As the World Mourns Jamal Khashoggi: Fireworks in International Law and Diplomacy
“Firstly, this murder might have been carried out in the Consulate building, which counts as Saudi Arabian territory. However, it should not be forgotten that this is within Turkish borders. Moreover, the Vienna agreement and other international laws all object to questioning about such a vicious murder being hidden through diplomatic immunity. We will, of course, investigate and inspect this murder within our borders and do everything necessary. On the other hand, the fact that Jamal Khashoggi is an internationally renowned journalist, aside from his Saudi identity, also puts an international responsibility on us. Turkey, as the representative of the world’s common conscience along with its own sovereignty, is following up this issue.
Where the event occurred is Istanbul. Therefore, these 15 + 3 people – the 18 who were arrested, should be tried in Istanbul. That is my proposal. Of course, the decision is theirs, but this is my proposal and demand, since this is where the event took place. That is why it is important.”
- Excerpts of the speech of Recep Tayyip Erdogan, President of Turkey, made on 23rd October, 2018 espousing Turkey’s position on the disappearance and murder of Jamal Khashoggi at the Saudi Arabia Consulate in Istanbul on 2nd October, 2018.
“Under international law, both a forced disappearance and an extra-judicial killing are very serious crimes, and immunity should not be used to impede investigations into what happened and who is responsible. We hope the lifting of immunity is absolute, so they can investigate, in the Consulate, the [consular] residence premises, the vehicles shown on TV footage.”
- Michelle Bachelet, the United Nations High Commissioner for Human Rights, reacting to the forced disappearance of Jamal Khashoggi, on 16th October, 2018.
RBackground
eports have it that Saudi Arabian-born Jamal Khashoggi, a columnist with Washington Post and virulent critic of the Crown Prince Mohammed bin Salman (also known as MBS), visited the Saudi Consulate in Istanbul, Turkey, to perfect the documents he needed to wed his fiancée, a Turkish citizen. He entered the Consulate, and disappeared.
After the initial prevarication by Saudi Arabia and uproar across the globe over the manner of the murder of Khashoggi, the Saudi Public Prosecutor on 19th October, 2018, issued a statement claiming that Khashoggi died in the course of a brawl with some rogue elements at the Saudi Consulate in Istanbul. He added that 18 Saudi citizens were arrested, and were being investigated to ensure accountability. He promised to conclude the investigation, within one month.
Reports have it that Khashoggi’s body has not been found, and that the Public Prosecutor has continued his investigation even up to Turkey as at 31st October, 2018, on the presumption that a rogue operator took away the body.
Investigations
Both Saudi Arabia and Turkey are carrying out investigations independently, but nothing short of United Nations investigation will be acceptable to the international community. Although the UN or any agency of it has not taken over full investigation, the UN High Commissioner for Human Rights has been giving the irreducible standard of investigation, that will be acceptable to the comity of nations. Online reports of 31st October, 2018 quoted her thus:
“For an investigation to be carried out free from any appearance of political considerations, the involvement of international experts, with full access to evidence and witnesses, would be highly desirable.”
According to her, “forensic examination, including an autopsy on the body of the victim, is a crucial element in any investigation into a killing.”
The implication of the above statement, is that Saudi Arabia should allow for the internationalisation of the investigation. This will require interrogating the suspects and any other person, no matter how highly placed, within the command responsibility. This is a prayer that Saudi Arabia will find very difficult to grant.
The Crown Prince Connection
There are widespread innuendoes and expressions to the effect that, the Crown Prince of Saudi Arabia, Mohammed bin Salman (MBS), knew or ought reasonably to have known about the murder.
The Washington Post has launched a “Demand the Truth” campaign, published online and in print, which places MBS alongside the campaign slogan. MBS, who is the Kingdom’s de facto ruler, has been accused of being behind the order to kill Khashoggi.
Why the International Community will not Accept the Outcome of Saudi’s Investigation and Prosecution of the Suspects?
It is feared that the judicial system in Saudi Arabia, which is dependent on the executive arm of government, will be timorous to guarantee fair trial and dispense justice. There is basically, no separation of powers in Saudi Arabia. The judicial system is not independent, and as a result, you have fair and non-transparent trials. A UN report released in June 2018 titled “Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism on his Mission to Saudi Arabia”, stated that Saudi Arabia uses its anti-terror laws to torture suspects, and that those in prison are prevented from talking to Lawyers.
