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

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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.

But even though Khashoggi’s human rights would appear to be the core of the international legal issues in the whole affair, there have been few references to his rights even when states have used the language of international law to criticize the conduct of the Saudi government. For example, the US Secretary of State Mike Pompeo expressed the view that ‘[t]he killing, the murder of Jamal Khashoggi in the consulate in Turkey violates the norms of international law. That much is very, very clear.’ He did not, however, specify what these norms were. Similarly, a joint statement by the foreign ministers of the UK, France and Germany speaks of these countries’ commitment to the freedom of expression and their respect ‘for the norms and values to which the Saudi authorities and us are jointly committed under international law.’ Again, however, there was no explicit reference to the violation of Khashoggi’s human rights as such.

In that regard, Khashoggi’s murder is reminiscent of another recent state-organized assassination, the March 2018 poisoning of Sergei and Yulia Skripal in the British town of Salisbury, ostensibly at the hands of Russian intelligence officers using a lethal novichok nerve agent. While the Skripals ultimately recovered, Dawn Sturgess, an ordinary British citizen incidentally exposed to the poison, died from it later in the year. Like Saudi Arabia’s, Russia’s conduct was also vigorously criticized using the language of international law. But here, too, that language has generally been used with regard to the rights of the British state, rather than with regard to the human rights of the victims. The prime minister, Theresa May, thus spoke of a violation of British sovereignty and the prohibition on the use of chemical weapons, as did a joint statement of the leaders of the UK, US, France and Germany. The prime minister moreover argued that the operation was a violation of the prohibition on the use of interstate force. She did not, however, mention the human rights of the actual victims.

Somewhat surprisingly, perhaps the most explicit official references to human rights regarding the killing of Khashoggi are those of the US government. Acting pursuant to the Global Magnitsky Act, the United States sanctioned 17 Saudi individuals ‘for serious human rights abuse resulting from their roles in the killing of Jamal Khashoggi.’ It similarly labelled Khashoggi’s killing as an ‘arbitrary deprivation of life’ in the State Department’s country report on human rights in Saudi Arabia. But, again, other governments have generally not engaged with Khashoggi’s killing from the standpoint of international human rights law. That is, in my view, a lamentable gap, one that Callamard’s inquiry and state reactions thereto in the Human Rights Council will hopefully partially fill.

In that regard, I have recently finished an article dealing with Khashoggi’s murder and its consequences from the standpoint of international law, and human rights law in particular, and talked about some of it at the ASIL Annual Meeting a couple of weeks ago. It is available on SSRN here. The article seeks to comprehensively analyze Khashoggi’s killing from the standpoint of the human right to life. It sets out the relevant legal framework, addressing inter alia the issue that Saudi Arabia is not a party to what would otherwise be the most relevant human rights treaty, the International Covenant on Civil and Political Rights (ICCPR), arguing that Saudi obligations to respect Khashoggi’s right to life can be based in the Arab Charter on Human Rights and in customary international law. These obligations are in their content substantially the same as those of states parties to the ICCPR or the ECHR.

The article examines not only the obligations of Saudi Arabia, but also those of Turkey and the United States, in protecting Khashoggi’s right to life from third parties, and ensuring respect through an effective investigation of his killing and mutual cooperation for the purpose of that investigation. It also looks at the extraterritorial scope of these various obligations. It argues in that regard that the reticence of some states in using the language of human rights in respect of Khashoggi’s murder is motivated at least partly by a desire to avoid contradicting their earlier positions regarding the use of lethal force in counter-terrorism operations abroad, in which a standard argument has been that human rights law simply does not apply.

Finally, the article examines possible norm conflicts between state obligations under human rights law and their obligations under diplomatic and consular law, such as the inviolability of diplomatic and consular premises, agents, and means of transportation. International lawyers have devoted much attention to conflicts between human rights and the law of state immunity in situations where the responsibility of a state for human rights violations – often mass atrocities – is being assessed ex post facto before the courts of some other state. We are similarly used to thinking about conflicts between immunities and human rights in terms of the right of access to a court, as an aspect of the right to a fair trial. The Khashoggi killing, however, provides us with an opportunity for a different kind of case study: a normative conflict between diplomatic and consular immunities, on the one hand, and state substantive and procedural obligations under the right to life, on the other, in the context of a real-time violation of that right, rather than its adjudication ex post facto.

