The Duty to Protect Diplomatic and Consular Premises

Amidst the memorials to 9/11 yesterday came more tragic news with mob attacks on the U.S. embassy in Cairo and the consulate in Benghazi, including the deaths of U.S. Ambassador J. Christopher Stevens and three other Americans.  My condolences go out to the victims’ families and the U.S. Foreign Service community, the Marines who guard them, as well as the local security and staff who accept the risk of working in places that are clear targets for violence.  Stevens was the first U.S. Ambassador killed on assignment since 1979, but it seems all too frequently we get stories of attacks on diplomatic or IO premises, from those in Syria last year, to the 2003 attacks on the UN Assistance Mission in Iraq to the 1998 bombings of the U.S. embassies in Nairobi and Dar es Salaam.  For my part, I will never forget walking the grounds of the U.S. Embassy in Nairobi several weeks after the bombing (before it was torn down), and witnessing first hand the horror perpetuated there.

For centuries, the international legal order has existed to regulate relations among States (and that remains true whatever one makes of its evolution to accommodate the regulation of non-State actors as well).  To allow “relations” among States, however, requires means and methods of inter-State communication, of which embassies and consulates are the most visible symbols.  As the ICJ put it in the case of US Diplomatic and Consular Staff in Tehran (paras 38-40):

[t]here is no more fundamental prerequisite for the conduct of relations between States than the inviolability of diplomatic envoys and embassies . . . [T]he institution of diplomacy, with its concomitant privileges and immunities, has withstood the test of centuries and proved to be an instrument essential for effective co-operation in the international community, and for enabling States, irrespective of their differing constitutional and social systems, to achieve mutual understanding and to resolve their differences by peaceful means . . . [and] the inviolability of consular premises and archives, are similarly principles deep-rooted in international law…

Thus, violations of the diplomatic or consular mission premises like those that occurred yesterday are clearly unlawful under international law.  The more challenging question is whether Egypt or Libya can be held responsible for these attacks.  There are at least two ways this could occur:  (a) via the law of State responsiblity; or (b) via their treaty obligations.

First, the law of State responsibility provides that a State is responsible for actions attributable to it that constitute a breach of its international legal obligations.  The violation of the inviolability of the embassy and consulate and the death of U.S. personnel are not in dispute so I don’t think there’s much question as to a “breach” of international law here.  The issue is primarily one of attribution.  If either Libyan or Egyptian forces caused the damage or destruction, there would be little question in this case of their responsiblity, whether or not they intended any or all of the specific consequences of the attacks (see, for example, U.S. willingness to pay China an ex gratia settlement for the U.S. bombing of the Chinese embassy in Belgrade, although whether the bombing was accidental or not remains disputed).  Of course, Libya or Egyptian forces need not conduct the attacks on the embassy themselves to be responsible — if they directed others to do so, they’re still liable (see Article 8 of the Draft Articles of State Responsibility).  Analogizing to the law of armed conflict, there might be additional arguments for responsiblity even in the absence of specific directives from the State or its agencies if those engaged in the attack were under the government’s “effective control” (the ICJ standard from the Nicaragua case) or the less stringent standard of “overall control” (adopted by the ICTY in the Tadic case).

Separately, Libya and Egypt are both parties (along with the United States) to the 1961 Vienna Convention on Diplomatic Relations (VCDR) and the 1963 Vienna Convention on Consular Relations (VCCR) (I couldn’t find any bilateral agreements on point, but welcome input if anyone knows of one or more that might apply here).  Both the VCDR and the VCCR impose a distinct duty to protect covered premises from harm regardless of whether the host State has any responsibilty over those causing it.  Article 22(2) of the VCDR provides:

2.The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.

Article 31(2)-(3) of the VCCR provides more room for host States to overcome inviolability but continues to impose essentially the same duty to protect:

2.The authorities of the receiving State shall not enter that part of the consular premises which isused exclusively for the purpose of the work of the consular post except with the consent of the head of the consular post or of his designee or of the head of the diplomatic mission of the sending State. The consent of the head of the consular post may, however, be assumed in case of fire or other disaster requiring prompt protective action.

3.Subject to the provisions of paragraph 2 of this article, the receiving State is under a special duty to take all appropriate steps to protect the consular premises against any intrusion or damage and to prevent any disturbance of the peace of the consular post or impairment of its dignity.

Note, in both cases, the duty is one of effort, not result.  Thus, just because there is an intrusion or damage to an embassy or consulate (or to its personnel), does not mean the host State violated Articles 22 or 31.  Rather, the question is whether they took “all appropriate steps” to protect the premises in the circumstances presented.  In this case, we’ll need more information on how events proceeded to determine whether or not Libya or Egypt did all they could do to avoid the attacks, or if they were responsible, not because of any affirmative involvement, but because they failed to act in accordance with their international legal obligations.

Yesterday’s attacks on U.S. embassy and consular premises implicate multiple issues (I’ve not, for example, attempted to touch on the claimed motivation(s) for the attacks).  But international law has a clear role to play in sorting out what happens next given the significance of the principles and rules at stake.  And the law here is fairly straightforward; there’s no real question about holding states responsible if they were involved in the attack or that they have a duty to protect diplomatic and consular premises within their territory. Rather, the complications in these incidents lie in the facts — what actually happened?  Once we have a better sense of those facts, applying the relevant international legal rules should not be too difficult. In the end, I’d hope that, however this plays out, these unfortunate incidents may someday be cited as further evidence of the nature and the scope of the duty host States have to protect diplomats, consuls, and their places of work and residence.