Last week the UN Special Rapporteur on extrajudicial executions, Agnes Callamard, submitted to the Human Rights Council her long-awaited final report on the investigation she conducted on the murder of Jamal Khashoggi. In this post I’ll offer a few thoughts on some of the legal and factual findings of this report, which is the result of the only independent inquiry to-date into Khashoggi’s assassination in the Saudi consulate in Istanbul in October last year. Readers may recall that I’ve recently written extensively on the blog on the international legal aspects of Khashoggi’s murder, based on my forthcoming article in the Human Rights Law Review.
The Callamard report is extensive, detailed and rich in its legal and factual analysis. Indeed it is far too extensive to be summarized and discussed in a blog post, which I will not attempt to do. Rather, this two-part post will focus on a selection of the report’s most novel factual and legal findings; the first part will examine the former, and the second, to be published tomorrow, will look at the report’s legal analysis.
The report itself is comprised of two documents. First, the formal report to the Human Rights Council, submitted for its 41st regular session starting this week – UN Doc. A/HRC/41/36. Second, a one-hundred page annex to that report, which contains the Special Rapporteur’s detailed factual and legal findings with regard to the murder of Jamal Khashoggi – UN Doc. A/HRC/41/CRP.1. The former document by and large summarizes the contents of the latter, while emphasizing some important points of principle, e.g. regarding the duty to warn (on which more tomorrow). I will hereinafter thus only refer to the annex, i.e. whenever I cite a paragraph of the report, I mean to refer to the longer document, A/HRC/41/CRP.1.
Again, I will not cover the report exhaustively. The media coverage of the report, including succinct summaries of its main findings, has been extensive (e.g. here and here; see also this VoA interview with Ms Callamard). In a nutshell, the Special Rapporteur found that Saudi Arabia bears state responsibility for the extrajudicial killing of Mr Khashoggi, in violation of his human right to life, and that it has similarly violated its positive obligation to effectively investigate his killing. She has inter alia called on the UN Secretary-General, the Human Rights Council, and the Security Council, to establish an independent international criminal investigation into Khashoggi’s murder, and has specifically found that credible evidence existed for the potential responsibility of the Saudi Crown Prince, Mohammed bin Salman, and his principal henchman, Saud al-Qahtani.
As one could expect, Saudi Arabia has already rejected the report, alleging that it is biased, contains ‘nothing new,’ repeats allegations already made in the media, and is based on ‘false accusations confirmed as stemming from Callamard’s preconceived ideas and positions towards the kingdom.’ In reality, however, there are quite a few new significant factual findings in the report, which have been made with a commendable degree of care and rigour – all the more commendable in light of the very limited resources that the Special Rapporteur had at her disposal. In fact, the report expressly tries not to rely on media reporting, whenever possible, and acknowledges possible sources of bias when appropriate (see paras. 36-37, 42-47). The Special Rapporteur established as proven or credible only those facts that she herself could independently substantiate. And, of course, she applied in great detail the applicable rules of international law to the facts that she has established. As we will see, most of her legal findings are (at least in my view) unassailable, while others are somewhat more tenuous.
What, then, of the report’s novel factual findings?
First, Agnes Callamard and her team are so far the only individuals independent of the governmental apparatus of some state who have actually heard some of the conversations intercepted by Turkish secret services that are most important evidence of Khashoggi’s death. She also had unprecedented access to some of the key players, e.g. Turkish prosecutors and intelligence officials. (She had asked for Saudi cooperation, but none was forthcoming.) That said, the access given to her by Turkish authorities was very restricted. In particular, she was only allowed to listen to a relatively small part of the total recordings in the possession of Turkish authorities; she was not allowed the make copies of the recordings or authenticate them in any way; at least during some points she was not allowed to take notes, nor was she provided with a transcript of the recordings (para. 41).
Second, that said, Callamard was able to provide a reasonably precise reconstruction of the timeline of the killing, its preparation and its aftermath, and align the intercepted conversations of Saudi agents with that timeline.
