Book Chapter
Reference
The International Law Position of the Defence Attaché
KILIBARDA, Pavle
KILIBARDA, Pavle. The International Law Position of the Defence Attaché. In: Hans Eberhart, Markus A. Mäder, Bruno Russi and Marc-Alain Stritt. Im Einsatz für Sicherheit und Frieden:
Der Verteidigungsattaché als Instrument der schweizerischen Militärdiplomatie. Lenzburg : Verlag Merker im Effingerhof, 2021. p. 55-63
Available at:
http://archive-ouverte.unige.ch/unige:155742
The International Law Position of the Defence Attaché
Pavle Kilibarda
1. Introduction
Within the corps of diplomatic law studies, the position of the military or defence attaché has been the object of comparatively little attention. Apart from a doctoral dissertation by Jürg Gerster,1 published in 1959 in Zürich, there have been no book-length studies of the position of the defence attaché in either domestic or international law. In the meantime, rising military cooperation around the world – not just in defence matters stricto sensu, but also in the spheres of security, development and humanitarian assistance – has led to a manifold increase in the number of military, naval and air attachés deployed in diplomatic missions; this has led (and will lead in the future) to situations where legal uncertainty may arise as to the general status of a defence attaché as a diplomatic agent, or the extent of their diplomatic immunity.
At the same time, the bodies of both diplomatic law and the law of armed conflict have expanded, notably through the adoption of the Vienna Convention on Diplomatic Relations in 1961 and the Protection of Diplomats Convention in 1973. Clearly, neither of these could be an object of Gerster’s study, although the underlying legal principles – many of which were of a customary nature already at the time his dissertation was published, and subsequently codified in these treaties – are discussed in detail, notably the question of authority and obligation in the sending of military attachés, as well as their immunities and privileges in the receiving States. The position of the defence attaché in times of armed conflict is also examined, albeit not at great length, either because it had not been identified as a legal issue of particular importance at the time, or, more likely, because the legal response was considered sufficiently obvious as to not warrant a detailed analysis. Whatever the case, this problem has resurfaced in our times, and deserves additional study.
In this short contribution, we shall attempt to scrutinize the position of the military or defence attaché in international law. It is our task primarily to apply general rules of international law to the particular position of the attaché while identifying the limited norms specific to this position. Our analysis will focus on the legal principles governing the activities of the defence attaché, the scope of his or her privileges and immunities, as well as their status in times of armed conflict.
In principle, the adjectives “military” and “defence” are here interchangeable, and include any specialized attachés such as those representing the ground, naval or air forces; however, the term “defence attaché” is gaining ground in common parlance, mostly as a result of the modern preference insist on the prohibition of wars of aggression. This text employs both terms in equal measure, as today there exist common forms of legitimate military cooperation which does not amount to defence in the narrow sense.
2. The Activities, Privileges and Immunities of the Defence Attaché
Since the very creation of the role, the military or defence attaché – whether deployed as a general military representative of the sending State, or in order to represent a specific branch of its armed forces, such as an air or naval attaché – has always been a member of the armed forces, more specifically, an officer.2 Regardless of his or her relationship with the civilian head of mission, the attachés of most States remain directly subordinate to those States’ defence ministry or chief of staff, rather than the foreign ministry; the attaché is a military officer when sent abroad, remains
such for the duration of the mission, and continues to be one after the mission has been completed or his or her mandate expired. As such, the defence attaché is an agent of the sending State, and his or her acts may be attributed to that State, perhaps even entailing its international responsibility if they amounted to a violation of international law.3
On the other hand, the defence attaché is a diplomatic agent, dispatched to a State’s foreign mission which will be, as a rule, dominated by civilian staff. In fact, many States’ defence attachés will be the sole military member of the diplomatic mission in casu. Depending on the context, this may render the attaché’s activities particularly poorly understood, suspect or even perilous if the receiving State does not regard their presence as fully amicable. It is fitting in this regard to recall the tragic death of Major Arthur D. Nicholson, attached to the United States’ liaison office in the German Democratic Republic, at the hands of a Soviet guard in 1985; Major Nicholson was deployed on a reconnaissance mission which was misconstrued as espionage by Soviet military personnel.4 While such egregious violations of the rights under international law of diplomatic agents are not common, it is nevertheless important to recall the norms governing the deployment and activities of contemporary military attachés.
