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Callamard Report on the Murder of Jamal Khashoggi: Part II

Published on June 26, 2019        Author: 
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In my second post on the report on the murder of Jamal Khashoggi by the Special Rapporteur on extrajudicial executions, I will discuss some of its most interesting legal findings. The key finding, obviously, is that Saudi Arabia is responsible for committing an extrajudicial execution in violation of Mr Khashoggi’s right to life. The Special Rapporteur notes in that regard, quite correctly, that it is ultimately legally irrelevant whether Khashoggi’s killing was premeditated, ordered at the highest levels of the Saudi state, or was done as part of some ‘rogue’ operation. Saudi Arabia bears responsibility for the conduct of its organs, done in their official capacity, even if it was committed ultra vires (para. 219).

In addition to finding Saudi Arabia responsible for violating Khashoggi’s right to life and for failing to comply with obligations towards Turkey under the Vienna Convention on Consular Relations, the report also finds that Khashoggi’s killing constituted an unlawful use of force by Saudi Arabia against Turkey, contrary to the prohibition in Article 2(4) of the UN Charter (paras. 227-230). The report’s analysis in this regard focuses somewhat excessively on whether the killing of a journalist would be an act contrary to the purposes of the United Nations, but does not really engage with the prior question of whether the furtive assassination of a single individual can constitute ‘force’ in the sense of Article 2(4). This is in effect the question of whether there is any de minimis, lowest limit to the concept of force in Article 2(4), and is a point of some controversy, since a finding that interstate force has been used has a number of important implications. Most recently the same issue was raised with regard to the Salisbury chemical attack, when the UK government formally accused Russia for violating the prohibition on the use of force (which, as far as I’m aware, Turkey did not do here). For detailed discussions in this respect see this post by Tom Ruys on Just Security and Dapo’s post here on EJIL: Talk.

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Callamard Report on the Murder of Jamal Khashoggi: Part I

Published on June 25, 2019        Author: 
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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?

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The Murder of Jamal Khashoggi: Immunities, Inviolability and the Human Right to Life – Part V: Conclusion

Published on April 18, 2019        Author: 
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The murder of Jamal Khashoggi is in many respects a truly extraordinary case. But it is by no means unique – authoritarian states assassinate journalists and political dissidents with some frequency. The use of consular premises as the scene of the killing is, of course, one special feature of this affair. And while diplomatic and consular privileges and immunities are abused all the time, this is not normally done in so spectacular a fashion.

What makes Khashoggi’s killing so fascinating from the standpoint of an international legal analysis is the interplay between the human right to life and the rules of diplomatic and consular law. However, as I have explained, most of the possible norm conflicts between immunities and the right to life could have been avoided in Khashoggi’s case. This is primarily because Khashoggi was killed on the premises of a consulate and not those of a diplomatic mission, and because consular privileges and immunities are significantly weaker than diplomatic ones.

It is therefore unclear why Turkey acted as if international law laid such obstacles in front of it, when in doing so it actually exposed itself to legal liability under IHRL for failing to effectively investigate Khashoggi’s death. There are several possible explanations. First, Turkey could have genuinely misunderstood the legal position, failing to appreciate the attenuated nature of consular immunities. The confusion of consular privileges and immunities with the more expansive diplomatic versions has certainly been pervasive in the coverage of the Khashoggi affair. In fact, in a speech in parliament President Erdogan lamented the fact that the ‘Vienna Convention’ – he did not specify which – inhibited the investigation through the ‘diplomatic immunity’ it provided for, commenting that it may need to be reviewed or revised.

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The Murder of Jamal Khashoggi: Immunities, Inviolability and the Human Right to Life – Part IV: After the Attack

Published on April 17, 2019        Author: 
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Prior posts in this series examined the legal situation before and during the attack on Khashoggi; this one examines its aftermath. After Khashoggi’s death, the substantive negative and positive obligations were extinguished, but the positive procedural obligation to investigate his death was triggered for both Saudi Arabia and Turkey. Khashoggi was subject to the jurisdiction of both states at the moment of his death. Like the substantive positive obligation to protect life, the procedural obligation to investigate is also one of due diligence, i.e. it does not require the state to do the impossible, but only what could reasonably be expected of it in the circumstances. In other words, it is inherently flexible. Investigations into allegations of violation of the right to life must always be independent, impartial, prompt, thorough, effective, credible and transparent, and in the event that a violation is found, full reparation must be provided.