Global Reaction
Turkey, the receiving State of the Saudi Consulate, has been speaking through their officials. The commencement quotation to this subject, shows excerpts from the speech of the President of Turkey made on 23rd October, 2018. On 31st October, 2018, the Turkish Prosecutor refused to give their investigation findings, to his visiting counterpart from Saudi Arabia.
Antonio Guteres, the UN Secretary-General, has stressed the need for a “prompt, thorough and transparent investigation into the circumstances of Mr. Khashoggi’s death and full accountability for those responsible.”
President Trump of U.S.A. has described the murder as “the worst cover-up” in history. The U.S. State Department has announced that, the said 21 Saudi suspects would have their visas revoked, or would be declared ineligible to enter the U.S. The American Secretary of State, Mike Pompeo, has said: “These penalties, will not be the last word on this matter. The administration will continue to hold those responsible, accountable. We’re making it very clear, that the United States does not tolerate this type of ruthless action.”
True to its word, U.S. has pressured Saudi Arabia to observe a 30-day ceasefire in its proxy
“BOTH SAUDI ARABIA AND TURKEY ARE CARRYING OUT INVESTIGATION INDEPENDENTLY, BUT NOTHING OF UNITED NATIONS INVESTIGATION WILL BE ACCEPTABLE TO THE INTERNATIONAL COMMUNITY”
war in Yemen.
The G7 countries issued a call for “a thorough, credible, transparent and prompt investigation”, and urged Saudi Arabia to put in place “measures to ensure that something like this does not happen again.”
Germany and Britain, have suspended further arms sale to Saudi Arabia. The U.K. House of Commons has also summoned Jeremy Hunt, the U.K. Foreign Secretary to appear before it, to answer questions on arms sales to Saudi Arabia.
The Focus of International Law and Diplomacy
Various accounts have it that, Khashoggi was tortured, strangled, mutilated, and dismembered at the Saudi Consulate in Istanbul, a place that is an extrapolation of Saudi Arabian territory under international customary law, as codified in the Vienna Convention on Diplomatic Relations of 1961 and the Vienna Convention on Consular Relations of 1963.
Thus, the following terms of international law and diplomacy are significant in discussing
this egregious and fatal event: inviolability of consular premises, residence of consul, vehicles of the consulate; jurisdiction to investigate crimes committee in a consular premises and prosecution of suspects; extradition of suspects to a receiving state, diplomatic/consular immunity, right to life; torture and ill treatment; extra-judicial execution, and disappearance.
Inviolability of Consular Premises and Diplomatic Immunity
Besides customary international law, there are two main treaties that govern diplomatic relations, namely:
(a) Vienna Convention on Diplomatic Relations of 1961, which is an international treaty that defines a framework for diplomatic relations (in relation to embassies) between independent States, and
(b) Vienna Convention on Consular Relations of 1963, which deals with the framework for consular relations.
Since Khashoggi was killed in a Consulate, the Vienna Convention on Consular Relations is more apposite for our discourse. The Treaty on consular relations, provides immunity to consuls. Consular immunity offers immunity similar to diplomatic immunity, but these protections are not as extensive, given the functional differences between consular and diplomatic officers. For example, consular officers are not accorded absolute immunity from a host country’s criminal jurisdiction. In fact, they may be tried for some crimes committed in the host State. They are, however, immune from local jurisdiction involving cases directly relating to consular functions.
Article 5 of the Convention on Consular Relations, provides thirteen functions of a consul, which includes “protecting in the receiving State the interests of the sending State and its nationals, both individuals and bodies corporate, within the limits permitted by international law; and furthering the development of commercial, economic, cultural and scientific relations between the sending State and the receiving State.
Certainly, murder is not one of the functions of a Consul. So, the gruesome murder of Khashoggi inside the Consulate, has exposed the Saudi Consul to prosecution by Turkey, but the return of the Consul to Saudi Arabia, has not prevented Turkey from pressing Saudi Arabia for the extradition of the suspects and waiver of consular immunity of the Consul, so that they will be tried in Turkey.