Being both members of the armed forces and members of a diplomatic mission, defence attachés are subjected to a multi-faceted regime which is more complex than the one governing the activities of other diplomats. First, the defence attaché as a diplomatic agent is vested with specific rights and duties under international law. Second, should hostilities erupt between the sending and receiving State during the attaché’s deployment, he or she is also a combatant, and therefore possesses a specific status in international humanitarian law (IHL). This may cause some degree of tension between the norms of diplomatic and IHL, as they may then be said to be in a state of co-applicability leading to a conflict of norms; we shall examine this issue in the following section.
Third, the defence attaché remains subjected to the application of the domestic law of both the sending and the receiving State (although he or she will enjoy general immunity from the jurisdiction of the receiving State). The domestic legal regime applicable to such diplomatic agents will of course vary from State to State, and we shall only examine it here insofar as it has a direct bearing on the application of international law.
Before turning to the specific norms governing their position and activities, it is helpful to briefly recall the reason for which most States maintain standing military attaché positions around the world. Ever since the Duc de Richelieu dispatched military observers to friendly nations during the Thirty Years’ War,5 defence attachés have been acting as advocates and representatives of their country’s armed forces, facilitating the military cooperation among friendly States and engaging in various forms of information gathering and technological exchange.6 It is easy to see how these latter activities could be perceived as espionage by the receiving State; indeed, history demonstrates that such fears from local authorities were quite often justified. It was therefore necessary to delineate in law the rights and duties of the defence attaché as a diplomatic agent.
Contemporary diplomatic law, whether in the form of treaties or customary law, does not single out the defence attaché for extensive treatment. Beyond a few explicit provisions, we must therefore recall the general position of a diplomatic agent and apply it to the specific position of the defence attaché.
General international law imposes no obligation upon States to enter diplomatic relations, or to send or receive diplomatic agents;7 to enter and maintain such relations therefore remains a State privilege. Nevertheless, for obvious reasons, States shall not disengage from such relations unless particularly grave reasons compel them to do so. In much the same manner, States are
neither obliged to send military attachés, nor are they required to accept them in their territory, yet will still do so as contemporary international relations – whether in times of peace or armed conflict – can scarcely be imagined without adequate military and security cooperation, where the defence attaché plays a role of paramount importance.
Where diplomatic relations do exist, the position of permanent missions and their staff will be regulated by diplomatic law, one of the eldest branches of international law whose status both in customary and treaty law is not in dispute. Today, the most relevant source of the norms of diplomatic law is the 1961 Vienna Convention on Diplomatic Relations (VCDR).
For the purposes of the Convention, the defence attaché is considered a member of the diplomatic staff, and therefore a diplomatic agent with full privileges and immunities emanating from such status, holding diplomatic rank. Unlike the appointment of heads of mission (in diplomatic practice, such positions are not filled by active members of the armed forces), diplomatic law does not require the prior agrément of the receiving State for the sending of a defence attaché.
Nevertheless, the deployment of attachés may still be subject to that State’s prior approval, should it so require. According to the VCDR:
Subject to the provisions of articles 5, 8, 9 and 11, the sending State may freely appoint the members of the staff of the mission. In the case of military, naval or air attachés, the receiving State may require their names to be submitted beforehand, for its approval.8
It may be understood from the wording of the Convention that the question of whether or not defence attachés may be deployed to a diplomatic mission will depend on the diplomatic relations between the States in question – where, in practice, these States waive their right of prior approval, the sending of military, naval or air attachés will be subject to simple notification, just as with any other diplomatic agent short of the head of mission. We may similarly conclude that international law does not in this respect instill an obligation of reciprocity in bilateral diplomatic relations, however the receiving State may not discriminate in the application of the Vienna Convention. Thus, “[t]he receiving State may […] on a non-discriminatory basis, refuse to accept officials of a particular category.”9 According to the International Law Commission’s Draft Articles on Diplomatic Intercourse and Immunities with commentaries, this provision “gives the receiving State the right to refuse to accept officials of a particular category. But its right to do so is circumscribed in the same manner as its right to claim a limitation of the size of the staff, and must, furthermore, be exercised without discrimination between one State and another.”10 Similarly, other norms of international law may oblige States to refrain from deploying certain diplomatic staff in their diplomatic missions, such as when the Security Council ordered all States to restrict the size of their missions in Libya.11 Finally, the individual attaché may be declared persona non grata by the territorial State without any justification, where upon he or she will be required to leave that State within a reasonable period of time.12
When deployed to a mission abroad, the attaché will benefit from all of the immunities and privileges incumbent upon other diplomatic staff. His or her person shall be inviolable at all times, and exempt from arrest or detention; so too shall be inviolable their residence, bag, correspondence and property (with specifically-enumerated exceptions) and they shall be exempt from taxation.13 Like that of other diplomatic agents, the criminal jurisdiction immunity of an incumbent defence attaché will be absolute, whereas civil jurisdiction may only be exercised in case of: a real action relating to private immovable property situated in the territory of the receiving State, unless held in an official capacity; an action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee in a private capacity; and an action
relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State in a private capacity.14 Even then, any measures infringing the inviolability of the person of the attaché will remain prohibited as a matter of diplomatic law, unless explicit consent were granted by the sending State to do otherwise.
