations. The protest and underlying cause are rightly at the centre of the story, and the broadcast captures the confusion and drama of the night in question. Mr Mohammed is accosted on the roof by embassy staff, appears to be beaten by a man with a stick, and, in his interview with Channel 4 News, asserts that the embassy staff threatened to throw him off the roof. But the broadcast is also remarkable for it shows, on cell phone footage, the Metropolitan Police breaking open the embassy doors and entering the premises.

To say it is rare to see the police of a receiving state breaking open the doors of a foreign embassy is an understatement. As the broadcast highlights, the inviolability of diplomatic premises is established in international law. In this post, I will discuss the legality under international law of the UK’s actions. For the purposes of the legal analysis I will assume both that there was, on an objective level, a threat to the life/bodily integrity of Mr Mohammed and that the police were acting on the back of their perception of that threat. This factual position is disputed by Bahrain. First, I set out the case that the UK’s actions were unlawful on the basis of the unconditional rule in Article 22(1) of the Vienna Convention on Diplomatic Relations. Second, I suggest that the better view is that the UK’s conduct was lawful, and discuss two routes to that conclusion. Third, I discuss the Bahraini Embassy’s statement.

Inviolability of Premises

Stating the prima facie case for unlawfulness is straightforward. Article 22(1) of the VCDR, to which both the UK and Bahrain are party, provides: ‘The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission.’ The language is clear. Moreover, as Denza explains (p. 119), at the United Nations Conference on Diplomatic Intercourse and Immunities delegates mooted and rejected the inclusion of an emergency exception:

Amendments which would have permitted the receiving State to take ‘such measures as are essential for the protection of life and property in exceptional circumstances of public emergency and danger’, or specified that ‘the head of the mission shall co-operate with the local authorities in case of fire, epidemic or other extreme emergency’ were withdrawn. Most delegations, and in particular all the Communist delegations, were of the opinion that it would be dangerous to allow the receiving State to judge when ‘exceptional circumstances’ existed and that it was in a time of ‘extreme emergency’ that it was most necessary to preserve the principle of inviolability of mission premises. The Conference clearly determined that under Article 22 the inviolability of mission premises should be unqualified.

Finally, the analogous rule in Article 31 of the Vienna Convention on Consular Relations is drafted in more conditional terms – for analysis, see here. Article 31(2) VCCR includes the qualifier that ‘[t]he consent of the head of the consular post may, however, be assumed in case of fire or other disaster requiring prompt protective action.’ This language throws the unconditional nature of the VCDR rule into sharp relief.

Two Routes to Lawfulness

Is that it? It is hard to watch the Channel 4 broadcast and not think that the Metropolitan Police did the right thing. We’re less than a year since the torture and killing of Jamal Khashoggi, and Mr Mohammed’s fear is plain on the video. But were the police actions lawful? There are (at least) two routes to legality: the first through an implicit exception to Article 22(1) VCDR; the second through necessity as a circumstance precluding wrongfulness in general international law.

As to the first, the argument might run that in addition to its obligation to Bahrain under Article 22(1) VCDR, the UK was under an obligation to protect Mr Mohammed’s life. As to jurisdiction, despite the fact that the risk arose on diplomatic premises, Mr Mohammed remains within the UK’s jurisdiction under both the ICCPR and ECHR. Substantively, under both Article 6 ICCPR and Article 2 ECHR, the UK has a positive obligation, conditioned by due diligence, to protect Mr Mohammed’s life. We are thus in the world of a potential conflict of obligations, and various means of reconciling them. One way of reconciling them would be to read into Article 22(1) an exception based on protecting life.

Versions of this argument have received support in the literature, including that of Vicuna, Denza, and van Alebeek, with the last concluding that ‘[m]ost commentators agree that in case of extreme emergency, for example when necessary to protect human life, mission premises may be entered by the receiving State even against the express will of the sending State.’ One problem the interpretive argument is the difference between the unconditionality of the inviolability obligation and the flexibility of the protective obligation. Thus, in the Genocide Convention case, in its discussion of the obligation of states to prevent genocide, the ICJ held:

The State’s capacity to influence must also be assessed by legal criteria, since it is clear that every State may only act within the limits permitted by international law; seen thus, a State’s capacity to influence may vary depending on its particular legal position vis-à-vis the situations and persons facing the danger, or the reality, of genocide.

In other words, turning back to the case at hand, the positive duty to protect life would be bounded by other rules of international law, including the obligation owed to Bahrain to respect the inviolability of its premises. Although inapposite in this context, there are also good reasons to be cautious of capacious positive duties legitimating the infringement of other rules of international law. Nonetheless, the reasonably widespread support in the literature suggests the plausibility of this argument.

