Update: Benghazi and Consular Relations

The Benghazi Attack and Consular Relations

by Christina Hennecken

     On September 11, 2012, the anniversary of the September 11, 2001 attacksand just hours after demonstrators stormed a compound outside the U.S. embassy in Cairo, EgyptIslamist militants armed with anti-aircraft weapons and grenade launchers attacked an American diplomatic mission in Benghazi, Libya. U.S. Ambassador J. Christopher Stevens and three members of his staff were killed during the attack. The incident represented the first death of an American ambassador due to a violent assault in more than 30 years. An estimated six Libyan guards were protecting the facility. The Libyan Deputy Interior Minister, Wanis al-Sharif, admitted that he ordered the withdrawal of security forces during the initial phase of protests in a purported effort to avoid inflaming the crowd with confrontation.

     The Office of the Director of National Intelligence (ODNI) initially believed that the attack was a spontaneous event following protests in Cairo related to an anti-Islamic YouTube video. On September 28, however, the Director of Public Affairs for ODNI, Shawn Turner, released a public statement asserting that, after over two weeks of investigation, ODNI had revised its assessment and believed the event was a deliberate and organized terrorist attack linked to al-Qaeda.

     Following the attack in Libya, U.S. Secretary of State Hillary Clinton created an Accountability Review Board to investigate the attack as well as assertions that prior requests for additional security at the embassy had been denied. The Board is examining whether the security procedures prior to the attack were appropriate and properly implemented and is seeking to learn what should be done in the future. Clinton has promised that the State Department is working thoroughly and efficiently, but asserts that they will not sacrifice accuracy for speed in the investigation.

     The Libyan Parliament voted on October 5 to remove newly elected Prime Minister Abu Shagour just days after his proposed cabinet was voted down. This sudden change in power casts further doubt on the Libyan government’s capacity to address last month’s attack and mounting security threats. The Libyan government has failed to detain even the most obvious suspects of the attack, led by militia group Ansar al-Sharia (Partisans of Islamic Law). However, Libyan authorities have singled out Ahmed Abu Khattala of Ansar al-Sharia as being the commander of the attack. Abu Khattala and Ansar al-Sharia’s ties to al-Qaeda are not clear. Al-Sharia has similarities to al-Qaeda in its militancy and religious doctrine, but its operations and focus have solely been in Libya. Additionally, two Tunisian men suspected of involvement in the attack have been arrested in Turkey, according to local news.

     Under the 1961 Vienna Convention on Diplomatic Relationsspecifically, Articles 22 and 29Libya was under a special duty to take “all appropriate steps to protect the premises of the mission against any intrusion or damage” and to “take all appropriate steps to prevent any attack on [the] person, freedom or dignity” of all diplomatic agents. Similar principles are reflected in customary international law. Furthermore, the Hudaibiya model of Islamic diplomacy accords with modern public international law, guaranteeing protection for diplomatic envoys Islamic and non-Islamic alike under the the Islamic principle of aman, or “safe conduct.” See Perry S. Smith, Of War and Peace: The Hudaibiya Model of Islamic Diplomacy18 Fla. J. Int’l L. 135, 145 (2006).

     Regardless of these norms, in light of Libya’s disparate parliamentary blocs and unstable interim government, the United States has little hope of receiving reparations or detailed investigative information through Libyan operations. Article 51 of the U.N. Charter recognizes the inherent right of individual countries to act in self-defense if an armed attack occurs, at least until the Security Council has taken measures to maintain international peace and security. Whether this attack constituted an illegal use of force legitimating self-defense is debatable, however, and the fact that this attack was carried out by non-state actors particularly complicates the legality of possible responses under international law. For now, the State Department is investigating from afar and relying on local authorities to apprehend the alleged perpetrators.

Suggested Citation: Christina Hennecken, The Benghazi Attack and Consular Relations, GEO. J. INTL L. ONLINE: THE SUMMIT (Dec. 5, 2012, 4:17PM), http://gjilsummit.blogspot.com/2012/11/update-benghazi-and-consular-relations.html.