The brutal murder of Jamal Khashoggi – a Saudi Arabian journalist and vocal dissident, has strained relations not only between Saudi Arabia and Turkey, but also between Saudi Arabia and the international community. Khashoggi was not only a victim of politically-motivated murder but also a victim of torture and kidnapping, reportedly ordered by the Crown Prince of Saudi Arabia Mohammed bin Salman. His death in the Saudi consulate in Istanbul grants Turkey the sovereign right and jurisdiction to investigate such crimes, while the international community can also intervene as such crimes are explicit violations of international law. However, at the same time, his death took place in a consulate that is protected by certain international laws. Despite such protections, the torturous death of Khashoggi is not immune to international criminal investigations and subsequent prosecution given the severity of the crime.
International criminal investigations of his death and torture can lead to submission into international judicial determination through the Human Rights Council or Security Council of the United Nations (UN), whereby courts or tribunals have the power to determine the responsibility of states under the Responsibility of States for Internationally Wrongful Acts (ARISWA) with a binding legal decision. States can claim universal jurisdiction when human rights violations occur, identifying that norms and laws are erga omnes – owed to the international community, and jus cogens – no derogation is permitted. The use of jus cogens was evident in the International Criminal Tribunal for the Former Yugoslavia when the UN prosecuted crimes committed during the Yugoslav Wars in 1991. While the severity of Khashoggi’s case is limited compared to the noted war in Yugoslavia, states still have the ability to claim universal jurisdiction in cases related to murder. Furthermore, countries have passed laws recognizing universal jurisdiction, as Canada did with the Crimes Against Humanity and War Crimes Act and France did with Article 689 of the code de procédure pénale to give its courts jurisdiction over crimes in other countries.
Understanding the intricacies of the international legal system, it is important to identify the different violations of international law in the Khashoggi case that could be prosecuted. The first of these violations pertains to the Vienna Convention on Diplomatic Relations (VCDR) and the Vienna Convention on Consular Relations (VCCR). Both conventions govern diplomatic immunity – the ability and privilege provided to diplomats exempting them from certain laws in the countries where they are currently residing and working in. Saudi Arabia might try and claim diplomatic immunity for those involved in the murder, but immunity is not applicable in this case. The reason diplomatic immunity does not extend to this case is highlighted in Article 41 of the VCCR, in which there are no exceptions in the instance of a “grave crime.” Specifically, under these conventions, murder and torture are impermissible on foreign soil and the perpetrators of such crimes can be put on trial by the courts of the host country. The Vienna Conventions also place restrictions on what activities may occur within embassies and consulates. Article 55 of the VCCR states that the consular premises “shall not be used in any manner incompatible with the exercise of consular functions.” Khashoggi’s death is a deliberate violation of the Vienna Conventions with his death occurring on consular premises at the hands of a Saudi-led group.
Under the Vienna Conventions, Turkey also has the right to declare those involved in Khashoggi’s murder persona non grata, giving Turkey the ability to expel those involved. Turkey may also use this right to expel Saudi diplomats based in Turkey to signal an issue with the Saudi government as a whole, as the United States did when it expelled 35 Russian diplomats as part of U.S. sanctions imposed on Russia for cyber attacks. According to Article 4 of the VCCR, Turkey can also choose to close the Saudi consulate in Istanbul altogether, as foreign consulates and embassies can only operate with the host country’s consent. In shutting down the Saudi consulate, Turkey would then be able to access it, in accordance with the rule that the host country is permitted to access embassies, consulates, and any diplomatic institutions after they are shut down in the country. We have seen this occur with Britain shutting down Libya’s embassy in 1984, in which Britain searched the premises after a shooting occurred outside the building. The likelihood Turkey pursues such actions is contingent on how much it values its diplomatic relations with Saudi Arabia. Turkey’s commitment to investigating the death of Khashoggi and the international community’s condemnation of the situation has proven that this occurrence remains a possibility.
In addition to the diplomatic and legal repercussions Saudi Arabia may face, Saudi Arabia can also face extradition proceedings from other nations as it is a signatory of the UN Convention Against Torture. Saudi Arabia and the international community have an obligation to uphold the laws in this treaty, with the international community having the added obligation to enforce such laws. However, this is contingent on the willingness of other countries to call for extraditions of those involved in the death of Khashoggi. While the international community as a whole has condemned the death of Khashoggi, there seems to be limited willingness to intervene and hold Saudi Arabia accountable. Western states and entities such as the United States and the European Union have the legitimacy and power to enforce such treaties and have an obligation to do so as perceived champions of human rights. The international community as a whole has enough of an incentive to intervene, as Saudi Arabia not being held accountable for violating international laws and norms sets a precedent that other countries are also able to commit similar violations.
In the United States, members of the Senate have responded to the murder of Khashoggi by introducing a new bill pushing for a “transparent, credible” investigation and further sanctions in addition to the few imposed by the Trump administration. However, President Trump has largely turned a blind eye towards Saudi Arabia’s human rights violations given his continued support of the current regime and the Crowned Prince. European nations have also responded to the case of Khashoggi by imposing a travel ban on those involved with the murder, with Germany also planning to halt arms sales with Saudi Arabia. There is still a possibility that Saudi Arabia will be held accountable, and in doing so, a strong message will be sent to Saudi Arabia that it is no longer able to pursue unjustifiable actions including murder and torture.
In addition to the willingness of the international community to intervene, the criminal investigation and subsequent prosecution of the murder of Khashoggi also depends on Saudi Arabia’s willingness to cooperate with international investigations. Because those involved in Khashoggi’s death remain in Saudi Arabia, Turkey is unable to prosecute his death, kidnapping, and torture, even though Turkey has the authority and jurisdiction to do so. It is up to Saudi Arabia to send those responsible for the death of Khashoggi to Turkey, and up to the international community to bring about justice and hold Saudi Arabia accountable for explicitly violating international laws regarding diplomatic institutions, kidnapping, torture, and murder.