2024 Iranian consulate airstrike in Damascus. Photo credit: Wikimedia Commons

Online Exclusive 05/7/2024 Essay

Unraveling Norms of Diplomatic Immunity? The Case of Diplomatic Premises

On April 1, 2024, Israeli forces allegedly carried out an airstrike on a facility within the Iranian Embassy's compound in Damascus. The strike killed several Iranian officials, including the general who was in charge of Iran's covert military operations in Syria and Lebanon.1 Following the incident, Iran's representative at the United Nations strongly denounced the attack, emphasizing the “inviolability of representatives and diplomatic and consular premises.”2 In retaliation, on the night of April 13, 2024, Iran launched a drone and missile assault on Israel, deploying over 120 ballistic missiles, 170 drones, and 30 cruise missiles.3 In a separate incident, on April 5, Ecuadorian authorities breached the Mexican embassy in Quito and arrested Jorge Glas, the former vice president of Ecuador, who was sought on corruption charges. Ecuador defended its actions by claiming that Mexico's asylum offer to Glas was “contrary to the conventional legal framework.” The arrest occurred shortly after Ecuador expelled the Mexican ambassador, declaring him persona non grata due to comments made earlier by Mexican President Andres Manuel Lopez Obrador. While not directly linked to Glas’s arrest, the comments made by the Mexican president escalated diplomatic tensions between the two countries by questioning the legitimacy of the Ecuadorian president's election.4 As a result of the embassy raid, Mexico suspended diplomatic relations with Ecuador, citing it as a “flagrant violation of international law and Mexico's sovereignty.”5

Origins of Diplomatic Protection

These two cases immediately sparked discussions about the future status of diplomats and their protection under international law, but such cases are not limited to the present period. Contemporary precedents include the search of the Iraqi Embassy in Islamabad in 1973; the Iran hostage crisis in 1979; and the U.S. bombing of the Chinese Embassy in Belgrade in 1999.6 While different in terms of motivations and implications, these cases nevertheless illustrate a troubling trend that raises questions about the special status of embassies, long protected by international law. As J. Craig Barker discussed in detail in the 1990s,7 the concept of diplomatic immunity has evolved significantly since the establishment of permanent diplomatic institutions in the fifteenth century. The justification for such institutions has historically rested on various grounds, beginning with the “representative character” theory, which mandated the protection of diplomatic envoys as embodiments of their sending state’s sovereignty, independence, equality, and dignity. Another justification rests on the theory of “extraterritoriality,” often attributed to Hugo Grotius, which perceives ambassadors and their entourages as not only beyond the jurisdiction but also outside the territorial bounds of the host state. While traces of both theories remain visible in current interpretations of diplomatic immunity, the contemporary interpretation of diplomatic immunity emphasizes, in turn, the theory of “functional necessity,” as articulated in the preamble of the 1961 Vienna Convention on Diplomatic Relations (VCDR): “the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States.”8

It is on the basis of functional necessity that the VCDR recognizes the inviolability of diplomatic premises (Article 22.1) and the ambassador's private residence (Article 30). This implies that agents of the host state cannot enter these premises without the consent of the head of the mission—a provision that Ecuadorian authorities were accused of breaching during the raid on the Mexican embassy. Moreover, the host state bears a specific responsibility to ensure the protection of these premises (Article 22.2), even in the event of conflict (Article 45a)—a responsibility that the Syrian government would undoubtedly find challenging to uphold during the alleged Israeli airstrike. At the same time, the premises of the mission must not be used in any manner incompatible with the functions of the mission, as prescribed by the VCDR or other rules of general international law (Article 41.3)—a condition that Iranian generals might have violated, from the perspective of the Israeli government. Such contradictions or limitations do not necessarily imply that the concept of functional necessity is fatally flawed or that the VCDR is becoming outdated. As Robert Howse and Ruti Teitel point out, we must recognize that controversy surrounding the distinction between compliance and non-compliance is inherent in the concept of international law.9 In the absence of authoritative interpretation and enforcement of international legal norms, states may not simply “comply” with these rules but may instead attempt to negotiate their application or even circumvent them. Diplomacy makes this process more visible, as states often turn to morality and/or law to rationalize or explain their actions.10 Yet, it is arguably self-interest that motivates their actions as illustrated by the two cases mentioned above. The arrest of Jorge Glas was connected to the Ecuadorian president's “war on crime” agenda,11 while the airstrike targeting the Iranian consulate aligns with Israel's strategic measures to counteract Iran's hybrid operations in the region.12

In the absence of authoritative interpretation and enforcement of international legal norms, states may not simply “comply” with these rules but may instead attempt to negotiate their application or even circumvent them.

Interests, Norms, and Moral Justifications

What happens when states’ interests conflict with their commitment to international legal norms? To answer this question, I will first introduce two ways that individuals cope with violating norms. Both modes involve an active process of justifying norm-breaking, yet they diverge in their relationships to moral identities altogether. The first mode, “moral self-licensing,”13 occurs when individuals use their history of “good” moral behavior as justification for engaging in potentially immoral actions, thus suspending moral behavior. The second mode, “moral disengagement,”14 occurs when individuals develop various mechanisms to detach from their internal moral standards, presumably opting out of the moral world altogether. Although both modes involve psychological states, moral self-licensing is more outwardly oriented, focusing on building a reputational shield against external criticism by referencing a record of past “good” deeds as a mitigating circumstance for the norm violation.

