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

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?

First, they were fully aware of the wider context – an increasingly repressive regime in Saudi Arabia, which has aggressively suppressed dissent within its borders and had conducted various operations outside its borders, including abductions, targeting prominent Saudi critics of the regime. Similarly, they were aware that Khashoggi was a prominent voice opposing the regime and had a unique platform as a journalist working for the Washington Post, which would inevitably cause the Saudi regime to see him in a hostile light. Second, both the United States and Turkey have extensive intelligence capabilities, both generally and vis-à-vis Saudi Arabia specifically. In particular they had access to human intelligence (i.e. sources within the Saudi government), signals intelligence (e.g. through various methods of electronic interception of communications), and possibly surveillance of key facilities, such as the Saudi consulate in Istanbul in which the murder eventually took place.

Third, in that regard, we know that a year before the killing, the US intelligence agencies intercepted a conversation between the Saudi crown prince, Mohammed bin Salman, and a top aide, in which the prince told that aide that he would ‘use a bullet’ on Khashoggi if he did not return to Saudi Arabia and end his criticism of the government. In a different intercepted conversation a few days before, with another senior courtier, Saud al-Qahtani – allegedly the supervisor of the 15-man team which later killed Khashoggi  – the prince stated that Khashoggi had grown too influential, that his criticism was tarnishing the prince’s image, that Saudi Arabia should not care about international reaction to how it handles its own citizens and that he ‘did not like half-measures — he never liked them and did not believe in them.’ Apparently, however, while the United States was in the possession of the recordings of these conversations, which were intercepted electronically, the conversations were not transcribed and analyzed until after Khashoggi’s death, with analysts poring over years of the prince’s voice and text communication that was routinely collected by the US National Security Agency. In other words, the United States had this information in its possession but it was not processed in such a way that its implications could be understood at the relevant time.

Fourth, according to intelligence reports described to the Washington Post, the United States also intercepted – and apparently processed and analyzed – Saudi conversations which pointed to a plan to detain and abduct Khashoggi, prior to his killing. Fifth, in a similar vein, an Observer journalist reported that ‘[a]t least a day before Khashoggi appeared at the Saudi consulate in Istanbul, an NSA official told [the journalist], the agency had Top Secret information that Riyadh was planning something nefarious—though exactly what was not clear from the intercepts. This was deemed important because Khashoggi is a legal resident of the United States, and is therefore entitled to protection. According to the NSA official, this threat warning was communicated to the White House through official intelligence channels.’

Sixth, while little is known about Turkish signals intelligence acquisitions regarding Khashoggi, one can reasonably assume that at least some relevant information was in Turkey’s possession. In particular, Turkey had extensive surveillance capabilities as to the premises of the consulate itself, which Turkey has itself disclosed when it made public the existence of a recording of the moment and aftermath of Khashoggi’s killing.

In that regard, the timeline of the killing is of great relevance, in particular the fact that Khashoggi went to the Saudi consulate in Istanbul twice. First, he went to the consulate unannounced on 28 September to inquire about the issuance of a divorce certificate; he was apparently well received and was later told to return for the certificate on 2 October. On 29 September Khashoggi traveled to London to speak at a conference, returning to Istanbul on 1 October. His second, fatal visit to the consulate then happened around 1pm on 2 October; a few hours later his fiancée reported him missing by calling the police and Yasin Aktay, an advisor to President Erdogan.

The decision of Saudi authorities to launch the specific operation that resulted in Khashoggi’s death thus must have been made quickly after his first consulate visit on 29 September. Arrangements also had to be made to prepare the premises of the consulate for the operation, and these also had to be made in the narrow window between 29 September and 1 October – for example, it has been reported that consulate staff were given a day off for 2 October, and that CCTV in the building was disabled. Some discussion of the planned operation thus had to take place on the premises of the consulate before 2 October, and we know that Turkish authorities had these premises and staff under some kind of surveillance. It is thus entirely possible that Turkey was in possession of some information indicating a threat to Khashoggi’s life before the killing.

Moreover, in the early hours of 2 October, around 3am, a private plane carrying members of the Saudi team that killed Khashoggi landed at Ataturk airport; others arrived during the day via commercial flights. It is likely that the arrival of 15 Saudi agents did not go unnoticed by Turkish intelligence services. The agents left Turkey on two private jets later in the evening of 2 October.

