Inviolability of embassies and consulates: The recent example of Israel and Iran

The Iranian Consulate in Damascus, Syria, was the subject of an attack on 1 April 2024, allegedly by Israel; Israel has not claimed responsibility for the action. The consulate is located on the same property as the Iranian Embassy. The attack resulted in the death of seven people, including a top Iranian military commander and his deputy. On 13 April 2024, Iran responded with a drone and missile attack on Israel, which resulted in little damage in Israel. Israel responded on 19 April 2024, with an attack on Iran, resulting in very little damage in Iran.  

Media reports suggested that:

1. The attack was an act of war by Israel.
2. Since the consulate is the territory of Iran, this was an attack on Iran.
3. Iran was entitled to respond via attack on Israel.

This article will look at these issues from the perspective of the Vienna Convention on Diplomatic Consular Relations 1961 (VCDR), the Vienna Convention on Consular Relations 1963 (VCCR), as well as the United Nations Charter (UN Charter)

1. Was the attack on the Iranian consulate in Syria an attack on Iran’s territory? This should be answered in the negative. This concept of the embassies or consulates being the territory of the Sending State (SS) has been laid to rest by the VCDR and VCCR which have rejected the concept of extraterritoriality. The basis of the protections of embassy, consulates, and staff is a combination of function and representation, not the outmoded concept that the embassy or consulate is the territory of the SS.
2. Was the Israeli attack an ‘act of war’? This term is no longer used in international law. The UN Charter talks about use of force, and international humanitarian law refers to armed conflict.¹
3. Both VCDR and VCCR state that the consular and diplomatic premises are inviolate. They require the Receiving State (RS) to protect it from damage or intrusion. Obligations and rights under these conventions are primarily between the SS (in this case Iran) and the RS (in this case Syria). Attacks on a consulate or embassy by a third-party state are not within the purview of the conventions other than the obligation to protect by the RS.
4. The obligations of states that are neither the RS nor the SS in the particular situation are somewhat ambiguous under the VCCR. Under Article 40 of the VCDR and Article 54 of the VCCR, an obligation exists to assist a diplomat passing through the third state, protect immunity, as well as to protect documents. There is no further clear obligation of third parties who are parties to the VCDR or the VCCR.²
5. The Israeli action was clearly an attack on the sovereign territory of Syria. Thus, Syria would have a legal right to respond to that Israeli attack.  They could include actions such as recalling ambassadors, terminating diplomatic relations, economic sanctions, etc. Iran would have the same rights vis-à-vis Israel. However, neither Iran nor Syria has diplomatic relations with Israel.
6. This raises the issue of what rights and obligations Syria has under the VCCR to respond when the Iranian consulate is attacked in Damascus. As stated above, the RS has an obligation to protect a consulate and its personnel from attack. However, Syria had no power to prevent that attack, thus failure to protect was not a breach of its obligations.
7. When Israel attacked the Iranian consulate (assuming it was Israel, despite their denials), this could be seen as ‘use of force against the […] political independence of any state’ and so a violation of Article 2(4) of the UN Charter. As stated above, this does not entitle Iran or Syria to engage in retaliatory actions, such as sending missiles into Israel. It requires notification to the UN Security Council for action pursuant to the rights and obligations of the Security Council under the UN Charter. 
8. Article 51³ of the UN Charter preserves the right of a member state to self-defence following an armed attack. Does the right to defence include a right to retaliate? Legal scholars suggest that retaliation is not permitted under the UN Charter.⁴ Thus, the retaliation by Iran followed by the Israeli retaliation are breaches of the UN Charter and international law.
9. An interesting discussion of these issues, particularly from the humanitarian law perspective, is found in the UN document ‘Israel and Iran Must De-Escalate Conflict to Protect Human Rights, Warn UN Experts’, issued by the Office of the High Commissioner for Human Rights on 16 April 2024.

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1. A full discussion of this can be found in International Law and the Use of Force: Cases and Materials (3rd ed., 2022) by Mary Ellen O’Connell, Foundation Press.

2. See Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations (4th ed., 2016) by Eileen Denza.

3. 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 UN, 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.

4. See Retaliation, Retribution, and Punishment and International Law (Schmitt, April 2024), Lawful Self-Defence vs. Revenge Strikes: Scrutinizing Iran and U.S: Uses of Force under International Law (Corn and Vanlandingham, January 2020), and The Practical Guide to Humanitarian Law (Médecins Sans Frontières).

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Mr Alan Franklin teaches courses on international legal business risk and due diligence to MBA students at Athabasca University, courses on international dispute resolution and the law of international organisations at the Royal University of Law and Economics in Phnom Penh, Cambodia, and the Diplomatic Law: Privileges and Immunities online course at Diplo.

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