Article 31 of the Vienna Convention on Consular Relations provides that the consular premises are inviolable, that is, the host nation may not enter the consular premises, and must protect the premises from intrusion or damage.
Article 43 of the same Convention provides that a consul is immune from civil or criminal jurisdiction of the receiving State in respect of the acts performed in exercise of consular functions. Although Consuls do not enjoy the broader personal immunity accorded to diplomats, as contained in the Vienna Convention on Diplomatic Relations, 1961, Turkey has been careful not to generate a diplomatic row with Saudi Arabia. It sought and obtained the permission of Saudi Arabia, before its investigators entered the Saudi Consulate in Istanbul to search for forensic evidence. President Erdogan of Turkey regularly referred to the Vienna Convention, which he called “Vienna Agreement” in his speech of 23rd October, 2018. Until Saudi Arabia decides to waive the immunity of the Consul, which is most unlikely, there is hardly anything Turkey can do other than to declare him persona non grata. It is worthy to add that, although the Consul may not be detained or arrested by Turkey, he has no such immunity in Saudi Arabia.
Khashoggi’s Right to Life is Protected Under International Law
Article 3 of the Universal Declaration of Human Rights of 1948 (UDHR) provides that “Everyone has the right to life, liberty and security of person.”
Article 6 (1) of the International Covenant on Civil and Political Rights of 1966 (“ICCPR”) provides: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”
It is settled that Saudi Arabia has arbitrarily deprived Khashoggi of his life, contrary to international bill of rights.
Khashoggi’s Right to Freedom from Torture
Article 5 of the UDHR provides that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Article 7, ICCPR, provides that: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”
The United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (otherwise known as the UN Convention against Torture or UNCAT) of 1987, makes copious provisions against torture.
Article 2 prohibits torture, and requires State parties to take effective measures to prevent it in any territory under their jurisdiction. This prohibition is absolute, and non-derogable. Article 2 reinforces this peremptory jus cogens norm, against torture. It emphasises that, no exceptional circumstances whatsoever, may be invoked by a State Party to justify acts of torture in a territory under its jurisdiction. State Parties shall take effective measures to prevent acts of torture, not only in its sovereign territory but also “in any territory under its jurisdiction”.
The Committee Against Torture in its General Comment No. 2 of 24 January, 2008 recognised that “any territory” includes all areas where the State Party exercises, directly or indirectly, in whole or in part, de jure or de facto, effective control in accordance with international law. An embassy and a consular premises, person, property, etc., comes within this provision of Article 2 of UNCAT.
Under Article 2, paragraph 3, an order of a superior or public authority cannot be invoked as a justification of torture. Thus, subordinates may not seek refuge in superior authority, andm should be held to account individually. At the same time, those exercising superior authority - including public officials - cannot avoid accountability or escape criminal responsibility for torture or ill-treatment committed by subordinates, where they knew or should have known that such impermissible conduct was occurring, or was likely to occur, and they failed to take reasonable and necessary preventive measures.
In the case, Questions concerning the obligation to prosecute or extradite - BELGIUM v SENEGAL ICJ 2012 (otherwise known as the Hissen Habre Case), Belgium and Senegal at the International Court of Justice on behalf of Chadian citizens and Belgium citizens of Chadian origin, who claimed to be victims of Hissen Habre’s torture while Habre was President of Chad. Habre after his overthrow became resident in Senegal, and hence came under the criminal jurisdiction of Senegal. Senegal opposed the jurisdiction of the ICJ, claiming that the victims were not citizens of Belgium and that Belgium asserted that, regardless of the victims’ nationalities, all States Parties to the UNCAT have an obligation to prevent and punish torture.
Belgium had originally requested from Senegal the extradition of Habre in 2006, following a four-year investigation by Belgian authorities into the victims’ allegations and several failed attempts to bring Habre to justice elsewhere.
The ICJ agreed with Belgium that “States’ Parties to the Convention have a common interest to ensure... that acts of torture are prevented and that, if they occur, their authors do not enjoy immunity.”
