By Aaron Klein
JERUSALEM — Was the U.S. mission in Benghazi established in violation of international law?
According to the 39-page report released this week by independent investigators probing the September 11th attacks at the diplomatic facility, the U.S. mission in Benghazi was set up without the knowledge of the new Libyan government.
Reads the report: “Another key driver behind the weak security platform in Benghazi was the decision to treat Benghazi as a temporary, residential facility, not officially notified to the host government, even though it was also a full-time office facility.”
“This resulted in the Special Mission compound being excepted from office facility standards and accountability under the Secure Embassy Construction and Counterterrorism Act of 1999 (SECCA) and the Overseas Security Policy Board (OSPB).”
The report, based on a probe led by former U.S. diplomat Thomas Pickering, calls the facility a “Special U.S. Mission.”
Until now, government descriptions routinely referred to the facility as a “mission,” while the news media largely wrongly labeled the building a “consulate.”
While the report documents how the U.S. mission’s special “non-status” excepted the facility from State Department security standards, it is not immediately clear whether the mission was also exempt from the Vienna Convention on Diplomatic Relations, which governs the establishment of overseas missions.
Like most nations, the U.S. is a signatory to the 1961 United Nations convention.
Article 2 of the convention makes clear the host government must be informed about the establishment of any permanent foreign mission on its soil.
“The establishment of diplomatic relations between States, and of permanent diplomatic missions, takes place by mutual consent.”
According to descriptions in Pickering’s report, there was a decision “to treat Benghazi as a temporary, residential facility,” likely disqualifying the building from permanent mission status if the mission was indeed temporary.
However, the same sentence in Pickering’s report note the host government was not notified about the Benghazi mission “even though it was also a full-time office facility.”
Articles 12 of the Vienna Convention dictates, “The sending State may not, without the prior express consent of the receiving State, establish offices forming part of the mission in localities other than those in which the mission itself is established.”
If the Benghazi mission was a “full-time office facility” it may violate Article 12 in that the mission most likely was considered an arm of the U.S. embassy in Tripoli – which served as the main U.S. mission to Libya.
That Tripoli embassy was led by Ambassador Chris Stevens, who reportedly used the Benghazi mission as an office meeting space, meaning the mission may have been an extension of the U.S. embassy and thus its establishment may have required “prior express consent” of the Libyan government.
It was clear the Tripoli embassy was the main U.S. diplomatic mission in Libya. The facility also served as a consulate.
On Aug. 26, about two weeks before his was killed, Stevens attended a ceremony marking the opening of consular services at the Tripoli embassy.
“I’m happy to announce that starting on Monday, August 27, we are ready to offer a full range of consular services to Libyans,” stated Stevens at the ceremony in Tripoli. “This means non-immigrant visas, as well as assistance to Americans residing in, or visiting, Libya.”
The main role of a consulate is to foster trade with the host and care for its own citizens who are traveling or living in the host nation.
Diplomatic missions, on the other hand, maintain a more generalized role. A diplomatic mission is simply a group of people from one state or an international inter-governmental organization present in another state to represent matters of the sending state or organization in the receiving state.
While the Benghazi investigative report did not focus on international law, the group reportedly concluded that systematic management and leadership failures at the State Department led to “grossly” inadequate security at the mission in Benghazi.
“Systematic failures and leadership and management deficiencies at senior levels within two bureaus of the State Department resulted in a Special Mission security posture that was inadequate for Benghazi and grossly inadequate to deal with the attack that took place,” the panel said.
The report pointed a finger at State’s Bureau of Diplomatic Security and the Bureau of Near East Affairs, charging a lack of coordination and confusion over protecting the Benghazi mission.
With research by Joshua Klein