Jurisprudence and State practice reveal several exceptions to the strict immunities contemplated by the Vienna Convention. We shall focus here on exceptions to personal immunities, rather than those pertaining to the premises of the diplomatic mission or the residences of diplomatic agents.
As any other diplomat, the defence attaché may also be subjected to arrest or temporary detention without the consent of the sending State “on the basis of self-defence or in the interests of protecting human life.”15 This is supported by an obiter dictum of the International Court of Justice in the Hostages case, when the Court found that immunity does not exclude “that a diplomatic agent caught in the act of committing an assault or other offence may not, on occasion, be briefly arrested by the police of the receiving State in order to prevent the commission of the particular crime.”16 In such cases, where the measures instituted against the attaché are no more than absolutely necessary and employed as a last resort, there will be no breach of diplomatic law, however the attaché will in any case continue to enjoy immunity from the criminal and civil jurisdiction of the receiving State. In general, such immunity exists from the moment the attaché arrives in the receiving State (which has received notification of his or her deployment) and lasts until his or her successful repatriation upon the end of deployment.17
Discussions have focused greatly on the question of the immunity of diplomatic and consular staff, as well as incumbent heads of State, government and foreign ministers, with respect to accusations of crimes under international law, such as crimes against humanity or war crimes, and some States have argued that, as a matter of universal jurisdiction, any State may found its jurisdiction over such accused regardless of their immunities. In the Arrest Warrant case, the ICJ soundly rejected Belgian arguments to that effect, determining that the immunities conferred upon an incumbent minister of foreign affairs “are not granted for their personal benefit, but to ensure the effective performance of their functions on behalf of their respective States.”18 Incumbent heads of State, government or foreign ministers therefore continue to enjoy absolute immunity from foreign criminal jurisdiction, with several exceptions: first, no such immunity exists with respect to their own domestic law; second, their State may choose to waive their immunity; and third, the immunity of former heads of State or government and ministers of foreign affairs only extends to acts committed in an official capacity.19 This should be balanced with the reasoning of the House of Lords in Pinochet, where it was determined that international crimes (such as torture) could not be committed in an official capacity: “The acts alleged against the applicant were outside his functions as head of state. Chilean law expressly prohibits torture.”20 Bearing in mind that both the ICJ and the House of Lords draw extensively on the provisions of the VCDR, it is safe to assume that the standards developed in relation to incumbent and former heads of State or government or foreign ministers apply in equal measure to incumbent and former diplomatic agents, including, naturally, the defence attaché.
In addition to the above, the defence attaché remains protected by the 1973 Protection of Diplomats Convention. In the sense of the Convention, the attaché will be considered a
“representative or official of a State (…) who, at the time when and in the place where a crime against him, his official premises, his private accommodation or his means of transport is committed, is entitled pursuant to international law to special protection from any attack on his person, freedom or dignity, as well as members of his family forming part of his household.”21 The
Convention requires States Parties to criminalize acts of violence against diplomatic agents and premises and subjects such acts to the principle of aut dedere, aut judicare (extradite or prosecute); the assassination in 1986 of the French military attaché in Lebanon, Col. Christian Goutierre, serves as a reminder of the need to protect diplomats from agents of the receiving State, but non-state actors as well.22 Clearly, the protection of this treaty is largely congruent with the scope of application of the VCDR, and only attachés present in a State where they are accredited shall be protected for the duration of their deployment.
