Is Suing Russia an Option?

Patrick S. Kim

In late December 2016, President Obama expelled 35 Russian diplomats, a retaliatory move for Russian-sanctioned hacking during the US elections, as well as harassment of US diplomats in Moscow over the summer.

The hacking side of the story has been well documented. Less noted, perhaps, was the fact that Russia had stepped up surveillance and harassment of US diplomats, in response to US-imposed economic sanctions condemning Russia’s February 2014 military intervention in Ukraine. The homes of several US diplomats in Russia were invaded and vandalized in 2016. On June 6, a Russian FSB agent physically assaulted and injured an American diplomat attempting to enter the US Embassy in Moscow.

Could the United States have responded to the harassment by suing Russia before the International Court of Justice (ICJ)? Here’s how the harassment story lays out, in legal terms:

Russia’s actions are clear violations of international law. Articles 29 and 30 of the Vienna Convention on Diplomatic Relations ensure that the person and residence of a diplomatic agent are “inviolable.” Although the Convention offers no formal definition of the term “inviolable,” trespassing inside diplomatic residences to intimidate diplomats and their families – and any physical assault – would certainly count as violations.

When the Washington Post questioned the Russian Foreign Ministry about these incidents last June, the Ministry claimed US sanctions and efforts to isolate Russia “had a negative effect on the functioning of diplomatic missions, both in US and Russia. . . . In diplomatic practice there is always the principle of reciprocity and, indeed, for the last couple of years our diplomatic staff in the United States has been facing certain problems. The Russian side has never acted proactively to negatively affect US diplomats in any way.”

So the Russian statement blamed US foreign policy toward Russia as the genesis of the “negative effect” on diplomatic missions, tacitly admitting to the harassment. But Russia has failed to identify any specific acts of harassment on the part of the United States.

The Russian interpretation of diplomatic reciprocity is incorrect. The principle of reciprocity in international law means that benefits or penalties that are granted by one state to the citizens or legal entities of another should be reciprocated. With regard to the interpretation of treaties, this principle allows a state to suspend its obligations under a treaty if the other party or parties fail to observe them, under certain circumstances. But Russia effectively suspended diplomatic protections in response to US policy decisions it disagrees with – not as a response to any alleged US mistreatment of Russian diplomats. Clearly, if a state could suspend its treaty obligations to register opposition to disagreeable foreign policy decisions, few treaties would survive for long.

According to a Russian foreign ministry spokeswoman, the June 6 assault occurred because the US diplomat refused to show his identification to the guard – and Russia claims this diplomat was actually a CIA operative. However, even if the injured diplomat was, in fact, engaged in espionage, the Vienna Convention on Diplomatic Relations does not allow a breach of that person’s diplomatic privileges, or an assault on his person.

More recently, Russian Foreign Minister Sergey Lavrov complained of US efforts to recruit Russian diplomats as spies – including an incident where $10,000 was left in a Russian diplomat’s car as an enticement. Even if true, such efforts to recruit foreign nationals into spying would, at best, allow Russia the reciprocal action of . . . leaving 10,000 rubles in the cars of US diplomats asking them to spy for Russia’s SVR (which, at current exchange rates, would be laughable at best).

Yes, there are clear precedents to uphold the sanctity of diplomatic privileges. In the aftermath of the Iranian takeover of the US embassy in Tehran in November 1979, the United States turned to the ICJ to file a suit against Iran for breaching its obligations to maintain the “inviolability” of the mission and diplomatic personnel under the Vienna Convention. The ICJ ruled in favor of the United States in May 1980, dismissing Iranian claims that the takeover was justified by unlawful US interference in Iran’s internal affairs (prohibited by Article 41 of the Convention). The ICJ stated that even if Iran’s allegations were true, a state has only two options: to declare a person “unacceptable” (persona non grata) and therefore force that person to return home, and the more extreme option of breaking off diplomatic relations. The remedies contained in the Convention constituted a “self-contained regime” to counter any allegation of abuse of diplomatic privileges, and the Iranian claim of “reciprocity” was dismissed.

