One Year After: Jamal Khashoggi Still Seeks Justice Under International Law By: Chinonso Emmanuel Nwoye

“Doth God Pervert judgement? Or Doth the Almighty pervert justice?” Job 8:3, Old Testament, New King James version.

For those of the Christian faith, the above verse represents an obvious suffering of Job over something he had absolutely no control over, other than a sheer “trial” from his maker, or so it is believed to be, as perceived by many religious schools of thought. There were a couple of lamentations as Job questioned his maker as to why evil befell him and why what was earlier on a cruise control, culminated into an overnight crisis.

I have no doubt whatsoever, that wherever Jamal Khashoggi is, the above verse should be his line of questioning, seeing that one year down the line, there is no definite response to the question of who killed him and the steps being taken by state and non-state actors are so watery, that they cannot pass the test of equity, which considers as done, that which ought to be done. The only difference between Job and Khashoggi remains in my opinion, the fact that Job, like the Cinderella Fairy tale, lived happily ever after, but Khashoggi is not present to tell the story of his extra consular ordeal.

Without doubt, the International Human Right to life has attained the status of Jus Cogens, peremptory international law norm, for which no derogation is allowed. This altruistic fact was again restated at the United Nations World Conference of 1993, where 171 state parties adopted by consensus, the Vienna Declaration and Program of Action, inclusive of Saudi Arabia.

Of the many resolutions reached, states and institutions were called upon to include human rights, humanitarian law, democracy and the rule of law in their respective curricular.  The conference is largely considered to be the United Nations reinforcement of the principles and declaration of Human rights, contained in the Universal Declaration of Human Rights (UDHR) of 1948.

October 2^nd of 2018 remains till date, a black day in the history and corridors of International Law, an affront on the globally recognized human right to life, freedom of speech, a crackdown on journalists and perceived “dissidents” and largely, a validation of the school of thought which views international law as being only able to bark and not bite.

SYNOPSIS

On the 29^th of September 2018, Jamal Khashoggi went to the Saudi Arabia consulate in Instanbul to secure a date for which he would return to the embassy with the requisite materials and paperwork for getting married to his Turkish fiancée Hatice Cengiz. He was then given the 2^nd day of October 2018 to return to the embassy. Before then, a team of 11 people believed to be hired assassins who work closely with the crown prince and Al Qahtani, flew into Turkey. On the fateful day, he went with his fiancée but left her outside, with the instruction to raise an alarm if he wasn’t out within a period of time. Popular opinion has it that he somewhat felt what was coming, knowing how much criticism he has levelled against the Crown Prince of Saudi Arabia and his policies which the journalist considered as bullish, as well as the Saudi Government as a whole which he (Jamal Khashoggi) once served. True to his premonitions, Khashoggi did not make it out alive. He was immediately lured into a room, pounced on, killed, and his body dismembered with a bone saw and afterwards melted with an acid. All in a bid not to leave traces of his death which Turkish authorities would have been able to properly investigate forensically. Turkey sought to, and eventually gained entrance into the consular premises to carry out quality investigation, seeing that someone was killed on their “home soil”.

International Law has gained giant strides in man’s struggle for civilization but the death and disappearance of Jamal Khashoggi under the circumstances in which it happened calls for a re-examination of status quo and an urgent move to sanitize certain principles and provisions of key treaties and charters. The issues emanating from that incident are of the nature as to questioning the progress of international law, its successes in keeping the globe together, and he attendant exploitable loopholes. This issue is deeply complex because in one breadth, there is a need to bring the perpetrators to book under International Law, on the other hand, the “killers” share a responsibility to fish out the killer, a responsibility they would readily shy away from. In the end, one can neither be more catholic than the pope, nor be cry more than the bereaved. This may as well be the reason why not much progress has been made on the issue other than the continuous pouring of the juristic inks of publicist scholars.

