Saudi Arabia: Family pardon could thwart justice in Khashoggi case

Emad Mekay, IBA Middle East Correspondent

On 22 May, Salah, the eldest son of Khashoggi, said he and his siblings would forgive their father’s killers. The pardon was immediately hailed by the Saudi government-run media as a welcome and ‘rational act’ that would foil attempts to defame the Kingdom of Saudi Arabia. Neither the Saudi Ministry of Justice nor the Saudi embassies in Washington and Cairo returned calls from Global Insight for comment or clarification of future legal steps the government will take.

Jamal Khashoggi, who was self-exiled, disappeared inside his country’s consulate in Istanbul, Turkey, on 2 October 2018 as he sought documents to help with his future marriage. It later transpired he was killed at the hands of 18 members of the Saudi security service.

After an international outcry, a Saudi public prosecutor charged 11 officials with involvement in the operation. Later, five were sentenced to death while two top advisers to Crown Prince Mohammed bin Salman – Saud Al-Qahtani and Ahmed Asiri – were released due to ‘insufficient evidence’.The trial drew sharp criticism from rule of law advocates worldwide for its secrecy and lack of oversight.

The UN Special Rapporteur on extrajudicial, summary or arbitrary executions, Agnes Callamard, who led a six-month probe into the killing, released a damning report that concluded that Khashoggi's killing was premeditated and perpetrated by the Saudi State. Saudi Arabia rejected this as foreign interference and said justice would be served under its laws, which draw from Islamic penal code. But, Saudi watchers warned that Riyadh may be tampering with its own laws to absolve officials involved.

‘Islamic law recognises the gravity of murder as a violation of the Sharia values of personal security, public safety, and the right to life,’ says longtime watcher of Saudi Arabia John Esposito, who is Professor of Islamic Studies at Georgetown University. Family pardons are allowed in accidental killings, as an alternative to retribution, but rejected in aggravated murder, says Esposito.

Mohammed Fadel is Professor of Law and Economics of Islamic Law at the University of Toronto. He explains: ‘In the ordinary case of homicide, which is, as an initial matter in Islamic law, viewed as an injury to a specific person, the reason why the family can forgive is the assumption that the killer may have acted in the moment out of anger; out of a rush of adrenaline because he got caught up in a fight that got out of hand with the victim and ended up killing him. Even though the killing was intentional, he didn’t have malice of forethought that led him to do that. So therefore, there’s a good argument that this act of the defendant is not part of the murderer’s character, and therefore if the victim’s [family] forgave him, it doesn’t represent a terrible threat to the public at large.’

Unlike killing in error, premeditated murders in early Islamic law scripts were titled Gheila, an Arabic term connoting killings by deceit and treachery. ‘In the case of murder with premeditation and with malice, however, the viciousness of the act suggests something much deeper about the criminality of the defendant, that the defendant who does such an act is a danger to everybody and therefore is a threat to the public order at large. Accordingly, it would not make sense to allow private interests of forgiveness to overcome the public’s interest in punishment of a malicious defendant,’ Fadel says.

Esposito agrees. ‘In the cases of premeditated murder or murder committed in the course of banditry, however, capital punishment of the offender was mandatory, without regard to the consent of the victim’s family,’ he said, referring to Islamic law.

Until the sudden family forgiveness, the general understanding was that Khashoggi murder would proceed as a Gheila killing under the Saudi legal system because of the laborious planning, brutality and subsequent cover-up.

The Co-Chair of the IBA’s Criminal Law Committee, Mauro M Wolfe, says the Khashoggi case in common law, such as in the US, would be treated with extra strong protections to serve justice in the public interest for its high degree of premeditation. ‘This is a premeditated act of murder with aggravating circumstances following the killing, including dismemberment of the body. Mr Khashoggi was murdered for exercising his right to free speech. That is an important right in the US and warrants strong protections,’ Wolfe said.

‘It’s a Gheila killing in the language of the Muslim jurists,’ says Fadel. ‘Jamal Khashoggi was lured into the Saudi consulate with assurances that he would be safe. He had no opportunity to defend himself and he was essentially ambushed by a group of government agents who executed him in cold blood.’

The move to use family forgiveness to close the case also contradicts previous Saudi legal rulings and bylaws. In 2014, Saudi Arabia’s former Minster of Justice, Muhammad al-Issa, issued a directive that planned manslaughter is not pardonable according to Saudi law. A year later, the Ministry of Justice reiterated this decision. Previous rulings and Saudi Ministry of Justice statements seen by Global Insight reveal family pardons were routinely rejected in first degree murder.

Rule of law advocates say pardons as stated in Islamic penal code are nearly non-existent in comparable criminal law or international law and say an unjustified family pardon would undermine the rule of law. ‘Generally, family members of victims cannot stop a prosecution, unless they do so informally by refusing to testify. In the US, think of the criminal system and the civil system as separate but parallel tracks of a train.  Generally, criminal cases take more importance and do not control the other,’ Wolfe says, adding that Saudi justice is poised to be thwarted. ‘This outcome undermines the rule of law and questions the legal system,’ he says.

Esposito said that invoking forgiveness in this case is designed to let the real mastermind off the hook particularly after major intelligence agenices implicated Crown Prince Mohammed bin Salman himself in the murder. ‘The government’s position has no legal basis in Islamic law, and therefore no merit. It does not follow the previous court ruling and the previous conviction in sentences. It will enable those who were found guilty to be "forgiven" in a premeditated murder and released and will in effect bury the issue of who in the Saudi government was responsible for initiating or for approving the brutal murder of Khashoggi,’ he says.

Fadel too sees the development as primarily political rather than legal. ‘I think it reveals how arbitrary it is and how easily manipulated it can be when the government can pick and choose among different interpretations of the law a view that is most convenient with its own political interest,’ he says.