Jamal Khashoggi: How long are the Arms of International Criminal Justice?

“IT IS TRITE THAT KHASHOGGI WAS AN INFLUENTIAL AND EMINENT JOURNALIST, WHO FELL OUT WITH THE CROWN PRINCE MOHAMMED BIN SALMAN, OWING TO HIS STRONG CRITICISM OF THE REGIME”

The Sad Tale

The recent sad tale of the enforced disappearance and subsequent atrocious murder of the Saudi Arabian Journalist, Jamal Khashoggi, right inside his country’s Consulate building in Istanbul, resonated powerfully across the globe, and for several weeks now, engaged the world media as a top story and remained a converging point of international outrage.

The lies and subterfuge that trailed Khashoggi’s sudden disappearance, trickled out with the positive evidence of last seen, that situated the writer last at the Saudi Consulate in Istanbul before he vanished, and then the overwhelming evidence that a killer squad of 15 men were dispatched into Istanbul from Saudi Arabia a day to the writer’s evaporation, obviously on a horrendous mission of liquidating him. It turned out that the Khashoggi was strangled and gruesomely dismembered inside his country’s Consulate in Istanbul, where ironically he was supposed to feel safest in the whole of Turkey, and indeed, on an otherwise convivial appointment of perfecting documentation for the proposed conjugal rites with his Turkish fiancée, Hatice Cengiz.

It is trite that Khashoggi was an influential and eminent Journalist who fell out with the Crown Prince Mohammed bin Salman, owing to his strong criticism of the regime. When as a consequence of his deteriorated relations with the royal family he felt unsafe in his own country, Khashoggi embarked on a self imposed exile to the United States of America, from where he continued his uncomplimentary but constructive critique of the powerful and oil rich royal dynasty of Saudi Arabia. After many months of devious monitoring and tracking of the Journalist, the Saudi Arabian regime finally nailed him in the most unlikely of places, its Consulate in Istanbul, and seized the opportunity to liquidate Khashoggi. This dastardly killing has brought to a head, the recent rascal activities of Saudi Arabia, and puts the Kingdom at the forefront of the muster point of rogue nations in the international community.

The rare, if not unprecedented premeditated murder of a national in his country’s foreign post or embassy building, as is the case in Khashoggi’s extermination, raises some very key or recondite issues of international law and international human rights law. This article will seek to take a cursory look at some of such issues, with a view to underscoring the need to expeditiously bring the perpetrators of that heinous crime to justice no matter how highly placed, to make the point that such wanton and high profile impunity, will be tolerated at the peril of international peace and legal order.

Issues of International Law

First, the theory that an embassy is part of the territory of the State that occupies it, has long been rejected under international law. However, Foreign embassies, High Commissions and other diplomatic premises (including the private residences of diplomatic agents), are still considered inviolable, and may not be entered by the police or by any other agents of the receiving State, except with the consent of the Ambassador or head of the mission; but diplomatic or consular premises sited on land in the receiving State, are nevertheless considered part of its territory.

The concept of ‘exterritoriality’, under which diplomatic premises are deemed to be part of the sovereign territory of the sending state, was expressly rejected in Radwan v Radwan [1972] 3 All ER 967. The issue that arose in that case, was whether the Consulate-General of the United Arab Republic in London, was a part of the territory of that State, so that a divorce obtained within the Embassy could be viewed under English law as a divorce obtained in a country outside the British Isles. Cumming-Bruce J in the above case, preferred the theory of ‘functional necessity’, under which the privilege of immunity is granted by the receiving state, merely because this is necessary to enable the mission carry out its functions. He also noted that, no theory of exterritoriality is mentioned in either of the Vienna Conventions on Diplomatic and Consular Relations.

As far as criminal law is concerned, burglaries, assaults, murder etc committed on or within such consular premises by intruders, or by other persons who have no diplomatic immunity, are triable in the receiving State as offences under the ordinary territorial principles of its domestic law. Therefore, the 15 yeoman team of executioners who killed Khashoggi, are liable to be tried in Turkey under Turkish criminal law. They do not under any guise, enjoy the immunity or inviolability conferred on diplomatic agents under Articles 29, 30, 31 and 37 of the Vienna Convention Diplomatic Relations (VCDR).