It is manifest that Saudi Arabia is in violation of its procedural obligation to investigate Khashoggi’s death, on multiple grounds. Its agents covered up the evidence of the murder and actively obstructed Turkish efforts to investigate it. Its own internal investigation has lacked any transparency. It is obvious that Saudi law enforcement authorities have no real independence from the executive, the conduct of which they are supposed to be investigating, particularly with regard to the question of whether the crown prince ordered Khashoggi’s killing or knew that the operation would take place. It is equally obvious that the outcome of the Saudi trial of 11 unnamed individuals charged with Khashoggi’s death, which is shrouded in secrecy, is going to be determined by whatever the Saudi royals want the judges to say rather than by any kind of genuine pursuit for the truth.

In short, there is simply no doubt that Saudi Arabia is in violation of the procedural limb of the right to life. The position of Turkey is, of course, very different. As a general matter Turkish authorities have demonstrated willingness to effectively investigate Khashoggi’s death, and indeed much of what we know of his killing is directly the product of their investigative efforts. Had Turkey wanted to be complicit in the Saudi cover-up of the murder, it easily could have been, but it chose differently.

That said, the work of the Turkish investigators has also been subject to considerations of high politics. In particular, it has been limited and will be limited by whatever goals President Erdogan – no huge champion of the freedom of the press or human rights more generally – wishes to achieve in his management of the Khashoggi affair. And there are a number of specific decisions made by Turkish authorities that are at the very least arguably inconsistent with Turkey’s obligation under the ECHR and the ICCPR to effectively investigate Khashoggi’s death: (1) allowing the members of the Saudi hit-team to leave Turkey; (2) allowing the Saudi consul-general to leave Turkey; (3) delaying the search of the premises of the consulate; (4) delaying the search of the residence of the consul-general; (5) possible issues with searches of the consulate’s vehicles.

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The Murder of Jamal Khashoggi: Immunities, Inviolability and the Human Right to Life – Part III: During the Attack

Published on April 17, 2019        Author: 
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The previous post in the series looked at the situation that preceded the attack on Khashoggi by Saudi agents; in this one we move to the time of the attack itself. Saudi Arabia’s violation of its obligation not to deprive individuals arbitrarily of their life under Article 5 of the Arab Charter and customary IHRL is manifest, in the sense that Saudi Arabia could not offer any kind of justification for Khashoggi’s killing that could be regarded as even potentially legitimate from the standpoint of the right to life. What is not obvious, however, is whether the Charter and the relevant customary rule even applied to Khashoggi, i.e. that they protected him while he was located outside Saudi territory.

Extraterritoriality

This is again a question of extraterritorial application, but this time of the negative obligation to refrain from using lethal force without justification. And this is a question that is in no way unique to the Khashoggi killing. We have confronted it repeatedly in the past couple of decades, whether in the context of the use of lethal force in armed conflict or in plain or not-so-plain state-sponsored assassinations. From drone strikes in the war on terror, to the killing of Osama bin Laden in Pakistan by US special forces, to the assassination of Alexander Litvinenko and the attempted assassination of Sergei and Yulia Skripal by Russian secret agents, to the killing of Kim Jong-nam in Malaysia on the orders of his half-brother, the North Korean dictator Kim Jong-un – all of these cases raise the fundamental threshold question of whether the target of the use of force is protected by human rights law at all. As a general matter, powerful states have been reluctant to accept that human rights treaties would apply to kinetic uses of force outside their territory, especially in areas not within their control, because they tend to see IHRL as an excessive constraint on their freedom of action.

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The Murder of Jamal Khashoggi: Immunities, Inviolability and the Human Right to Life – Part II: Before the Attack

Published on April 16, 2019        Author: 
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This post will examine the legal situation before the attack on Khashoggi had materialized. The main obligation of Saudi Arabia in that regard is the same as the one during the attack itself, the negative obligation to refrain from arbitrary deprivations of life, and I will therefore address it in the next post in the series. Here, however, I will look at the positive obligation to protect Khashoggi’s right to life on the part of the United States and Turkey.

The duty to protect life

Three basic questions need to be answered with regard to the positive obligation to protect an individual. First, at what point does it arise, i.e. what is its scope of application. Second, once that threshold is crossed, what is the standard of conduct expected of the protecting state. Third, whether on the facts the state acted accordingly, with due diligence, taking all reasonable steps it could have been expected to take. Human rights bodies have extensively dealt with these questions in their case law, e.g. in the Osman jurisprudence of the ECtHR and recently by the Human Rights Committee in its General Comment 36. The threshold and the standard of conduct issues both require that a balance be struck between, on the one hand, the need for states to act affirmatively to protect the life of individuals from third parties, and, on the other hand, the need to avoid imposing unrealistic and excessive burdens on states.

