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

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.

There have been important cases on this set of issues before human rights courts and treaty bodies. The most notorious of these is of course Bankovic, in which the European Court of Human Rights held that an individual would not be within a state’s jurisdiction in the sense of Article 1 ECHR only on the basis that state dropped a bomb on him from the air. Other cases followed, some of which partially overruled Bankovic, most notably ­Al-Skeini, but the Court has nonetheless remained reluctant to extend the reach of the Convention to purely kinetic uses of force abroad, as it is morally and logically compelled to do. This is particularly the case with the personal conception of jurisdiction as the exercise of authority or control over the victim by a state agent.

Other human rights bodies have never been as restrictive as the European Court on matters of extraterritorial application. There is no doubt, for example, that the Human Rights Committee would find a person in a situation like Khashoggi’s to be protected by the ICCPR, whether pursuant to its more general approach to issues of extraterritorial application as set out in General Comment No. 31, or to its new, even more expansive functional approach in General Comment No. 36. Even the European Court would likely found a person like Khashoggi protected by the ECHR, if not under the personal model of jurisdiction, then on the basis that Khashoggi was killed on the premises of a consulate or while under the authority of consular agents and thus within the sending state’s jurisdiction.

In sum, Saudi Arabia was under an obligation to respect Khashoggi’s right to life under the Arab Charter and customary IHRL when its agents killed him in the Istanbul consulate. This position could be reached on several different grounds: (1) that the negative obligation to respect the right to life and refrain from lethal force applies without any territorial limitation; (2) that killing an individual constitutes an exercise of authority or control, and thus jurisdiction, over that individual; (3) that Khashoggi’s killing took place in a Saudi consulate. And if the Arab Charter and customary IHRL applied to Khashoggi’s killing, as they did, the violation of the right to life is manifest. That said, I would reiterate that the reluctance of some states to explicitly use human rights language in their criticism of Saudi Arabia stems at least in part from a desire to avoid contradictions with their own prior positions. In other words, it is not easy for the US and UK governments to criticize Saudi Arabia for violating Khashoggi’s right to life when under their own theories, developed and argued by their own lawyers, they would not have had to respect human rights law if they wished to use lethal force against an individual outside their borders, at least absent territorial control.

Turkey’s positive obligation to protect Khashoggi’s right to life

Turkey’s overarching obligation to ensure or secure Khashoggi’s right to life continued applying after his entry into the Saudi consulate in Istanbul. Khashoggi remained within Turkey’s jurisdiction for the purposes of the applicability of the ICCPR and the ECHR, even if he was also concurrently within Saudi jurisdiction.

Khashoggi was likely killed very shortly upon entering the consulate, at the most within an hour. We know that Turkey has audio recordings of his last moments and of some of the things said and done to him. It is not entirely clear by which methods exactly Turkey obtained these recordings. Reports differ on whether Turkey had listening devices on the premises of the consulate, surveilled the consulate through the use of a powerful directional microphone, tapped the communications of the Saudi hit team, or had combined some of the methods above. Now, imagine if, through whatever method, Turkish intelligence services were listening to the goings-on in the consulate in real time, i.e. had a good idea of what was happening to Khashoggi as it was occurring, rather than collecting this information through automated processes and analyzing it only after the fact. Imagine also if the Turkish police had constables or other security forces available in the vicinity of the consulate, who could be there reasonably quickly. Both of these assumptions are in the realm of possibility, although they were likely not borne out on the facts because of the very short time window within which Khashoggi was killed. But again, it is perfectly possible that Turkish intelligence services knew what was going on. If they did, the positive obligation to protect Khashoggi’s life could clearly no longer be met simply by warning him – it was far too late for that. In this scenario, Turkey would have had to intervene directly to prevent the murder, by force if necessary.

In such a scenario, Turkey would have faced an apparent conflict of norms. On the one hand, its positive obligations under the ICCPR and the ECHR would be telling it to send its police forces or other security services into the consulate, to prevent the killing from taking place. On the other hand, if it did so, it would be in prima facie violation of its obligation to respect the inviolability of the consulate under Article 31 VCCR, which specifically prohibits agents of the receiving state from entering consular premises without the consent of the head of the consular post – that same Saudi consul-general who was, at the time, witnessing the brutal assault on Khashoggi.

What, then, should Turkey have done in such a situation? In my view, it should have gone into the consulate without asking for or waiting for Saudi consent, and it would have not only been justified in doing so, but obliged to do so.

Inviolability of consular premises

It is clear that diplomatic and consular premises do not lose their status and inviolability simply because such status is being abused. The real issue, therefore, is not whether the Saudi consulate in Istanbul lost its entitlement to inviolability because it was being used in a manner incompatible with diplomatic and consular functions, but whether there is a relevant exception to the inviolability rule which Turkey could have relied on.

Crucially in that respect, the inviolability provision in Article 31 of the Vienna Convention on Consular Relations (VCCR) is drafted in far less absolute terms than its equivalent in Article 22(1) of the Vienna Convention on Diplomatic Relations (VCDR), which seems to contain a categorical protection of inviolability and a total ban on entry by the agents of the receiving state without the consent of the head of mission. But even this absolute VCDR prohibition has questioned. No less an authority on diplomatic law than Eileen Denza (Diplomatic Law (OUP, 4^th ed., 2016) 123) has  remarked that: ‘[i]n the last resort, however, it cannot be excluded that entry without the consent of the sending State may be justified in international law by the need to protect human life.’ In a similar vein, in the Tehran Hostages case, para. 86 the ICJ was prepared to in extremis read down the equally categorical protection of the inviolability of diplomats: ‘[n]aturally, the observance of this principle [of inviolability] does not mean—and this the Applicant Government expressly acknowledges—that a diplomatic agent caught in the act of committing an assault or other offence may not, on occasion, be briefly arrested by the police of the receiving State in order to prevent the commission of the particular crime.’

