The International Law of Diplomacy & U.S. Embassy Attacks

September 20, 2012 | By Corri B. Zoli

Law of Diplomacy

How—on the basis of what standard—do we frame our concerns about ongoing  U.S. Embassy attacks in Egypt, Libya, and beyond and their painful consequences?  What do these incidents portend—if anything—for U.S. relations with new governments, as well as broader strategic relations in the Middle East/North Arica (MENA) region? What is an appropriate response to attacks on U.S. diplomatic missions and persons, and what responsibilities do host governments have under international law?

One of the least controversial precepts in international law is the inviolability of diplomatic missions, including personnel and communications. Early attempts to formalize this norm include the Congress of Vienna (1815) and the Convention regarding Diplomatic Officers (Havana, 1928). Modern statements, ratified by 187 nations and embedded in customary law are found in the Vienna Convention on Diplomatic Relations (1961)  Articles 22, 27, and 29 are unequivocal:

Article 22.1.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.

3. The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.

Article 27.2: The official correspondence of the mission shall be inviolable.

Article 29: 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.

From a long historical gaze , the purpose of such protections is reflective of the international state system itself.  Diplomats are the means, the agents, for the proverbial “relations” between States. For a customary statement of the normative weight of diplomacy and its role in shoring up the core stability goals of the international system, see the ICJ case of US Diplomatic and Consular Staff in Tehran (paras 38-40):

[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 . . .

Canada last week articulated this value, albeit in the negativein its decision to close their Iranian embassy and functionally treat Iranian diplomats as personae non grata. Their reasoning reiterates the link between diplomatic inviolability and the general peace: “‘Canada views the government of Iran as the most significant threat to global peace and security in the world today,’ ” and, further, “accus[ed] Iran of showing blatant disregard for the safety of foreign diplomats” and, thus, “for the Vienna Convention’s guarantee of protection for diplomats.”

ImportantlyIslamic law has an early and powerful tradition of respect for diplomatic envoys and relations in the concept of aman, safe conduct, “the legally binding privilege that obligates the state to protect the beneficiary until his departure from its territory.” Chapter 27 or Surah Al-Naml (27: verses 23-44) in the Qur’an also relays a story in which emissaries are posited as the accepted means for diplomatic communications including between Muslim and non-Muslim states, are “immune from the wrath of their host state,” and are not held responsible for actions by their heads of state.  M. Cherif Bassiouni describes the “dual Koranic mandate” that no Muslim state may transgress: “protection must be granted to envoys, and expulsion is the only sanction to be taken against them.”Scholars have also described the Treaty of Hudaibiya, as well as the Treaty of Yathrib-Medina (the Constitution of Medina), as early demonstrations of the sanctity of emissaries and its violation ascasus belli.

Strategic Implications:

But despite international consensus on the law, attacks on U.S. embassies in Egypt and Libya, and now in Yemen, Tunisia, Sudan, Indonesia, Pakistan, and elsewhere  indicate that the picture is far more complex on the strategic side—as it often is—in ways worth examining.

From an historical perspective, these incidents are part of a larger uptick in embassy attacks on democratic states in the modern period—a reality which does not bode well for this resolute norm.For the US, the 1979 tripartite attacks (Tripoli, Tehran, Islamabad) and the 1998 Nairobi and Dar es Salaam Qaeda embassy bombings signal the auspicious start of this trend.

 

Year

Some post-1979 US diplomatic mission attacks

resulting in deaths and/or significant damage

1979 Tehran, Tripoli, Islamabad 2006 Damascus
1983 Beirut, Kuwait City 2007 Athens, Vienna
1984 Bogotá, Beirut 2008 Belgrade, Istanbul, Sana’a
1998 Nairobi, Dar es Salaam 2010 Peshawar
2002 Karachi, Calcutta 2011 Kabul, Damascus
2003 Islamabad 2012 Cairo, Benghazi, Sana’a, Chennai, Khartoum, Tunis, Sydney, London, Antwerp, Paris, etc.
2004 Tashkent, Jeddah

Equally brazen have been the recent 2011 attacks against the British embassy in Tehran and the Israeli embassy in Giza, Egypt—not to mention those in armed conflict situations in Syria, Afghanistan, and elsewhere.

But from a contemporary perspective, these attacks belong to more recent enabling factors: domestic political contention, intensified in transitioning post-Arab Spring states, and the wild-card role of religious ‘norms,’ in the broader international relations sense of the term as acceptable behavior. Commentators who have probed the relationship between these two factors are on the firmest ground.

Bernard Haykel at Princeton told the The New York Times, for instance: “It’s true that there are sanctions against insulting the Prophet, but this is really about political or symbolic opportunists, who use religious symbols to advance their own power or prestige against other groups.” New governments in Libya and Egypt are, at once, “insecure” in their exercise of authority, have unleashed newly empowered publics—including ultraconservative religious groups (Salafis)—eager to seize upon such symbols as a lever to contest power or to enlarge their share of the pie.  David Ignatius in the Washington Post makes a similar case.