Even accredited diplomats who commit such acts within the premises, may be guilty of offences under the law of the receiving State, and may be tried and punished, only if their immunity is expressly waived by their governments pursuant to Article 32 of VCDR. If a diplomatic agent is suspected of a serious offence, but immunity is not waived, that diplomat is likely to be declared persona non grata, and required to leave the country on short notice in line with Article 9 of the VCDR. The Saudi Ambassador to Turkey declared himself a persona non grata in Turkey, sequel to the murder of Khashoggi, and immediately took a French leave from his post. It is obvious that, he was complicit in the murder, because he actually invited Khashoggi to the Consulate under the pretence of availing him of his divorce documents, but

knowing full well that a sinister agenda was afoot, to do away with the Journalist.

Then, if the offence is of egregious proportion, it may also result in the severance of diplomatic relations, and the entire staff of the embassy may be required to leave. With the international outcry against the way and manner Khashoggi was killed and slaughtered, there is no gain saying that this particular crime assumed such egregious proportion. What is more, Khashoggi was said to have enjoyed some level of camaraderie with President Tayyip Erdogan of Turkey. If Saudi Arabia refuses to surrender those responsible for the killing of Khashoggi for trial in Turkey, that act of diplomatic obduracy, as it were, will seriously strain diplomatic ties between the two countries, and it will remain to be seen, how far Turkey would be willing to assert the full ambit of its sovereignty.

Second, universal jurisdiction allows States or organisations to claim criminal jurisdiction over an accused person, regardless of where the alleged crime was committed, and regardless of the accused's nationality, country of residence, or any other relation with the prosecuting entity. Crimes prosecuted under universal jurisdiction are considered crimes against all, too serious to tolerate jurisdictional arbitrage.

The concept of universal jurisdiction, is therefore, closely linked to the idea that some international norms are erga omnes, or owed to the entire world community, as well as the concept of jus cogens – that certain international law obligations are binding on all States. Certain crimes pose so serious a threat to the international community as a whole, that States have a logical and moral duty to prosecute an individual responsible. Prohibition of torture has assumed the standard of jus cogens; thus, the Convention Against Torture of 1984 provides for a worldwide universal jurisdiction under Article 5 (2). Whereas, the international community had condemned the

widespread and systematic use of torture as an instrument of State policy, the Convention Against Torture

extended the offence to cover isolated and individual instances of torture, provided that they were committed by a public official. Khashoggi was obviously subjected to unimaginable torture by his killers, before he succumbed in death to the traumatic pangs of severe anguish. The special squad that murdered Khashoggi, were no doubt agents of Saudi Arabian Government; they were thus, working in official capacity. It follows that, the torture of Khashoggi is a crime that falls within the purview of universal jurisdiction. Members of the deadly squad can therefore, be arrested and prosecuted in any country where they are found.

Finally, the Kingdom of Saudi Arabia having admitted that the murder of Khashoggi was premeditated, must be prevailed upon to make reparation for the killing in terms of paying substantial compensation to all dependents or relations of Khashoggi who may suffer hardship or trauma, due to the killing of their loved one. It is a general principle of public international law, that any violation of an obligation under international law gives rise to a consequential obligation to make reparation or pay compensation.

In the final analysis, it is pertinent to point out that, the Nigerian government failed to voice out a strong condemnation of the dastardly killing of Jamal Khashoggi. No diplomatic, political or religious interest or affiliation should restrain any government from speaking out against egregious violation of human right, as seen in the Khashoggi case. Injustice anywhere is injustice everywhere, hence must be condemned and redressed by those in a position to do so. The killing of a Journalist anywhere, is a wanton stifling of freedom of speech, and extrajudicial killing, is unacceptable in any form. Journalists in Nigeria still face serious threats to their lives in plying their profession, and extrajudicial killings remain rampant in the country. A strong statement of

denunciation of Khashoggi’s killing, would have been a credit to Buhari’s administration, and lent some credence to the administration’s claim to a commitment to the protection of human rights and free speech.