A “legal crossroads for the international community”?: Khashoggi’s Assassination and the Legal Avenues for the U.S. and the World

PC: Chris McGrath via Getty Images.  [https://www.axios.com/despite-fraught-ties-us-needs-turkeys-cooperation-on-khashoggi-1a9e7df9-9d92-4c23-a6ce-2198f0ec9044.html]

By: Mollie Laird

On October 2, 2018 Jamal Khashoggi went missing from the Saudi consulate in Istanbul, Turkey.[1] Quickly, speculation began to rise about Khashoggi’s whereabouts, including allegations of misconduct on behalf of Saudi Arabia, who dismissed their involvement in Khashoggi’s disappearance.[2] After two tense weeks of speculation in the international press, the Saudis admitted that Khashoggi had been killed inside the consulate after an alleged “brawl.”[3]

Since the uproar across the world, discussions have risen on the legal implications, both domestically and internationally, of the killing of a critic and journalist seemingly ordered by a government who was the target of the victim’s criticism.[4] One journalist called this story a “legal crossroads for the international community,” and a crime “ranked amongst the very worst perpetrated in a diplomatic mission in modern times.”[5] Still, the legal avenues to handling this murder are aplenty, and more importantly still developing. What can the United States and the countries of the world do in response?

First, the United States has its domestic option to respond to Saudi Arabia’s behavior. In 2016, Congress passed, and President Obama signed into law, two sanctions laws relating to human rights violations.[6] Both laws known under the name Magnitsky (one, the Sergei Magnitsky Act and the other, the Global Magnitsky Act) seek to punish, through financial sanctions and visa bans, on foreign governments and actors who commit human rights violations, exactly like the murder of Khashoggi.[7] The namesake of the laws, Sergei Magnitsky, was a Russian lawyer and critic of the regime, who died in prison after exposing fraud in the Russian government.[8] Since Khashoggi’s disappearance, a bipartisan movement in Congress has demanded the Magnitsky Act be invoked to impose sanctions against Saudi Arabia broadly.[9]

Second, the Vienna Convention treaties on diplomatic immunity and consular relations apply. Diplomatic immunity could be invoked by the Saudis, but has not yet.[10] Still, many legal scholars expect diplomatic immunity will not be an issue because consulate officials do not have absolute immunity under the Vienna Convention and may be tried in a host country for serious offenses.[11] Diplomatic immunity may also be used for political punishments under the Conventions by downgrading ties and imposing financial sanctions.[12] Under Article 55 of the Consular Affairs Convention, consular premises “shall not be used in any manner incompatible with the exercise of consular functions.”[13] Arguably, murder and dismembering the body is “incompatible with the exercise of consular functions,” thus leaving the Saudis in violation of the Convention.[14]

Third, countries who recognize the principle of “universal jurisdiction” could take action.[15] For example, the United Kingdom, who recognizes universal jurisdiction, could bring charges against the assassins in domestic courts for committing “serious crimes against humanity.”[16] The consequences of this course of action would be that those individuals could not travel and may face arrest if they enter the United Kingdom.[17] This would also send a powerful message to the rest of the world that the United Kingdom is “willing to uphold international law and human rights.”[18]

Finally, the most obvious option would be for Turkey to bring charges against the Saudi assassins. Though the murder occurred in the Saudi consulate, this does not mean it happened on “Saudi land.”[19] The consulate in Istanbul is still considered Turkish soil, and therefore Turkey retains jurisdiction over the crimes committed.[20] However, the Saudi assassins could only be tried in Turkey if Saudi Arabia agreed to extradite the suspects, which they are not required to do because there is no extradition treaty between the two countries.[21] Turkey has, nonetheless, asked for the extradition of the Saudis believed to be involved in the murder.[22]

It is still up in the air the response the United States will take to this action.[23] Turkey, on the other hand, has investigated the murder, developing its own conclusions and asking for extradition.[24] Regardless of the unknown future actions of states, recognizing that international law is capable of punishing bad actors in the international community is not a concept well-known to Americans. By using the legal avenues described here, the United States and countries of the world can show Saudi Arabia that it does not accept extrajudicial killings of critics of regimes.

