On the 2nd of April, Israel bombed the consulate of Iran in Damascus, Syria. As a response, alleging its inherent right to self-defense, Iran launched drones directed against the territory of Israel. However, since no Iranian territory was actually bombed, the Israeli attack against the Iranian consulate did not constitute an act of aggression that activated Iran’s inherent right of self-defense under Art. 51 of the United Nations Charter.
Legal Framework on The Use of Force
Art. 51 of the U.N. Charter establishes that:
“Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security”.
It is thus evident that a State in order to exercise lawfully its right of self-defense under the U.N. Charter, has to meet both substantial and procedural criteria: namely that it has fallen victim to an armed attack (substantive precondition) and that it must immediately report to the U.N. Security Council (UNSC) of the measures that the victim State has taken and will take until the UNSC resolves over the matter (procedural precondition as an indicating factor; Nicaragua v. US, para. 200). By sending a relevant letter to the President of the UNSC, Iran fulfills the procedural precondition. But has the substantive precondition been met?
It must be noted that the U.N. Charter offers no exact definition of the term “armed attack”. The International Court of Justice (ICJ) in its jurisprudence (Nicaragua v. US, para 195; Armed Activities, para. 146) has explained that this lacuna is filled by the U.N. General Assembly’s Resolution 3314. Art. 1 of the annexed Declaration to this Resolution defines aggression as “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition.” Also, Art. 3 of the Declaration recognises that specific acts can constitute an act of aggression, the most relevant in the present case being Art. 3(b): “bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State”.
But does bombing a consulate of another country in a third foreign country constitute an act of aggression? In order for the answer to be in the affirmative, it must be proven that bombing the consulate of a foreign country, violates the victim country’s sovereignty, territorial integrity or its political independence. It, of course, goes without saying that if the bombing itself does not violate the victim country’s sovereignty, territorial integrity or political independence, then the answer lies in the negative.
Inviolability Is not Equated to Sovereignty
Art. 1(i) of the Vienna Convention on Diplomatic Relations (VCDR) defines the premises of a diplomatic mission as “the buildings or parts of buildings and the land ancillary thereto, irrespective of ownership, used for the purposes of the mission including the residence of the head of the mission”. Art. 22(1) of the VCDR also establishes that “the premises of the mission shall be inviolable”. However, it does not flow from the text of the VCDR that third States have to respect the diplomatic premises of a foreign diplomatic mission outside of their territory. Art. 22(2) imposes the obligation only to 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 its dignity”. Furthermore, from the text of the VCDR, it does not come naturally that the inviolability that the premises of diplomatic missions enjoy, is to be equated with the sovereignty that the sending State enjoys in its own territory, despite the fact that the receiving State can not enforce its own laws within the premises of the diplomatic mission. This is also confirmed by the 1958 ILC Commentary on the Draft Articles on Diplomatic Intercourse and Immunities, where it is commented that Art. 20 of these draft articles, which is identical to Art. 22 of the VCDR, establishes that
“[w]hile the inviolability of the premises may enable the sending State to prevent the receiving State from using the land on which the premises of the mission are situated, in order to carry out public works (widening of a road, for example), it should on the other hand be remembered that real property is subject to the laws of the country in which it is situated.”
This practically means that while the diplomatic premises are inviolable, it does not naturally follow that the Sending State has sovereignty over the soil its diplomatic premises are situated. It would be paradoxical for the Sending State to be sovereign over the territory of its diplomatic premises, but the real estate property to be subject to the receiving State laws. This also means that while diplomatic agents are enjoying diplomatic immunity, they are still required to follow the laws of the receiving State (Art. 41(1) VCDR), even if they are exempted from the receiving State’s jurisdiction (Art. 31 VCDR).
It is noteworthy that consular premises enjoy a similar level of inviolability as accorded to them by the 1963 Vienna Convention on Consular Relations (VCCR), since Art. 31 “reproduces, mutatis mutandis, the text of article 22 of the 1961 Vienna Convention on Diplomatic Relations” (ILC, Draft Articles on Consular Relations with commentary, p. 109). In cases of “fire or other disaster requiring prompt protective action” (Art. 31(2), VCCR), the consent of the head of the consular post is presumed, so that the receiving State may enter in order to extinguish the fire, or mitigate any other disaster which requires immediate protective action of the consular premises. However, this set of action is not available to the receiving State for the protection of the sending State’s diplomatic premises from fire or from another disaster requiring prompt protective action by the first.
