In the wake of Tuesday’s horrific attacks of United States diplomatic facilities in Libya and Egypt and the killing of the our nation’s ambassador to Libya, among others, a great deal of misinformation has been circulated about the legal protections afforded to diplomatic missions and the persons living and working in them.
Let’s try to clear it up.
For centuries, nations have recognized the need to provide safe passage and housing for official representatives of foreign nations. History teaches us that Genghis Khan, the great Mongol leader, sent representatives to far-off kingdoms with the expectation that they would be given safe passage, even by hostile nations. It is said that when one group of couriers was murdered by members of the Khwarezmid Empire (modern-day Iran), Khan invaded and ultimately destroyed the entire empire.
By the 19th century, most European nations had established consulates and embassies in other countries, and soon treaties were signed by large numbers of nations not just in Europe but around the world, setting rules about the way foreign diplomats were to be treated.
Today, the primary source of law regarding the treatment of foreign diplomats and the protection of embassies is set forth in the Vienna Convention on Diplomatic Relations.
The Vienna Convention clearly and succinctly provides that host nations must protect diplomats and diplomatic buildings.
Article 29 states:
“A diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The [host nation] shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.”
In the case of Libya, it appears that Article 29 was violated. Media reports indicate that Libyan citizens attacked a United States facility and that local security forces did little to prevent the attack and/or prevent the killing of the US ambassador.
Article 22 states:
“The premises of the mission shall be inviolable. The agents of the [host nation] may not enter them, except with the consent of the head of the mission.”
Beyond its obligation simply to prevent “agents” to violate the integrity of an embassy, under Article 22 each host nation also 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.”
In the case both of Libya and Egypt, it appears that Article 22 was violated. United States facilities in both nations were attacked by “protestors,” and in both cases it does not appear that local security officials took “all appropriate steps” to stop them.
Contrary to some of the statements being offered in the media, a United States embassy – whether located in Libya, Egypt or elsewhere - does not represent “American soil” in a foreign land. Therefore, an “attack” against an embassy does not, technically, constitute an attack on the United States.
However, as the above provisions of the Vienna Convention make clear, the United States can argue forcefully that the recent attacks on the US embassies and facilities represent flagrant violations of international law.
How the United States will respond remains to be seen.