In sum, based on the evidence publicly available today we cannot say that it is conclusively established that either the United States or Turkey knew of a real and immediate risk to Khashoggi’s life at the hands of the Saudi state. This is the case even if, as reported, the United States had intercepted some conversations of the crown prince which indicated such a threat, since these conversations were simply collected, but not transcribed and analyzed. In an era of automated acquisition of intelligence in huge quantities it would be unreasonable to consider a state as ‘knowing’ such information before it is processed in some way and subjected to human analysis, nor can a state reasonably be expected to analyze all signals intelligence it acquires in real time. But the relevant threshold standard, recall, is not strictly that the relevant states knew of a specific threat to Khashoggi’s life, but that they ought to have known of such a threat or that it was reasonably foreseeable to them. And here there are many indications that, upon further factual inquiry, this somewhat looser standard could have been satisfied.

Due diligence

Let us assume that the risk or foreseeability of threat threshold was crossed for both the United States and Turkey, so that their duty to protect Khashoggi’s right to life was engaged. The issue then becomes what these states could reasonably have been expected to do to protect his life. This is an obligation of due diligence, which must not impose a disproportionate burden on the state. In ordinary policing circumstances, this context-dependent duty could, for example, require the state to protect persons placed at particular risk because of specific threats, such as journalists or public figures, through measures such as the assignment of around-the-clock police protection.

In Khashoggi’s case, the barest minimum of special measures of protection would have been for the two states to inform Khashoggi of the existence of the threat against him. That warning alone would have likely dissuaded Khashoggi, who was already familiar with the increasingly aggressive tactics of the Saudi regime against those who criticized it publicly, from going to the Istanbul consulate. At the very least he would have lived to see another day.

A possible objection to the duty to warn could be that a warning might potentially compromise intelligence-gathering sources and methods, and therefore impose a disproportionate burden on the state. However, that objection is not persuasive. A warning could easily have been framed in such a way that Khashoggi would not have known anything about the methods used to obtain the relevant information (e.g. electronic surveillance), so that there was no risk that the methods in question could be compromised or publicly exposed.

Finally, it is important to note that US domestic policy already expressly acknowledges the existence of a duty to warn, demonstrating that there is nothing inherently impractical in such an obligation. Under Intelligence Community Directive 191 (ICD 191), adopted by the Director of National Intelligence pursuant to the National Security Act:

An IC element that collects or acquires credible and specific information indicating an impending threat of intentional killing, serious bodily injury, or kidnapping directed at a person or group of people (hereafter referred to as intended victim) shall have a duty to warn the intended victim or those responsible for protecting the intended victim, as appropriate. This includes threats where the target is an institution, place of business, structure, or location. The term intended victim includes both U.S. persons, as defined in EO 12333, Section 3.5(k), and non-U.S. persons.

Note how this duty would extend to Khashoggi even if the intelligence that the US had was that the Saudi government planned ‘only’ to forcibly kidnap him, rather than kill him, and that the duty would apply regardless of Khashoggi’s citizenship or location. A number of exceptions or waivers to this duty are set out in ICD 191 – for example, if warning the individual would unduly endanger US government personnel, sources, methods, intelligence operations, or defence operations. But none of them appear to be even plausibly relevant to Khashoggi’s situation, and again, Khashoggi could easily have been warned without compromising intelligence sources and methods.

As of the time of writing, it remains unclear why the US intelligence agencies failed to inform Khashoggi of threats to his life and liberty. More information might become available soon through leaks to the press or Congressional oversight. A lawsuit has also been filed by the Knight First Amendment Institute at Columbia University, pursuant to the Freedom of Information Act, asking for a judicial order compelling the relevant agencies to disclose records in their possession regarding Saudi threats to Khashoggi and their failure to warn him thereof.

Extraterritoriality

If the US government knew or ought to have known about the threat to Khashoggi’s life while Khashoggi was present on its territory, which as a US resident he was for extended periods of time, the duty to protect under Article 6 ICCPR clearly applied – that the threat would have materialized outside US territory is irrelevant. If, however, the risk threshold was crossed vis-à-vis the United States while Khashoggi was outside the United States – for example, if the US government only acquired the necessary information when Khashoggi was already in Istanbul – the issue then is whether the protective duty applied when he was outside US territory.

