Global justice: Stakes high for rule of law in Khashoggi case

Emad Mekay, IBA Middle East Correspondent

Saudi journalist Jamal Khashoggi’s disappearance and subsequent death inside his country’s consulate in Istanbul shocked the world. The stakes are too high to allow Saudi power and influence to prevent those responsible from being held accountable.

International law has the right tools to bring those responsible for Saudi journalist Jamal Khashoggi’s murder to justice – even those at the highest level – say leading experts. However, they warn that political considerations are likely to play a significant role, undermining international confidence in the rule of law.

Khashoggi disappeared inside his country’s consulate in Istanbul, Turkey, on 2 October 2018. It transpired he was killed at the hands of at least 15 members of the Saudi security service. Several countries and intelligence agencies have commented on the murder, with the United States Central Intelligence Agency (CIA) saying Saudi Crown Prince Mohammed bin Salman (MbS) was behind the order to kill the 60-year-old for writing articles critical of Riyadh’s policies. The Saudis say the killing was the work of rogue intelligence officers.

The case has shocked the world and raised questions as to whether there are sufficiently powerful legal tools for such circumstances. Saudi Arabia is the world’s second largest oil producer after the US and is heavily invested around the world. Indeed, the Trump administration has made no secret of wishing to protect lucrative commercial interests.

But international law experts say the stakes are far too high for the global justice system to allow those responsible to avoid being held accountable. ‘An international investigation... will send a very strong message that the extrajudicial killing of a journalist is unacceptable and may lead to investigation of that nature,’ says Agnès S Callamard, United Nations Special Rapporteur on extrajudicial killings. ‘There are a number of human rights activists, political dissidents and journalists that are currently living outside their country of citizenship. For all of them, I think this kind of response and investigation can be a guarantor for greater security.’

Federica D’Alessandra, Executive Director of the Oxford Programme on International Peace and Security, points to ‘command responsibility’ in international law as legal grounds for an investigation and a trial. D’Alessandra explains that ‘command responsibility’ requires reason to know of a certain conduct and failure to prevent the acts or punish those directly responsible: ‘There exists a number of ways in which even the highest-ranking officials within governments can be held individually liable under international law if they order or direct the commission of international crimes, or if they have the ability to prevent them and fail to do so. This is because of the criminal liability principle of command responsibility,’ she says. ‘If the allegations concerning the Crown Prince are true, he could be liable.’

Ever more countries are pointing the finger of suspicion at the 33-year-old Crown Prince. Turkish officials say they have gruesome audio of the killings and of the killers talking to their commanders. In the US, the CIA recently concluded that the Saudi journalist, a US resident, was murdered on the order of MbS, who had sent at least 11 electronic messages to his main aide, Saud Al-Qahtani, who oversaw the brutal killing. The messages were reportedly sent directly before and immediately after Khashoggi was killed, according to a top secret CIA report.

The CIA also refers to comments made by MbS, and overheard earlier this year, urging aides to lure Khashoggi – who had been writing a column critical of MbS in The Washington Post – back to Saudi Arabia, or to a third country.

US Senator Lindsey Graham suggested in December that the link between MbS and Khashoggi’s murder is strong. ‘There’s not a smoking gun – there’s a smoking saw,’ Graham told reporters after attending a briefing by CIA Director Gina Haspel. ‘You have to be willfully blind not to come to the conclusion that this was orchestrated and organised by people under the command of MbS and that he was intricately involved in the demise of Mr Khashoggi,’ Graham said.

Nevertheless, the White House and President Trump assert that there’s no direct or definitive link to the Crown Prince, widely believed to be a close ally of Trump’s son-in-law, Jared Kushner.

Despite mixed messages from the US, both Callamard and D’Alessandra are confident justice will prevail in this case. ‘It is only of cold comfort, if of comfort at all, but there are many examples of successful prosecutions and convictions of previously untouchable individuals. Perhaps not immediately, but the long arm of justice eventually catches up, especially with those who commit these crimes in a manner that’s widespread and systematic over many years,’ D’Alessandra says.

There are many examples of successful prosecutions and convictions of previously untouchable individuals

Federica D’Alessandra
Executive Director, Oxford Program on International Peace and Security; Co-Chair, IBA Human Rights Law Committee

D’Alessandra, who is Co-Chair of the IBA Human Rights Law Committee, points out that a backlash against such a gruesome murder can trigger economic boycotts and sometimes cause ‘damage to the status and reputation of certain world leaders’. She outlines that ‘smart and non-judicial ways’ to make people pay for their misconduct include targeted sanctions, especially when implemented by multiple actors in unison.

Callamard says the UN should play a role and an international investigation should be mandated as soon as possible. Callamard, who is also Director of Columbia University’s Global Freedom of Expression project, cites the international investigations that took place after the assassination of Rafic Hariri, Prime Minister of Lebanon, in 2005 and Benazir Bhutto, Prime Minister of Pakistan, in 2007. ‘Of course, those were political appointees,’ she says. ‘Here, we have the killing of a journalist. On the other hand, [regarding] the murder of Mr Khashoggi – because of the ripple effect it is having in many countries around the world and on international relations, on peace and on security – a case can be made that the killing has come to the level of the killing of the Prime Minister of Lebanon.’

Callamard also says that Khashoggi’s constitutes a special case that necessitates unusual measures from the UN. ‘Unusual and exceptional situations require exceptional responses,’ she explains. ‘The fact that we may not be able to find a precedent within the UN thus far doesn’t preclude the UN Secretary-General in particular from identifying possible mechanisms in response to an unusual and exceptional situation. That will also be something that I’d like to invite him and the Security Council to consider and to explore,’ she says.

In the last week of January, Callamard led a mission to Turkey to conduct a preliminary investigation and to secure the evidence to persuade the Secretary-General and the Human Rights Council to initiate a full Judicial Inquiry. Helena Kennedy QC, Director of the IBA’s Human Rights Institute, was part of the mission.

Saudi Arabia’s consulate in Istanbul, Turkey, 25 October 2018.

Both D’Alessandra and Callamard agree that the legal route may not bring swift justice, especially as the US President is perceived as being opposed to putting further pressure on Riyadh. ‘I think the President of the US is trying to explain that commercial interests should take precedence over human rights violations,’ says Callamard. ‘We know that in the world we live in, that is often the case. But I don’t think it is going to be in this particular instance.

‘Even if the mastermind behind the case cannot be held to account in the way we’d want, the fact that an international investigation will name people will certainly result in those individuals being very much blacklisted, even if they cannot be held accountable in a judicial fashion. That will have a huge retribution in terms of sanctions – targeted sanctions – against those individuals and their families,’ she says.

D’Alessandra notes that Saudi Arabia, like many other countries that engage in serious violations of human rights, might feel they can act unchallenged, but, she says, history and justice eventually catch up with almost everyone.

‘Those who are in power today will not be in power forever. With diminished power, their vulnerability increases... In the meantime, there are myriad instruments that can be leveraged to exert pressure. Of course pressure will not always work, but sometimes it does. And it is important that all of us who live in democratic countries – in which governments are in fact accountable to citizens – continue to put pressure on our own leaders to use whatever instruments they can in the international political and economic arena to pressure those who need to be pressured to respect the international rule of law and the rights of their own citizens.’

Emad Mekay is the IBA’s Middle East Correspondent. He can be contacted at emekay@stanford.edu