by Duncan Hollis
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 Salamm. 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.