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

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.

I will now address each of these in turn. As with the scenario of the positive obligation to protect Khashoggi’s life during the attack, which we have looked at above, some of these points raise issues about possible norm conflicts between the IHRL obligation to effectively investigate and consular privileges and immunities. In that regard, the key difference with the previous scenario is that the urgency to protect the right to life is no longer there, since Khashoggi was already dead. There is accordingly less of an imperative to interpret diplomatic and consular law flexibly so as to accommodate IHRL. Similarly, distress as a circumstance precluding wrongfulness could not be relied on after Khashoggi’s death, as its applicability is strictly limited to situations which actively pose a threat to human life. As I will show, however, when properly interpreted consular privileges and immunities did not, in fact, pose a legal obstacle to a prompt and effective investigation with regard to all but one of the points above.

Allowing the Saudi agents to leave

The first, and most consequential, decision of the Turkish authorities that is open to question is that of allowing the Saudi agents to leave Istanbul on two private jets at 7 and 11pm on 2 October. Obviously, if Turkey had no idea who any of these people were, it could hardly be faulted for allowing them to leave. But if it did know who they were and what their purpose was, or harboured suspicions in that regard, then at the very least it could have prevented their departure. It did not need to arrest or detain them, at least not immediately – all it had to do was prohibit them from leaving. Reports in the Turkish press have noted that suspicious items were seen on the X-rays of the luggage of the Saudi agents at Ataturk airport, but that the agents carried diplomatic passports, which is why their bags were not subjected to manual inspection. Clearly, that a person is a holder of a diplomatic passport, the issuance of which lies solely within the discretion of the issuing state, says nothing about their entitlement to any privileges and immunities under international law. The Saudi agents had no such entitlement, as they were neither members of the diplomatic mission in Ankara, nor officers of the consular post in Istanbul, nor had special mission immunity.

Allowing the Saudi consul-general to leave

The second questionable decision of the Turkish authorities was that they allowed the Saudi consul-general in Istanbul, Mohammad al-Otaibi, to leave the country on 16 October, the day before his residence was to be searched by Turkish authorities. At this point Turkey definitely knew enough about Khashoggi’s killing, and knew that the consul was involved in the operation or was at the very least a witness to it. One recording obtained by Turkish security services allegedly has the consul addressing the members of the hit-team as they were assaulting Khashoggi, telling them: ‘Do this outside. You’re going to get me in trouble.’ On 6 October, four days after the murder, al-Otaibi led Reuters reporters on a macabre tour of the consulate, opening cupboards and filing cabinets to show them that Khashoggi was not there, denying any knowledge of his abduction and dismissing allegations of the involvement of his mission in Khashoggi’s disappearance as ‘disgusting.’

Again, at a minimum al-Otaibi was a material witness regarding Khashoggi’s murder, yet he was nonetheless allowed to leave. Unlike the members of the Saudi hit-team, however, al-Otaibi was entitled to privileges and immunities, since he was the head of the consular post in Istanbul. But these immunities are not unqualified. While the protection of the inviolability of a member of a diplomatic mission under Article 29 VCDR is categorical, and they are exempted from any obligation to give evidence as a witness under Article 31(2) VCDR, the same is not true for consular officers. Article 41(1) VCCR permits the arrest or detention of a consular officer for a ‘grave crime,’ while Article 44 VCCR permits the receiving state to compel a consular officer to give evidence on matters not connected with the exercise of their functions, as murder obviously is not.

There was, in short, nothing in consular law that would have prevented Turkey from arresting al-Otaibi or at least questioning him as a witness and prohibiting him from leaving the country, as any reasonable line of inquiry would have required for an investigation to be effective.

Delay in searching the consulate

This brings us to the most difficult issue in the interaction between Turkey’s obligation to investigate under IHRL and its duties under consular law – the delayed search of the premises of the consulate, which only took place on 15 October and was limited in scope. Since almost two weeks had passed, Saudi authorities had ample opportunity to tamper with the crime scene. The delay was caused by Turkey waiting for Saudi consent to enter the premises, and deliberate Saudi obstruction in that regard.