 

[1] Scott R. Anderson, What International Law Tells Us About the Khashoggi Investigation, Lawfare Blog, (Oct. 15, 2018, 10:31 AM), https://www.lawfareblog.com/what-international-law-tells-us-about-khashoggi-investigation.

[2] Scott R. Anderson, What International Law Tells Us About the Khashoggi Investigation, Lawfare Blog, (Oct. 15, 2018, 10:31 AM), https://www.lawfareblog.com/what-international-law-tells-us-about-khashoggi-investigation.

[3] Ben Keith & Rhys Davies, How international law could be used to prosecute Khashoggi’s killers, The Indep. (Oct. 22, 2018, 4:14 PM), https://www.independent.co.uk/voices/jamal-khashoggi-death-international-law-prosecute-istanbul-saudi-arabia-mohammed-bin-salman-a8596236.html.

[4] Magniksky Act Architect Wants Law Used Against Saudi Arabia Over Khashoggi Disappearance, WBUR-FM (Oct. 19, 2018), http://www.wbur.org/hereandnow/2018/10/19/khashoggi-magnitsky-act-saudi-arabia.

[5] Ben Keith & Rhys Davies, How international law could be used to prosecute Khashoggi’s killers, The Indep. (Oct. 22, 2018, 4:14 PM), https://www.independent.co.uk/voices/jamal-khashoggi-death-international-law-prosecute-istanbul-saudi-arabia-mohammed-bin-salman-a8596236.html.

[6] Magniksky Act Architect Wants Law Used Against Saudi Arabia Over Khashoggi Disappearance, WBUR-FM (Oct. 19, 2018), http://www.wbur.org/hereandnow/2018/10/19/khashoggi-magnitsky-act-saudi-arabia.

[7] Magniksky Act Architect Wants Law Used Against Saudi Arabia Over Khashoggi Disappearance, WBUR-FM (Oct. 19, 2018), http://www.wbur.org/hereandnow/2018/10/19/khashoggi-magnitsky-act-saudi-arabia.

[8] Magniksky Act Architect Wants Law Used Against Saudi Arabia Over Khashoggi Disappearance, WBUR-FM (Oct. 19, 2018), http://www.wbur.org/hereandnow/2018/10/19/khashoggi-magnitsky-act-saudi-arabia.

[9] Magniksky Act Architect Wants Law Used Against Saudi Arabia Over Khashoggi Disappearance, WBUR-FM (Oct. 19, 2018), http://www.wbur.org/hereandnow/2018/10/19/khashoggi-magnitsky-act-saudi-arabia.

[10] Karl Ritter, AP Explains: Diplomatic immunity and the Khashoggi Case, Wash. Post (Oct. 23, 2018), https://www.washingtonpost.com/world/europe/ap-explains-diplomatic-immunity-and-the-khashoggi-case/2018/10/23/01581960-d6fd-11e8-8384-bcc5492fef49_story.html?utm_term=.0f407cbe3d07.

[11] Karl Ritter, AP Explains: Diplomatic immunity and the Khashoggi Case, Wash. Post (Oct. 23, 2018), https://www.washingtonpost.com/world/europe/ap-explains-diplomatic-immunity-and-the-khashoggi-case/2018/10/23/01581960-d6fd-11e8-8384-bcc5492fef49_story.html?utm_term=.0f407cbe3d07.

[12] Ben Keith & Rhys Davies, How international law could be used to prosecute Khashoggi’s killers, The Indep. (Oct. 22, 2018, 4:14 PM), https://www.independent.co.uk/voices/jamal-khashoggi-death-international-law-prosecute-istanbul-saudi-arabia-mohammed-bin-salman-a8596236.html.

[13] Karl Ritter, AP Explains: Diplomatic immunity and the Khashoggi Case, Wash. Post (Oct. 23, 2018), https://www.washingtonpost.com/world/europe/ap-explains-diplomatic-immunity-and-the-khashoggi-case/2018/10/23/01581960-d6fd-11e8-8384-bcc5492fef49_story.html?utm_term=.0f407cbe3d07.

