12 Sep U.S. Ambassador to Libya is Killed; What Responses are Legal?
[I posted this originally at the same time as Duncan, so it is a bit repetitive, but I’ll leave its content basically as is].
Sad and startling news: U.S. Ambassador to Libya Christopher Stevens was killed yesterday in a rocket attack on the U.S. Consulate in Benghazi. This is an addition to another violent attack on the U.S. Embassy in Cairo.
Violent attacks on diplomatic compounds and officials, needless to say, are not only terrible but also plainly illegal under international customary and treaty law. From the Vienna Convention on Diplomatic Relations:
1. 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.
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.
The person of a diplomatic agent shall be inviolable. He shall not
be liable to any form of arrest or detention. The receiving State shall
treat him with due respect and shall take all appropriate steps to
prevent any attack on his person, freedom or dignity.
Plainly, both Egypt and Libya have massively failed to live up to their duties on these and other relevant provisions. The question is: what legal responses could the U.S. take?
Under U.S. constitutional law, the President has long been understood to possess the authority to respond to attacks on U.S. citizens and government missions with the use of military force. He can do this without first seeking the consent of Congress. See Durand v. Hollins, 8 F. Cas. 111 (CCSDNY 1860). In that case, a bottle was thrown at a U.S. diplomat in Nicaragua, and the court endorsed the legality of a “calculated retaliation after the fact” arguing that the nature of the response to such an attack rested with the discretion of the President. (The U.S. Navy bombarded the town in retaliation).
Of course, the legality under international law today of such a “calculated retaliation” is less clear. Indeed, my guess is that the typical response would be for the U.S. to demand punishment of the perpetrators, reparations to the U.S. and perhaps to the families of those injured, and an assurance of non-repetition. Failing such a response by Libya and/or Egypt, the U.S. could in theory try to bring the parties to the ICJ (but that didn’t accomplish a whole lot back in 1979 against Iran). And of course it could threaten to retaliate against the Egyptian and Libyan governments. It seems the best case for military force would be if the U.S. believed it was necessary to protect the safety of U.S. citizens and diplomats.
I doubt that there are any plans to use military force here, but I do think it is worth considering whether and how such a response would be appropriate and legal.