take refuge in an embassy: inviolability of premise, diplomatic asylum

http://www.foreignpolicy.com/articles/2012/04/30/gimme_shelter?print=yes&hidecomments=yes&page=full

Gimme Shelter

So, how do you take refuge in an embassy, anyway?

BY URI FRIEDMAN AND JOSHUA KEATING | APRIL 30, 2012

The whereabouts of Chinese human rights lawyer Chen Guangcheng is currently the subject of intense speculation. Some believe that the prominent blind dissident, who escaped from 19 months of house arrest last week, has taken refuge in the U.S. embassy in Beijing, while others say he may be hiding out in the residence of U.S. ambassador Gary Locke or another American diplomat. The New York Times even quoted one anonymous diplomat in China as suggesting that Chen might have queued up in a long line at the U.S. embassy's visa section and then sought asylum once inside the compound (it's difficult to imagine Chen, with his iconic dark glasses, blending in with the crowd). Now, on the eve of Secretary of State Hillary Clinton's trip to Beijing, U.S. and Chinese officials are reportedly engaged in tense negotiations over Chen's fate. 

If the reports are true, Chen's gambit is hardly unprecedented. Broadly speaking, of course, the idea of seeking refuge can be traced all the way back to the biblical notion of special cities for those who killed people accidentally. In the Middle Ages -- beginning as early as the 4th century A.D. -- the Catholic Church began butting heads with civil authorities over the practice of offering criminals various forms of sanctuary in and around churches (the monarchs eventually proved victorious, as church sanctuaries became, in the words of scholar Hilary Cunningham, "holding pens for criminals pursued by the royal courts" before vanishing altogether). These practices, however, generally applied to those suspected of committing crimes -- not political refugees.

The act of seeking sanctuary in foreign embassies gained traction in the 20th century, but fleeing to a diplomatic mission wasn't always a safe bet. In 1927, for example, the anti-Communist Manchurian warlord Zhang Zuolin ordered a raid on the Soviet embassy in Beijing, arresting and executing 20 Communist activists who had sought refuge there including Li Dazhao, co-founder of the Chinese Communist Party.

But, for the most part, the recognition of embassies as off-limits to the host-country authorities gradually became a fundamental principal of customary international law over the course of the 19th and early 20th centuries, though the seeds were planted earlier (a Venetian statute in 1554 declared that "he who has taken refuge in the house of a diplomat shall not be followed there, and his pursuers are to feign ignorance of his presence").

In 1956, for instance, when the Soviet Union sent troops into Hungary to reassert control over the country, reformist Communist leader Imre Nagy took refuge at the embassy of non-aligned Yugoslavia. Yuri Andropov, the Soviet ambassador to Hungary and future Communist Party general secretary, promised Nagy safe passage out of the country but then arrested him as soon as he left the compound. He was executed after a secret trial the next year.

Another leader of the Hungarian uprising, Cardinal Joseph Mindszenty, took refuge at the U.S. embassy after the Soviet invasion and ended up spending the next 15 years inside the embassy compound, with local police keeping a 24-hour watch to prevent him from escaping. He was eventually permitted to leave Hungary in 1971.

In 1961, the Vienna Convention on Diplomatic Relations codified prevailing customary law by declaring the "premises" of diplomatic missions "inviolable" -- effectively barring security agents in a host country from entering embassy grounds without the embassy's permission. The treaty added that "premises" included the head of the diplomatic mission's residence and that the private residences of diplomats also enjoyed "inviolability," though it's unclear whether this clause applies to all diplomats. The New York Times points out that if Chen is indeed holed up in an American diplomat's apartment, it "could leave him open to an attempt by security forces to seize him," according to unnamed diplomats interviewed by the paper.

This inviolability explains why embassies are our modern-day sovereign sanctuaries. But, importantly, the Vienna Convention says nothing about a diplomatic mission granting asylum to a person fleeing authorities in the host country -- what the U.N. High Commissioner for Refugees and others have called "diplomatic asylum" (Latin America, for its part, has enshrined the concept of "diplomatic asylum" in regional treaties.) Asylum seekers typically leave their country before applying for help either in the country where they want to resettle or in a third country.