With respect to the activities of the defence attaché, they must conform to the requirements of Article 3 of the VCDR, and, as all other diplomatic agents, the attaché is bound to respect the laws and regulations of the receiving State.23 It would be incorrect to assume that a diplomatic agent is a priori incapable of violating the domestic law of the State of deployment. This may have grave consequences in practice, as jurisprudence shows that, after their diplomatic immunity has expired following the end of their mission, diplomatic agents are no longer shielded from the jurisdiction of the receiving State in which they had committed a crime if said crime was not carried out in an official capacity.24
3. The Defence Attaché in Situations of Armed Conflict
A problem generally neglected in doctrine relates to the position of the defence attaché in situations of armed conflict. As we have seen above, the defence attaché is a diplomatic agent, and therefore enjoys all the immunities and privileges otherwise incumbent upon diplomats. At the same time, the attaché is a member of the armed forces who, in the event of an international armed conflict between the sending and receiving States, would also become a combatant. This may lead to tension between diplomatic law and the branch of international law applicable in times of armed conflict, namely international humanitarian law.
International humanitarian law distinguishes between two types of armed conflicts, international (IAC) and non-international (NIAC). Both types of armed conflict may give ground for concern with respect to the position of foreign diplomatic staff.
Under the IHL of IACs, members of the armed forces of belligerent States are combatants, with the exception of military medical or religious personnel.25 Combatants benefit from the combatant privilege, namely they may directly participate in hostilities while enjoying immunity from criminal or civil jurisdiction for such acts. On the other hand, they may be lawfully killed by the enemy at any moment, for as long as they have not been rendered hors de combat by injury or surrender.
In case of capture by the enemy, they become prisoners of war and benefit from the protection of the third Geneva Convention of 12 August 1949.26 The detaining power may, however, continue to detain prisoners of war until the cessation of active hostilities, whereupon it will be obliged to release and repatriate them.27
IHL makes no specific mention of the position of diplomatic agents in such cases, although they clearly remain civilians, rather than combatants. The same may not be said of the military attaché, who, in the eyes of IHL, becomes a combatant.
The Vienna Convention makes general reference to situations of armed conflict, namely that the immunities and privileges of diplomatic agents shall last until they leave the country, or on expiry of a reasonable period within which to do so, “but shall subsist until that time, even in case of armed conflict.”28 The obligation to provide facilities to such persons and their family members to leave the country is similarly worded,29 as well as the obligation to protect the premises, property
and archives of the diplomatic mission.30 This means that diplomatic law is meant to function as the lex specialis in times of armed conflict, abrogating those provisions of IHL which would permit belligerent parties to take wartime measures towards enemy nationals, such as subjecting them to internment or seizing their property.
Understanding diplomatic law as a lex specialis in times of armed conflict is strongly enforced by the jurisprudence of the International Court of Justice. In the Hostages case, the Court famously found: “Even in the case of armed conflict or in the case of a breach in diplomatic relations those provisions require that both the inviolability of the members of a diplomatic mission and of the premises, property and archives of the mission must be respected by the receiving State.”31 In its 2005 judgment in the Armed Activities case, it again recalled “that the Vienna Convention on Diplomatic Relations continues to apply notwithstanding the state of armed conflict that existed between the Parties at the time of the alleged maltreatment.”32
While the convergence between the protection provided under IHL to civilians is largely compatible with the protection of diplomatic law when it comes to civilian diplomatic agents (i.e.
both bodies of law entail a prohibition in this respect), this is not the case with a military attaché, who is a member of the armed forces. With respect to the latter, the co-applicability of the two bodies creates a conflict of norms: as opposed to the prohibition in diplomatic law, IHL authorizes capture and even killing. The conflict of norms may therefore only be resolved by resorting to the interpretative principle of lex specialis, naturally in favour of diplomatic law.
