magnify
Home Human Rights Archive for category "Right to Life"

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

Published on April 18, 2019        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

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.

Read the rest of this entry…

Print Friendly, PDF & Email
 

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

Published on April 17, 2019        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

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.

Read the rest of this entry…

Print Friendly, PDF & Email
 

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

Published on April 17, 2019        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

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.

Read the rest of this entry…

Print Friendly, PDF & Email
 

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

Published on April 16, 2019        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

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?

Read the rest of this entry…

Print Friendly, PDF & Email
 

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

Published on April 16, 2019        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

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.

Read the rest of this entry…

Print Friendly, PDF & Email
 

Germany and its Involvement in the US Drone Programme before German Administrative Courts

Published on April 8, 2019        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

On 19th March 2019, the German Higher Administrative Court for North Rhine-Westphalia rendered a highly interesting and important judgment. It addresses no less than the compatibility of US drone strikes in Yemen with international law, the role of domestic courts with regard to international law, and the scope – and limits – of judicial review in foreign affairs.

The case was brought by Yemeni claimants against Germany for its alleged involvement in the US drone programme. While Germany neither publicly supports nor actively participates in the US drone programme, it is nearly undisputed that the US Air Base in Ramstein, Germany, plays a vital role therein (see here). The Court held that, first, Germany is constitutionally obliged to ascertain that the US drone strikes conducted via Ramstein are compatible with international law. Secondly, in case the government finds the US practice to be legally contentious, German authorities have to take efforts in order to ensure that international law is complied with.

The full reasoning of the decision is not yet available in writing, but the press release (see here for an unofficial English translation) and the transcript of the oral pronouncement of the decision (see here) allow for some preliminary remarks. (Note that the Higher Administrative Court on the same day rendered a second judgment that concerned US drone strikes, albeit in Somalia (see here). This contribution, however, focuses on the “Yemen case”.)

The Facts

In 2012, Salem bin Ali Jaber, a Yemeni imam known for openly criticising Al Qaeda was invited to deliver a sermon at the local mosque of Khashamir, Yemen, where he attended a family wedding. In that course he was approached by three members of Al Qaeda requesting a meeting. Salem asked his relative, and local police officer, Waleed to accompany him. Shortly after the meeting commenced, US drones fired a series of four Hellfire rockets on the group killing both Salem and Waleed bin Ali Jaber as well as the three Al Qaeda members.

This prompted Read the rest of this entry…

Print Friendly, PDF & Email
 

Climate Change before the Courts: Urgenda Ruling Redraws the Boundary between Law and Politics

Published on November 16, 2018        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

On the 9th of October, the Hague Court of Appeal upheld the first-instance judgment in the Urgenda case, ordering the Dutch State to reduce greenhouse gas emissions more progressively than planned by the government. The appeal judgment was applauded across the world and welcomed as a source of inspiration for climate change litigation in other jurisdictions. At the same time, the ruling has evoked criticism in the Netherlands, where commentators wondered if the court had not overstepped the boundary between law and politics, violating the separation of powers (eg in Dutch here, here, and here). The ruling raises intricate questions concerning the proper role of domestic courts in securing compliance with the European Convention on Human Rights (ECHR) in matters of general policy. Arguably, the judgment expands the role of courts beyond what Dutch constitutional law allows them to do, but this expansion fits with the increasing emphasis put on the notion of subsidiarity by the Member States of the Council of Europe.

Greenhouse Gas Emissions and Human Rights

The Court of Appeal confirmed that by 2020, the Dutch government should have reduced the cumulative volume of greenhouse gas emissions by at least 25 % compared to the situation in 1990. The government had agreed to a 49 % reduction target for 2030 and a 80-95 % target for 2050 (para 46), but disputed that it was legally obliged to commit to a reduction target of at least 25 % for 2020, in light of the EU’s commitment of 20 %. The appeal court agreed with Urgenda that a reduction of 20 % by 2020 would not be sufficient to meet the 2030 target and that reduction efforts should not be delayed (para 47).