The ICJ also determined that, Senegal breached Article 7 of UNCAT, which requires the State Party having jurisdiction over the territory where a person accused of offences under the UNCAT is found, to submit the case to its competent authorities for prosecution or to extradite him. The ICJ opined that extradition is an option, but prosecution is an international obligation under the Convention, the violation of which is a wrongful act, engaging the responsibility of the State.
The ICJ’s judgement affirms that, all 151 State Parties to the UNCAT, may insist on performance of obligations under the Convention, even if the alleged torture occurred before the applicant State joined the Convention, and even if the torturer or victims have no connection with the applicant State. This confirms that this Convention applies erga omnes (Latin phrase showing that the Convention applies “towards everyone” infringing on the right).
Both Saudi Arabia and Turkey are signatories, and are bound by its provisions. Even if they are not signatories, being a jus cogens norm, no country can claim it has a right to torture a citizen. Thus, Saudi Arabia bears responsibility in the case of Khashoggi.
Extra-Judicial Execution
The torture of Khashoggi gravitated to his horrific execution, without trial. This brings his case within the purview of the Special Rapporteur or Non-judicial Executions appointed by the United Nations Human Rights Council.
In its 2017 Resolution 35/15 on the mandate of the Special Rapporteur on extra-judicial summary or arbitrary executions of 22 June, 2017, the UN Human Rights Council renewed the mandate of the Special Rapporteur up till 2020.
The mandate of the Special Rapporteur covers all countries, irrespective of whether a State has ratified relevant international conventions. The UN Human Rights Council requested the Special Rapporteur, in carrying out his or her mandate to, among other things, to continue to draw the attention of the United Nations High Commissioner for Human Rights to serious situations of extra-judicial, summary or arbitrary executions, that warrant immediate attention.
In the case of Khashoggi, the special Rapporteur on extra- judicial execution has made his work much easier, by the avalanche of information in the public space with regard to the gruesome murder of Khashoggi.
Enforced or Involuntary Disappearance
The disappearance of Khashoggi, effectively comes within the consideration of the Working Group and that of the Committee on Enforced or Involuntary Disappearance. He has not been found since he entered the Sandi Consulate in Istanbul, since October 2, 2018.
By Resolution 20(xxxvi) of 29 February, 1980, the Commission on Human Rights decided to “establish for a period of one year a working group consisting of five of its members, to serve as experts in their individual capacities, to examine questions relevant to enforced or involuntary disappearance of persons.”
The last resolution renewing the mandate of the Working Group was adopted by the Human Rights Council in September 2017. One of the Working Group’s primary task, is to assist families in determining the fate or whereabouts of their family members who have disappeared.
The Khashoggi Family will, certainly, be needing the assistance of this Working Group to locate his decapitated body, said by Saudi Arabia to have been taken away by a local collaborator in Istanbul.
Extradition and Mutual Legal Assistance
Turkey has asked for the extradition of the killers of Khashoggi, including the Saudi Consulate officials, to Turkey for prosecution, but Saudi Arabia has demurred. There is no extradition treaty between Saudi Arabia and Turkey, but that does not necessarily prevent extradition. The International Court of Justice has said that, extradition in a case of torture is optional in the case of Belgium v Senegal (supra).
The visit to Turkey on 31st October, 2018 by the Saudi Public Prosecutor, to request for legal assistance from Turkish authorities without reciprocal provision of the information requested for by Turkey, has provided a verifiable obstacle to the application for extradition by Turkey and Legal Assistance by Saudi Arabia. Without mutual co-operation, the investigation by both countries might leave gaping holes, which will increase speculation with regard to the details trailing the death of Jamal Khashoggi.
Conclusion
International law, from the foregoing, is fully developed to deal with the Khashoggi’s case. Although, the circumstances of his death is a new low in abuse of consular premises in international law and diplomacy, international law has the capacity to hold the Kingdom of Saudi Arabia accountable, and the perpetrators to face justice and punishment. The investigation to “discover the truth”, might take a little longer, but the international community will certainly take action. Saudi Arabia’s war in Yemen, will certainly take a hit for the worse in international humanitarian consideration. If the Crown Prince (MBS), is eventually implicated by any UN-backed investigation, Saudi Arabia will pay a heavy price for this murder in its Istanbul Consulate.