Callamard Report on the Murder of Jamal Khashoggi: Part II

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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.

With regard to the positive procedural obligation to investigate Khashoggi’s killing, the report finds that both Saudi Arabia and Turkey failed to comply with it. Saudi Arabia is responsible not only for the various actions of its agents which were meant to obstruct any effective investigation, including its abusive reliance on consular privileges and immunities under the VCCR, but also independently for failing to cooperate with Turkey in investigating the killing (para. 280 ff). As I’ve explained before, the duty to cooperate in a transnational context is very much on the cutting edge of existing case law.

Turkey, however, while clearly engaged in a very serious effort to uncover the truth of what had happened to Mr Khashoggi, is faulted by the Special Rapporteur for not using to the fullest extent the rights it had under the VCCR, particularly bearing in mind the more limited scope of consular privileges and immunities when compared to their diplomatic variants, and the fact that Turkey’s reticence enabled Saudi Arabia to further obstruct the investigation. In her analysis the Special Rapporteur thus necessarily deals with the scope of consular immunities and potential normative conflicts between these immunities and human rights. I have previously argued in that regard, for example, that Turkey would have been permitted by the VCCR to forcibly enter the consulate for the purpose of preventing Khashoggi’s killing, or, alternatively, the wrongfulness of any such conduct would have been precluded by distress. Callamard agrees with this analysis but then adds that (paras. 309-310):

Milanovic focuses on the extent of Turkey’s obligation to protect Mr. Khashoggi’s life and not on the duty to investigate. However, to the extent that in the early days of Mr. Khashoggi’s killing, the incident was treated as one of disappearance, the argument may be made that Turkey, until it had fully concluded that Mr. Khashoggi was dead, that is officially on 4 October, could have entered the premises for the purpose of investigating an enforced disappearance, thus for the purpose of protecting Mr. Khashoggi’s life, because there was no other reasonable way of saving his life or at the very least of protecting him against abduction.

Such arguments, however, cannot be advanced for the period following the official recognition that Mr. Khashoggi had been killed; that is after the Turkish Intelligence knew with a high degree of certainty that they were dealing with a killing.

This, I think, makes perfect sense, although the investigation the Special Rapporteur speaks of with regard to the period of uncertainty by Turkey as to whether Khashoggi was in fact killed or was being held captive is really simply an aspect of the substantive obligation to protect life. She then proceeds to balance the purely procedural duty to investigate after the killing and the duty to respect the inviolability of the consulate, and concludes that the former could not trump the latter, neither in any formal sense nor because of the comparative importance of the relevant values and interests being protected by the two different branches of international law (paras. 314-317).

Callamard then proceeds to argue (correctly) that neither the consul-general’s residence, nor consular vehicles, were protected by any kind of immunity, and similarly faults Turkey for allowing the consul-general to leave the country (para. 318 ff. She then proceeds to explain Turkey’s decision mainly as a consequence of a fear of further Saudi retaliation and escalation (paras. 325):

Turkish officials and others have consistently insisted that the Government and the investigators were seeking “not to escalate” the issue, including for fear of retaliation by the Saudi authorities.  Concerns over the Saudi capacity for retaliation figured very high on the agenda at the time, according to many mid-level officials. These would have largely driven the decisions not to enter the Saudi consulate residence, or search the Consulate cars or detain Saudi persons of interest who were not protected by the VCCR or VDCR. Time and time again, officials commented on the risks of escalation, on the risks for their Turkish citizens, including State representatives based in Saudi Arabia and on the necessity to avoid placing them in harms’ way.

The Special Rapporteur was thus quite sympathetic to the position that Turkey had found itself in, and expressed regret that no international effort of mediation was available to secure a more effective investigation of Khashoggi’s death (para. 327).

The Special Rapporteur then extensively discussed the positive obligation to protect life, and the consequent duty of states to warn the potential targets of foreign agencies (para. 328 ff); see also my last post on the topic for some recent examples of states fulfilling such a duty. She argues in that regard not only that the duty exists, but also (quite rightly) that it cannot be based on a person’s citizenship or immigration status (paras. 354-356). On the issue of extraterritorial application, she fully embraces the very expansive functional approach articulated by the Human Rights Committee in General Comment 36 (para. 360):

The Special Rapporteur deducts from the above that a State’s responsibility to protect may be invoked extra-territorially in circumstances where that particular State has the capacities to protect the right to life of an individual against an immediate or foreseeable threat to his or her life.