The question of principle, in other words, is whether the positive obligation to protect life extends to an individual located outside a state’s territory, if a specific threat to that individual’s life is foreseeable to the state. This question has no obvious answer. The jurisprudence of human rights bodies has coalesced around two basic approached to the extraterritorial applicability of human rights treaties, which revolve around the interpretation of the notion of state jurisdiction in these treaties. First, that they will apply to individuals located outside a state’s territory but within a territory or area under the state’s control. Second, that they will apply if the individual is outside the state’s territory but is under the authority or control of a state agent. Recall also that the official position of the US government is that it does not accept that the ICCPR applies extraterritorially under any circumstances, although it might be more willing to accept that customary IHRL applies extraterritorially. Note in that regard that the official view of the US government that Khashoggi’s killing was an arbitrary deprivation of life and a human rights violation necessarily assumes some theory of extraterritorial applicability of treaty or customary IHRL, as otherwise there could be no human rights violation.

That said, let us proceed on the basis that the US view on the ICCPR is mistaken (as it is). The basic problem is still that the scenario in which the United States learns of threats to Khashoggi’s life only when he is already outside US territory is not a good fit with either the spatial or personal models of jurisdiction in human rights treaties. When in Istanbul, Khashoggi would not be in any area or territory controlled by the US government, nor would he in any sense be under the authority or control of a US state agent. The United States would simply be in possession of information about him or about threats to his life, which it did not acquire from him but by intercepting the communications of third parties. In my prior work, I have advocated for a model of extraterritorial application whereby state negative obligations would apply without any territorial limitation, while substantive positive obligations, like the duty to protect life, would require a jurisdictional link. Even on that generally expansive view the ICCPR would not apply extraterritorially to protect Khashoggi since he would not be under the control of a US state agent or in US-controlled territory.

But, in its recent General Comment No. 36, para. 63, the Human Rights Committee endorsed an even more expansive theory of extraterritoriality: ‘a State party has an obligation to respect and to ensure the rights under article 6 of all persons who are within its territory and all persons subject to its jurisdiction, that is, all persons over whose enjoyment of the right to life it exercises power or effective control.’ The Committee thus shifted the focus of the jurisdictional inquiry from that of power or control over territory or over the person, to that of power or control over the enjoyment of the right to life. In doing so, the Committee effectively endorsed the functional theory of the extraterritorial application of human rights treaties, which has academically long been advocated for by Yuval Shany, now the chairperson of the Human Rights Committee and together with the late Sir Nigel Rodley the principal drafter of General Comment No. 36. Under the functional approach, the scope of state obligations – including positive obligations – would depend on their capacity to fulfil them.

While neither the Committee’s jurisprudence, nor that of any other human rights body, has yet addressed a scenario in which a state possesses information about the threat to the life of a person located outside its territory, the functional theory the Committee endorsed could capture such a scenario. On the assumption that it had specific information about a lethal threat to Khashoggi, which if disclosed could have saved his life, the US exercised control over Khashoggi’s enjoyment of his right to life. It had the capacity to protect that right, and thus the duty to protect it, regardless of his location or his status as a US resident. It should also be reiterated that the due diligence expectation of the state in a scenario like this one is a very modest one – the upshot is simply the duty to warn the individual. That said, the problem with the Committee’s approach is that it is essentially limitless – whenever the state would be capable of doing something it would have the obligation to do so, and for better or worse no threshold jurisdictional inquiry would really apply.

Conclusion

In sum, it is very possible that the United States or Turkey knew, or ought to have known, of a real and immediate risk to Jamal Khashoggi’s life posed by agents of the Saudi state, i.e. that this risk was reasonably foreseeable to them. This is certainly what media reporting on US signals intelligence regarding Khashoggi would seem to indicate, although no definitive conclusions can be made in this respect without further inquiry. If the duty to protect life was triggered, then either state arguably failed to fulfil it by not warning Khashoggi of the existence of the risk, and in Turkey’s case also by admitting Saudi agents onto its territory. The extraterritorial applicability of the ICCPR is a complicating factor with regard to the United States, but not insurmountably so.

Other states could easily have been in a similar position. It has been reported, for example, that British intelligence intercepted Saudi communications indicating that ‘members of the royal circle’ had ordered Khashoggi’s abduction, and had warned the Saudi authorities against such an action – but they had not warned Khashoggi himself, who, recall, visited London just prior to his demise in Istanbul.