Here, however, Turkey was legally impeded from entering the consulate, unlike in the scenario of entry for the purpose of saving Khashoggi’s life which we have looked at above. While the threat to Khashoggi’s life could be treated as a disaster requiring prompt protective action, which could have triggered distress or the assumed consent exception to inviolability per Article 31(2) VCCR, this is not the case when it becomes known that Khashoggi is already dead. Investigating Khashoggi’s death is, in other words, not as compelling a reason for an exception from inviolability as saving his life would have been.

Turkey could have potentially severed consular relations with Saudi Arabia, requiring consular staff to leave and demoting the inviolability of the consular premises to the lesser duty of protection per Article 27(1)(a) VCCR, which could not inhibit a search for the purpose of a criminal investigation. Doing so would, however, have come at a cost. While Turkey would have been perfectly within its rights to several consular relations, this would inevitably have deeply aggravated its relations with Saudi Arabia. It is genuinely difficult to say that human rights law could reasonably expect a state to pay such a price, i.e. that the expected political fallout, including possible Saudi retaliation (however unjustified) is worth nothing in the balance and that Turkey’s authorities should be owed little or no deference in making this kind of judgement.

Delay in searching the consul’s residence

No such difficulty exists, however, when it comes to the delay in searching the consul-general’s residence. Here, too, Turkey was waiting for Saudi consent, which it obtained only on 17 October. The delay and restricted access given likely severely compromised the information that could usefully be obtained from the residence, which could have been particularly helpful in establishing what ultimately happened to Khashoggi’s body. Shortly after 3pm on 2 October, surveillance footage showed vehicles with diplomatic license plates leaving the Saudi consulate for the consul-general’s residence. It is very possible that Khashoggi’s remains were in those vehicles, and that they were somehow later disposed of on the premises of the residence. Some reports have alleged that Khashoggi’s dismembered body was dissolved in acid in the consul’s residence, and that there was some ‘biological evidence’ to that effect in the residence garden. More recent reports allege that Khashoggi’s body was likely burned in a large outdoor furnace in the residence garden over a period of three days.

Legally, the key point here is that the residence of a consul enjoys no inviolability whatsoever. Only the residence of a diplomatic agent does, per Article 30(1) VCDR. No equivalent provision exists in the VCCR. There was and there exists no need at all – at least not legally – to obtain Saudi consent to search those premises, or accept any limits on how and to what extent the search is to be conducted. Again, in waiting for consent Turkey was likely trying not to excessively antagonize the Saudi government, but it is on much shakier ground here than with regard to the search of the consulate itself when it comes to its compliance with IHRL.

Search of consular vehicles

The same goes for the search of any consulate vehicles. The Saudi hit-team appears to have used at least seven different cars before and after the killing. A number of press reports have suggested that Turkish authorities could not search some of these cars, or other cars belonging to the consulate, due to consular immunity. But again, unlike a diplomatic car, a consular vehicle enjoys no immunity or inviolability. While Article 22(3) VCDR stipulates that ‘the means of transport of the mission shall be immune from search, requisition, attachment or execution,’ Article 31(4) VCCR immunizes the means of transport of the consular post only from requisition for purposes of national defence or public utility, and does not protect them from search.

Conclusion

In short, Turkish authorities have demonstrated a genuine desire to find out what happened to Khashoggi, although that desire is inevitably tempered by political considerations. That said, some decisions made by Turkish authorities were not required by the need to respect consular privileges and immunities and were, at least arguably, in violation of their duty to effectively investigate the killing.

A further issue worth considering is the duty of states to cooperate in effectively investigating Khashoggi’s death. In a situation in which the evidence required to put together a full picture of a person’s unlawful death is located in two or more different states, generally the only way of assembling that picture is for these states to cooperate. Transnational investigations have attracted comparatively little attention from the standpoint of the procedural limb of the right to life. Cases in which a crime crosses state borders, or evidence of the crime does so, are hardly rare. But they have generally not been litigated before human rights bodies on grounds that the procedural limb has been violated because the states involved did not cooperate sufficiently. The one exception is the European Court of Human Rights. In fact, the Grand Chamber of the Court very recently decided the case of Güzelyurtlu and Others v. Cyprus and Turkey, in which it systematized and developed its approach to the duty to cooperate. If that approach were to be generalized to other human rights treaties, it would be fairly straightforward to argue that Saudi Arabia has failed to properly cooperate with Turkey in investigating Khashoggi’s death.