But remarkably, few analysts—with some key exceptions —have asked the most elementary questions about the film-based flare up: like what does a low-grade video made in California have to do with US embassies or US-MENA foreign policy? While Clinton officially refuted this tendentious link, this was a defensive move to counteract early, botched media responses from US Embassy officials in Cairo that pulled off an ‘epic fail’ in digital diplomacy. As bureau chief of Al Arabiya News Channel in Washington, DC noted: “condemning those who hurt Muslim feelings but not the attack??”. This oversight, one might add, was made by officials who live and breathe under the umbrella of a diplomatic norm that one would think they might mention.

Hasty attempts to explain the growing protests across the Muslim world by attributing them to the amateur video, The Innocence of Muslims, as Jeffrey Goldberg at the Atlantic points out, are enabled by sloppy thinking about causation. Such views conflate concepts of “incitement” with “expression,” including the right to hurt people’s most dearly-held feelings, affirms the stereotypical “belief on the part of an unknown number of Muslims that the appropriate response to blasphemy is violence,” and misses the opportunity to explain why freedom of even abhorrent speech is a critical element in a democratic polity’s ability to maintain order.

But conceding that moral-religious outrage actually causes (and, presumably, legitimates, for some) violence—instead of organizing already existing conditions of violence—was not even the most serious problem. The real problem is that this facile explanation covers over genuine understanding, our ability to ask the hard questions that go to the core of present possibilities for U.S. strategic partnerships in the region. It also forestalls our ability to plan for U.S. support and engagement with transitioning states in ways that do not forfeit committed foreign service agents and other ‘quiet professionals’ (not to mention limited US resources) to crude political machinations that have yet to make the leap from politics as bare-knuckled violence to politics as debate and consensus. Indeed, such rampant confusion enables decision makers to believe that current unrest spreading across Arab Spring states is a problem of religious norms, not muscle-flexing extremist groups seizing on a public relations coup to outsmart or simply replace weak and hesitant governments. How in this context does one make reasonable decisions about predictive allies and, in the case of Egypt, 2 billion dollars of annual aid and 1 billion dollars of debt relief?

Hisham Matar at the New Yorker  is one of the few analysts to ask these hard questions: whether the Benghazi attacks were “really motivated” by the film, as assailants (and news networks) have claimed, whether “religious outrage” can make young men “lose their heads and commit murder,” and even whether assailants actually saw the film—he knew not one.  Instead, he opined, the violence is designed to “escalate a strategy,” a power grab, by “Libya’s extreme right,” given Libya’s fragile institutions. These ultra-right groups deliberately “feign religious and moral outrage,” while turning “a blind eye” to traditional conservative concerns (i.e., drug and alcohol consumption among Libya’s youth)—all while justifying their actions by “selective, corrupt, and self-serving interpretations of Islam.”  For Matar, the point of this façade is its target audience: young men. Religious conservatives won’t risk their ire by clamping down on this burgeoning youth population’s “freedom and fun,” but, like “Mussolini’s Milan fascio tactics in 1920’s Italy,” Libya’s far right knows it can only rule by violence and fear if “the young and strong are on its side.” Thus, they exploit this group’s “impatient resentments,” including astronomical unemployment (Egypt’s 33% unemployment rate of young men 18-29 years old), to derail democratic institutions.

Then, these groups turn on the easiest targets: “unreligious” landmarks, women, and “America, or, more abstractly, the West,” where, now, “because of a film almost no one has seen, they have attacked symbols of the American state.” This latest assault, Matar argues, is all the more cunning because “it is trying cynically to capitalize on legitimate grievances.” In making this wager, such groups have reaped large rewards: shoring up an ultra-right transnational coalition, refocusing Arab Spring energy from illegitimate or failing governments to the West, and pressuring a change in the US diplomatic calculus in the region. These nonstate actors—particularly as inexperienced governments delay—have become default players in foreign policy dynamics.

To cut through the confusion over protests, riots, and attacks that have now spread to over 20 countries, the facts on the ground should help point analysis in the right direction. The murder of U.S. ambassador to Libya, J. Christopher Stevens and his three staff, was a well-organized, likely preplanned assault. Rarely, as one analyst put it, do anti-tank rocket-propelled grenade launchers appear at civilian protests. Likewise, Egyptian police and military forces stood by and watched in the first days of the protests as Islamists breached embassy walls, and replaced an American flag for an Islamist black standardwhile Brotherhood officials promoted the attacks in Arab language media.

The trajectory of the film’s dissemination suggests its political provenance and utility. Largely unseen in the U.S. when released in July (for obvious reasons), the main vectors of this film’s spread and impact were Egyptian, not US sources. Aside from the Egyptian-born Morris Sadek—an evangelical Christian known for anti-Islam views, who defended the film as “explain[ing] the problems of the Copts who suffer from Muslims,” and Qur’an burning Florida pastor Terry Jones—Egyptian news outlets introduced excerpts of the film to Mideast audiences and invited ultraconservative clerics on air to denounce it.  If there is an incitement problem, it belongs to Egyptian ultraconservative talk television with the full backing of the Brotherhood government.  Moreover, is it reasonable to believe—in a strange affirmation of gross Muslim stereotyping—that “religious feelings” would lead otherwise reasonable citizens to destroy an embassy they have pledged to protect both by international and Islamic legal norms on the eve of a billion-dollar debt relief program for a country desperately dependent on foreign aid for its very solvency? In the case of Libya, to murder one its few advocates?