But Russia has used force against diplomatically privileged persons in the past. During the Cold War, “Military Liaison Missions” (MLM) made up of Soviet, US, French, and British military officers held permanent travel passes within each other’s territory in East and West Germany. Although originally tasked to serve as liaisons between the World War II Allied powers, during the Cold War these MLMs became de facto military intelligence units. Incidents involving the use of force against MLMs took place on both sides, but Soviet forces committed the vast majority of incidents, including ramming and shooting US military vehicles and beating detained US MLMs, culminating in a Soviet sentry fatally shooting US Army Major Arthur Nicholson in 1985. The Soviet Union turned a deaf ear to US protests – hostile acts against MLMs continued, including another shooting incident in 1987 that wounded a US serviceman. At the time, the Soviet system itself was nearing collapse; the Berlin Wall fell in November 1989 and the Soviet Union broke up in 1991.

President Vladimir Putin remains exceedingly popular despite a number of steep domestic challenges, like 15 percent inflation, an over-dependency on sagging oil exports, and a rapidly aging population. Although Russia retains its Cold War nuclear arsenal, its military is overextended and cannot match the global reach of the US military. In this light, Russian harassment of US diplomats could be part of a set of “asymmetric” tactics: Because Russia cannot exert influence over the West economically or militarily, it resorts to bullying in arenas where Western reprisals are unlikely. Putin also uses these tactics in foreign policy – including in Ukraine and Syria – to draw attention away from worsening internal issues. Another likely motivation is to disrupt perceived efforts by American intelligence to foster political opposition and undermine Putin’s grasp on power through a “color revolution.”

The harassment may continue, but there’s long-term value in publicly protesting Russia’s failure to uphold its obligations. It is safe to say that the United States cannot simply respond to Russian tactics in kind – such actions would be incompatible with US law and values, not to mention international law. Instead, then-Secretary of State John Kerry reportedly made a direct request to Vladimir Putin to end the harassment, and even expelled two Russian diplomats in response to the June 6 assault (and Moscow then promptly expelled the assaulted diplomat, along with another US diplomat). President Obama took stronger action at the end of 2016, expelling 35 Russian diplomats accused of espionage and closing two Russian diplomatic facilities in the United States.

But many US diplomats have pointed out that protests and conventional diplomatic tit-for-tat responses are unlikely to stop these Russian antics. A resort to international law could produce a longer-term impact, as the 1980 ICJ suit against Iran demonstrated. The immediate practical effects of the Court’s decision were few. At the time, the regime of Ayatollah Khomeini enjoyed widespread popular support in Iran. The Iranian government held the ICJ in such low esteem that it declined to send representatives to the court to argue the case. However, the ICJ decision was a clear statement that the international community felt Iran had failed to meet its international obligations. Iran effectively became a pariah state, and is only now seeing a partial thaw in its foreign relations, three decades later.

Does the US have a viable case against Russia? Almost certainly, there would be practical difficulties in presenting formal proof of Russian violations of diplomatic law. However, should Russian harassment continue, that could change. Perhaps a US suit against Russia in the ICJ could still be a long-term tactic to solidify Russia’s image as a rogue state, and further isolate and limit Putin’s policy options. On the other hand, new US leadership under President Donald Trump may favor more informal and less public means to resolve US-Russian diplomatic and foreign policy disputes. By the same token, Russia may de-escalate its “asymmetric” tactics in the short term, as it appears to have done in declining to respond to the US expulsion of Russian diplomats at the end of December. However, litigation in international tribunals remains a valid tool of foreign policy that may yet prove useful, should the anticipated rapprochement between the United States and Russia fail to take hold.

 

Patrick S. Kim was a U.S. Intelligence Community National Security Law Fellow with the Institute for the Study of Diplomacy in 2015-2016, and is an adjunct professor at the School of Foreign Service.