The Khashoggi Affair

What international law can tell us.

Jay Sanklecha

The global outrage following the death and likely murder of the former Washington post journalist Jamal Khashoggi inside the Saudi consulate building in Istanbul by Saudi agents, has triggered an international diplomatic crisis. It is widely believed that Khashoggi a fierce critic of the current Saudi administration, was killed at the behest of or atleast with the acquiescence of the de facto Saudi ruler -Prince Mohammed Bin Salem, although Saudi authorities have vehemently denied this accusation. The ensuing crisis amongst other things has once against brought into sharp focus the rules of international law governing consular and diplomatic relations.

Khashoggi is believed to have been murdered in the Saudi consulate in Istanbul where he had gone to collect some marriage documents. It is speculated that a hit squad of Saudi agents flew into Istanbul on the morning of October 2, the day of Khashoggi’s scheduled meeting in the consulate – proceeded to detain the journalist there, interrogate and finally murdered him. The alleged perpetrators thereafter flew back to Riyadh on the evening of the same day. While initially denying this version of events, in the wake of increasing media scrutiny, Saudi authorities have appeared to finally confirm this version of events, claiming that the alleged agents had gone “rogue”.

Jamal Khashoggi | Source: DNA India

In the aftermath of the disappearance of the journalist – Saudi prince Mohammend Bin Salem claimed, and as is the popular perception, that the Saudi consulate in Istanbul was the “sovereign territory” of Saudi Arabia.  The claim, if correct would have a number of startling implications. It would mean foremostly that this was largely a domestic issue –governed under Saudi domestic law which Saudi authorities would have the responsibility to investigate – to the exclusion of Turkey.  

However, contrary to popular belief, and claims by Saudi prince Mohammed Bin Salem, embassies and more specifically consulates – in issue in the present case- are not extensions of sovereign territory – but are under the jurisdiction and subject to the laws of the host state. This has important implications – both external and internal. If the actions of the agents in killing Khashoggi can be attributed to Saudi Arabia, it can arguably constitute a violation of Turkey’s sovereignty – more specifically as an unlawful use of force that is prohibited under Article 2(4) of the United Nations Charter. Internally, it would mean that Turkey remains primarily responsible for the investigation of the murder of the journalist in accordance with its own domestic laws.

The confusion, as evident from the claims made by Bin Salem, over the status of consulates stems from the rule of inviolability of embassies and consulates under international law, more specifically under the respective Vienna Conventions on diplomatic and consular relations. The rule of inviobility of consulates and embassies posits that the host state is under a special duty to take steps to protect diplomatic and consular premises against any intrusion, disturbance, damage, or any other impairment of the dignity of the premises. The host state therefore cannot enter a consular premise without the express consent of the head of the consular post, except in case of fire or other disasters requiring prompt action, where such consent is presumed to have been given. However, the rule of inviolability of consular premises, albeit absolute, does not make the consular or diplomatic mission, an extension of the “sovereign territory” of the sending state.

The rule has nevertheless served to impede the investigation by the Turkish authorities, which could only enter the premises after almost two weeks since Khashoggi’s disappearance till the Saudi authorities consented, by which time it is claimed that the premises had been freshly painted and the cars etc. thoroughly cleaned.  However, given that the rationale of granting such immunity – evident from the preamble to the conventions, resting as it does on the need to enable diplomatic and consular missions etc to carry out their functions efficiently– not to murder people -there are some who argue that the application of the rule requires a reconsideration in this particular instance. That, however, remains a minority and largely contested opinion.

Another interesting aspect of the matter concerns the immunity available under international law to those alleged to have participated in or even witnessed the detention, interrogation and eventual killing of Khashoggi. It is pertinent to bear in mind that Khashoggi’s murder took place within a consular premise and not the embassy – relevant since consular functions and the extent of immunity available to consular staff – is far more limited under international law. Consular staff enjoy immunity from arrest, detention etc. and even giving evidence in trial under international law only in exercise of their consular functions. While it is debatable whether Saudi Arabia can qualify the agents as “consular staff” even assuming that may be the case, the immunity available to such personnel is limited by the extent of their functions and does not in any event extend to “grave crimes”.

On any view of the matter, detaining, interrogating and executing a person cannot fall within the scope of consular functions as understood in the Vienna convention. Further, whatever its precise scope may be, there is a general consensus, that killing of a person constitutes a grave crime under international law to which no protection or immunity extends. Turkey can therefore legitimately detain, arrest, interrogate consular personnel involved in the execution. However, this remains problematic in the case of the agents who are now safely in Riyadh- as Saudi authorities have so far refused to hand them over to the Turkish authorities.

The Khashoggi affair, is also perhaps emblematic of a deeper malaise in the enforcement international law – the role of soft power. Prior to the Khashoggi’s death- he was a stanch critic of the Saudi intervention in Yemen -however not much global attention was devoted to the issue. Ironically, his death has resulted in a global outcry- presumably since it has happened on Turkish territory – however unfortunately that outcry has not extended to the causes he gave his life for.   


Jay Manoj Sanklecha (The author is an LLM candidate at the Graduate Institute of International and Development Studies, Geneva.  The views expressed are personal)

  

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