Saudi Arabia is a kingdom perpetrating ongoing abuses and detention of Saudi who “dare to express their opinions”1. On 23 October 2018, the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression called for an international investigation into Jamal Khashoggi’s disappearance. Meanwhile Agnes Callamard, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions at the Office of the United Nations High Commissioner for Human Rights (OHCHR), is urging the international community attention with regards to Jamal Khashoggi’s murder2.

Saudi Arabia and human rights

Saudi Arabia conduct towards Jamal Khashoggi amounts to serious violations of international law and, particularly, international human rights law: the prohibition of torture3, the right to life4, the right to freedom of expression5. It highlights the current challenges which journalism faces in Saudi Arabia but also worldwide. Jamal Khashoggi was a journalist criticising Saudi Arabia’s policies. Despite his being on exile since 2017, his murder demonstrates the important risks journalists face while only reporting facts. From a broader perspective, Jamal Khashoggi’s murder allows the international community to assess in more depth the behaviour of Saudi Arabia towards human rights and the risks such behaviour means for international peace and security.

Even though the prohibition of torture is recognised as a peremptory norm6, the right to freedom of expression is subject to more controversies. In the Western States, and particularly from the European Court of Human Rights’ perspective, the right to freedom of expression is, albeit with certain limits, “necessary for a democratic society”7. In France, we even consider freedom of expression as one of the most “precious” human right8. Saudi Arabia is among the minority of those 19 countries which have not ratified the ICCPR and 24 countries which have not ratified the ICESCR9. This means that, in theory, Saudi Arabia has no obligation under the International Bill of Rights and therefore, no obligation to have the same understanding as the rest of the international community concerning the right to freedom of expression. Nonetheless, Saudi Arabia has ratified the Arab Charter on Human Rights in 2009. As stated above, the right to life, the prohibition of torture and freedom of expression are all rights enshrined in the Charter10. However, the Arab Charter is lacking enforcement mechanisms as there is no regional Court having the power to ensure the respect from States and individuals of the Arab Charter11. Saudi Arabia will therefore not be held liable, at the regional level, for having disrespected these rights by ordering the killing of Jamal Khashoggi.

Saudi Arabia violations of diplomatic relations principles

The Vienna Convention on Diplomatic Relations (VCDR) is part of customary international law and is considered to be the “most widely based multilateral regimes in the field of international relations”12. Those regulations on diplomatic relations are key to maintaining friendly relations between States. In the present case, Saudi Arabia sent some of its nationals and, it is alleged, ordered them to kill Jamal Khashoggi, therefore acting in the capacity of Saudi Arabia. These persons are therefore considered as diplomat following the definition given by the VCDR according to which a diplomat is a person charged, by the sending State, with the duty of acting in that capacity13. In order to exercise their functions, diplomats enjoy an absolute immunity from criminal jurisdiction of the receiving State14. This criminal immunity is absolute and applies irrespectively of the nature of the crime. As a consequence, it is possible that no one would be held accountable as diplomatic immunity potentially covers people involved in an alleged murder. Moreover, under the VCDR, a consulate is absolutely inviolable15. This makes the investigation even more difficult.

One could therefore argue that this is an internal matter from which the international community has nothing to say as all States are equally sovereign16. However, by killing one of its national in another territory, although in their Embassy, Saudi Arabia has unlawfully used the rules of diplomatic relations to commit a crime. Diplomacy should not be used to commit illegal acts: immunity does not mean impunity. However, Turkey has no right to enter Saudi’s Embassy as it is absolutely inviolable. This issue has already been handled by the International Court of Justice (ICJ) in the Hostages case whereby the Court stated that any form of criminal trial or investigation by Iran against the US diplomats would lead to a grave violation by Iran of the VCDR and, particularly, Art. 31(1) VCDR17.  That being said, a diplomat’s immunity from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State. This is why Saudi Arabia was able to open a trial. However, this trial lacks independency and impartiality as it appears Saudi Arabia avoids carrying the blame itself18.

Why did the UN open an investigation?

In January 2019, the UN High Commissioner for Human Rights expressed that Khashoggi trial in Saudi Arabia “falls short of independent, international probe needed”. As of now, 11 people went on trial in Riyadh and 5 of them are facing the death penalty. However, Saudi Arabia seems to be using these 11 people to avoid carrying the blame itself. Yet, the order to assassinate Jamal Khashoggi was expressly given by Saudi Arabia, meaning they should also be officially accounted responsible for the murder. Hence, the UN has opened an independent investigation as “high-level officials in Saudi Arabia [are] apparently involved … the bar must be set very high to ensure meaningful accountability and justice for such a shockingly brazen crime against a journalist and government critic”19. It is therefore important that the UN takes action in this case as Saudi Arabia’s conduct amounts to grave violations of international law and international relations, which could hinder international peace and security, particularly between Turkey and Saudi Arabia.