Third, the report establishes that the Saudi authorities knew that Khashoggi was likely coming to the Istanbul consulate even before his first unannounced visit there on 28 September. In particular, Khashoggi had contacted the Saudi embassy in Washington in August/September 2018 in order to inquire about obtaining the certificate he needed for the marriage, and was told to go to the Saudi consulate in Istanbul (para. 73). In other words, Saudi officials specifically directed Khashoggi to visit the Istanbul consulate. One can only speculate that a covert operation on American soil would have been a very different proposition than one in Istanbul.
Fourth, according to the chief of Turkish intelligence services, the day before Khashoggi’s first visit, a Saudi security team swept the Istanbul consulate for bugs and surveillance equipment (para. 76). While we still do not know exactly by which methods Turkish intelligence agencies obtained the recordings of the various conversations at issue in Khashoggi’s case, we now do know that they were sophisticated enough to survive a serious Saudi attempt to thwart them.
Fifth, Turkish authorities have intercepts of communications, made after Khashoggi had left the consulate on 28 September, between officials in the consulate and officials in Riyadh, one of whom will eventually take command of the covert operation in Istanbul (paras. 78-80).
Sixth, as the Saudi hit-team was deployed to Istanbul, the report reliably reconstructs the sequence of events in their preparation of the operation, the purpose of which was either to kill or kidnap Khashoggi. In particular, the report shows how on 2 October, the day of the killing, the 15-member team split into two groups, a larger one in the consulate, and the smaller in the consul-general’s residence (para. 90).
Seventh, an intercepted conversation took place just 15 minutes before Khashoggi entered the consulate on 2 October, during which the leader of the Saudi team and the forensic doctor who was part of the team discussed dismembering and moving Khashoggi’s body. At the end of the conversation, Mutreb, the team leader, asks whether the ‘sacrificial animal’ had arrived. He is informed that Khashoggi had just come in (para. 91).
Eighth, according to Turkish intelligence, Khashoggi was likely dead within 10 minutes or so of entering the consulate (para. 92). A series of recordings (during the review of which Callamard was not allowed to take notes, and which are reconstructed from memory) describe the moment of killing itself (paras. 94-96):
Once inside the Consulate, Mr. Khashoggi appears to have been met by someone he knew. He also said something about the Consul General being present. He was invited to the office of the Consul General located on the second floor of Consulate. According to recordings, the conversation with him first focused on whether Mr. Khashoggi would come back to Saudi Arabia, and he responded that he wanted to return in the future. Mr. Khashoggi was then told: “We will have to take you back. There is an order from Interpol. Interpol requested you to be sent back. We are coming to get you.” Mr. Khashoggi replied that “there isn’t a case against me. I notified some people outside; they are waiting for me; a driver is waiting for me.” Later on, Mr. Khashoggi is heard to say that there was no driver but that his fiancée is waiting for him. On several occasions, a Saudi official told Mr. Khashoggi “let’s make it short.” At 13:22, Mr. Mutreb asked whether Mr. Khashoggi had phones. Mr. Khashoggi replied “Two phones.” “Which brands?” “Apple phones.” “Send a message to your son.” “Which son? What should I say to my son?” Silence. “You will type a message – let’s rehearse; show us.” “What should I say? See you soon? I can’t say kidnapping.” “Cut it short.” “Take off your jacket.” “How could this happen in an embassy?” “I will not write anything.” “Cut it short.” “I will not write anything.” “Type it, Mr. Jamal. Hurry up. Help us so that we can help you because at the end we will take you back to Saudi Arabia and if you don’t help us you know what will happen at the end; let this issue find a good end.” At 13:33, Mr. Khashoggi said “there is a towel here. Are you going to give me drugs?” “We will anesthetize you.”
In the recordings, sounds of a struggle can be heard during which the following statements could also be heard: “Did he sleep?” “He raises his head.” “Keep pushing.” “Push here; don’t remove your hand; push it.” Assessments of the recordings by intelligence officers in Turkey and other countries suggest that Mr. Khashoggi could have been injected with a sedative and then suffocated using a plastic bag. Turkish Intelligence also noted that the Saudi members of the 15 persons team spoke of a rope, but they could not conclusively determine if the rope was used to tie Mr. Khashoggi or possibly to move his body, or if it was used at all.