[14] Karl Ritter, AP Explains: Diplomatic immunity and the Khashoggi Case, Wash. Post (Oct. 23, 2018), https://www.washingtonpost.com/world/europe/ap-explains-diplomatic-immunity-and-the-khashoggi-case/2018/10/23/01581960-d6fd-11e8-8384-bcc5492fef49_story.html?utm_term=.0f407cbe3d07.

[15] Ben Keith & Rhys Davies, How international law could be used to prosecute Khashoggi’s killers, The Indep. (Oct. 22, 2018, 4:14 PM), https://www.independent.co.uk/voices/jamal-khashoggi-death-international-law-prosecute-istanbul-saudi-arabia-mohammed-bin-salman-a8596236.html.

[16] Ben Keith & Rhys Davies, How international law could be used to prosecute Khashoggi’s killers, The Indep. (Oct. 22, 2018, 4:14 PM), https://www.independent.co.uk/voices/jamal-khashoggi-death-international-law-prosecute-istanbul-saudi-arabia-mohammed-bin-salman-a8596236.html.

[17]Ben Keith & Rhys Davies, How international law could be used to prosecute Khashoggi’s killers, The Indep. (Oct. 22, 2018, 4:14 PM), https://www.independent.co.uk/voices/jamal-khashoggi-death-international-law-prosecute-istanbul-saudi-arabia-mohammed-bin-salman-a8596236.html.

[18] Ben Keith & Rhys Davies, How international law could be used to prosecute Khashoggi’s killers, The Indep. (Oct. 22, 2018, 4:14 PM), https://www.independent.co.uk/voices/jamal-khashoggi-death-international-law-prosecute-istanbul-saudi-arabia-mohammed-bin-salman-a8596236.html.

[19] Scott R. Anderson, What International Law Tells Us About the Khashoggi Investigation, Lawfare Blog, (Oct. 15, 2018, 10:31 AM), https://www.lawfareblog.com/what-international-law-tells-us-about-khashoggi-investigation.

[20] Scott R. Anderson, What International Law Tells Us About the Khashoggi Investigation, Lawfare Blog, (Oct. 15, 2018, 10:31 AM), https://www.lawfareblog.com/what-international-law-tells-us-about-khashoggi-investigation.

[21] Ben Keith & Rhys Davies, How international law could be used to prosecute Khashoggi’s killers, The Indep. (Oct. 22, 2018, 4:14 PM), https://www.independent.co.uk/voices/jamal-khashoggi-death-international-law-prosecute-istanbul-saudi-arabia-mohammed-bin-salman-a8596236.html.

[22] Kareem Fahim & Louisa Loveluck, Erdogan says order to kill Khashoggi ‘came from the highest levels of the Saudi government.’, Wash. Post (Nov. 2, 2018), https://www.washingtonpost.com/world/netanyahu-condemns-khashoggi-killing-ashorrendous-but-says-iran-is-the-bigger-threat/2018/11/02/fcb19f82-de02-11e8-8bac-bfe01fcdc3a6_story.html?utm_term=.75bba995ca49.

[23] Carol Morello, Erin Cunningham & Souad Mekhennet, Trump appears to make room for Saudis to deny involvement in Khashoggi disappearance, Wash. Post (Oct. 16, 2018), https://www.washingtonpost.com/world/pompeo-arrives-in-riyadh-for-talks-on-saudi-journalists-fate/2018/10/16/8e1bcb54-d0d5-11e8-a4db-184311d27129_story.html?utm_term=.e127222c354e.

[24] Kareem Fahim & Louisa Loveluck, Erdogan says order to kill Khashoggi ‘came from the highest levels of the Saudi government.’, Wash. Post (Nov. 2, 2018), https://www.washingtonpost.com/world/netanyahu-condemns-khashoggi-killing-ashorrendous-but-says-iran-is-the-bigger-threat/2018/11/02/fcb19f82-de02-11e8-8bac-bfe01fcdc3a6_story.html?utm_term=.75bba995ca49.

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