Beyond Tehran and Nairobi: Can Attacks against Embassies Serve as a Basis for the Invocation of Self-defence?

Abstract Forty years have elapsed since the Iran hostage crisis, yet the question whether a state can lawfully resort to force in reaction to an attack against its diplomatic or consular mission remains unanswered. This issue is subject to contradictory scholarly interpretations, whereas self-defence as a justification regularly reappears in state practice. A recent example is provided by the US position regarding the killing of Qasem Soleimani in January 2020. This article revisits this controversial issue from an empirical perspective, focusing on extensive analysis of state practice based on 730 incidents. Both the empirical and the theoretical inquiry led the authors to call into question the possibility that states may lawfully rely on self-defence in such circumstances. Only one state has ever invoked self-defence regarding attacks against its embassies, and it only did so on five occasions, which were all contested by the international community. In all other 725 instances, the sending state and the international community reacted in ways other than the use of force. This research also analyses these various responses triggered by attacks against embassies. Moreover, it is virtually impossible to prove the fulfilment of the necessity and proportionality criteria of the action taken in self-defence in light of state practice over the last 70 years. Finally, this article also calls for a close re-reading of the Tehran Hostages judgment to challenge the judgment’s widely accepted interpretation as recognizing self-defence in such situations.