Threshold inquiry: foreseeability of the threat

On the facts of Khashoggi’s killing, therefore, the first question is whether either the United States or Turkey knew, or ought to have known, of a real and immediate risk to Khashoggi’s life at the hands of the government of Saudi Arabia. Was, in other words, the threat to Khashoggi’s life reasonably foreseeable to either state? The threshold standard does not require actual knowledge or certainty of such a threat; it is an assessment of risk. This assessment will necessarily be contextual, and will always depend on (1) the information the state actually had in its possession at the relevant time and (2) information that it did not possess but could have obtained as a reasonable follow-up from the information it did actually already have.

The issue, therefore, is what the United States and Turkey knew about the Saudi threat against Khashoggi’s life, and when they obtained such information. Obviously, any appraisal of what these governments actually knew can at this moment only be tentative and incomplete, in the absence of some kind of investigatory process, whether internal or external, in that regard. That said, as far as we are able to understand this today, what did the two governments actually know?

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The Murder of Jamal Khashoggi: Immunities, Inviolability and the Human Right to Life – Part I: Introduction

Published on April 16, 2019        Author: 
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On 2 October 2018, Jamal Khashoggi, a dissident Saudi journalist residing in the United States, where he was a columnist for the Washington Post, was murdered in the Saudi consulate in Istanbul. He was visiting the consulate to obtain a certificate of divorce from his former wife, so that he could proceed to marry his Turkish fiancée, Hatice Cengiz, who was waiting for him in a car outside the consulate. According to media reports relying on the findings of the governments of Turkey and the United States, Khashoggi was killed by Saudi agents and his body was then dismembered with a bone saw; his remains are yet to be found.

It has now been six months since Khashoggi’s killing. Saudi Arabia is conducting a secret trial of 11 individuals accused of his murder; the trial is widely regarded as an attempt to whitewash the involvement in the killing of the highest levels of the Saudi government. The UN Special Rapporteur for extrajudicial, summary or arbitrary executions, Agnes Callamard, has launched an investigation into Kashoggi’s death as part of her mandate; as of the time of writing, she has published a set of preliminary observations and plans to submit a final report to the UN Human Rights Council in June. Her report, based inter alia on a field visit to Turkey, concluded (paras. 10 and 7) that the evidence ‘demonstrates a prime facie case that Mr. Khashoggi was the victim of a brutal and premeditated killing, planned and perpetrated by officials of the State of Saudi Arabia and others acting under the direction of these State agents,’ a ‘grave violation’ of the human right to life.

Some legal issues that arise in that regard are trivial, even if they are politically extremely controversial. For example, it is legally irrelevant whether, in fact, the Saudi crown prince Mohammed bin Salman ordered Khashoggi’s death or not. Per the customary rule codified in Article 7 of the ILC Articles on State Responsibility, Saudi Arabia incurs state responsibility for an internationally wrongful act committed by its organs acting in their official capacity, such as intelligence and state security officials, even if that act was committed ultra vires. Whether the crown prince’s underlings exceeded his orders or failed to inform him of the supposedly unauthorized operation – which involved a team of 15 agents, including a forensics expert specializing in rapid dissections, and two private jets – simply does not affect the attribution of, and hence responsibility for, the operation to Saudi Arabia.

It is similarly unquestionable, as Steve Ratner explained on Lawfare, that the Saudi operation against Khashoggi was a violation of Turkey’s sovereignty and of its rights under diplomatic and consular law. But while condemning Saudi Arabia for these violations would be both right and without difficulty, for international law to care only about the violations of the rights of the state in which he was killed would also profoundly fail to legally capture our sense of moral outrage over Khashoggi’s death. In addition to any criminal responsibility that may exist under either Turkish or Saudi domestic law, the most serious violation of international law at stake here is that of Khashoggi’s human right to life, and an attempt – ultimately unsuccessful due to the operation’s public exposure – to forcibly disappear him. This violation is compounded by that of the freedom of expression, since the reason for Khashoggi’s killing was his speech critical of the Saudi regime, and that of the prohibition of cruel, inhuman and degrading treatment regarding Khashoggi’s next of kin, due to the manner of his killing and the desecration and disappearance of his corpse.