Discussion
It is clear that the text of the VCDR did not impose a positive obligation on Israel to refrain from using force against the Iranian consulate in Damascus. However, this in itself does not mean that the use of force by Israel is lawful. As a matter of fact, it was not a lawful use of force, as Israel when bombing the consulate could not have been neither in self-defense, nor using force after relevant authorisation by the UNSC, as there is none that authorized this use of force. The fact that there is no per se prohibition in the text of the VCDR does not in itself allow for such a use of force. As the ICJ has recently pointed out, “States are always required to fulfil their obligations under the Charter of the United Nations and other rules of international law” (Alleged Violations of the Genocide Convention, para. 150).
Additionally, it must be added that as Dörr and Randelzhofer (p. 215) explain:
“Violent attacks against diplomatic premises do not amount to acts of force against the sending State, since the premises are not part of its territory. If committed from outside the territory of the receiving State, such acts may amount to a use of force against the latter”.
This practically means that the recipient of the use of force is the receiving State instead of the sending State. Therefore, even if there was a violation of Art. 2(4) of the U.N. Charter, it could not have been committed against Iran, but against Syria, even if the specific target was the Iranian consulate. Indeed, it seems paradoxical that while Iran seems to be the prime actor injured (parts of its consulate were destroyed), the obligation to refrain from the threat or use of force was not owed to it, but to Syria, due to the lack of any other link between Iran and the diplomatic premises bombed, apart from the fact that these premises were operating as the consulate of Iran.
For the sake of argument, though, even if a violation of Art. 2(4) of the U.N. Charter against Iran is found alleging that the bombing prejudices the political integrity of Iran and contradicts Israel’s obligation to peacefully settle its disputes with Iran under Art. 2(3) of the U.N. Charter (especially read under the light of the seventh clause of the Preamble), this does not in itself automatically amount to an armed attack, whose content seems to correspond to the term “aggression”. The ICJ has explained that in the context of self-defense “it is necessary to distinguish the most grave forms of the use of force (those constituting an armed attack) from other less grave forms” (Oil Platforms, para. 51; citing Nicaragua v. US, para. 191, internal quotation marks omitted).
This means that the ICJ recognises that there are forms of violence that do not “qualif[y] as ‘armed attacks’ within the meaning of that expression in Article 51 of the United Nations Charter, and as understood in customary law on the use of force”. (Ibid.) A great example is the frontier incident between Greece and Türkiye, where two Greek army officers trespassed on the Turkish side of the border. While Greece claimed that the officers’ mistake happened because of the poor weather, Türkiye examined whether the officers were spies. Upon their arrest, which -strictly speaking- could be potentially construed as a form of invasion under the ordinary meaning of the terms of the UNGA Resolution 3314, Türkiye could claim that Greece committed an act of aggression, which would then trigger its inherent right under Art. 51 of the U.N. Charter. However, it would be unreasonable to believe that by the error of two army officers an invasion against Türkiye took place, because the scale and effects of their action can not but classify this frontier episode as “a mere frontier incident [...] carried out by regular armed forces” (Nicaragua v. U.S., para. 195). This means that not all uses of armed force of a State fall within the meaning of an “armed attack”, exactly because there is a pyramid, with the notion of the “armed attack” as the most grave use of armed force by a State being its pyramidion.
Furthermore, it can be deduced that “Arts. 51 and 2(4) do not exactly correspond to one another in scope, i.e. not every use of force contrary to Art. 2(4) may be responded to with armed self-defense” as Nolte and Randelzhofer (p. 1401) explain. By logical extension, not all violations of Art. 2(4) of the U.N. Charter activate a State’s right to self-defense under Art. 51 of the U.N. Charter. The last consideration should be the governing idea in the inquiry on the existence of Iran’s right of self-defense, activated by the Israeli bombing of the first consulate.
Conclusion
Based on the above, it is impossible to conclude that the inviolability of the diplomatic premises can be equated to the territory of the sending State. The bombing of the Iranian consulate in Damascus does not constitute an act of aggression against Iran under the prevailing circumstances, as the consulate in Damascus can not be considered Iranian territory. While there is a clear breach of one of the cornerstone rules of the U.N. Charter (Armed Activities, para 148), this violation is committed against Syria, the receiving State. For these reasons, this attack does not in itself activate Iran’s inherent right to self-defense under Art. 51 of the U.N. Charter.
Germanos Paraskevas Bozoutsidis is an M.Sc. Candidate at the Postgraduate Studies Program “International Law and Diplomatic Studies” at Panteion University of Social and Political Sciences in Athens, Greece.
Featured image source: https://www.brookings.edu/wp-content/uploads/2019/12/israel_strike_damascus001.jpg.