THE LEGAL ISSUES

The many issues arising from the extra-judicial murder of Jamal Khashoggi are listed under the following headings for ease of discussion:

1. WHETHER THE DEATH OF JAMAL KHASHOGGI IS A CLEAR VIOLATION OF THE INTERNATIONAL HUMAN RIGHT TO LIFE UNDER THE UDHR, ICCPR AND ASIAN CHARTER ON HUMAN RIGHTS

The right to life and other human rights are the fulcrum of the Universal Declaration of Human Rights (UDHR), which nearly, if not all countries of the world are signatory to. Saudi Arabia, being a member of the United Nations, is also signatory to the convention. Opinions have it otherwise that Saudi Arabia is not part of the UDHR but I do not find that argument persuasive enough in that Saudi Arabia is signatory to the International Covenant on Civil and Political Rights (ICCPR) and the ICCPR is a clear regurgitation of the UDHR, as would be seen in this piece.

In Article 1 of the Declaration,

“All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”.

The above provision was the first and major flouted by the Saudi Arabia in the death of Khashoggi. It is difficult to comprehend how such an offence can be committed in this era where one would have thought that the clamor for human right protection has reached its peak. The fact that everyone is born or endowed with reason follows that no one should be forced out of life for holding any particular opinion whatsoever.

Article 2 of the Declaration states further, that:

“Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty”

Again, Saudi Arabia flouted this all important Article. This is because one of the many issues the Emirate had against him was his membership of the Muslim Brotherhood which is considered by the Emirate to be an extreme fundamentalist group, whereas the above article discourages discrimination on the grounds of race, gender or even membership of organization, or opinion held. Freedom of speech is a universal right. As such, no one can, or should be victimized for whatever opinion is held. Ultimately, the Khashoggi’s right to life and security of person guaranteed by Article 3 of the UDHR was trampled on, worse still in a diplomatic premises.

Saudi Arabia’s action was a clear violation of the declaration of his human rights.

It is a known fact that the ICCPR is an off shoot of the UDHR. The ICCPR is part of the conventions forming the bill of rights, and is a globally acknowledged convention with regards to political and civil rights. As at date, there are 172 countries that have ratified the covenant of which Saudi Arabia is one of them.

According to Article 2(1) of the ICCPR

“ Each State Party to the present covenant undertakes to respect, and to ensure to all individuals within its territory and subject to its jurisdiction, the rights recognized in the present covenant, without distinction of any kind, such as Race, Colour, Language, Religion, Political or other opinion, National or social origin, property, birth or other status” (Emphasis Mine).

Interestingly, Part II Article 2(3)(a) of the ICCPR further states that

“Each State Party to the Present Covenant Undertakes: To ensure that any person whose rights or freedom as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity.”

It is worthy of note, that the principle that one cannot hide under the guise of official responsibility to commit crime, has become jus cogens, as was established in the Nuremberg Trials. It follows that the plea of “Respondes Superior” will not avail the perpetrators of such an act, and where it can be established that there are state actors to a crime (as has been in this case), the kingdom ought to be held accountable as is the global outcry.

The Asian Human Rights Charter is another Human Rights Instrument which Saudi Arabia has ratified. The 1998 charter is a clear further codification of the Universal Declaration of Human Rights of 1948 and the ICCPR.

According to Paragraph 2.2 of the preamble to the Charter, under the heading “Universality and Individuality of Rights” it provided thus:

“We endorse the Universal Declaration of Human Rights, The International Covenant on Economic, Social and Cultural and Cultural Rights, The International Covenants on Civil and Political Rights and other international instruments for the protection of human rights and freedoms…….”

It is interesting to observe that the Asian Human Rights Charter simply embodies the ICCPR and more or less, replicates the provisions of the Later. The import of this is that the duty to observe human right to life is replicated in the Asian Human Rights Charter which Saudi Arabia is signatory to and can therefore not derogate from.

Article 6.1 of the Charter recognizes the right to cultural identity and freedom of conscience. A combined reading of the Asian Human Rights Charter and the ICCPR would reveal that there exists, a duty to preserve human life and not forcefully take same under any guise.

As a buttressing factor, it would be germane to consider the case of Ahmadio Sadio Diallo (Republic of Guinea) V. Democratic Republic of Congo, Judgement delivered on 3oth November 2010 Where it was held that expelling Diallo was a clear violation of the provisions of The International Covenants on Civil and Political Rights. Khashoggi was also murdered without trace and I am of the considered view that his murder can be treated as a disappearance  for the purpose of the applicability of the principles reached in the above case.

