Published: 9 January 2020 Author: Stefan Talmon
In November and December 2019, Iran-backed Shia militias repeatedly attacked bases hosting U.S. forces in Iraq. During a rocket attack on a military base in Kirkuk on 27 December 2019, a U.S. civilian contractor was killed and four American service members were injured. In response, the United States conducted air strikes against the Iranian-backed militia Kataib Hezbollah (KH) in Iraq and Syria killing at least 25 members of the militia. This triggered thousands of angry supporters of the KH militia on 31 December 2019 to lay siege to the U.S. embassy in Baghdad, the biggest and most heavily fortified U.S. embassy in the world.
The scenes were reminiscent of the 1979 Tehran hostage crisis, when Iranian students stormed the U.S. embassy in Teheran and 52 American diplomats and citizens were held hostage for 444 days. Militia supporters chanting “Death to America” stormed the embassy’s reception area and set it on fire. They threw molotov cocktails into the main embassy compound and scrawled pro-Iranian graffiti on the walls of the embassy compound. Members of the mission were forced to retreat to fortified safe rooms inside the main embassy compound and U.S. soldiers fired tear gas to keep the militia supporters at bay. The U.S. military landed some 100 Marines by helicopter in the grounds of the embassy to reinforce the existing protection force there. Supporters of the militia set up tents outside te embassy saying that they would not leave until all U.S. diplomats and troops had pulled out of Iraq. However, late on 1 January 2020 the siege came to an end after KH leaders called upon their supporters to withdraw.
During these events the Iraqi security simply stood by and did not intervene to protect the U.S. embassy and the members of the mission. This led the U.S. Government to “call on the Government of Iraq to fulfil its international obligation” to protect the U.S. embassy in Baghdad.
On 1 January 2020, a German Federal Foreign Office spokesperson issued the following statement on the attacks on the U.S. Embassy in Baghdad:
“We condemn the violent attacks on the U.S. Embassy in Baghdad. The security and inviolability of diplomatic missions and their staff are at the heart of the international order on which all countries depend equally. There can be no justification for attacks. We expect the Iraqi Government to meet its responsibility for the security of embassies and consulates.
The events in Baghdad are a cause of concern, including as regards the situation in the region. Prudence and a sense of proportion are particularly important now. We call on people to refrain from undertaking any actions that jeopardise Iraq’s stability and security.”
Some 26 other States issued similar statements condemning the attack on the U.S. embassy in Baghdad and reminded Iraq of its obligations under the VCDR. During the government press conference on 3 January 2020, the spokesperson for the Federal Foreign Office recalled that Germany had “strongly condemned the attacks on the American embassy in Baghdad.”
Both Iraq and the United States are parties to the Vienna Convention on Diplomatic Relations (VCDR). Article 22(2) of the VCDR imposes a “special duty” on the receiving State “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 it dignity.” The inaction of the Iraqi security forces constituted a clear and serious violation by Iraq of its obligation under the Convention.
Traditional international law is based on bilateral relationships. Rights and obligations exist between two specific States. This is so even if they arise under a multilateral treaty or under customary international law. Article 22 of the VCDR is a prime example of a classic bilateral or reciprocal obligation. Performance is owed by the receiving State to the sending State individually. The obligation to protect the premises of a diplomatic mission has not been established for the protection of a collective interest – it is not an obligation erga omnes. This raises the question of what concern a violation of Article 22 VCDR is to third States and, in particular, whether third States may respond to any violation.
As the obligation breached was owed to the United States, Germany did not have a right or even a legally protected interest, for the purposes of State responsibility, in Iraq’s compliance with the Article 22 of the VCDR. Germany thus would not have been entitled to demand that Iraq cease its internationally wrongful conduct and protect the U.S. embassy. It also could not have called on Iraq to make full restitution for the damage caused to the embassy or provide satisfaction to the United States. However, this is not what the German Government did. It did not invoke Iraq’s responsibility but rather expressed its concern about the events in Baghdad and reminded the Iraqi Government of “its responsibility for the security of embassies.” As the International Court of Justice pointed out with regard to the storming of the U.S. embassy in Tehran in 1979, such events are of concern to “the entire international community” because
“[s]uch events cannot fail to undermine the edifice of law carefully constructed by mankind over a period of centuries, the maintenance of which is vital for the security and well-being of the complex international community of the present day, to which it is more essential than ever that the rules developed to ensure the ordered progress of relations between its members should be constantly and scrupulously respected.”
The German démarche thus did not require any specific legal interest. All States have an interest of a general character in compliance with the obligation under Article 22(2) of the VCDR.
Category: Diplomatic and consular relations