Until the killing of Khashoggi, perhaps the most notorious example of the use of diplomatic or consular premises for lethal purposes was the 1984 shooting incident outside the Libyan embassy in London. On 17 April 1984, during an anti-Gaddafi protest outside the embassy, two gunmen from within the embassy opened automatic fire at the crowd. Many of the protesters were wounded, and a 25-year old police constable, Yvonne Fletcher, was killed. In response UK authorities laid siege to the embassy at St. James’s Square, but did not enter it by force. The siege lasted for 11 days, at which point the UK severed diplomatic relations with Libya, requiring (and allowing) all those in the embassy to leave the country. Yet there is a key difference between this case and Khashoggi’s. The embassy was the source of the lethal threat, but the individuals whose life was in danger were outside it, and could move out of the vicinity. After the shooting stopped there was no ongoing threat to the life of any specific person, which would have necessitated British authorities entering the embassy without Libya’s permission.

In sum, even in the case of categorical diplomatic protections for inviolability there are arguably implicit exceptions in situations in which there is an immediate threat to human life. Even so, Khashoggi was not killed on the premises of an embassy, but on those of a consulate. The protection for the inviolability of such premises is lower. Unlike the VCDR, Article 31(2) VCCR explicitly creates an assumed consent exception to inviolability ‘in case of fire or other disaster requiring prompt protective action.’

The reference to a fire or other disaster would indicate that the primary purpose of this provision was to cover sudden events threatening life, such as fires, floods, earthquakes and the like. However, labelling the premeditated assault on Khashoggi as such a disaster is probably not too great of a stretch. The fact that the urgency was created by the agents of the sending state seems immaterial, as after all they could have caused a fire themselves as well, and Khashoggi’s situation certainly required prompt protective action. In other words, the disaster need not be natural – we would likely all agree that the assumed consent exception in Article 31(2) VCCR applied if the consular staff inside the post were say being attacked by a terrorist group, and the receiving state sent its police inside the consulate to stop the attack without waiting for permission from the head of the assailed consular post. There is no reason why the result should be any different in a reverse scenario.

In short, entry by Turkish authorities into the consulate during the attack on Khashoggi would arguably not have violated Article 31 VCCR, either because of the assumed consent exception in Article 31(2) or because of an implicit exception for entry without consent justified by the urgent need to protect human life.

Distress

Alternatively, even if the entry into the consulate would have been wrongful, that wrongfulness could have been precluded by distress. Under the rule codified in Article 24(1) ASR ‘[t]he wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the author of the act in question has no other reasonable way, in a situation of distress, of saving the author’s life or the lives of other persons entrusted to the author’s care.’

All of the requirements of this rule would have been met on the facts of Khashoggi’s case, had Turkish authorities entered the Saudi consulate without consent: (1) Khashoggi’s life was clearly in danger; (2) his life was entrusted to Turkey’s care, as he was present on Turkish territory and Turkey had an obligation under IHRL to protect his right to life; (3) there was no other reasonable way of saving his life. Therefore, even if Turkey’s decision to enter the consulate to save Khashoggi’s life would have been wrongful under Article 31 VCCR – and, as we have seen above, it arguably would not have been – that wrongfulness would have been precluded by distress. And Turkey could have relied on distress as a circumstance precluding wrongfulness even if we accept the proposition that diplomatic and consular law is (partially) a self-contained regime. Both the ICJ and the ILC have been clear that countermeasures cannot be used to preclude the wrongfulness of violations of diplomatic and consular privileges and immunities. But neither have said that circumstances precluding wrongfulness such as distress cannot be so used, nor is there any reason of principle why they could not be so used.

Conclusion

Saudi Arabia’s obligations under the Arab Charter and customary IHRL extended to the conduct of its agents in its consulate in Istanbul. Accordingly, Saudi Arabia is responsible for violating the negative aspect of the right to life. Again, it is irrelevant whether the Saudi agents acted on the orders of Mohammed bin Salman or against them; Saudi Arabia is nonetheless responsible for the ultra vires conduct of its organs acting in their official capacity.

Similarly, Turkey’s positive obligation to protect Khashoggi’s life continued even after his entry into the consulate. It was engaged if Turkey knew, or ought to have known, of the risk to Khashoggi’s life. If the obligation was triggered, Turkey could have fulfilled it by sending its police or other agents into the Saudi consulate, if need be without consent. Had Turkey done so, it would not have breached the inviolability of the consulate under the VCCR, and even if it did, that wrongfulness would have been precluded by distress. It is only if Turkey had some other feasible alternative to rescue Khashoggi that the analysis above would have been different – for example, it is possible that Turkish authorities could have contacted Saudi authorities or agents on the ground to tell them that they knew of the threat to Khashoggi’s life, which they should desist from immediately. Obviously, it is entirely dependent on the facts, which are yet to be firmly established, whether such a warning or indeed a forcible entry into the consulate could actually have been effective.