2. WHETHER THE DEATH OF KHASHOGGI IS AN AFFRONT ON THE CONVENTION AGAINST TORTURE

Another core issue that arose from the extra judicial killing is the issue of the torture that was meted out to Jamal Khashoggi. Article 1 of the convention thus

“For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”

The journalist was unduly tortured before his death and sadly, his body was not even recoverable for burial. Saudi Arabia has clearly not demonstrated efforts to keep to the dictates of this convention. Article 2(1) further states that

“Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.”.

The trial of the 11 persons involved in the murder has been largely shrouded in secrecy. This for me, is a demonstration of Saudi’s unwillingness to be bound by a treaty they signed. According to America’s Central Intelligence Agency, the crown prince Mohammed Bin Salman, was directly involved in the murder of the journalist. It is somehow clear that shrouding the trial in secrecy is a strategy to reduce the tendency to tie the murder to the crown prince.

ARTICLE 2 (2) states that “

“No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”

Article 2 (3) further states that

“An order from a superior officer or a public authority may not be invoked as a justification of torture.”. This is an encapsulation of the Nurremberg trials.

Countries who are signatory to this all important convention, can rely on the case of Belgium V. Senegal to hold Saudi Arabia to account, especially under the principle of state responsibility. In that case, one of the many principles derived from it is that once any state party to the Convention Against Torture was able to invoke the responsibility of another state party with  view to ascertaining the alleged failure to comply with her obligations Erga Omines Partes, Belgium as a party had the standing to invoke the responsibility of Senegal for the alleged breaches of its obligations under Article 6 and Article 7 of the Convention. It follows that any “Interested Party”, especially Turkey, can succeed in an action against Saudi Arabia at the International Court of Justice.

3. THE EXTENT OF INVIOLABILITY OF CONSULAR PREMISES AND PERSONS

This issue is perhaps the most debated because it captures the exact scenario of what happened. It also carries a direct applicability of a treaty to the instant scenario.

Article 31 states thus:

(1.) Consular premises shall be inviolable to the extent provided in this article.

(2.) The authorities of the receiving State shall not enter that part of the consular premises which is used exclusively for the purpose of the work of the consular post except with the consent of the head of the consular post or of his designee or of the head of the diplomatic mission of the sending State. The consent of the head of the consular post may, however, be assumed in case of fire or other disaster requiring prompt protective action.

(3.) Subject to the provisions of paragraph 2 of this article, the receiving State is under a special duty to take all appropriate steps to protect the consular premises against any intrusion or damage and to prevent any disturbance of the peace of the consular post or impairment of its dignity.

(4.) The consular premises, their furnishings, the property of the consular post and its means of transport shall be immune from any form of requisition for purposes of national defence or public utility. If expropriation is necessary for such purposes, all possible steps shall be taken to avoid impeding the performance of consular functions, and prompt, adequate and effective compensation shall be paid to the sending State.

The convention did not make specific mention of gaining entrance into a consular premises in times where a crime is committed but one can leverage strongly on Article 41 which envisages that a consular officer can be arrested on allegations of grave crime. It should follow that a consular premises can be invaded for the purpose of arresting such a consular officer accused of having committed a grave crime.

It is understandable that International Law has a measure of “do me I do you”, what in proper parlance is called “the right of legation” and that was why Turkey had to thread with caution in invading the consular premises of Saudi Arabia, I am of the considered view that it was caution taken too far, because there was already a massive cleaup of the premises by the time they were eventually let in.

Khashoggi’s murder was not just a killing on Turkish soil, but one that violated a second core rule of international law: diplomatic and consular missions must be used for specific official purposes, in exchange for which states hosting embassies and consulates must grant the buildings and staff diplomatic or consular immunity. This rule appears in both the 1961 Vienna Convention on Diplomatic Relations and the 1963 Vienna Convention on Consular Relations. Under the consular convention, the first listed function of a consulate is “protecting in the receiving State the interests of the sending State and of its nationals, both individuals and bodies corporate, within the limits permitted by international law.” Another article states that consular officials must “respect the laws and regulations” of the host state. It doesn’t take an international lawyer to conclude that murdering one of your citizens in a consulate violates this rule.

