What Does the International Probe into the Khashoggi Case Mean?
Over the past week, media outlets have released new revelations about the murder of Jamal Khashoggi, a prominent Saudi journalist and critic of the current Crown Prince of Saudi Arabia. According to this news, his body was likely burned in a large oven at the Saudi Consol-General’s residence in Istanbul. Also, on March 14, Interpol issued red notices – requests to police forces worldwide to locate and provisionally arrest a person pending extradition – for 20 people regarding the killing of Saudi journalist Jamal Khashoggi at Turkey’s request.
More than five months has already passed since Khashoggi went missing after entering the Saudi Consulate in Istanbul to obtain some documents, but there has been little progress. Just days after he vanished, Turkish officials stated that they believed that Khashoggi had been slaughtered in the consulate building.
Even though this claim was initially denied by the Saudi authorities, a follow-up statement released by the Saudi Ministry of Foreign Affairs claimed that discussions between Khashoggi and Saudi officials at the Consulate “did not go as required and escalated negatively which led to a fight between them … and led to his death”.
This statement was an admission that consulate officials had been involved in a cover-up of Khashoggi’s murder. Even though Khashoggi’s body could still not be found, video and audio recordings obtained by the Turkish authorities whose existence has been attested by multiple sources proved that Khashoggi’s killing in the consulate was not the mere consequence of an escalation between him and consulate officials but pure homicide.
Indeed, some leaks by Turkish authorities have demonstrated that a 15-man squad was sent from Riyadh on October 2 before Khashoggi’s scheduled visit to the Consulate. Not only were some of Muhammed bin Salman’s personal security staff among the members of that squad, as well as Saudi Arabia’s most senior forensics expert. Thus, the presence of many of Muhammad bin Salman’s (MbS) henchment at the scene of the crime has raised suspicions about his direct involvement in Khashoggi’s slaughter.
Legal Progress on Khashoggi’s Case
Despite the strong links between the 15-man squad and MbS, Saudi authorities have so far strongly denied the accusations that MbS may have somehow been linked to Khashoggi’s murder. The initial efforts of the Turkish authorities were unsuccessful in solving the mystery behind this murder with tangible evidence, mainly because of the very late permission given by the Saudi authorities for the investigation to access the consulate. Unfortunately, Saudi Consul Mohammad el Otaibi was also allowed to depart from Turkey without him being subject to any criminal investigation.
On the other hand, after it became clear that Khashoggi had been slaughtered in the Saudi Consulate, the Saudi authorities promised that the Saudi public prosecutors would investigate the crime and that the culprits would be tried in the court. The prosecutors stated that Khashoggi had been murdered by lethal injection in a “rogue” operation by the agents who had been sent to persuade him to return to Saudi Arabia.
Subsequently, the trial of 11 individuals who allegedly took part in that rogue operation began in Riyadh. In addition, five high-ranking officials, including Saudi Deputy Intelligence Chief Ahmed Al Assiri and Royal Court Adviser Saud al-Qahtani, were dismissed from their positions in relation to Khashoggi’s murder.
Nevertheless, these steps did not heal the damage to Saudi Arabia’s reputation, mainly because very little information regarding the court hearing was released by Saudi media outlets or authorities. Therefore, the credibility of the trials remains low, and there are even rumors that al-Qahtani is back in his position.
Turkey’s requests that Saudi Arabia extradite eighteen suspects identified in relation to Khashoggi’s murder in order for them to be tried on Turkish soil has not led to a positive response.
According to international law, Saudi Arabia does not have to extradite the suspects to Turkey because there is no extradition agreement between two countries and the Saudi authorities have full jurisdiction over the suspects. Moreover, because Otaibi was allowed to flee to Saudi Arabia, there is no room left for trying the Saudi suspects before the Turkish courts unless Saudi Arabia is willing to send them back.
Therefore, the most plausible – if not the only possible – strategy for Turkey has been to call for an international inquiry into Khashoggi’s murder in the face of this Saudi obstruction in the case. Indeed, soon after these calls, between January 28 and February 3, 2019, Agnes Callamard, the United Nations (UN) Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, travelled to Turkey to head an independent international inquiry into the murder.
It is important to note that this was an inquiry conducted merely on Callard’s own initiative and it was not one authorized by the UN Security Council. That is to say, the outcomes of the inquiry would not be legally binding for any state or individual. UN rapporteurs cannot issue subpoenas or force countries to comply with their reports. So, in a sense, it was not a criminal investigation but just a fact-finding mission which will be reported to the UN Human Rights Council at its June 2019 session.