In contrast, moral disengagement is more internally directed, aimed at generating rationalizations that enable individuals to circumvent their moral standards entirely. I argue that in the case of states, moral self-licensing does not directly erode diplomatic law, since it does not necessarily indicate the abandonment of ethical standards. Moral disengagement, on the other hand, can be more detrimental. It may lead to actions that betray collective trust and have a potential ripple effect, prompting imitation by others.

When applied to the two cases outlined at the start of the essay, the concepts of moral self-licensing and moral disengagement lead to two interesting conclusions. First, there is limited evidence of Ecuador or Israel employing moral self-licensing to justify their actions in breaching the VCDR protection clause concerning diplomatic premises. In its defense, Ecuador did refer15 to the Organization of American States’ Convention on Diplomatic Asylum of 1954, which clearly states that political asylum cannot be extended to convicted felons. However, this reference did not invoke a presumed tradition within Ecuador of honoring the principle of asylum. In fact, Ecuador in the past rejected the very argument that it has invoked in this case, having denied British authorities permission to arrest Julian Assange in its embassy in London in 2012.16 Interestingly, Mexico could have more convincingly invoked its historical tradition of granting political asylum (from Leon Trotsky in 1940 to the deposed Iranian Shah Mohammad Reza Pahlavi, and more recently to various Latin American politicians)17 to claim moral legitimacy in its decision regarding Jorge Glas. Similarly, Israel could have hypothetically defended its airstrike as an act of moral self-licensing if it had cited its efforts to prevent Iran's nuclear ambitions and the threat that it represents to regional stability. However, Israel did not officially acknowledge its involvement in the airstrike. Even if it had, its argument would have lacked authority when viewed through the lens of moral self-licensing. Unlike the well-established self-defense argument outlined in Article 51 of the UN Charter, the principle of anticipatory defense remains a subject of considerable debate in international law.

I argue that in the case of states, moral self-licensing does not directly erode diplomatic law, since it does not necessarily indicate the abandonment of ethical standards.

Second, both countries seem more inclined to resort to moral disengagement to justify their actions, albeit with slightly different connotations. In the case of Ecuador’s raid on the Mexican Embassy, moral disengagement could be seen in the government’s framing of the arrest of Jorge Glas as a fight against corruption. This is an example of “advantageous comparison,” resulting from comparing immoral conduct (violation of Article 22.1) against perceivably worse conduct (corruption), which makes the immoral conduct presumably more acceptable. The strong condemnation of the raid by other countries in the region, including Chile, Uruguay, and the Organization of American States,18 indicates a clear rejection of Ecuador's argument. The Israeli airstrike also represents a potential case of moral disengagement, as it was indirectly rationalized as a necessary action for national security due to the military threat posed by Iran to Israel, particularly in light of Iran's use of proxies to undermine Israeli security.19 The mechanism in this case would be one of “euphemistic labeling,” which refers to the use of language to verbally sanitize immoral conduct, making it seem more acceptable. As one Israeli official suggested, the airstrike was not conducted against a consulate or embassy, but “against a military building of Quds forces disguised as a civilian building in Damascus."20 Shortly after the incident, the UN Security Council reaffirmed the principle of the "inviolability of diplomatic and consular premises and personnel,"21 thus dismissing the argument regarding the non-diplomatic status of the targeted building.

The Future of Diplomatic Protection

In conclusion, when violations of diplomatic law occur, it is important to recognize that states’ adherence to international legal norms is inevitably influenced by their interests. Consequently, their behavior often deviates from the rules they are committed to upholding. The primary concern for advocates of a rules-based global order is that such departures from ethical standards could undermine the normative framework associated with contested norms and rules, potentially leading to their erosion. As discussed in this essay, moral self-licensing and moral disengagement are two ethical frameworks that can be employed to assess the extent of these deviations. While moral self-licensing may signify a temporary suspension of ethical standards, moral disengagement could indicate abandonment. The two cases examined here suggest that both Ecuador and Israel demonstrated a tendency to resort to moral disengagement in justifying their actions. This could pose challenges for the legal regime surrounding the immunity of embassies and diplomatic personnel, as their actions may set off a ripple effect, encouraging imitation by others. On a more optimistic note, there is perhaps the expectation that reciprocity considerations, particularly within the “functional necessity” framework of diplomatic immunity, will ultimately prevail. The UN Security Council’s insistence on defending the diplomatic protection of the Iranian consulate in Damascus,22 along with the International Court of Justice’s decision to hear Mexico's case against Ecuador, are promising signs that breaches of diplomatic law are being taken seriously by the international community.23 These reactions should hopefully guide states back toward compliance, aligning their behavior with normative expectations.

—Corneliu Bjola

Corneliu Bjola, an associate professor of diplomatic studies atthe University of Oxford and head of the Oxford Digital Diplomacy ResearchGroup, also serves as a Faculty Fellow at the Center on Public Diplomacy at USCand a professorial lecturer at the Diplomatic Academy of Vienna. His mostrecent publication is the Oxford Handbook of Digital Diplomacy (2024,co-editor.), offering a comprehensive overview of the theory, practice, andfuture of digital diplomacy.