On the contrary, in the context of Libya, Matar describes “a deep and palpable sense that Benghazi, the proud birthplace of the revolution, has failed to protect a highly regarded guest.” There is also festering “outrage,” he explains, that Tripoli delayed in sending officials “to condemn the attacks, instigate the necessary investigations, and visit Libyan consulate staff wounded in the attack.” Egyptian President Mohamed Morsi also took his sweet time in condemning the attacks—but not the film—or in securing an embassy for which he is indisputably responsible.  Morsi has made this choice, to embrace timidity in taking a stand in his own turbulent political waters, in his unwillingness to offend the artificial offense of Salafist factions, since to do either would call the whole gaming of religion off—and thereby undermine his own Brotherhood-based authority.

This crisis had, of course, been the first chance for Egypt’s first Islamist president to show value for stability, if not U.S. friendship—a deficit highlighted by the presence during the crisis of a delegate of business investors actively solicited to Egypt.  Century Foundation fellow Michael Wahid Hanna said: “I don’t think they quite understand the damage they are doing at the moment” in waiting so long to respond, in fixating on an obscure film itself publicized by Egyptian media, and in telling Egyptians after three days into the crisis that they are free to protest but not to assault embassies.  “If you’re an international business executive” and your factory or plant is under attack,” Hanna continued, you can be sure “no one’s going to come up to bat for you if there’s some sort of challenge to Morsi from the right,” since “[p]opulist Islamist sentiment is something he will never take on.”  Absent respect for diplomatic norms voluntarily entered into, strategic diplomatic discourse itself becomes cryptic and contentious: as President Obama said of Egypt in a recent interview: “I don’t think that we would consider them an ally. But we don’t consider them an enemy.”

In this context, the distraction of ‘hate speech’—whatever its merits in other contexts—serves to cover over the rise of an rightist transnational social movements, their ways and means of political organizing, their reach and strength, their ability to coopt popular anger and confusion about their own traditions and norms, and the fact that ultra-right coalition officials do not need to win elections to actually rule. This is not a challenge between international norms and religious norms and, further, those who present it as such have the most to gain from this narrative. In Libya, where these political undercurrents are most visibly challenged, violence is most intense, and public anger is rising most precipitously over the multiple failures of government: to protect public spaces, to leave cities like Benghazi to “the mercy of fanatics,” to prevent US and European supporters and NGOs from cancelling trips, the list goes on.  As Matar points out, despite the heady days of insurgent support by the US, France, Turkey, Qatar, and others, as the government delays, life in post-revolutionary Libya is increasingly divided between the young who are entering “a phase of fatigue and cynicism” and middle aged and older Libyans, most familiar with Qaddafi-style repression, who are still basking in revolutionary victory. Like Egypt and elsewhere, because the majority youth population is the “intended audience for the far right and its violent acts,” if this public’s “almost existential grievance toward history,” including their sensitivity to western foreign policy “double standards,” is not engaged, these Arab Spring revolutions will be lost in the political sphere.  In this respect, one can be sure, since the ‘hard power’ attack on the US consulate has thus far backfired, ultra-rightists will now use a softer hand—one in which religious norms and cultural tactics will play a starring role.

Ironically, the Syrian National Council statement condemning the use of violence to protest the film is the best example of striking a measured balance between international and religious-cultural norms in what will be for the present time competing demands:

With deep distress the Syrian National Council watched the insults by a group of American bigots to the messenger of Islam and Muhammad (peace be upon him). The Council, however, was shocked by the reaction to these insults in the form of murder, burning, and destruction. We condemn the repeated insults to the noble prophet (peace be upon him) and are outraged to see them tied to the anniversary of the September 11 attacks by suggesting that there is a connection between the events and the tolerant message of Islam. As we condemn the insults and consider them an assault on the feelings and beliefs of nearly one fourth of the population of the globe we stress the right of everyone who has been offended to express peacefully their rejection and condemnation of those who perpetrated them. However, the reaction by murder, burning, and destruction is rejected and unequivocally condemned. The Syrian National Council condemns the killing of the US ambassador and the employees of the US embassy in Libya. This act is rejected and violates Islamic Shari’ah and all conventions of international relations that prohibit any assault on envoys and ambassadors and prohibits holding them responsible for actions committed by their compatriots.

It is worth asking what enabled Syrian rebel spokespersons to hold onto each of these elements—international legal obligations upon which the integrity of the international system and Muslim states’ role in it are based—and the assertion of distinctive religious and cultural values that do not form a counternarrative to such legal norms, but in fact specify Muslim states’ contribution to international affairs.

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