“Doth God Pervert judgement? Or Doth the Almighty
pervert justice?” Job 8:3, Old Testament, New King
James version.
For those of the Christian faith, the above verse represents an
obvious suffering of Job over something he had absolutely no
control over, other than a sheer “trial” from his
maker, or so it is believed to be, as perceived by many religious
schools of thought. There were a couple of lamentations as Job
questioned his maker as to why evil befell him and why what was
earlier on a cruise control, culminated into an overnight
crisis.
I have no doubt whatsoever, that wherever Jamal Khashoggi is,
the above verse should be his line of questioning, seeing that one
year down the line, there is no definite response to the question
of who killed him and the steps being taken by state and non-state
actors are so watery, that they cannot pass the test of equity,
which considers as done, that which ought to be done. The only
difference between Job and Khashoggi remains in my opinion, the
fact that Job, like the Cinderella Fairy tale, lived happily ever
after, but Khashoggi is not present to tell the story of his extra
consular ordeal.
Without doubt, the International Human Right to life has
attained the status of Jus Cogens, peremptory
international law norm, for which no derogation is allowed. This
altruistic fact was again restated at the United Nations World
Conference of 1993, where 171 state parties adopted by consensus,
the Vienna Declaration and Program of Action, inclusive of Saudi
Arabia.
Of the many resolutions reached, states and institutions were
called upon to include human rights, humanitarian law, democracy
and the rule of law in their respective curricular. The
conference is largely considered to be the United Nations
reinforcement of the principles and declaration of Human rights,
contained in the Universal Declaration of Human Rights (UDHR) of
1948.
October 2nd of 2018 remains till date, a black day in
the history and corridors of International Law, an affront on the
globally recognized human right to life, freedom of speech, a
crackdown on journalists and perceived “dissidents” and largely, a
validation of the school of thought which views international law
as being only able to bark and not bite.
SYNOPSIS
On the 29th of September 2018, Jamal Khashoggi went
to the Saudi Arabia consulate in Instanbul to secure a date for
which he would return to the embassy with the requisite materials
and paperwork for getting married to his Turkish fiancée Hatice
Cengiz. He was then given the 2nd day of October 2018 to
return to the embassy. Before then, a team of 11 people believed to
be hired assassins who work closely with the crown prince and Al
Qahtani, flew into Turkey. On the fateful day, he went with his
fiancée but left her outside, with the instruction to raise an
alarm if he wasn’t out within a period of time. Popular opinion has
it that he somewhat felt what was coming, knowing how much
criticism he has levelled against the Crown Prince of Saudi Arabia
and his policies which the journalist considered as bullish, as
well as the Saudi Government as a whole which he (Jamal Khashoggi)
once served. True to his premonitions, Khashoggi did not make it
out alive. He was immediately lured into a room, pounced on,
killed, and his body dismembered with a bone saw and afterwards
melted with an acid. All in a bid not to leave traces of his death
which Turkish authorities would have been able to properly
investigate forensically. Turkey sought to, and eventually gained
entrance into the consular premises to carry out quality
investigation, seeing that someone was killed on their “home
soil”.
International Law has gained giant strides in man’s struggle for
civilization but the death and disappearance of Jamal Khashoggi
under the circumstances in which it happened calls for a
re-examination of status quo and an urgent move to sanitize certain
principles and provisions of key treaties and charters. The issues
emanating from that incident are of the nature as to questioning
the progress of international law, its successes in keeping the
globe together, and he attendant exploitable loopholes. This issue
is deeply complex because in one breadth, there is a need to bring
the perpetrators to book under International Law, on the other
hand, the “killers” share a responsibility to fish out the killer,
a responsibility they would readily shy away from. In the end, one
can neither be more catholic than the pope, nor be cry more than
the bereaved. This may as well be the reason why not much progress
has been made on the issue other than the continuous pouring of the
juristic inks of publicist scholars.
THE LEGAL ISSUES
The many issues arising from the extra-judicial murder of Jamal
Khashoggi are listed under the following headings for ease of
discussion:
- WHETHER THE DEATH OF JAMAL KHASHOGGI IS A CLEAR
VIOLATION OF THE INTERNATIONAL HUMAN RIGHT TO LIFE UNDER THE UDHR,
ICCPR AND ASIAN CHARTER ON HUMAN RIGHTS
The right to life and other human rights are the fulcrum of the
Universal Declaration of Human Rights (UDHR), which nearly, if not
all countries of the world are signatory to. Saudi Arabia, being a
member of the United Nations, is also signatory to the convention.