Sounds of movement and heavy panting could be heard in the remainder of the recordings. The sound of plastic sheets (wrapping) could also be heard. Turkish Intelligence concluded that these came after Mr. Khashoggi’s death while the Saudi officials were dismembering his body. The Turkish Intelligence assessment identified the sound of a saw at 13:39. The Special Rapporteur and her delegation could not make out the sources of the sounds they heard.
After the killing, two vehicles loaded with plastic bags went from the consulate to the nearby residence of the consul-general, al-Otaibi. It is likely that the body was disposed of there, but Khashoggi’s remains are still unaccounted for.
Ninth, from what Callamard could establish, Turkish intelligence services were not monitoring and analyzing these intercepts in real time, i.e. they were not aware of the killing as it was taking place. However, it is not clear from the report at what point in time, and at which level of the Turkish government and intelligence services, Turkish officials realized that (1) Khashoggi’s life was in danger and ultimately that (2) he was killed by Saudi agents. At para. 114, the report says that Turkish intelligence said that they finalized their assessment that Khashoggi was killed at some point on 4 October. Note that this is the latest possible time that this assessment was made, and it could actually have been made sooner. The report’s account of the Saudi team’s departure from Istanbul (paras. 102-107) is conspicuously silent on why the Turkish authorities allowed the Saudi agents to leave, after Khashoggi’s disappearance had already been reported. Similarly, even if the Turkish authorities were sure that Khashoggi had been killed only after 4 October, they still took many dubious decisions after that date which hampered the effectiveness of the investigation, e.g. allowing the consul-general to leave Turkey or waiting to search his residence.
Tenth, the report describes in detail the various subsequent efforts by Saudi officials to clean and otherwise tamper with the crime scene (para. 130 ff).
Finally, the report provides an overview of some of the criminal proceedings currently underway in Riyadh against 11 named individuals who were members of the Saudi hit-team, five of which are facing the death penalty. Diplomats from the Security Council P5 and Turkey were invited to observe the trial, while having to agree not to disclose the contents of the proceedings publicly. Callamard did, however, have access to various government sources who provided her with some relevant information, including the identities of the individuals facing trial and some of the arguments they made in court (paras. 182-187). ‘We were just following orders’ appears to be the main refrain; the proceedings are otherwise unfolding entirely in secret.
In assessing the nature of the Saudi operation, the Special Rapporteur considered four possible hypotheses: 1) premeditated killing; 2) kidnapping with premeditated killing if kidnapping proved impossible or unsuccessful; 3) the result of an accident in the course of kidnapping; 4) a decision to kill on site by members of the Saudi team. She has reached the conclusion that either the first or second hypothesis are the most credible (para. 198). The main indicators of premeditation are the extensive planning of the operation, the presence of a forensic doctor on the team, the presence of a look-alike of Mr Khashoggi on the team, the assignment of five members of the team to the consul-general’s residence, whose role was likely the planned disposal of the body, and the intercepted conversations between the members of the Saudi team and recordings of the moment of the killing, which do not show any attempt to resuscitate Mr Khashoggi (paras. 199-213).
In sum, the Callamard report has not only corroborated the facts of Khashoggi’s murder that were already known through media reports and leaks of intelligence information, but has also clarified a number of outstanding issues and provided a compelling and precise narrative of the events. Some significant factual gaps still remain, however. The Special Rapporteur could not conclusively establish what exactly the Turkish and US authorities knew about any threat to Khashoggi, nor could she, for obvious reasons, reconstruct the decision-making processes within the Saudi government. While she was provided access to some of the various recordings in the possession of Turkish intelligence, this was but a fraction of the total intercepts, which likely contain further significant information. Finally, the issue of the manner of the disposal of Khashoggi’s body remains unresolved, primarily because Turkish authorities could not conduct a sufficiently thorough and timely examination of the consul-general’s residence.
In my second post I will examine the Special Rapporteur’s various legal findings with regard to Khashoggi’s murder.