What can Turkey and the international community do?

There are solutions given by the VCDR to punish Saudi Arabia for the crime it has committed on Turkish territory. In fact, Turkey could declare Saudi diplomats “persona non grata”20 or could even terminate, by withdrawing the mission of Saudi Arabia in its territory, its diplomatic relations with Saudi Arabia21. However, this would lead to a diplomatic crisis and would degrade the international affairs between both States.

On the other hand, the international community, as a whole, could also take action via an international ban on economic assistance or military assistance (e.g. Lockerbie case: Libya failed to comply with the UN Security Council Resolutions 748 and 883 and has, consequently, seen the suppression of its economic assistance). However, this is unlikely to happen as Saudi Arabia is a great ally for Western countries, in particular from an economical and security perspective22.

As Jamal Khashoggi’s murder took place in Saudi Embassy in Istanbul, Saudi diplomats who participated in the killing are immune from civil and criminal jurisdiction of the host State23. Nonetheless, by using diplomatic rules to torture and kill an ardent defender of the right to freedom of expression, Saudi Arabia has violated the core principles of international law and international relations. The report of the investigation directed by the UN is therefore to be followed closely as this is the occasion, for the UN, to prove that immunity does not mean impunity.

Dorine NAULEAU  
Master 1 Organisations internationales  
Université Catholique de Lille

Footnotes

  1. Human Rights Watch, Turkey: Demand Investigation for Khashoggi’s Murder, Sarah Leah Whitson, Executive Director, Middle East and North Africa, Human Rights Watch, 7 Dec. 2018, <https://www.hrw.org/video-photos/video/2018/12/07/turkey-demand-investigation-khashoggis-murder> accessed 23 Feb. 2019.
  2. UN News, Evidence shows ‘brutal’killing of Saudi journalist ‘planned and perpetrated’by State officials: UN independent expert, 7 Feb. 2019 <https://news.un.org/en/story/2019/02/1032241> accessed 22 Feb. 2019.
  3. Saudi Arabia has ratified the United Nations Convention against Torture in 1997; Art. 8, Arab Charter on Human Rights, 2004.
  4. Art. 5, Arab Charter on Human Rights, 2004.
  5. Art. 32, Arab Charter on Human Rights, 2004.
  6. Questions relating to the Obligation to Prosecute or Extradite, (Belgium v. Senegal), Judgment, I.C.J. Reports 2012, para. 99.
  7. Handyside v. UK, 5493/72, ECHR, 1976, para. 49.
  8. Art. 11, Déclaration Française des Droits de l’Homme et du Citoyen, 1789.
  9. UN Human Rights Office of the High Commissioner, Status of Ratification <http://indicators.ohchr.org/> accessed 23rd Feb. 2019.
  10. Arts. 5, 8, 32, Arab Charter on Human Rights, 2008.
  11.  International Commission of Jurists, The Arab Court of Human Rights: a Flawed Statute for an Ineffective Court, 2015.
  12. Jonathan Brown, Diplomatic Immunity: State Practice under the Vienna Convention on Diplomatic Relations, 37 Int’l & Comp. L.Q. 53 (1988).
  13. Art. 1, VCDR, 1964.
  14. Art. 31(1), VCDR, 1964.
  15. Art. 22, VCDR, 1964.
  16. Art. 2(1), UN Charter, 1945.
  17. United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran),Judgment, I.C.J. Reports 1980, para. 79.
  18. UN News, Khashoggi trial in Saudi Arabia falls short of independent, international probe needed: UN right chief, Human Rights, 4Jan. 2019 <https://news.un.org/en/story/2019/01/1029772> accessed 23 Feb. 2019.
  19. UN News, UN rights chief says ‘bar must be set very high’for investigation of murdered Saudi journalist, 30 October 2018, <https://news.un.org/en/story/2018/10/1024472> accessed 23 Feb. 2019.
  20. Art. 9, VCDR, 1964.
  21. Arts. 44 and 45, VCDR, 1964.
  22. BBC News, Saudi Arabia: Five reasons why Gulf Kingdom matters to the West, 15 October 2018, <https://www.bbc.com/news/world-middle-east-45861708> accessed 23Feb. 2019.
  23. Art. 31, VCDR, 1964.

Bibliography

Articles

  • Jonathan Brown, Diplomatic Immunity: State Practice under the Vienna Convention on Diplomatic Relations, 37 Int’l & Comp. L.Q. 53 (1988).
  • International Commission of Jurists, The Arab Court of Human Rights: a Flawed Statute for an Ineffective Court, 2015.

Cases

  • Handyside v. UK, 5493/72, ECHR, 1976.
  • Questions relating to the Obligation to Prosecute or Extradite, (Belgium v. Senegal), Judgment, I.C.J. Reports 2012.
  • United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran),Judgment, I.C.J. Reports 1980.

Citography