What this means in practice is that once someone seeks refuge in an embassy, the foreign government often enters into negotiations with the host government about the fugitive's fate.  In February, when the Chinese official Wang Lijun turned up at the American consulate in Chengdu seeking asylum and accusing Chinese leader Bo Xilai of corruption, he was eventually transferred to Chinese custody and has not been heard from since.  This time around, it's unclear whether Chen Guangcheng, if he is indeed with American diplomats, is seeking asylum in the United States or simply a temporary safe haven from which to condemn his captors and pressure Beijing to guarantee his safety. Neither goal is assured and, either way, the episode will be a critical test for U.S.-Chinese relations.

During the Cold War, embassy defections played a critical role in diplomacy. Some of the defectors were spies such as KGB Maj. Vasili Mitrokhin, who walked into the U.S. embassy in Riga as the Soviet Union was collapsing in 1992, bringing with him a treasure trove of intelligence secrets. In 1953, when the leftist government of Guatemalan President Jacobo Arbenz was overthrown in a CIA-backed coup, Ernesto "Che" Guevara, who had ties to the regime, took refuge in the Argentine embassy before securing passage to Mexico, where he would eventually meet up with Fidel Castro.

On April 5, 1980, 750 Cubans gathered at the Peruvian embassy in Havana demanding political asylum. The next day, their numbers had swelled to 10,000. Recognizing the scale of the political crisis, the Castro regime authorized a boatlift of thousands of asylum seekers to the United States and other Latin American countries. And 1989 saw what became known as the "Prague Embassy Crisis," as hundreds of East Germans began jumping the walls into the West German embassy in Prague, demanding asylum. A tent city was set up in the embassy's courtyard to accommodate the asylum seekers, and eventually more than 20,000 people are thought to have made it to West Germany this way. Just 40 days after the West German government granted the Prague refugees asylum, the Berlin Wall fell.

For the last 50 years, foreign embassies in Beijing have been the most popular destination for North Korean refugees seeking to flee to South Korea or the west. In one of the largest defections, 25 asylum-seekers stormed their way into the Spanish embassy in 2002.

While governments have generally abided by the terms of the Vienna Convention, they have found ways to bend the rules at times. When ousted Panamanian leader Manuel Noriega took refuge from U.S. troops at the Vatican embassy in Managua in 1990, the Americans blasted rock music -- including Guns'n'Roses -- at the compound in an effort to force him out. Perhaps sick of the racket themselves, Vatican officials eventually gave Noriega his marching orders.

Thanks to Peter Spiro, professor of law at Temple University and blogger at Opinio Juris


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http://opiniojuris.org/2012/04/27/chinese-human-rights-activist-may-have-fled-to-u-s-embassy-but-he-wont-get-asylum/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+opiniojurisfeed+%28Opinio+Juris%29

Chinese Human Rights Activist May Have Fled to U.S. Embassy, But He Won’t Get Asylum

by Julian Ku, April 27th, 2012

China’s famous human rights activist Chen Guangcheng (who even Christian Bale was beat up when he tried to visit) has somehow managed to escape from his two-year house arrest*  and may have made his way to the U.S. Embassy in Beijing.  Chen has released a powerful web video detailing the physical abuse he and his family have suffered during his house arrest and demanding that the Chinese government act.

If Chen truly has made it to the U.S. Embassy, he is hardly home free.  If, for instance, he seeks political asylum, he is out of luck.   I will let either Duncan or Peggy correct me on this if I am wrong, but I believe as a matter of policy,  the U.S. does not consider asylum requests at their consulates and embassies.   As a matter of law, the U.S. does not view itself bound by the Refugee Convention to do so.  

Of course, Chen may seek “sanctuary” but the U.S. has no obligation to give him such sanctuary and will only do so in exceptional or extraordinary circumstances.  Nor does China have any obligation to allow the U.S. to spirit him out of the country.  (I’ve been the U.S. Embassy in Beijing several times and I am a little surprised that Chen could have gotten past the Chinese guards who surround the place without the assistance of U.S. embassy personnel).