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An Exam Question on Diplomatic and Consular Law

Published on October 7, 2018        Author: 
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Kemal, a journalist and a national of the state of Azovia, is living in the state of Tiberia. One day he goes to the Azovian consulate in Kostantiniyye, a major Tiberian city, in order to obtain a divorce certificate, which he needs to marry his current fiancee. Kemal never emerges from the consulate. A few days later, Tiberian authorities publicly claim that Kemal was murdered by Azovian agents while he was in the consulate. The Azovian government denies these allegations. Assuming that the facts asserted by Tiberia are true, answer the following questions (in doing so, bear in mind that Azovia and Tiberia are both parties to the Vienna Convention on Consular Relations and the Vienna Convention on Diplomatic Relations; Tiberia is additionally a party to the International Covenant on Civil and Political Rights, which Azovia is not):

(1) Is Azovia responsible for an internationally wrongful act or acts, and if so, which one?

(2) If Tiberia had obtained reliable intelligence that Kemal was about to be murdered in the Azovian consulate in Kostantiniyye, would it have been (i) obliged to or (ii) permitted under international law to forcibly enter the premises of the consulate in order to save Kemal’s life?

(3) Would your answer to question (2) be any different if Kemal was murdered/about to be murdered in the Azovian embassy to Tiberia, rather than in its consulate?

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Slavery in Domestic Work: The Potential for State Responsibility?

Published on September 17, 2018        Author:  and
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On 10 September 2018, UN Special Rapporteur on Contemporary Forms of Slavery, Urmila Bhoola, presented her latest report to the Human Rights Council. The report focuses on an often-hidden aspect of modern slavery – the slavery and servitude of “marginalized women workers in the global domestic economy” (para 11). In this post, we highlight key findings of the report and also indicate areas for further exploration, including the potential use of State responsibility.

11.5 million domestic workers are international migrants, which represent 17.2% of all domestic workers and 7.7% of all migrant workers worldwide (para. 31). To give a sense of the scale, in Hong Kong there are 370,000 domestic workers of which 98.8% are women.

The social, cultural and racial biases these women face are often extreme. To give an example, Sondos Alqattan, an Instagram star and makeup artist with over 2.3 million followers, criticised new laws in Kuwait giving Filipino workers one day off per week and preventing employers from seizing their passports. She said, “How can you have a servant at home who keeps their own passport with them? What’s worse is they have one day off every week”.

The UN Special Rapporteur notes that the domestic work sector accounted for 24% of forced labour exploitation in 2017 (para 43). Exploitative practices include psychological, physical and sexual violence; retention of identity documents preventing freedom of movement; withholding of wages; and excessive overtime (para 42).

There are two aspects of the Report that make a particular contribution to the discussion of slavery in domestic work. Read the rest of this entry…

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Foreign Office Certificates and Diplomatic Immunity in the Assange Affair

Published on March 2, 2018        Author:  and
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The Assange saga continues with recent decisions in the English Courts upholding the warrant for Julian Assange’s arrest. Dapo’s recent post on Ecuador’s purported appointment of Julian Assange as one of its diplomats to the UK considered the position on this issue as a matter of international law. However, a related issue is how the relevant provisions of the Vienna Convention on Diplomatic Relations (VCDR) would be applied if the issue were to arise in domestic proceedings in England and Wales. In other words, if Assange were to leave the embassy, and were to be arrested and prosecuted for failing to surrender, would he be able to rely, in an English court, on diplomatic immunity under the VCDR? Thinking through this question involves a degree of speculation, for we don’t yet know what the Foreign and Commonwealth Office’s (FCO) posture towards any such claim would be. We will assume, however, that the FCO will maintain an approach consistent with its statement (reported here) of 11 January 2018: ‘The government of Ecuador recently requested diplomatic status for Mr Assange here in the UK. The UK did not grant that request, nor are we in talks with Ecuador on this matter.’ In other words, we will assume that the FCO would not recognise Assange as a diplomat.

How the matter would be resolved in domestic English proceedings is a difficult question. It involves consideration of the respective roles of courts and the executive in matters of foreign affairs, the distinction between questions of fact and questions of law in giving effect to FCO certificates, and the potential continued application of the common law principle that the courts and the executive should speak with one voice.

The Diplomatic Privileges Act

As a matter of domestic law, the starting point is the Diplomatic Privileges Act 1964 (DPA), which gives effect to the VCDR. In thinking through how the Assange matter would proceed in a domestic court, Section 4, which sets out the role of the FCO in matters of this kind, is crucial:

‘If in any proceedings any question arises whether or not any person is entitled to any privilege or immunity under this Act a certificate issued by or under the authority of the Secretary of State stating any fact relating to that question shall be conclusive evidence of that fact.’

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