Over the next few days, I will set out some the analysis in the article in a series of posts. In Part II, I will examine the legal position of Turkey and the United States before the attack on Khashoggi had commenced. These states arguably knew, or ought to have known, of the real and immediate risk to Khashoggi’s life, triggering their substantive positive obligation to protect his life, which at a minimum required them to warn Khashoggi of the threat. This they failed to do.

In Part III, I will move to the time of actual attack on Khashoggi. In the moment of attack Saudi Arabia’s human rights obligations under the Arab Charter and customary law applied extraterritorially to the conduct of its agents in Istanbul, who flagrantly violated the negative obligation to refrain from arbitrary deprivations of life. At the same time, if Turkey had real-time information about the attack on Khashoggi in the consulate and the opportunity to put it to an end, it would have been obliged to enter the premises of the consulate without the consent of the Saudi authorities. In doing so, it would not have been in violation of its duty to respect the inviolability of the consulate, either because of the operation of exceptions to that rule or on the grounds of distress as a circumstance precluding wrongfulness.

In Part IV, I will look at the legal situation after the attack. The issue then becomes the obligation of the relevant states to effectively investigate Khashoggi’s death, including their duty to cooperate with each other in doing so. Saudi Arabia has manifestly violated that obligation. However, while genuinely committed to uncovering the truth about Khashoggi’s murder, Turkey also took a number of questionable decisions which undermined the effectiveness of its investigation. I argue that these decisions, such as permitting the Saudi agents and the consul-general to leave Turkey and delays in searching the consul-general’s residence, were in no way required by consular privileges and immunities. Finally, Part V will provide some concluding observations.

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Marty Lederman says

April 16, 2019

Thanks for drilling down on this, Marko. You're probably right about the reasons for the reticence of most states to expressly invoke human rights. I'm curious, though: Has any state actually *denied*--would any state dare to deny, if pressed--that Saudi Arabia violated a CIL human rights prohibition? In other words: Is there a serious legal debate?

Marko Milanovic says

April 16, 2019

Hi Marty - honestly I'm not sure I can answer your question. As far as I know no state has denied that Saudi Arabia violated a CIL right to life. I have no idea whether any state would dare to deny it - it is a normatively completely unappealing argument. But all of this depends on the extraterritorial scope of application of the right, and specifically of the negative obligation to respect life and refrain from arbitrary deprivations of life, which I will address in Part III. One thing is clear though - any claim that Saudi Arabia violated Khashoggi's right to life logically necessarily presupposes the view that the right to life, whether as a matter of treaty law or customary law, applied extraterritorially.

Marty Lederman says

April 16, 2019

Yes, but does any state *deny* that the customary norm applies extraterritorially? I didn't think that was especially controversial.

Marko Milanovic says

April 16, 2019

Hi Marty,

Your framing of the issue as one of 'denial' is questionable - the vast majority of states haven't expressed a position on the extraterritorial applicability of the customary right to life one way or the other. The number of states which clearly and unambiguously did so is probably in the low single digits. And states have obviously resisted the extraterritorial applicability of human rights treaties, including specifically with regard to the right to life. It is in my view hardly coherent to deny the extraterritorial applicability of the right to life (or any human right) in its treaty incarnation but accept it in its customary incarnation. In other words, the territorial scope of any human right should not really depend on the nature of the source of the right; that a right is vested in custom does not ipso facto means that it applies without territorial restrictions.

Marty Lederman says

April 16, 2019

Well, as Ryan's post that you cite correctly notes, even the U.S. has acknowledged the absence of geographic limitations of the customary protection of the right to life. The contrast between that view and the restrictive view of the ICCPR is easily reconciled as soon as one understands that the U.S. isn't wary of the substance of the treaty (to the contrary), but only of its procedures and remedies. (This same aversion explains, e.g., the U.S.'s unconvincing effort to assert that Art. 14 of the CAT doesn't apply in armed conflicts.)