I should add that Chen’s public statements suggest he is NOT seeking asylum and he does not want to leave China (his family is still in house arrest).  But with Secretary Clinton headed to Beijing for a few days, this will no doubt become an issue in the already uncomfortable U.S.-China Strategic Economic Dialogue. And perhaps she can chat with Mr. Chen when she gets a snack at the Embassy kitchen. Mr. Chen may be a houseguest for a while.

*originally, the post read “six year” house arrest, but Mr. Chen was actually in prison for four years prior to his two-year house arrest.

The One-Year Anniversary of Osama bin Laden's Death: A Live Web Chat with Daniel Byman

The One-Year Anniversary of Osama bin Laden's Death: A Live Web Chat with Daniel Byman

Wednesday, May 2 / 12:30pm - 1:00pm

(DO – I was told that I was not the only one who made trip to Brookings to attend the event, though it was “live web chat”)

A year after the death of Osama bin Laden, the United States continues to fight the former al Qaeda leader's terrorist network at home and abroad. While the raid on bin Laden's compound proved a major victory for the nation a decade after 9/11, al Qaeda and its affiliates continue to find safe harbor around the world and are renewing their threats against the U.S. and its allies.

How has al Qaeda evolved since the death of bin Laden, and what danger does it pose to the United States? What might victory in the "war on terror” ultimately look like?

On Wednesday, May 2, Brookings expert Daniel Byman answered your questions in a live web chat from 12:30 PM to 1:00 PM with moderator Vivyan Tran of POLITICO.

Daniel L. Byman

Director of Research, Saban Center for Middle East Policy 

it is natural that politicians of all parties take credit for the good things that happen under their watch. So of course much (most) of the credit goes to the intelligence and military folks who made this happen, but the President deserves credit for ordering a risky operation that could have easily backfired -- and that his opponents would not have hesitated to use to criticize him should it have failed.

We are definitely safer than we were a year ago.

The standard line, which I endorse, is that al-Qa'ida is "down but not out." So the death of Bin Ladin, and other blows to senior leaders, have hurt the organization. And the Arab spring has damaged the appeal of its message. But it remains intact, and its affiliates remain strong (though most are more focused locally). So we can't count al-Qa'ida out, but that shouldn't mean that we don't feel safer with Bin Ladin dead.

Al-Qa'ida's appeal remains strong. I would not say it is "growing," but one of Bin Ladin's accomplishments is that he took a fringe ideology and made aspects of it palatable. Far more Muslims see the United States as a bitter enemy and support the use of violence against civilians than did when Bin Ladin formed al-Qa'ida in 1988. Support is down from the peak years after the initial U.S. invasion and occupation of Iraq, but the numbers remain sizable.

(why see US as a bitter enemy ?)

Some object to U.S. policies (military presence in the Middle East, support for autocratic regimes, support for Israel, etc.), and others are hostile to Western values (women's rights, rights for gays, and so on). Still others simply join to be part of a cause. So it's a bit of a mix

I think that terrorism is not likely to play an important part in the election, barring another significant attack on the United States. Obama was able to take this issue -- normally a loser for Democrats -- off the table by killing Bin Ladin. But I don't think many people are going to vote for him because of his tough counterterrorism measures. But he won't be hit as John Kerry was (unfairly) for being weak on terrorism.

So it will primarily revolve around the economy. I don't think other foreign policy issues will matter much either, for better or for worse

This is a difficult question. Bush administration officials talked of victory as when Americans live their lives without the fear of terrorism, and I think that is a sensible approach. However, by this standard we may be there -- yes, of course some people are afraid, but terrorism fears seem largely to have faded to the background.

The affiliate question is a knotty one. (Warning: self-promotion alert. I have a Brookings paper coming out on this in a week or two.)

