Protestors chanting slogans during a demonstration near the Israeli embassy in Amman, Jordan July 28, 2017. .
(photo credit: REUTERS)
The Jordanian government, according to media reports, is refusing to permit the return to Amman of Israel’s resident ambassador.
The embassy staff was withdrawn by Israel in light of the recent tension between the two countries following the shooting by an Israeli security guard of an alleged Jordanian assailant and the fear that the staff was in danger.
This situation raises some legal issues.
The 1961 Vienna Convention on Diplomatic Relations, to which both Jordan and Israel are party, governs all issues regarding the content and nature of the diplomatic relations between states.
The convention guarantees, in its article 29, the complete inviolability of a diplomatic agent. He or she is not liable to any form of arrest, detention or measures of execution by the authorities of the receiving state. Article 31 of the convention ensures that a diplomatic agent shall enjoy immunity from criminal jurisdiction within the receiving state, and exempts such a diplomat from any requirement to give evidence as a witness.
However, immunity from the jurisdiction of the receiving state does not exempt a diplomatic agent from the jurisdiction of the sending state in the event of a suspicion of criminal activity by the diplomatic agent. As a signatory to the Vienna Convention, Israel is therefore required to investigate such a situation.
Accordingly, as required by international law and practice, the appropriate legal authorities in Israel have duly opened an investigation of the incident to ascertain whether there is cause for charges to be laid. Israel’s Justice Ministry instructed the head of the Investigations and Intelligence Division of the Israeli Police to conduct a police investigation into the shooting incident, including taking into account findings provided by Jordan.
However, despite this, according to the Jordanian media sources, Jordan has informed Israel’s Foreign Ministry that it would not agree to the return of Israel’s ambassador without guarantees that the security guard is being investigated and will be put on trial.
This would appear to be at odds with Jordan’s international obligations.
Jordan, like any other state signatory to the Vienna Convention, has the sovereign prerogative pursuant to its article 9 “to notify the sending State that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable.”
However, such a move, in the present situation, would logically be out of any proportion to the nature and circumstances of the diplomatic incident concerned. This especially in light of the fact that the ambassador had no involvement whatsoever in the incident and that Israel is conducting a police investigation into the incident, as required by international law and practice.
Thus, refusal by Jordan to permit the return of Israel’s ambassador would appear to be incompatible with Jordan’s obligations according to the Vienna Convention.
Furthermore, Jordan and Israel are both committed, pursuant to article 5 of the 1994 Jordan-Israel Treaty of Peace, to maintain “resident ambassadors” in each other’s capital. This commitment is absolute, in fitting with the peace treaty’s preambular mutual assurance “to develop friendly relations and co-operation between them in accordance with the principles of international law governing international relations in time of peace.”
The inherent logic of maintaining resident ambassadors is all the more evident, and necessary in a situation such as this one, in order to ensure direct, and high level diplomatic contact between the two states.
It is in the vital interests of both countries that Israeli-Jordanian relations be put back on track. The key to protecting this relationship is to make sure that both the peace treaty, as well as each country’s international diplomatic obligations, are strictly observed.Alan Baker is the former legal adviser of the Foreign Ministry and former ambassador to Canada. He presently heads the international law program at the Jerusalem Center for Public Affairs.
He participated in the negotiation and drafting of the peace treaty with Jordan.