Opinions have it otherwise that Saudi Arabia is not part of the
UDHR but I do not find that argument persuasive enough in that
Saudi Arabia is signatory to the International Covenant on
Civil and Political Rights (ICCPR) and the ICCPR is a
clear regurgitation of the UDHR, as would be seen in this
piece.
In Article 1 of the Declaration,
“All human beings are born free and equal in dignity
and rights. They are endowed with reason and conscience and should
act towards one another in a spirit of
brotherhood.”.
The above provision was the first and major flouted by the Saudi
Arabia in the death of Khashoggi. It is difficult to comprehend how
such an offence can be committed in this era where one would have
thought that the clamor for human right protection has reached its
peak. The fact that everyone is born or endowed with reason follows
that no one should be forced out of life for holding any particular
opinion whatsoever.
Article 2 of the Declaration states further, that:
“Everyone is entitled to all the rights and freedoms
set forth in this Declaration, without distinction of any kind,
such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other
status. Furthermore, no distinction shall be made on the basis of
the political, jurisdictional or international status of the
country or territory to which a person belongs, whether it be
independent, trust, non-self-governing or under any other
limitation of sovereignty”
Again, Saudi Arabia flouted this all important Article. This is
because one of the many issues the Emirate had against him was his
membership of the Muslim Brotherhood which is considered by the
Emirate to be an extreme fundamentalist group, whereas the above
article discourages discrimination on the grounds of race, gender
or even membership of organization, or opinion held. Freedom of
speech is a universal right. As such, no one can, or should be
victimized for whatever opinion is held. Ultimately, the
Khashoggi’s right to life and security of person guaranteed by
Article 3 of the UDHR was trampled on, worse still in a diplomatic
premises.
Saudi Arabia’s action was a clear violation of the declaration
of his human rights.
It is a known fact that the ICCPR is an off shoot of the UDHR.
The ICCPR is part of the conventions forming the bill of rights,
and is a globally acknowledged convention with regards to political
and civil rights. As at date, there are 172 countries that have
ratified the covenant of which Saudi Arabia is one of them.
According to Article 2(1) of the ICCPR
“ Each State Party to the present covenant
undertakes to respect, and to ensure to all individuals within its
territory and subject to its jurisdiction, the rights recognized in
the present covenant, without distinction of any kind, such as
Race, Colour, Language, Religion, Political or other opinion,
National or social origin, property, birth or other
status” (Emphasis Mine).
Interestingly, Part II Article 2(3)(a) of the ICCPR further
states that
“Each State Party to the Present Covenant
Undertakes: To ensure that any person whose rights or freedom as
herein recognized are violated shall have an effective remedy,
notwithstanding that the violation has been committed by persons
acting in an official capacity.”
It is worthy of note, that the principle that one cannot hide
under the guise of official responsibility to commit crime, has
become jus cogens, as was established in
the Nuremberg Trials. It follows that the plea of
“Respondes Superior” will not avail the
perpetrators of such an act, and where it can be established that
there are state actors to a crime (as has been in this case), the
kingdom ought to be held accountable as is the global outcry.
The Asian Human Rights Charter is another Human Rights
Instrument which Saudi Arabia has ratified. The 1998 charter is a
clear further codification of the Universal Declaration of Human
Rights of 1948 and the ICCPR.
According to Paragraph 2.2 of the preamble to the Charter, under
the heading “Universality and Individuality of Rights”
it provided thus:
“We endorse the Universal Declaration of Human
Rights, The International Covenant on Economic, Social and Cultural
and Cultural Rights, The International Covenants on Civil and
Political Rights and other international instruments for the
protection of human rights and freedoms…….”
It is interesting to observe that the Asian Human Rights Charter
simply embodies the ICCPR and more or less, replicates the
provisions of the Later. The import of this is that the duty to
observe human right to life is replicated in the Asian Human Rights
Charter which Saudi Arabia is signatory to and can therefore not
derogate from.
Article 6.1 of the Charter recognizes the right to cultural
identity and freedom of conscience. A combined reading of the Asian
Human Rights Charter and the ICCPR would reveal that there exists,
a duty to preserve human life and not forcefully take same under
any guise.
As a buttressing factor, it would be germane to consider the
case of Ahmadio Sadio Diallo (Republic of Guinea) V.
Democratic Republic of Congo, Judgement delivered on 3oth
November 2010 Where it was held that expelling Diallo was a clear
violation of the provisions of The International Covenants on Civil
and Political Rights. Khashoggi was also murdered without trace and
I am of the considered view that his murder can be treated as a
disappearance for the purpose of the applicability of the
principles reached in the above case.