She then extensively discusses the possible practical difficulties regarding the duty to warn, which must not impose an unreasonable burden on states, arguing that in the vast majority of situations that duty could be complied with without any such burdens being imposed (paras. 361-368). She concludes that (para. 369):

if the United States (or any other party to the ICCPR) knew, or should have known, of a foreseeable threat to Khashoggi’s life and failed to warn him, while he was in Turkey (or elsewhere), and under circumstances with respect to which it could be argued that he was under their functional jurisdiction, then the United States or any other State would have violated their obligations to protect Mr. Khashoggi’s life.

However, applying this framework on the facts (para. 372 ff), the Special Rapporteur could not establish that the US or Turkey had the sufficient degree of foresight with regard to the threat to Khashoggi’s life. This was partly because some of the intercepts in possession of US intelligence agencies were not analyzed in real time.

The Callamard report is perhaps at its most innovative in its discussion of how to remedy the consequences of Khashoggi’s killing. Some of her recommendations are more traditional. Thus, for example, she calls on Saudi Arabia to publicly apologize for Khashoggi’s death and provide reparation to his family. Similarly, she calls (paras. 426-428) on the UN Secretary-General, the Security Council, or the Human Rights Council, to mandate a full criminal investigation into his death, similarly to the UN investigation into the assassination of former Lebanese prime minister Rafiq Hariri. That, however, seems quite unlikely in the current political climate.

Then, more creatively (but also legally more problematically), the Special Rapporteur characterized Khashoggi’s assassination as an international crime, and one of universal jurisdiction (paras. 429-437). She bases this conclusion partly on a (speculative) finding that the killing may also have amounted to torture, partly on a discussion of the constitutive elements of some kind of generic definition of an international crime, stemming in particular from jus cogens violations. The analysis here is not as strong as in other parts of the report, but its main purpose really seems to be to exert a degree of pressure on third states.

Callamard does the same in her particularly interesting discussion of the incompleteness or ineffectiveness of targeted sanctions imposed by some states in response to Khashoggi’s killing (para. 438 ff). She therefore not only calls for the strengthening of such sanctions, but also in particular for a moratorium on the export of surveillance technologies to Saudi Arabia which it has been using to target dissenters (para. 445). In effect, the Special Rapporteur is asking third states (and corporations) not to be complicit in Saudi human rights violations, at least partly as a remedy for Khashoggi’s killing, since Khashoggi himself was a target of such surveillance technologies.

Finally, the Special Rapporteur recommends symbolic remedies, such as scholarships and memorials in Khashoggi’s honour (paras. 452-454), and the creation of a standing expert body within the UN system which could rapidly investigate violent crimes against journalists and human rights defenders (para. 468 ff).

Whether any of Callamard’s recommendations will be taken up by states and other stakeholders of course remains to be seen. Much of this will obviously depend on the evolving political context. While some actors, such as most importantly the Trump administration, have not been prepared to exact from Saudi Arabia a significant cost for Khashoggi’s killing, it is also undeniable that Saudi Arabia has so far not been able to make this case simply go away. This is at least partly the consequence of how a compelling story of the death a single individual can make a powerful and lasting impact, and create an indelible reputational stain for the wrongdoing state. Callamard’s report is of course a retelling of that story through the language of international law. This it does clearly and cogently, hopefully contributing (in the very long term) to some measure of justice for Jamal Khashoggi and his loved ones.

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JS says

June 27, 2019

On the classification of Saudi's actions as "2(4) force" against Turkey, it reminded me that states sometimes invoke the "armed attack" threshold of article 51 of the Charter for the purpose of using what would otherwise be 2(4) force to rescue nationals taken hostage.

Had JK been a dual national of Turkey (perhaps even of the US), might that have changed the rapporteur's analysis on immunities/inviolability? Could/should that state have kicked down the doors of the consulate if it had been listening in on the unfolding events?

Ayman Salama says

June 27, 2019

Dear Marko
I thank you for raising important and controversial legal issues that are relevant to the precedent and flagrant crime which took place in the Saudi consulate in Istanbul .
The utmost important issue in this regard is the limited inviolability and immunity enjoyed by consulates in the host state territory in comparison with the absolute inviolability and immunity enjoyed by embassies on the territory of the host nation .The same principle is applicable regarding consuls and diplomats on the contrary .

In this vein it is inevitably decisive to mention in the case of the victim " Khgashigy " , the Saudi journalist , the Turkish judicial authorities had ( not now ) full jurisdiction and discretion to investigate , arrest and refer the perpetrators of the crime to the domestic competent court and Turkey did not , therefore I claim that Turkey is internationally responsible for letting the perpetrators of the crime depart her territory and did not practice any sort of legal responsibility to warrant and arrest them .

