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As in the case of the 23rd July 2017 incident in which an Israeli security guard killed 2 Jordanians outside of Israel's embassy to Jordan, if the guard has diplomatic immunity, does that mean he can "kill whomever" and never get prosecuted?

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The restrictions on embassy staff are diplomatic and political rather than legal. The Vienna Convention says that a diplomatic agent "shall enjoy immunity from the criminal jurisdiction of the receiving State." (Article 31, including the full stop). It also says that "members of the service staff of a mission who are not nationals of or permanently resident in the receiving State shall enjoy immunity in respect of acts carried out in the course of their duties..." (Art 37). So assuming that the Israeli Ambassador states that the shooting was in the course of the security guard's duties and he does not wish to waive immunity, and that the guard was an Israeli rather than a local hire; yes, the Jordanian authorities can do nothing to this guard, even if he does the same thing tomorrow.

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    The guard (and any other personnel at the embassy that Jordan chooses to add in retaliation) can be declared persona non grata by Jordan and required to leave the country. – ohwilleke Jul 24 '17 at 18:49
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    @ohwilleke: Jordan can even declare war on Israel, as it has done in the past. Those are diplomatic and political consequences, rather than legal. – Tim Lymington Jul 24 '17 at 22:45
  • is this applicable to Khashoggi's case in the Saudi consulate too? or is it different scenario – asmgx Nov 10 '18 at 11:36
  • @asmgx: Not everyone in a consulate is an accredited diplomat; only the latter enjoy immunity (unless the Ambassador states that murder and torture are part of the duties of his staff). It might be better to ask another question about that case, with the benefit of full research. – Tim Lymington Nov 10 '18 at 14:27
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Well, was it a diplomat or a security guard? If it’s the former, then he would have immunity. The course of action would be to expel the diplomat and file a complaint with his native country. There is a chance the native country will waive the diplomat’s immunity or prosecute him itself. Lower level staff at embassies may not have full immunity, but more limited immunity, typically related specifically to their diplomatic jobs.

I can’t find nor have I heard of any precedent of a security guard maintaining diplomatic immunity. That said, if he is a direct employee of the state, perhaps an argument could be made that he does have immunity. If he is an employee of a private security company, that argument would be harder to make.

There is precedent for the diplomat’s country waiving immunity in instances of very serious crimes and/or crimes committed that are not directly connected to the diplomat’s job (e.g., alleged murder vs. alleged espionage).

  • I'd agree that the legal status of the guard matters, although I suspect that he would have diplomatic immunity in the facts of this case. Given that this related to the job of the person protecting the embassy, I very much doubt diplomatic immunity would be waived. More common would be, for example, to waive immunity in the case of say a vehicular homicide occurring while a diplomat is enjoying a weekend off not involving diplomatic business in the countryside. – ohwilleke Jul 24 '17 at 18:52
  • I didn’t read the post as if the guard was necessarily defending the embassy, but if he was, I’d tend to agree with you. If it was a killing of unarmed civilians, however, it might be different. That said, and putting customary international law aside and looking at it through a political lens (which, in the end, is what matters), I do doubt Israel is going waive any potential immunity in this or any case. So I agree with the outcome you foresee. – A.fm. Jul 24 '17 at 19:27
  • Locally-employed guards won't have immunity (the VCDR gives no immunity to admin and technical or service staff who are citizens of the receiving state), but it's very common for countries to handle the most sensitive security tasks with their own citizens. For instance, interior security in some US embassies is handled by US Marines, who are admin and technical staff (entitled to full criminal immunity, as well as civil and administrative immunity for official acts). – cpast Jul 25 '17 at 0:29

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