Reassuring the Inviolability of Diplomatic Premises: Worrying Trends from Ecuador to Syria

[Anvesh Jain is a third-year J.D. candidate at the University of Ottawa Faculty of Law.]

Last month, two events from different parts of the world signaled a worrisome erosion of one of the fundamental lineaments of international law.

On April 5, after an escalating diplomatic feud, Ecuadorian police entered Mexico’s Quito embassy to apprehend former Vice President Jorge Glas. With bribery and corruption convictions looming over him, and faced with fresh criminal proceedings, Glas went to the Mexican mission to seek asylum in December 2023. The following months of tensions resulted in Mexico’s ambassador to Ecuador being declared persona non grata and expelled from the country.

Glas was granted asylum by Mexico a day later, prompting Ecuadorian President Daniel Noboa to authorize the embassy raid on the grounds that Glas allegedly represented an imminent flight risk. In response, Mexico has broken relations with Ecuador while announcing its intention to bring the dispute before the International Court of Justice (ICJ). Ecuador’s actions have subsequently been denounced by the Organization of American States and a spate of Latin American nations.

On April 1, an Israeli air strike leveled the consular annex of Iran’s Damascus embassy, eliminating seven members of the Islamic Revolutionary Guard Corps (IRGC). Among these were intelligence officials and two generals, including the most senior Iranian soldier killed since the United States’ 2020 assassination of General Qassem Soleimani in Baghdad. As representatives of the Quds Force — the IRGC’s foreign operations wing — they were meeting with local militants to discuss the war in Gaza.

Israel did not claim formal responsibility for the strike. However, Prime Minister Benjamin Netanyahu has remarked that “Israel is acting against Iran and its proxies, defensively and offensively” and that “we will act according to the simple principle of whoever harms us or plans to harm us, we will harm them.” Tehran vowed revenge, proclaiming that Israel’s embassies are no longer safe from reciprocal attacks. On April 14, Iran retaliated directly against Israeli territory with the largest combined missile and drone assault ever.

This post comments on legal aspects and the wider implications of these incidents, both separately and when viewed together as a potential trend.

A Straightforward Breach

The gravamen of Mexico’s complaint will revolve around Ecuador’s prima facie breach of the Vienna Convention on Diplomatic Relations (1961). Article 22 of the Convention states: “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.”

The inviolability of diplomatic premises, as codified in the Vienna Convention, is unqualified. Receiving states must abstain from exercising sovereign rights, including law enforcement rights, in respect of inviolable premises, persons, or property. In the days leading up to the raid, Mexico’s foreign relations secretariat decried the build-up of Ecuadorian police forces outside the embassy. Afterwards, Ecuador described Mexico’s conferral of asylum to Glas as an abuse of privileges and immunities, entitling Ecuador to apprehend the asylee.

Tehran Hostages (1980) is the leading ICJ case on inviolability. In it, the Court characterizes diplomatic law as a self-contained regime which outlines both the obligations of the receiving state with respect to diplomatic missions, and the means by which they can respond to abuses of privileges and immunities on the part of sending states. These responses range from the declaration of persona non grata status to, in more severe instances, the breaking off of diplomatic relations entirely. Both of these remedies were used by Mexico and Ecuador before and after the April 5 embassy raid.

The principle of inviolability remains sacrosanct even in the case of armed conflict or when relations have been broken between states, or where the premises of a mission are suspected to have been used in abuse of their function. Professor Eileen Denza writes that “suspicion of abuse of the premises by violation of local laws or by continued shelter of an asylum seeker is clearly not a justification for entry by law enforcement officers in contravention of inviolability.” In a 2005 arbitral award between Eritrea and Ethiopia, it was held that allegations of hostile activity could not justify Ethiopia’s forcible entry and search of the premises of the Embassy of Eritrea, especially as diplomatic relations continued between the two states.

In Tehran Hostages, though Iranian authorities may have felt incensed by the decision to admit the deposed Shah into the United States, the Court stressed that such feelings had no bearing on the “imperative character” of the legal obligations binding the Iranian government, regardless of any state of diplomatic tensions between the two countries.

Denza also recognizes a limited and temporary right under customary international law for sending states to grant diplomatic asylum where there is immediate danger to the life or safety of a refugee. Taken together, the above arguments give Mexico sound legal footing in any upcoming ICJ litigation. Although some scholars identify a narrow exception to the principle of inviolability where there is a need to protect human life, Ecuador has not referred to any such “protective obligation” in its public statements. Neither have distress, necessity, or force majeure been invoked to preclude the wrongfulness of Ecuador’s actions under general international law.

If jurisdiction is established, the ICJ would most likely find Ecuador to have violated its obligations under the VCDR according to the strict precedent set in the Tehran Hostages ruling.

Perhaps not Illegal, but Unwise

By contrast, the VCDR does not apply to the scenario developing in the Middle East as the Convention only binds the relations between sending and hosting states. As a third party, Israel’s strike on Iran’s embassy in Syria should instead be considered through the lens of general international law and international humanitarian law (IHL).