According to the court, the State’s refusal to commit to at least 25 % breached its duty of care under Articles 2 and 8 of the ECHR. In interpreting these Articles, the court ruled that ‘the State has a positive obligation to protect the lives of citizens within its jurisdiction under Article 2 ECHR, while Article 8 ECHR creates the obligation to protect the right to home and private life’ (para 43). The court noted ‘a real threat of dangerous climate change, resulting in the serious risk that the current generation of citizens will be confronted with loss of life and/or a disruption of family life’ (para 45). In this context, the State’s duty of care required a reduction of at least 25 % (para 73). Read the rest of this entry…

Print Friendly, PDF & Email
 

The Duty to Investigate Civilian Deaths in Armed Conflict: Looking Beyond Criminal Investigations

Published on October 22, 2018        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

Writing in the Times last Friday, General David Petraeus, former commander of US Central Command, added his voice to the familiar refrain that ‘European human rights law’ has given rise to the ‘judicial pursuit of British soldiers and veterans’. Petraeus may be correct in stating that the British emphasis on criminal investigations would never obtain in the US, but looking at some of the legal issues behind his claims undercuts his assumption that ‘restoring the primacy of the law of armed conflict’ would remove scrutiny over the actions of military personnel on the battlefield.

A year after the winding up of the Iraq Historic Allegations Team (IHAT), the controversies over accountability for the UK’s military action in Iraq certainly show few signs of going away. Sections of the press continue to mount a vociferous campaign against the residual work of the Iraq Fatality Investigations (IFI), while calls for investigations into alleged civilian fatalities from more recent UK military action over Mosul are growing.

I reflected on this experience in the course of completing a chapter on international legal obligations to investigate civilian deaths for a new book just published, The Grey Zone: Civilian protection between human rights and the laws of war. The many years of investigations in the UK have arguably resulted in a failure either to deal effectively with outstanding allegations or to deliver justice to many Iraqi victims. This perception may of course be influenced by continuing political disagreement over international military action in Iraq, but it also stems from the particular approach the UK has taken to investigating violations, including the heavy reliance on criminal law. In the current generation of devastating air campaigns, what lessons can be learnt?

UK practice

Beside the need to address public concern about the conduct of military action in Iraq, UK practice on investigations has been driven largely by duties under the International Criminal Court Act 2001 and the Human Rights Act 1998.

The UK’s approach was established early in Iraq (and later applied to UK operations in Afghanistan), with all incidents involving civilian casualties being referred for investigation to the Service Investigation Branch of the Royal Military Police. Comparing US military investigations with those of other states in Naval Law Review in 2015, Commander Sylvaine Wong of the US Navy JAGC noted that the UK had, ‘as a matter of domestic policy, taken the most dramatic steps to rely solely on criminal law enforcement investigations for incidences of civilian casualties.’ Read the rest of this entry…

Print Friendly, PDF & Email
 
Comments Off on The Duty to Investigate Civilian Deaths in Armed Conflict: Looking Beyond Criminal Investigations

The Spectre of Trexit: Proposal to Reintroduce the Death Penalty in Turkey

Published on October 10, 2018        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

On 1 October 2018, just ten days before the European and World Day against the Death Penalty, the only elected member of parliament of the BBP – a Turkish ultra nationalist party – submitted a draft legislation proposal to Parliament asking for the reintroduction of the death penalty in Turkey. The proposal reintroduces the death penalty for the murder of children and women through sexual means and for killings carried out as part of individual or organised acts of terrorism.

In its justification for the proposal, Burhan Ekinci, the MP in question, highlights the need to restore justice for victims of these hideous crimes, and the need to enhance the trust of the Turkish public in the fairness of the Turkish criminal justice system.  In his proposal, Ekinci argues there is no death penalty in Turkey because of ‘international agreements’ (in quotation marks) and what he labels ‘domestic dynamics’. Ekinci also expresses his disgust for the dishonesty of so-called humanism which, he claims, puts the rights of perpetrators above those of the victims of the most serious crimes. 

This proposal, of course, may not find support in the Turkish Parliament and fade away. Evidence, however, shows that the proposal should not be taken lightly. If it does succeed, it can be Turkey’s Trexit, ending Turkey’s long standing relationship with European institutions.

Read the rest of this entry…

Print Friendly, PDF & Email
 

An Exam Question on Diplomatic and Consular Law

Published on October 7, 2018        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

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?

Print Friendly, PDF & Email