- WHETHER THE DEATH OF KHASHOGGI IS AN AFFRONT ON THE
CONVENTION AGAINST TORTURE
Another core issue that arose from the extra judicial killing is
the issue of the torture that was meted out to Jamal Khashoggi.
Article 1 of the convention thus
“For the purposes of this
Convention, the term “torture” means any act by which severe pain
or suffering, whether physical or mental, is intentionally
inflicted on a person for such purposes as obtaining from him or a
third person information or a confession, punishing him for an act
he or a third person has committed or is suspected of having
committed, or intimidating or coercing him or a third person, or
for any reason based on discrimination of any kind, when such pain
or suffering is inflicted by or at the instigation of or with the
consent or acquiescence of a public official or other person acting
in an official capacity. It does not include pain or suffering
arising only from, inherent in or incidental to lawful
sanctions.”
The journalist was unduly tortured before his death and sadly,
his body was not even recoverable for burial. Saudi Arabia has
clearly not demonstrated efforts to keep to the dictates of this
convention. Article 2(1) further states that
“Each State Party shall
take effective legislative, administrative, judicial or other
measures to prevent acts of torture in any territory under its
jurisdiction.”.
The trial of the 11 persons involved in the murder has been
largely shrouded in secrecy. This for me, is a demonstration of
Saudi’s unwillingness to be bound by a treaty they signed.
According to America’s Central Intelligence Agency, the crown
prince Mohammed Bin Salman, was directly involved in the murder of
the journalist. It is somehow clear that shrouding the trial in
secrecy is a strategy to reduce the tendency to tie the murder to
the crown prince.
ARTICLE 2 (2) states that “
“No exceptional circumstances whatsoever, whether a state of war
or a threat of war, internal political instability or any other
public emergency, may be invoked as a justification of
torture.”
Article 2 (3) further states that
“An order from a superior officer or a public
authority may not be invoked as a justification of
torture.”. This is an encapsulation of the Nurremberg
trials.
Countries who are signatory to this all important convention,
can rely on the case of Belgium V. Senegal to hold
Saudi Arabia to account, especially under the principle of state
responsibility. In that case, one of the many principles derived
from it is that once any state party to the Convention Against
Torture was able to invoke the responsibility of another state
party with view to ascertaining the alleged failure to comply
with her obligations Erga Omines Partes, Belgium
as a party had the standing to invoke the responsibility of Senegal
for the alleged breaches of its obligations under Article 6 and
Article 7 of the Convention. It follows that any “Interested
Party”, especially Turkey, can succeed in an action against Saudi
Arabia at the International Court of Justice.
- THE EXTENT OF INVIOLABILITY OF CONSULAR PREMISES AND
PERSONS
This issue is perhaps the most debated because it captures the
exact scenario of what happened. It also carries a direct
applicability of a treaty to the instant scenario.
Article 31 states thus:
(1.) Consular premises shall be inviolable to the
extent provided in this article.
(2.) The authorities of the receiving State shall
not enter that part of the consular premises which is used
exclusively for the purpose of the work of the consular post except
with the consent of the head of the consular post or of his
designee or of the head of the diplomatic mission of the sending
State. The consent of the head of the consular post may, however,
be assumed in case of fire or other disaster requiring prompt
protective action.
(3.) Subject to the provisions of paragraph 2 of
this article, the receiving State is under a special duty to take
all appropriate steps to protect the consular premises against any
intrusion or damage and to prevent any disturbance of the peace of
the consular post or impairment of its dignity.
(4.) The consular premises, their furnishings, the
property of the consular post and its means of transport shall be
immune from any form of requisition for purposes of national
defence or public utility. If expropriation is necessary for such
purposes, all possible steps shall be taken to avoid impeding the
performance of consular functions, and prompt, adequate and
effective compensation shall be paid to the sending
State.
The convention did not make specific mention of gaining entrance
into a consular premises in times where a crime is committed but
one can leverage strongly on Article 41 which envisages that a
consular officer can be arrested on allegations of grave crime. It
should follow that a consular premises can be invaded for the
purpose of arresting such a consular officer accused of having
committed a grave crime.
It is understandable that International Law has a measure of “do
me I do you”, what in proper parlance is called “the right of
legation” and that was why Turkey had to thread with caution in
invading the consular premises of Saudi Arabia, I am of the
considered view that it was caution taken too far, because there
was already a massive cleaup of the premises by the time they were
eventually let in.