A major case law on this principle of inviolability is the case of United States of America V. Iran[1]

In that case, US citizens were held hostage in the Embassy of the US in Tehran, after a violent revolution of the Islamic Revolutionary Guard.

In making a decision, the court held That the Government of Iran, in tolerating, encouraging, and failing to prevent and punish the conduct described in the pre- ceding Statement of Facts [in the Application], violated its international legal obligations to the United States as provided by

– Articles 22, 24, 25, 27, 29, 31, 37 and 47 of the Vienna Convention on Diplomatic Relations,

–  Articles 28, 31,33,34,36 and 40 of the Vienna Convention on Consular Relations,

• –  Articles 4 and 7 of the Convention on the Prevention and Punishment of Crimes against Internationally Protected Per- sons, including Diplomatic Agents, and
• –  Articles II (4), XIII, XVIII and XIX of the Treaty of Arnity, Economic Relations, and Consular Rights between the United States and Iran, and 
- Articles 2 (3), 2 (4) and 33 of the Charter of the United Nations;

One can argue that the case may not have direct bearing on Khashoggi’s case in that Khashoggi was murdered, on the orders of his fellow country man, what remains a constant however, is the fact that a criminal activity took place in a consular premises, contrary to the functions of a consular premises as stipulated by the Vienna Convention on Consular Relations. This principle of the sanctity of consular premises and diplomatic premises as enunciated in the above case, can be relied on in holding Saudi Arabia to account, especially the high ranking officials, believed to have masterminded the entire event, including the possibility of the direct involvement of Mohammed Bin Salman.

For the avoidance of doubt, Article 41 of the VCCR provides for the personal inviolability of consular officers thus:

1.Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority.

2.Except in the case specified in paragraph 1 of this article, consular officers shall not be committed to prison or be liable to any other form of restriction on their personal freedom save in execution of a judicial decision of final effect.

3.If criminal proceedings are instituted against a consular officer, he must appear before the competent authorities. Nevertheless, the proceedings shall be conducted with the respect due to him by reason of his official position and, except in the case specified in paragraph 1 of this article, in a manner which will hamper the exercise of consular functions as little as possible. When, in the circumstances mentioned in paragraph 1 of this article, it has become necessary to detain a consular officer, the proceedings against him shall be instituted with the minimum of delay.

From the above provisions, it is clear that even though consular officers enjoy immunity, such enjoyment of immunity is not absolute, as (1) further states that where a grave crime is committed, such a consular officer can be subjected to the criminal jurisdiction of the receiving state. One can argue that the head of consul hid under these provisions on inviolability of consular premises and consular persons, to refuse Turkey initial entrance. It would be recalled that Turkish officials eventually gained proper entrance into the premises on the 15^th of October 2018, almost 13 days after the incident. Diplomatic cars were also eventually searched on 17^th August 2018. The import of this is that the head of the consulate is also supposed to be tried for the cover up role he played in the entire incident, since it is nonsensical to claim that the Saudi Hit team of 11 who arrived Turkey to execute the mission, did so without his knowledge. It further suggests that although Saudi Arabia has the exclusive right to try the 11 suspects currently being tried, Turkey also have some claims to be able to try them since immunity is not impunity. Perhaps the only reason Turkey is not trying them today is the fact that they were picked up in Saudi Arabia after the completion of the mission. Saudi Arabia has also rejected calls to have them extradited to Turkey to face trial. This act has made every scholar of International Law to doubt Saudi’s commitment to bring them to book. This view is also contained in the United Nation’s special report on Khashoggi. Many have also viewed the 11 man hit squad as scape goats since in the end, it is more than clear that they were acting under instructions.

