Explainer: Why Afghanistan is legally obliged to protect Indian missions on its soil from attack

Sunday's armed attack on the Indian consulate in Mazar-e-Sharif in Afghanistan isn’t the first of its kind on an Indian diplomatic mission in the war-torn country. It is also the second such attack on an Indian consulate in Afghanistan since the 2014 Lok Sabha elections.

Embassies and consulates have come under attack all over the world since the establishment of the modern-day practice of international relations. Such occurrences, more often than not, pose serious security challenges for both the host state and the sending state. The responses can vary considerably in different settings.

For example, on Saturday, Saudi Arabia’s embassy in Tehran was set ablaze and pillaged by a crowd angered by the former’s execution of a prominent Shia cleric. Saudi Arabia severed diplomatic ties with Iran within hours of the incident and ordered the Iranian diplomatic mission to leave the country within 48 hours.

On the other hand, the attack on the Indian consulate in Mazar-e-Sharif, which started the day after the Iran incident, was devoid of such maverick diplomatic moves. New Delhi, so far, seems to be adopting an approach well nuanced by regional security dynamics.

Quick response

In a show of camaraderie, the Afghan president briefed the Indian prime minister about the terrorist attack and Narendra Modi expressed his appreciation that the Afghan National Security Forces had responded to the situation.

The response to such attacks depends on a multitude of factors including, but not limited by, the relations between the two states, the involvement of terrorist groups – their extent and ability, regional political implications, and, in a larger global context, the interests of other nations.

However, it is essential to consider international legal principles and jurisprudence that regulate such occurrences in order to ascertain options before both countries. Unlike political measures, which are more dynamic, international law prescribes some basic but consistently applicable norms in such difficult settings.

Legal protections

The bedrock of protections afforded to the premises and staff of diplomatic missions can be traced to the 1961 Vienna Convention on Diplomatic Relations and the 1963 Vienna Convention on Consular Relations.

The conventions legally bind the host state to responsibly protect diplomatic missions. The relevant provisions establish that the premises of the mission and the private residences of diplomatic agents are inviolable and must be protected. The host state’s agents and officials cannot even enter the premises except with the consent of the head of the mission. While there are a few rare exceptions to this rule, attacks in most instances have been found to be on the wrong side of the law.

Most importantly, in this context, the host state is under a special duty 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. This applies even in the case of an armed conflict.

Additionally, in the event of an armed conflict, the host state must grant facilities in order to enable diplomatic agents and their family members to leave at the earliest. If the situation calls for it, the host state is bound to provide the necessary means of transport for diplomatic staff and their property.

This explains the vital role played by the host state’s security forces in responding to such attacks.

Host’s responsibility

The International Court of Justice has elaborated upon the responsibility of the host state in the event of an attack on a diplomatic mission by non-state actors including armed groups and terrorists.

The US Diplomatic and Consular Staff in Tehran case concerned a major attack on US embassies and consulates in Iran in 1979. In this case, Iranian protestors overpowered the US embassy in Tehran and took 52 US citizens as hostages. Fifty Americans out of the 52 were diplomatic and consular staff.

The Court’s ruling confirmed that the host state’s responsibility in the course and aftermath of such incidents is to:

(a) Immediately make every effort and take every appropriate step to secure the inviolability of the premises, archives, and diplomatic and consular staff,

(b) Restore the consulates under the sending state’s control, and

(c) Re-establish the status quo and to offer reparation for the damage.

In this case, the Court concluded that Iran’s responsibility was entailed by the inaction of its authorities, which failed to take the necessary steps. Moreover, in such cases, the responsibility may be formed by a combination of an action and omission as laid down in the 2001 International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts.

However, various international arbitral tribunals, such as the one formed in the British Claims in the Spanish Zone of Morocco case, have opined that a government cannot be held responsible for the acts of non-state groups committed in violation of its authority, provided that the said government has acted in good faith and is not guilty or negligent in suppressing the insurrection.

Non-state actors

In the event of such and other attacks, the possibility of the involvement of a state (host or other) cannot be ruled out completely. In the aftermath of the 2008 bombing of the Indian embassy in Kabul, investigations pointed towards the involvement of the Haqqani Network – a Taliban group operating on both sides of the Afghanistan-Pakistan border – with the help of Pakistani intelligence. Moreover, the Afghan Interior Ministry reportedly said that the attackers behind the 2008 attack were trained at camps in Pakistan.

In this regard, international legal jurisprudence has seen the evolution of two tests – the effective control test and the overall control test – to ascertain whether the non-state actor’s acts can be attributed to a state. The International Court of Justice first laid down the effective control test in the 1986 Case Concerning Military and Paramilitary Activities in and against Nicaragua, and later upheld its application over the overall control test in the 2007 Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide.

The effective control testbasically identifies two sets of non-state actors both of which are financed, equipped, and generally supported by the state. The essential difference between the two lies in the fact that one acts in accordance with the direction and planning of the state while the other acts independently of it. The former’s actions are clearly attributable to the state. In the case of the latter, the actions are attributable to the state when the group uses or threatens to use force against the sovereignty, territorial integrity, and political independence of other states.

Interestingly, renowned jurists have criticised both the above-mentioned tests.

Let us remember that investigations in local criminal cases and in cases concerning international terrorism and criminal conspiracies are completely different. In the latter, it is rather difficult to reach definitive conclusions owing to various phenomena, one of them being the often-cited fog of war. With information, intelligence and access thereto not always being a black-and-white affair, this is a major grey area, which can be overcome to a certain extent through joint diplomatic and political efforts.

Territorial sovereignty

The Indo-Tibetan Border Police, which is mandated with the security of the consulate, thwarted the Mazar-e-Sharif attack together with the Afghan National Security Forces. It is paramount to understand that the ITBP is a Central Armed Police Force under the authority of the Ministry of Home Affairs, and the executive head of the ITBP is a member of the Indian Police Service. The ITBP does not form a part of the Indian Army.

The primary responsibility to protect the Indian consulate lies with Afghan forces as, contrary to popular misconception, the embassies and consulates are not Indian territories. In some situations, extraterritoriality can be conferred on these premises but through treaties, which are often of a reciprocal nature.

Importance of diplomatic missions

The importance of diplomatic missions cannot be put better than in the International Court of Justice’s observation in the Tehran hostages case: “The institution of diplomacy, with its concomitant privileges and immunities, has withstood the test of centuries and proved to be an instrument essential for effective co-operation in the international community, and for enabling States, irrespective of their differing constitutional and social systems, to achieve mutual understanding and to resolve their differences by peaceful means ... [and] the inviolability of consular premises and archives, are similarly principles deep-rooted in international law…”. The 1979 Tehran incident threw the US-Iran relations in a black hole, and it still lingers despite concerted efforts by both sides to re-establish a constructive rapport.

To conclude, in a politically changing world, international law plays the role of a normative and authoritative system attempting to effectively provide solutions to the present day’s problems such as safeguarding diplomatic missions.

Sukrit Rajesh Kapoor is a lawyer and international advocacy consultant. He specialises in international law with a focus on armed conflicts and humanitarian issues.