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.
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.