On the one hand the affiliates are pledged to al-Qa'ida and have increasingly become international in their focus. Al-Qa'ida in the Arabian Peninsula has even done al-Qa'ida core-like attacks on the U.S. homeland. On the other hand, most remain focused on their country in question, and taking them on is resource intensive and may backfire if it makes them even more anti-U.S.  So part of the strategy is figuring out which are the most dangerous and allocating resources accordingly.

Yes and no. On the one hand, Pakistan may be the most difficult foreign policy issue facing the administration. And they have given a lot of attention to it. But the policy is not one that requires a high level of public engagement (as would, say, a military intervention in Syria). Moreover, the policy is nuanced (at best) and reactive or conflicted (at worse), and that doesn't make for a good public statement.

(DO- interesting! The policy on Pakistan does not require a high level of public engagement, as would a military intervention in Syria

I wish he could expand on that)  

Bin Ladin's deputy, Ayman Zawahiri, is clearly in charge. He has long been the #2 and very important in his own right, and he is well known to the organization. Key figures and affiliates seemed to have pledged loyalty to him. However, he is leading a weaker organization than Bin Ladin did.

Iraq already has a low-level civil war going on, and Afghanistan's more serious one shows little sign of abating before the US drawdown and then withdrawal in the coming years.

In Iraq, terrorism stokes the fire, but the real problem is the venality and power-hungry nature of many Iraqi leaders, particularly Maliki.  Good leadership could defeat a weak al-Qa'ida there, but terrorism is likely to remain a problem.

In Afghanistan, al-Qa'ida is close to the Taliban.  The Taliban are likely to grow in power as the U.S. withdraws and the Afghan government remains corrupt and weak

If I have the question right, I think that it's often the interaction of the individuals in the West (fewer in number, but dangerous due to their citizenship and knowledge of Western civilization), and organized groups overseas. Individuals can go abroad and radicalize further, get training, and join in a broader organization, all of which makes them much more dangerous.

Affiliates are of concern as they tie into diaspora groups, which gives them strong networks in selected parts of the Western world (e.g. Pakistanis in the UK, Algerians in France, and so on).

Allies in the Middle East are less afraid we'll abandon them due to the "pivot" and more afraid due to U.S. policy in the Arab spring.  I think it was the right move to turn on Mubarak, but from the point of view of many regional allies the United States unceremoniously dumped an ally of many decades in a matter of days. That doesn't exactly give them confidence that the United States will always stand by them.

The Afghanistan strategic partnership is largely about the military partnership (or, more broadly, security as there is probably a strong intel relationship being forced).  In general, a number of countries in different parts of the world (Singapore, Saudi Arabia, the UK, etc.) have explored "deradicalization" programs that try to either turn existing terrorists/radicals into peaceful folks or to stop people from becoming radicalized in the first place. Part of this is akin to working with gangs and others within a community to change the nature of the community. But there aren't really good answers for this. Standard tools -- say education and economic support -- don't really correlate with success. (Terrorists often have jobs and are relatively well-educated).

Al-Qa'ida and its affiliates are easily the most dangerous threat to the United States.   Groups like Hizballah are very capable but do not appear to be actively targeting the United States (that could change with, say, a U.S. strike on Iran's nuclear facilities, as Iran is HIzballah's patron).   Right-wing groups in the US also should remain on the radar screen.

The degree of Pakistan's culpability in all this is debated -- and to me is one of the key analytic questions. It is hard for me to imagine that no Pakistani officials knew of Bin Ladin's presence in Pakistan.  What I don't know is how high up this went and -- if it didn't go up that high -- whether senior Pakistani leaders deliberately chose not to know.

It is amazing to me that after giving Pakistan tens of billions in aid to fight al-Qa'ida after 9/11, when the key moment comes the United States decides that Pakistan cannot be trusted.

I think that al-Qa'ida is not likely to establish a large-scale presence in Afghanistan akin to what it had before 9/11 after US and allied forces draw down. The US would continue to back the Afghan government, do special operations force raids, and of course use the drone program.  So small and decentralized things are possible and likely, but big training camps and an open leadership is unlikely and can be stopped. The key is to make sure that the draw down ensures the United States still has some ability to operate.