The Israeli embassy in Amman and its surrounding are on lockdown following an attack in which a security guard was stabbed. .
(photo credit: AFP PHOTO)
With an Israeli security guard trapped in Israel’s Amman Embassy in the midst of a high-stakes diplomatic confrontation between Israel and Jordan, arguments are flying back and forth about whether the guard has diplomatic immunity.
Jordan demands he be handed over for questioning and refuses to permit him to leave the country.
The issue is crucial. The guard should have no criminal issues, if his shooting of an alleged Jordanian attacker, who stabbed him with a screwdriver, and another bystander was carried out in self-defense.
But if he did not act in self-defense, as some in Jordan are claiming (though no evidence has been provided to date), absent diplomatic immunity, he might be at the mercy of Jordan’s legal system.
If the case is not clear-cut, especially regarding the bystander – no explanation has been given as to why he was shot – would that mean Jordan’s courts would need to sort out the issue? What about diplomatic immunity? Isn’t diplomatic immunity meant just for blocking small-time issues, such as parking tickets, and only for high-level professional diplomats? Not according to two former Foreign Ministry chief legal advisers, Robbie Sabel and Alan Baker.
Both Baker and Sabel said that the 1961 Vienna Convention leaves no room for doubt on the issue, and that its diplomatic immunity provisions block criminal prosecution in a host country, no matter the severity of the crime.
Both Israel and Jordan have ratified and are obligated by the convention.
Baker said that the convention “prohibits Jordan from delaying any diplomatic agent from receiving complete immunity, despite whatever he may be accused of.”
He said this prohibition even bars Jordan from being able to compel an Israeli with diplomatic immunity from giving evidence as a witness.
“Diplomatic immunity can be waived by Israel, should it decide to do so,” but that “all depends on how the two countries decide to conduct themselves in solving this issue.” Also, if a home country really believes its national has committed a crime, it can bring him to trial at home.
What about a Jordanian argument that he is really a security guard and not a true diplomat? Sabel said that “even if someone did not have a diplomatic title, if they are part of the administrative and technical staff of the embassy, they have full criminal immunity... for any actions taken as part of their official duty.”
Here, Sabel said, the security guard does have a diplomatic title, so his function as a security guard does not detract from his immunity.
Furthermore, Baker noted that from news reports it appears the guard was supervising the security of moving furniture when his assailant attacked him – meaning, he was carrying out his official duties.
Baker and Sabel were pressed about examples such as Raymond Davis, a CIA contractor who shot two men dead in Pakistan in January 2011 who he said were trying to rob him. Though the US claimed he had diplomatic immunity, Davis was arrested, interrogated and charged by Pakistan. He was released only months later, after the families’ of the dead Pakistanis were paid $2.3 million.
Baker said, “It is always the prerogative of any sovereign country to” violate “the international obligations to which it is a party.”
Emphasizing difficult situations that respecting diplomatic immunity has created for Israel and for him personally, Baker told the story of former Egyptian ambassador Muhammad Bassiouni, who was accused of raping a belly dancer in Tel Aviv.
“I was legal adviser of the Foreign Ministry and it was very clear from the evidence from police files that he had in fact been raping this woman, but because of full diplomatic immunity, my task was to appear in an Israeli court” where there was a request to arrest him, to tell the court “he could not be put on trial,” said Baker.
Sabel said that diplomatic immunity is widely respected because “every country has diplomats in all sorts of countries around the world” and wants to avoid retaliation against its own diplomats.
He said that a state’s way to retaliate against a diplomat for criminal conduct is to expel him and to refuse him reentry.
Both suggested that Jordan’s blocking the guard from leaving was a political position brought on by the current hot atmosphere in the midst of the crisis over the Temple Mount’s status, which Baker said “renders it a special case,” even if Jordan has little to stand on from a technical, legal perspective.
“The Jordanians are in a very difficult position, as are the Israelis.... I hope good sense prevails and” the sides “come to a practical arrangement,” Baker concluded.