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

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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.

Second, Turkey could have understood that it would have been legally entitled to take the relevant investigative steps without Saudi consent, but nonetheless chose to ask for such consent. It could have done so in order to avoid antagonizing Saudi authorities and a further deterioration of their bilateral relationship. In particular, it could have been concerned about (unjustified) retaliatory measures by Saudi authorities against Turkish citizens or diplomatic and consular agents in Saudi Arabia. It could also have acted so to avoid any reputational cost internationally from a perceived violation of norms protecting inviolability, even if legally its course of action would have been justified. Or it could have had some other, less principled, political reason. Whatever the reason for its conduct may have been, however, Turkey arguably did not do all it could have done in investigating Khashoggi’s death.

If the analysis in my article is correct, so that Saudi Arabia, and arguably also Turkey and the United States, were in violation of their obligations under IHRL, the question remains what the consequences of these violations should be. State responsibility for internationally wrongful acts involves the duty of the relevant state to cease the act if it is still continuing and to provide full reparation for any injury caused. In particular, Saudi Arabia is obliged to cease any continuing obstruction of any domestic and international investigations into Khashoggi’s death. Saudi, US and Turkish authorities are also arguably obliged to cooperate to investigate Khashoggi’s killing fully. Saudi Arabia should also monetarily compensate Khashoggi’s next of kin for the moral damages that they sustained, both individually and on Khashoggi’s behalf. Any US and Turkish responsibility for failing to protect Khashoggi’s life depends on a further investigation of the relevant facts; at the very least reparation for such a violation would require satisfaction, for example through a public acknowledgement of responsibility.

As for the criminal prosecution of the individuals responsible for Khashoggi’s death, it is possible that the ongoing trials in Saudi Arabia will provide some measure of justice. But it also seems inevitable that those implicated who are closest to the crown prince will be shielded from responsibility. Because murder of a single individual is not itself a crime under international law, and specifically is not a crime of universal jurisdiction, prosecutions of any persons involved in Khashoggi’s death are likely possible only in Turkey or Saudi Arabia. Turkey could, for example, ask Interpol to issue red notices regarding any of the relevant suspects who may travel outside Saudi Arabia, but this will obviously be a matter for the political judgement of the Turkish authorities.

Finally, there is the possibility of a full international investigation, such as the one authorized by the UN Security Council after the assassination of Rafiq Hariri. Hariri’s killing was also simple murder under domestic law and not an international crime, but it resulted in the establishment of the Special Tribunal for Lebanon. This only happened, however, because there was political will in the Council to establish such a court, which has not actually been able to obtain custody over the most important suspects. Bearing in mind the current political climate, the establishment of such a mechanism seems unlikely here.

That said, whether accountability for Khashoggi’s killing is ever fully realized does not change the fact that his right to life was protected by international law, as was the right to life of countless other victims of authoritarian regimes worldwide. The murder was a violation of the rights Khashoggi himself had had under international law, not simply those of the Turkish state. It deserves to be discussed in those terms.

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