It would unfortunately be idealistic to presume that the mere existence of a prevailing prohibition will preclude, in all situations, unlawful practice; this is particularly relevant in situations of deprivation of liberty. We may imagine two situations wherein a military attaché may be subjected to detention by the receiving State in the context of an armed conflict: first, when this happened at a time when they continued to enjoy diplomatic immunity, and second, when such immunity had ceased to exist (perhaps because the attaché did not leave the territory of the receiving State within a reasonable time). In the first situation, there will be a violation of the VCDR entailing the international responsibility of the receiving State; in the latter, no such violation with occur, for the diplomatic agent had failed to abide by the requirements of the Convention. Whatever the case, however, the military attaché – now in the power of the enemy – will be entitled to the protection of IHL as a prisoner of war. The application of IHL, which is almost as indifferent to the lawfulness of deprivation of liberty as it is to the initial legality of the use of force between States, will not be preempted by a violation of diplomatic law. This possibility is contemplated by Gerster well before the adoption of the Vienna Convention: “Sollte der Militärattaché im Verlaufe der Erfüllung seiner Aufgaben in Gefangenschaft geraten, so ist er als Verbündeter des Feindes wie ein Kriegsgefangener zu behandeln.”33
In situations where a military attaché who still enjoys diplomatic immunity becomes a prisoner of war, he or she will benefit from the treatment becoming such status under the third Geneva Convention. However, as he or she will continue to enjoy the protection of diplomatic law for the duration of their times as a prisoner of war, another conflict of norms will arise, namely between Article 44 of the Vienna Convention (“[t]he receiving State must, even in case of armed conflict, grant facilities in order to enable persons enjoying privileges and immunities (…) to leave at the earliest possible moment”) and Article 118 of the third Geneva Convention (“[p]risoners of war shall be released and repatriated without delay after the cessation of active hostilities”). Again, the conflict must be resolved by the principle of lex specialis, and in favour of diplomatic law. Any military attaché who falls into the hands of the enemy while still possessing diplomatic immunity
must therefore be released and repatriated immediately, rather than at the end of hostilities. In any event, such situations should not come to pass often, seeing as how States tend to withdraw their diplomatic staff, including military attachés, in anticipation of an imminent armed conflict with the receiving State.
The position of the military attaché framework of NIACs will be quite different. First of all, such conflicts will not be fought between two States, but rather between a State and a non-state armed group, or between such groups without the involvement of a State; as a result, there will be no co-applicability of IHL and diplomatic law with respect to the diplomatic agents of foreign States which are not parties to the conflict. Under the circumstances, their position is most properly regulated by the Protection of Diplomats Convention, which will require the State to ensure their safety from the hostilities. On the other hand, it will also oblige the non-state belligerent party to respect the integrity of diplomats, for it is a well-known principle of international law that unlawful acts of non-state actors become attributable to a State if they should become its new government.34 Finally, in situations where the sending and receiving States are co-belligerents in a NIAC, IHL and diplomatic law will once again be co-applicable, but as there exists no combatant status (and, consequently, no status of prisoner of war) in such conflicts, there is no conflict of norms between the two bodies of law. Insofar as the military attaché may be considered a “fighter”
for the purposes of the principle of distinction, diplomatic law – as the lex specialis – will prohibit their targeting other than as a measure of last resort in self-defence or defence of others.
Clearly, there is very little to discuss with respect to the position of a military attaché of a sending State which is itself involved in a NIAC at home, for diplomatic agents deployed abroad enjoy no immunity in the territory of their own country.
4. Conclusion
Recent history soundly vindicates the role played by the defence attaché in situations of conflict and humanitarian crises.35 Their two “faces of Janus” – extending to both diplomacy and military cooperation – provide them with unique expertise which today extends well-beyond questions of national defence and encompass security, counter-terrorism and even the protection of the environment. In a nutshell, contemporary international relations cannot be imagined without direct military interaction and cooperation, which is inconceivable without a well-developed network of defence attachés acting as bridges between States. The general lack of academic interest in the legal position of the defence attaché is therefore all the more striking.
We have seen that international law regulates adequately the status of a military attaché, albeit indirectly, as it is necessary to draw upon general rules (coming from different legal branches) and apply them to this specific position. While it is not, in principle, necessary to summon a new conference of States to re-negotiate the status of attachés, it would be most prudent to summarize their activities, rights and duties, at least in an instrument of soft law. Beyond re-invigorating academic study of the military attaché in different scientific disciplines, such a document would certainly spur policy discussions of international military cooperation as a whole.
