Thanks to a friend of mine in Kampala, Uganda I was able to get a copy and read through the Joint Analysis Report (JAR) shortly after its public release. Prepared by the Department of Homeland Security (DHS) and the FBI, the document referred to as GRIZZLY STEPPE provides details regarding the tools and infrastructure used by Russian civilian and military intelligence Services(RIS) to compromise and exploit networks associated with the U.S. election, the U.S. Government ,political and private sector entities. The Obama administration had just announced retaliation measures against Russian after the hacking saga. The State Department declared 35 Russian government officials from the Russian Embassy in Washington and the Russian Consulate in San Francisco ‘persona non grata,’ for what the U.S. Government termed as, “acting in a manner inconsistent with their diplomatic status. Those individuals and their families were given 72 hours to leave the United States.”
Declared Persona non grata on TV
In 2008 as ethnic cleansing reigned in Kenya after the disputed elections -where more than 1000 people were killed and tens of thousands more displaced most people remained indoors hoping that the government and the opposition would agree to work together and end the blood bath. During that time I watched one of the most interesting Hardtalk shows. Hardtalk is a talk show that airs on BBC and is hosted by Stephen Sackur. It, the talk show, involves in-depth interviews of newsmakers and personalities across the globe with hard-hitting questions on sensitive topics. I said interesting because of the nature of Sackur’s guests. One was Sir Edward Clay the former British High Commissioner to Kenya (2001-2005) who attained publicity status for his infamous “eating like gluttons and vomiting over all our shoes” speech referring to the then President Kibaki led government, accusing it of rampant corruption. The other was none other than the then Minister of Justice and Constitutional affairs, Ms. Karua Martha
Karua was a strong defender of the Kibaki regime and his claim of winning the 2007 disputed elections that led to the violence. The former diplomat did an unprecedented act by accusing the head of State of a “civilian coup” claiming that he had “stolen” the election and adding, “I just never believed he would be so brazen about it.” What followed was even more interesting and unprecedented. Ms. Karua then warned Clay that he was persona non grata in Kenya. There it was, right on his face and on International television -Sir Edward Clay was declared an unwelcomed person in a country he served as a diplomat for four years and allegedly had a ranch.
What is a Persona non grata?
Persona non grata (PNG) is a latin word that simply means “an unwelcomed person”. It is a legal phrase used in the diplomatic world pursuant to the Vienna Convention on Diplomatic Relations. Article 9, Section 1 of the Convention states:
“The receiving state may at any time and without having to explain its decision, notify the sending state that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable.”
If you are declared Persona non grata you are no longer welcome in that country and are usually forced to return to your native country. If you do not leave within or the before the deadline the country will usually “arrest” and deport you. In practice the PNG’D diplomat retains diplomatic status and cannot waive them to seek for asylum to remain in the country and/or avoid expulsion. One cannot challenge a declaration that one is persona non grata.
Jose Imperatori Challenge against PNG
In 2000 Jose Imperatori a Cuban diplomat tried but failed miserably to challenge the PNG issued by President Clinton. He charged that he had been falsely accused of spying and that he intended to fight the charge, giving up his claims to diplomatic immunity. The Washinton Post reported that The State Department had accused Imperatori of being the Cuban government contact of a U.S. Immigration and Naturalization Service official in Miami charged with spying for Havana. In an unprecedented act of diplomatic defiance, Cuba replied that Imperatori would not leave and that he was prepared to defend the false allegations. Imperatori resigned from his job at the Cuban Interests Section, Havana’s diplomatic mission and gave up all claims of diplomatic immunity. This however did not work as FBI agents visited his apartment and took him straight to Reagan National Airport, where a bureau plane flew him to Montreal-as there were no direct flights from US to Cuba. He was booked on a Cubana Airlines flight the same night from Montreal to Havana.
States usually act tit-for-tat if their diplomats are expelled. This is the normal diplomatic language. Do unto others what they do unto you. However in an interesting development Russia’s President Vladmir Putin has ruled out reciprocating by saying that he would not “stoop” to the level of “irresponsible diplomacy” pledging to work on the restoration of ties between the two countries under President-elect Trump while denying the allegations of hacking the US election to favour Trump over Clinton. Putin ignored his foreign affairs ministry’s recommendations to respond in equal measures by declaring 35 diplomats persona non grata. So now the whole world waits for 20th January, 2017 or soon thereafter if Mr.Trump will reverse the PNG status of the Russian diplomats which will be an act against his predecessor and a mockery of the U.S. Intelligence. It is also interesting to note that President-elect Donald Trump was declared persona non grata by Panama City in 2011.This was after he told CNN that turning over the Panama Canal to the country was “foolish”.
Happy New Year!
BY NABIL FELIX
This article appears in our weekly digital law magazine, The Deuteronomy Vol 9, Issue 5 of December 31st 2016
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