Reporting on the Khashoggi affair has not addressed what should be an important question. How can Turkish authorities search and investigate a crime that took place inside a Saudi consulate? Movies, TV, and others commonly assert that embassies and consulates are “foreign territory.” If this statement is true, how can Turkish authorities legally search a Saudi consulate to determine if a crime has been committed if the crime occurred within Saudi territory? Short answer — no embassy or consulate in any country has extraterritorial status. As simple proof, if a burglar breaks into the Saudi embassy in Washington, D.C., the Saudis must hand the culprit over to D.C. authorities for prosecution. The burglar cannot be detained and tried under Saudi law.
The United States is a States Party to the Vienna Convention on Diplomatic Relations. The Convention clearly states that embassies and consulates are not to be considered as a piece of sovereign territory of the sending state.
So, why the common misperception? This comes from the fact that to prevent the possibility that states could hold diplomats/embassies hostage, embassies and consulates have “inviolable status (immunity).” This means that without permission, local authorities cannot exercise normal rights of investigation, search, entry, etc. Yet, the law only suspends those rights of the host state provided the sending state observes the laws of the host state. So, the mantra has become that you treat these properties as if they have sovereign status. The grant depends upon good behavior.
So, given this, how does it relate to Benghazi? Simply, the consulate in Benghazi was not U.S. territory. Please do not think this a joke, but the Libyans were legally responsible for the security of the site. I am not naïve in the least bit in thinking that legal requirements meant anything here. This is a clear case of legal requirement that had no real meaning to the situation. Still, while one can debate the lack of security for the ambassador, in part that was his choice. Because the consulate was not U.S. territory, the United States did not have a valid claim of “self defense” The Obama administration could have handled the incident better. But, I challenge anyone to construct a real time scenario that would have saved the life of the ambassador, given the time to assemble the operation, the flight time, and the problems with landing, and travel time from the nearest airport (and the on ground obstacles) to the consulate. If you think you can do so, you have played far too many video games or you think the Star Trek teleporter exists and is readily available and travels as part of an ambassador’s protection.
James Larry Taulbee
(The author is professor emeritus of political science at Emory University and principal author of “International Crime and Punishment,” and other publications on international law.)