4. THE UNITED NATION’S REPORT

Following a global outcry about the death of Khashoggi, which even Saudi Arabia did not envisage in what is till date, considered as the biggest political mistake of Mohammed Bin Salman, the United Nations set up a committee to investigate the matter and submit a comprehensive report. It is largely referred to as the “Callamard’s UN Report”

The report had the following findings:

1. That the killing of Mr. Khashoggi’s constituted an extrajudicial killing for which the State of the Kingdom of Saudi Arabia is responsible. His attempted kidnapping would also constitute a violation under international human rights law.
2. The killing of Mr. Khashoggi further constituted a violation of the Vienna Convention on Consular Relations (thereafter VCCR) and of the prohibition against the extra-territorial use of force in time of peace (customary law and UN Charter). In killing a journalist, the State of Saudi Arabia also committed an act inconsistent with a core tenet of the United Nations.
3.  Further, the circumstances of the killing of Mr. Khashoggi may constitute an act of torture under the terms of the Convention Against Torture, ratified by Saudi Arabia. Finally, the killing of Mr. Khashoggi may also constitute to this date an enforced disappearance since the location of his remains has not been established.
4.  The Special Rapporteur has determined that there is credible evidence, warranting further investigation of high-level Saudi Officials’ individual liability, including the Crown Prince’s. this further buttressed the position of America’s CIA that Mohammed Bin Salman ordered the killing of Jamal Khashoggi. This technically means that Mohammed Bin Salman killed Khashoggi.
5. The Special Rapporteur also found that under the terms of the VCCR, Saudi authorities were under no legal obligation to grant access to the Consular premises to the Turkish investigators. However, Saudi Arabia was under an international obligation to cooperate with the Turkish authorities in the investigation of the killing of Mr. Khashoggi. Such cooperation necessarily demanded that they gave access to the consulate to the Turkish authorities in a prompt and effective fashion and in good faith. The thinking is that Consular immunity was never intended to enable impunity.

People have often argued how Saudi Arabia can be held accountable, seeing that from the look and feel of the event, there was an explicit instruction from a top authority. In Turkey’s investigation, a telephone call was intercepted and in that call, one of the 11 persons currently being held and undergoing trials in Saudi Arabia was heard to have called a top authority in Saudi Arabia with the following words “Tell the boss that the deed has been done”. One crucial issue that arises here is what is in International Law, known as “State Responsibility”.

Under 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 their powers.

The Kingdom of Saudi Arabia has since taken timid steps towards addressing its State responsibilities in terms of prosecution and reparation. But these stop short of what is required under international law. The accountability gap is all the more worrying given that it concerns a crime that has received an unprecedented level of attention and outcry internationally, including official public condemnation world over. I am of the view that the on-going trial in Saudi Arabia of 11 suspects in the killing of Mr. Khashoggi, while an important step towards accountability, fails to meet procedural and substantive standards. The trial is held behind closed doors; the identity of those charged has not been released nor is the identity of those facing the death penalty. At the time of writing, at least one of those identified as responsible for the planning and organizing of the execution of Mr. Khashoggi has not been charged. The Government of Saudi Arabia has invited representatives of Turkey and of the permanent members of the Security Council to attend at least some of the hearings but the move has not been seen as yielding any fruit since the observation of the trial was upon. the conditional agreement to not disclose its details and as such cannot provide credible validation of the proceedings or of the investigation itself. It is particularly concerning that, given the identity of the observers, the institution of the UN Security Council itself has been made complicit in what may well amount to a miscarriage of justice.

To date, the Saudi State has failed to offer public recognition of its responsibility for the killing of Mr. Khashoggi and it has failed to offer an apology to Mr. Khashoggi’s family, friends and colleagues for his death and for the manner in which he was killed, though a financial package offered to the children of Mr. Jamal Khashoggi but it is questionable whether such package amounts to compensation under international human rights law.

CONCLUSION

While global outcry persists because Khashoggi was not given the privilege of resting in peace, it is pertinent to state that International Law still have lots of loop holes and there’s need for many treaties to be re-addressed to capture core enforceability where there is a core violation of any international law obligation. Although this matte is dicey because the victim was killed by his own people in a place considered as the extension of his home in a foreign land, the victim should not even be the focus but the need to hold state parties truly accountable for their actions. The United States has failed to take the pilot seat in this matter for largely economic reasons, it is clearly on the shoulders of the United Nations to take this steering ship and sanction Saudi Arabia’s authorities since there is more than enough to show that their top hierarchy were involved in the murder.

[1] International Court of Justice 15 December 1979 General Cause List 64