1 Jürg Gerster, Der Militärattaché – seine völker- une landesrechtliche Stellung mit besonderer Berücksichtigung der Schweizer Verhältnisse; Juris-Verlag Zürich, 1959
2 “Der Militärattaché ist ein Offizier, der von einem Kriegsministerium zu Beobachtungs- und Vertretungszwecken an eine diplomatische Mission seines Landes detachiert wird.” Ibid, p. 27.
3 « Le comportement de tout organe de l’Etat est considéré comme un fait de l’Etat d’après le droit international, que cet organe exerce des fonctions législative, exécutive, judiciaire ou autres, quelle que soit la position qu’il occupe dans l’organisation de l’Etat, et quelle que soit sa nature en tant qu’organe du gouvernement central ou d’une collectivité territoriale de l’Etat. Un organe comprend toute personne ou entité qui a ce statut d’après le droit interne de l’Etat. » Commission du droit international, Projet d’articles sur la responsabilité de l’État pour fait internationalement illicite; 2001, Article 4.
4 James M. Markham, American Officer Killed by Russian in East Germany; The New York Times, 26 March 1985.
5 While the envoys sent by Richelieu are sometimes considered the first military attachés in the modern sense, they were not standing representatives, and the practice of exchanging military envoys only gained momentum in the 18th century: “Obwohl Richelieu – der eigentliche Begründer der ständigen diplomatischen Vertretungen – schon im Verlaufe des dreissigjährigen Krieges militärische Beobachter an befreundete Mächte entsandte, dürfte die Gepflogenheit, militärische Beobachter auszutauschen, erst im Verlaufe des 18. Jahrhunderts Fuss gefasst haben.” Gerster, p. 4.
6 For a succinct overview of the role of the defence attaché in contemporary diplomacy (including an overview of Swiss practice), see DCAF Backgrounder, Defence Attachés, July 2007.
7 “The establishment of diplomatic relations between States, and of permanent diplomatic missions, takes place by mutual consent.” Vienna Convention on Diplomatic Relations (adopted 18 April 1961, entered into force 24 April 1964), 500 UNTS 95 [VCDR], Article 2.
8 Ibid, Article 7.
9 Ibid, Article 11.
10 International Law Commission, Draft Articles on Diplomatic Intercourse and Immunities with commentaries, Yearbook of the International Law Commission, 1958, vol. II, p. 92.
11 UNSC Resolution 748 (1992).
12 “Immunities and privileges normally cease when the person leaves the country or on expiry of a reasonable period in which to do so. However, by article 39(2) there would be continuing immunity with regard to those acts that were performed in the exercise of his functions as a member of the mission.”
Malcolm N. Shaw, International Law; 6th edn, CUP, 2008, p. 769.
13 VCDR, Article 34.
14 Ibid, Article 31.
15 Shaw, p. 765.
16 ICJ, Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment of 24 May 1980, 1980 I.C.J. Reports 3, para. 86.
17 Like other diplomatic agents, attachés will enjoy immunity from the jurisdiction of transit States while taking up or returning to a post. See VCDR, Article 40.
18 ICJ, Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v.
Belgium), Judgment of 14 February 2002, 2002 I.C.J. Reports 3, para. 53.
19 Ibid, para. 61.
20 House of Lords, Regina v. Bow Street Metropolitan Stipendiary Magistrate and Others, Ex parte Pinochet Ugarto (No. 3) [2000] 1 A.C. 147, p. 12.
21 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents (adopted 14 September 1973, entered into force 20 February 1977), 1035 UNTS 167, Article 1 (1) (b).
22 French Attache is Slain by Gunmen in Beirut; The New York Times, 19 September 1986.
23 VCDR, Article 41.
24 Ibid, Article 39 (2).
25 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978), 1125 UNTS 3, Article 50.
26 Geneva Convention Relative to the Treatment of Prisoners of War (adopted 12 August 1949, entered into force 21 October 1950), 75 UNTS 135.
27 Ibid, Article 118.
29 Ibid, Article 44.
30 Ibid, Article 45 (a).
31 ICJ, Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment of 24 May 1980, 1980 I.C.J. Reports 3, para. 86.
32 ICJ, Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment of 19 December 2005, 2005 I.C.J. Reports 168, para. 323.
33 Gerster, p. 103.
34 Commission du droit international, Projet d’articles sur la responsabilité de l’État pour fait internationalement illicite; 2001, Article 10.
35 See DCAF Backgrounder, Defence Attachés, July 2007.