For example, Israel has a duty to observe the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons (1973), to which it is a party. Article 2 of that Convention penalizes the intentional commission of a “violent attack upon the official premises, the private accommodation or the means of transport of an internationally protected person likely to endanger his person or liberty,” regardless of where that attack takes place. Despite the presence of objectionable characters therein, the consular building which Israel hit housed the residence of Iran’s ambassador to Syria on its top two floors.

A nonconsensual Israeli air strike on Syrian territory also contravenes the UN Charter’s Article 2(4) prohibition on the use of force in interstate relations, subject to Security Council authorization or the self-defence exemption available under Article 51 of the Charter. Tel Aviv’s military lawyers will likely cite the latter, against the backdrop of a decades-long proxy war with Iran that has destabilized the region. Iran withdrew its recognition of Israel following the 1979 Islamic revolution.

Embassies and consulates typically enjoy protection as civilian objects during conflict — as regulated separately by IHL. Scholars have argued that even if there is no long-standing or ongoing international armed conflict taking place between parties, the IHL regime should apply to any “first shot” in an interstate resort to force. A spokesperson from the Israeli Defence Forces (IDF), without confirming or denying his country’s involvement, noted that the strike had targeted “a military building of Quds Forces disguised as a civilian building in Damascus.” According to Israel, Iran’s use of the premises to plan an attack in conjunction with its proxies turned the building into a legitimate military target, losing its protected status and justifying a pre-emptive strike.

This argument mirrors the customary thinking of numerous Western countries from the past two decades in prosecuting the “War on Terror” against non-state actors. In the 2014 air campaign against ISIL, the United States endorsed the “unwilling or unable” doctrine of self-defence, in which action against a non-state threat is permissible so long as the state in which the non-state actor resides is either “unwilling” or “unable” to suppress the threat without external intervention.

In 2012, Sir Daniel Bethlehem encapsulated these operational standards in a series of principles that has come to be known as the “Bethlehem Doctrine.” It states that the imminence of a pending or planned armed attack will be assessed with reference to multiple factors, including the nature and immediacy of the threat; the probability of an attack; whether the anticipated attack is part of a pattern of armed activity; the likely scale of the attack; and the willingness or ability of a third state to constrain the activities of a hostile non-state actor operating on its territory.

Israel would purport that the violation of Syria’s territorial sovereignty was necessary to prevent an imminent attack, that the timing of the strike could not be delayed, and that the consent of the Syrian government could not be secured owing to its collusion with Iran. The assassination of General Qassem Soleimani in 2020 provides a recent but imperfect parallel. In that instance, the United States killed Soleimani while he was in transit from the Baghdad airport.

Through an Article 51 letter to the UNSC, Israel should furnish evidence that the Iranian officials and proxies targeted were operationally involved in the planning of an attack; that targeting them would have disrupted the attack; that an air strike was the only means of disrupting the attack; and that eliminating them at that moment in Damascus was required to disrupt the attack. Targeting a diplomatic compound carries immense escalatory potential. The evidentiary threshold for such an attack should reflect a similarly exacting standard. It is possible that Israel can meet this standard of lawfulness, but its chosen methods may bear outsized costs.

Wider Implications

Incursions and attacks on embassies and consulates by other states are thankfully still rare. Ecuador and Israel’s actions are events of exceptional gravity, and should be treated as such by the international community. When the United States accidentally bombed the Chinese embassy in Belgrade as part of NATO’s 1999 air campaign against Yugoslavia, formal apologies were issued, full acceptance was taken, millions in compensation were given, and the individuals responsible for the mistake were either reprimanded or dismissed.

While striking a blow against Iran’s military leadership, Israel may have weakened global norms from which it otherwise benefits. Its actions have painted a target on Israeli missions around the world while endangering the safety of their own diplomats. Israel’s decision also places it at odds with its key ally, the United States, which has long subscribed to the notion that “an attack on an embassy is considered an attack on the country it represents.” At the UN Security Council, the representative of the United States stressed that his country had no involvement in the Damascus strike, nor was it given advance notice of the operation.

Ecuador’s position is even less tenable given its famous harbouring and granting of asylum to Julian Assange in its London embassy in 2012, when it invoked the protective stipulations of the VCDR. Ironically, just days before its storming of the Mexican embassy in Quito, Ecuador’s representative on the Security Council condemned Israel’s resort to force in Syria while calling on all states to respect the inviolability of diplomatic and consular offices.

This is not to say that democracies should be held to impossible scrutiny, particularly in matters of self-defence where failures to act can have life or death consequences. Nor should the hypocrisy of states such as Iran be tolerated, who deliberately abuse the diplomatic protections of the Vienna Conventions for military ends in their courting of terror outfits across the region. As a host, Iran has demonstrated a unique disregard of its obligation to protect embassies, allowing foreign embassies to be sacked or attacked on numerous occasions over the years.

The inviolability of diplomatic premises is a grundnorm of international relations for good reason. Adherence to the rule of law is a prerequisite for functioning relations between states. As the ICJ noted in 1979, “throughout history nations of all creeds and cultures have observed reciprocal observations for that purpose.”

This holds especially true during war, emergency, and breaches in normal relations, when the importance of maintaining dialogue and lines of communication is pronounced. It would be impossible for diplomacy to operate with police barging through the front doors of embassies or with missiles flying through consulate windows. In times of breakdown, opportunities to reinforce international law should be prioritized — not disregarded when expedient.