In this regard it is inexhaustive to mention that consuls can not evade criminal responsibility when they commit criminal crimes beyond the consular function domain ( Vienna Convention on Consular Relations 1963 Art 43 )

The Turkish authorities should have arrested all Saudis except those who bear diplomatic I.D and recognized by Turkish authorities in this capacity .

It is nonsense , when Turkey provided its findings and investigations to the Saudi Chief Prosecutor as a sort of judicial cooperation and then asked the Saudis to extradite the accused to be prosecuted before the Turkish tribunals after the Saudi domestic courts already had commenced prosecuting the accused .

Substantially , a sending state can not claim an obsolete theory of geographic extension of its territory to its embassies and consults abroad . Waiving sending states flags and granting full inviolability even to foreign embassies from the Ministry of Foreign Affairs of the host state under Vienna Convention of diplomatic Relations do not result in the belonging of theses residences to the sending states maps and territories .

Both of the two conventions of Diplomatic Relations and Consular relations , explicitly and implicitly indicated that attaining and guaranteeing of two functions are the legal grounds of the inviolability and immunity of these residences .

The UK statutes enacted in 1987 regarding foreign states embassies and consulates that confirms the belonging of theses residencies to the territory of UK .The legislation was enacted in the aftermath and repercussions of shooting and killing a British police officer by Libyan diplomat in London .

Once the Saudis investigated and started prosecuting the Saudi operatives who are accused of killing the Saudi journalist before Saudi courts , all other alleged foreign jurisdictions are baseless and groundless .

The Turkish judicial jurisdiction ( was ) the primary and territorial jurisdiction to try the perpetrators including Saudis including consuls regardless their consular ranks , but Turkey did not for some reasons , Turkey beyond any doubt know them .

The Callamard , report has a significant important regarding fighting impunity and establishing justice and remedies for victims of human rights violations .

This report is a precious asset in the filed of accountability and responsibility of grave violations of human rights and will be a cardinal reference for human rights advocates , vulnerable individuals , jurists , states , international organisations( among them ICJ and Human Rights Council in Geneva) and NGOs .

I am reluctant to support the preemptive calculation and findings of the report especially when accusing certain individuals in the preliminary cessions of the trial in Saudi Arabia .

I am not sure weather this constitutes some external pressures on the court , judges and prosecutors , an this does not mean that I am not for the report .

Raising both article 2 and 51 of UN Charter in the affair of the Saudi journalist is inappropriate , I prefer the restrictive and conservative approach in interpretation the mentioned articles ( ICJ Advisory opinion 2004 that refused the broad view of Israel concerning self-defense right )

Neutrally and independently , it is a hard effort to claim a state judiciary is prejudiced , biased and politicized .Besides , it is too hasty to judge court proceedings and cessions to be showy or political .

Backing to the report itself , it does not cover several legal issues such as the Saudi criminal legislation that was enacted right after the Turkish authorities disclosed several findings relevant to the criminal collaboration and accomplices .

Here , the principle of non-retro-activity has not been raised yet In other words can the Saudi courts apply interpret and adjudicate the accused by means of statutes that were not existent before the crime was committed .

Briefly , the newly enacted Saudi legislation included crimes committed in Saudi embassies and consulates abroad within the Saudi Penal Code .

Regarding , applicability and admissibility of universal jurisdiction on the perpetrators of the heinous crime as requested by the rapporteur , I do not think the crime itself could be prescribed as a crime against humanity because it lacks all elements of the crime under ICC statute Article 7 . The conditions of the targeted group, the policy of the state and the wide scale of the crime .

In the same context , and after the historic ruling of ICJ : Congo V Belgium in 2002 most of states applying universal jurisdiction limited and demanded the existence of the wanted person on the territory of this state as a result the toll number of cases under this principle stepped down .

Dr Ayman Salama

Marko Milanovic says

June 27, 2019

JS, I think the SR DOES agree that Turkey should and could have kicked down the doors of the consulate if they had been listening in. It's just that, from what she could establish, Turkey was listening in but that information was collected automatically and was not being analyzed by/listened to by a human in real time. The nationality issue is I think irrelevant - in the SR's view (which I share) the duty to protect is not grounded in a person's citizenship, since this goes against the normative basis of human rights. I.e. the forcible entry to the consulate is legally required/justified no matter the citizenship of the victim.

Aditya Roy says

July 2, 2019

Dear Marko,
The other discussion can be on the application of the principle of complementarity as is part of Rome Statute. It can be applied to this case because as the report suggests, Saudi Arabia is secretly prosecuting some officials for the death of Jamal Khashoggi. The question of enquiry is to see whether in this case Saudi Arabia has been unable or unwilling to prosecute the murderers before asking for the prosecution before an independent tribunal if it so happens. But before that an investigation into the death to fix the individual criminal responsibility is essential.