A second, perhaps stronger, route is the invocation by the UK of either distress or necessity as a circumstance precluding wrongfulness in general international law. I will focus here on necessity, though, as Milanovic argues in respect of the killing of Jamal Khashoggi, there is a plausible case that distress is also made out in situations of this kind. Taking Article 25 of the Articles on State Responsibility as orthodox, it is likely that the present case fulfils the notably stringent conditions therein. Article 25 provides:

1. Necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act not in conformity with an international obligation of that State unless the act:

(a) is the only way for the State to safeguard an essential interest against a grave and imminent peril; and

(b) does not seriously impair an essential interest of the State or States towards which the obligation exists, or of the international community as a whole.

2. In any case, necessity may not be invoked by a State as a ground for precluding wrongfulness if:

(a) the international obligation in question excludes the possibility of invoking necessity; or

(b) the State has contributed to the situation of necessity.

In brief, an immediate threat to life is certainly an essential interest, and on the evidence of the video there did not seem to be another way to safeguard it. As to 25(1)(b), the question is a little trickier, as the inviolability of premises is plausibly an essential interest of Bahrain (and the international community as a whole). As the ILC’s Commentary to Article 25 makes clear, this requirement is essentially one of balancing of interests. Assuming the police’s activities in the embassy were limited to protecting the right to life, saving a life likely outweighs a temporary and constrained infringement of those interests.

That leaves two related questions. First, does the primary rule – the inviolability of premises – itself exclude the possibility of invoking necessity? That seems unlikely – this element is primarily aimed at situations where the primary rule implicitly or explicitly contemplates application in emergency situations. Second, does the ICJ’s reference in Tehran Hostages to diplomatic law constituting a ‘self-contained régime’ render inapplicable general rules of international concerning circumstances precluding wrongfulness? Again, that seems unlikely – as others have argued, the functional rationale for the exclusion of countermeasures from diplomatic law doesn’t carry over into all circumstances precluding wrongfulness in the law of state responsibility.

In short, though the necessity rule in international law is narrow, and though there are risks in the acceptance of necessity in a legal order without compulsory adjudication, this seems to be a case where such a plea would be made out. This conclusion is consistent with the slightly Delphic statement of the ICJ in Tehran Hostages in its discussion of inviolability more generally:

Naturally, the observance of this principle [of inviolability] does not mean – and this the Applicant Government expressly acknowledges – that a diplomatic agent caught in the act of committing an assault or other offence may not, on occasion, be briefly arrested by the police of the receiving State in order to prevent the commission of the particular crime.

Of course, the acceptance of a plea of necessity comes at a risk to the interests served by the primary rule, and there are good reasons in this context for an unconditional rule. Nonetheless, the better view is that the legal system does accommodate an exceptional interference with those primary interests through a plea of necessity.

The Embassy Statement

The Bahraini Embassy statement, issued on 7 August, is interesting for a range of reasons. For one, it includes an explicit denial of any threats to the life of Mr Mohammed: ‘The allegation that Embassy staff were trying to “kill” Mr Mohammed is completely unfounded and ridiculous.’ In addition, it contains other statements which come close to saying, but don’t quite say, that consent was given for the UK to enter the Embassy:

• The incident was handled with restraint and in full cooperation with the UK authorities, in order to ensure that the individual did not harm himself or others, or damage embassy property.
• The incident took place at approximately 10.30pm and on being alerted to an intruder on the roof Embassy staff almost immediately rang the police.
• Embassy personnel responded to the incident with professionalism and courage, working closely with British police to resolve the situation promptly and have the suspect arrested.
• The Embassy is extremely grateful for the cooperation of the UK police with the Embassy of the Kingdom of Bahrain, and the professional handling of the incident which prevented the suspect harming people, property or even himself.

The reason the statement can’t quite say that the police entered with consent is that breaking open the doors of an embassy is not the usual way that agents of a receiving state enter an embassy with consent. But, so far as diplomatic smoothing-over goes, the statement’s emphasis on the cooperative nature of the relationship makes sense. Moreover, if the legal analysis in the previous section is incorrect, there is a plausible argument that the statement constitutes waiver by Bahrain of its right to invoke the responsibility of the UK for the putative breach of Article 22(1) VCDR. Perhaps as importantly for both states, the Embassy statement allows both to move on without taking a legal position on the underlying substantive issue of inviolability.

Conclusion

Reuters reported that Bahrain executed three men over the weekend after the protest, including Ali al-Arab and Ahmed al-Malali, the two men whose cause the protest concerned. The inviolability of premises is no doubt important, but this is the crucial issue – the continued practice of state killing, in this case after a trial without due process.