JAMAL Khashoggi, a US resident, contributor to the Washington Post and vocal critic of the Saudi regime, entered the Saudi consulate in Istanbul on Oct 2 and was killed therein, allegedly by a team of 15 Saudi ‘operatives’.

That Khashoggi’s premeditated killing and alleged dismemberment was a clear violation of international law is not disputed. In addition to being a violation of international human rights law, the killing also contravenes the 1963 Vienna Convention on Consular Relations, whose language largely mirrors that of the 1961 Vienna Convention on Diplomatic Relations. Article 31 of the 1963 convention states that “[t]he premises of the mission shall be inviolable. The agents of the receiving state may not enter them, except with the consent of the head of the mission” and “[t]he premises of the mission … shall be immune from search, requisition, attachment or execution”. However, Article 55 also obliges the sending state to comply with the laws of the host state, stating that “[w]ithout prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving state” and “[t]he consular premises shall not be used in any manner incompatible with the exercise of consular functions”.

While consular and diplomatic premises are inviolable under the 1963 convention, they remain within the territory of the host state, which retains the right and obligation to enforce its laws throughout its domain. Of the suspects arrested by Riyadh, it must be stressed that, though several members of the 15-person team directly implicated in the Khashoggi’s killing have been identified as belonging to the Saudi General Intelligence Directorate, they were not diplomatic or consular agents and are thus not entitled to the protections of the Vienna conventions.

Further, while Saudi Arabia has not claimed diplomatic immunity for the 18 suspects, including three consular staff who fled Istanbul following the killing, such immunity would not be applicable in any event because, unlike diplomatic agents like ambassadors, consular agents are not entitled to absolute immunity under the Vienna conventions and may be prosecuted by the host country if suspected of committing a crime; this is because consular immunity only extends to consular functions. The perpetrators would also not be immune to civil liability should Khashoggi’s family choose to sue them.

Unlike diplomatic agents like ambassadors, consular agents are not entitled to absolute immunity.

Further, the mere fact that the crime was committed by Saudi nationals within the Saudi consulate in Istanbul does not exclude Turkey’s territorial jurisdiction over the matter. The inviolability of consular premises does not preclude Turkey from prosecuting the criminal act of murder committed on its soil under its domestic criminal legal system.

The extra-legal killing of Khashoggi has, ironically enough, built momentum for justice to be meted out through a legal framework, with the European Parliament issuing the strongly worded Resolution 2018/2885 (RSP) calling for “an international, independent and impartial investigation” into the extrajudicial killing of Khashoggi, and for the establishment of “a dedicated team with extensive experience in international investigations” to produce “a public report with its findings and recommendations to ensure that the perpetrators are brought to justice”. Through this resolution, the European Parliament also reminded “the Saudi regime that, as a party to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Saudi Arabia is obliged to take all measures to prevent torture, enforced disappearances and other serious human rights violations, to investigate allegations of acts constituting these crimes, and to bring to justice those suspected of committing them”.

An international inquiry into assassinations or terrorism is not without precedent; following the bombing of Pan Am Flight 103 over Lockerbie, Scotland, the three-year joint British and American investigation, backed by UN sanctions, pushed the recalcitrant Libyan government into handing over the two suspects. Similarly, following the 2005 assassination of former Lebanese prime minister Rafic Hariri, the UN investigated the matter, whose preliminary findings of Lebanese and Syrian government involvement prompted the establishment of the UN Special Tribunal for Lebanon, tasked with investigating and prosecuting those responsible for killing Hariri. A similar investigative process was initiated by the UN after the killing of former prime minister Benazir Bhutto.

Given the brazenness of Khashoggi’s killing, and the deleterious effect it is likely to have on regional peace and security, the UN Security Council may, in exercise of its powers under Chapter VII of the UN Charter, establish a tribunal to investigate the premeditated assassination of a journalist in one state by agents of another. The findings of such a tribunal could result in sanctions on the kingdom or key members of the Saudi regime, trade boycott, and diplomatic isolation, pushing Saudi Arabia into cooperating with the investigation, much like the probe into the Lockerbie bombing pushed Tripoli into cooperating with the trial.

As no extradition treaty exists between Turkey and Saudi Arabia, Istanbul formally requested Riyadh to have the 18 suspects extradited, a request which Riyadh rejected. Turkey’s President Recep Erdogan has initiated a domestic inquiry into the incident and wants the suspects prosecuted in Turkish courts. Istanbul may yet opt to approach Interpol in the event that Riyadh refuses to cooperate with its investigation and in turn obtain a ‘Red Notice’ from Interpol, whereby the Interpol General Secretariat issues a request to locate and provisionally arrest individuals pending their extradition. This has the effect of flagging the individuals to border officials around the world, making it difficult for them to travel. This also provides countries with a means to share information on the individuals in question, facilitating Turkey’s efforts to bring the perpetrators to justice.

Istanbul’s desire for a trial may, however, prove problematic in terms of the potential geopolitical and economic ramifications for Turkey. After all, Saudi Arabia remains a key investor in Turkey and a significant influence in Near Eastern politics.

Sikander Ahmed Shah is former legal adviser to Pakistan’s foreign ministry, and faculty, Lums Law School.

Abid Rivzi is an expert on international law.

Published in Dawn, November 9th, 2018


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