Callamard Report on the Murder of Jamal Khashoggi: Part II

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.