In this mission, Callamard was largely dependent on the evidence shared by Turkish, Saudi and US authorities and she was a “bit disappointed” with the information she was able to obtain during her inquiry. This was not surprising because, as expected, Riyadh did not collaborate with the inquiry team or give them permission to visit the Saudi Consulate in Istanbul. Overall, it is difficult to claim that Callamard’s initiative is likely to bring about a major change in the course of Khashoggi case, as it does not have any coercive power.
There are many precedents for international inquiries with both the coercive power and full legal authority for a criminal investigation. With regard to the MENA region, the most outstanding instances were the inquiries into the assassinations of former Lebanese Prime Minister Rafik Hariri and his Pakistani counterpart Benazir Bhutto.
Those investigations were directly backed by the UN Security Council, which rendered them much more effective than Callamard’s inquiry into Khashoggi’s murder, since the Security Council has the authority to set up tribunals and inquiries and to refer cases to the International Criminal Court.
On February 14, 2005, while Rafik Hariri, former Prime Minister of Lebanon, was travelling in an autocade in Beirut, a massive explosion occurred, killing Hariri along with 22 others. The day after Hariri’s assassination, the President of the Security Council condemned the attack and called on Lebanon to bring the perpetrators to justice.
It subsequently decided to establish an international inquiry to “assist the Lebanese authorities in their investigation of all aspects of this terrorist act, including to help identify its perpetrators, sponsors, organizers and accomplices.” This international inquiry had been initiated by the Fitzgerald Mission and then the United Nations International Independent Investigation Commission (UNIIIC), which was the precursor to the Special Tribunal for Lebanon (STL). The UNIIIC was able to sign a Memorandum of Understanding with Lebanon (MOU) which laid the basis for the cooperation of both sides.
The Lebanese Government ensured that the UNIIIC’s investigation would be assisted by the government, authorized to collect all evidence and summon witnesses free from any interference. Thanks to the conditions it was provided, the UNIIIC was able to issue eleven reports and paved the way for the establishment of the STL, which had jurisdiction to prosecute those responsible for the Hariri assassination.
The assassination of the former Pakistani Prime Minister Benazir Bhutto took place on December 27, 2007 in Rawalpindi, Pakistan, with shots being fired at her and a suicide bomb detonated after a political rally she held.
After the assassination, the Security Council again immediately authorized an inquiry commission. Even though this investigation did not lead to the establishment of an international tribunal as in Hariri’s case, the Commission released “The Report of the United Nations Commission of Inquiry into the Facts and Circumstances of the Assassination of Former Pakistani Prime Minister Mohtarma Benazir Bhutto” which shed the light on many details of the incident.
Pros and Cons
The international inquiries into Hariri’s and Bhutto’s assassinations have been criticized for being ineffective despite the broad authority they were granted by the UN Security Council and the co-operation shown by the host governments – even if reluctantly. In Khashoggi’s case, however, Saudi Arabia, the most important actor, is not willing to co-operate with any international attempt to shine light on Khashoggi’s murder.
Thus, Callamard’s inquiry into Khashoggi’s murder, as an initiative without any coercive power, seems destined to remain inconclusive. Without any UN Security Council decision forcing the Saudi authorities to collaborate with an international inquiry team – which is very unlikely – it is very difficult to reach any further evidence.
Also, any report to be produced by Callamard’s mission will not be legally binding for anyone, no matter how much critical and accurate it is. Eventually, the historical precedent demonstrates that the international inquiries into politically sensitive issues such as Khashoggi’s murder might not progress very far. There is a need for the political will to take up the findings of any reports.
Despite the questionable effectiveness of international inquiries, they are still a preferable option when there is no other legal means to use, and they could bring about some positive outcomes. The documents to be produced during the international inquiries would correspond to a kind of corroborating evidence for any future criminal investigation. In addition, such commission reports and statements have significant power to shape public opinion, to which policymakers are sometimes unable to remain indifferent.
Perhaps, a UN probe into the death of Jamal Khashoggi will not immediately land any culprit behind bars, but it may kick-start a process that could lead to sanctions and international criminal prosecution on the evidence it reveals. Louis Charbonneau, the UN director for Human Rights Watch (HRW), said Callamard’s report could put the UN stamp on all theories and media reports about Khashoggi’s murder, and force action from weightier UN organs, like the General Assembly and Security Council.
Beyond the UN system, Callamard’s evidence could underpin a case in a country with universal jurisdiction laws such as Germany and Sweden, where the individuals who were involved in Khashoggi’s murder could be tried for the crimes they commit overseas.
Plus, if the inquiry report can prove that Khashoggi was tortured by Saudi officials before his death, Saudi Arabia could be held responsible for the breach of the obligations arising from Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, to which it has been a party since the mid-1990s.