Khashoggi’s murder was not just a killing on Turkish soil, but
one that violated a second core rule of international law:
diplomatic and consular missions must be used for specific official
purposes, in exchange for which states hosting embassies and
consulates must grant the buildings and staff diplomatic or
consular immunity. This rule appears in both the 1961 Vienna
Convention on Diplomatic Relations and the 1963 Vienna
Convention on Consular Relations. Under the consular convention,
the first listed function of a consulate is “protecting in the
receiving State the interests of the sending State and of its
nationals, both individuals and bodies corporate, within the limits
permitted by international law.” Another article states that
consular officials must “respect the laws and regulations” of the
host state. It doesn’t take an international lawyer to conclude
that murdering one of your citizens in a consulate violates this
rule.
A major case law on this principle of inviolability is the case
of United States of America V. Iran[1]
In that case, US citizens were held hostage in the Embassy of
the US in Tehran, after a violent revolution of the Islamic
Revolutionary Guard.
In making a decision, the court held That the Government of
Iran, in tolerating, encouraging, and failing to prevent and punish
the conduct described in the pre- ceding Statement of Facts [in the
Application], violated its international legal obligations to the
United States as provided by
– Articles 22, 24, 25, 27, 29, 31, 37 and 47 of the Vienna
Convention on Diplomatic Relations,
– Articles 28, 31,33,34,36 and 40 of the Vienna Convention
on Consular Relations,
- – Articles 4 and 7 of the Convention on the Prevention
and Punishment of Crimes against Internationally Protected Per-
sons, including Diplomatic Agents, and - – Articles II (4), XIII, XVIII and XIX of the Treaty of
Arnity, Economic Relations, and Consular Rights between the United
States and Iran, and - Articles 2 (3), 2 (4) and 33 of the Charter
of the United Nations;
One can argue that the case may not have direct bearing on
Khashoggi’s case in that Khashoggi was murdered, on the orders of
his fellow country man, what remains a constant however, is the
fact that a criminal activity took place in a consular premises,
contrary to the functions of a consular premises as stipulated by
the Vienna Convention on Consular Relations. This principle of the
sanctity of consular premises and diplomatic premises as enunciated
in the above case, can be relied on in holding Saudi Arabia to
account, especially the high ranking officials, believed to have
masterminded the entire event, including the possibility of the
direct involvement of Mohammed Bin Salman.
For the avoidance of doubt, Article 41 of the VCCR provides for
the personal inviolability of consular officers thus:
1.Consular officers shall not be liable to arrest or
detention pending trial, except in the case of a grave crime and
pursuant to a decision by the competent judicial
authority.
2.Except in the case specified in paragraph 1 of
this article, consular officers shall not be committed to prison or
be liable to any other form of restriction on their personal
freedom save in execution of a judicial decision of final
effect.
3.If criminal proceedings are instituted against a
consular officer, he must appear before the competent authorities.
Nevertheless, the proceedings shall be conducted with the respect
due to him by reason of his official position and, except in the
case specified in paragraph 1 of this article, in a manner which
will hamper the exercise of consular functions as little as
possible. When, in the circumstances mentioned in paragraph 1 of
this article, it has become necessary to detain a consular officer,
the proceedings against him shall be instituted with the minimum of
delay.
From the above provisions, it is clear that even though consular
officers enjoy immunity, such enjoyment of immunity is not
absolute, as (1) further states that where a grave
crime is committed, such a consular officer can be subjected to the
criminal jurisdiction of the receiving state. One can argue that
the head of consul hid under these provisions on inviolability of
consular premises and consular persons, to refuse Turkey initial
entrance. It would be recalled that Turkish officials eventually
gained proper entrance into the premises on the 15th of
October 2018, almost 13 days after the incident. Diplomatic cars
were also eventually searched on 17th August 2018. The
import of this is that the head of the consulate is also supposed
to be tried for the cover up role he played in the entire incident,
since it is nonsensical to claim that the Saudi Hit team of 11 who
arrived Turkey to execute the mission, did so without his
knowledge. It further suggests that although Saudi Arabia has the
exclusive right to try the 11 suspects currently being tried,
Turkey also have some claims to be able to try them since immunity
is not impunity. Perhaps the only reason Turkey is not trying them
today is the fact that they were picked up in Saudi Arabia after
the completion of the mission. Saudi Arabia has also rejected calls
to have them extradited to Turkey to face trial. This act has made
every scholar of International Law to doubt Saudi’s commitment to
bring them to book. This view is also contained in the United
Nation’s special report on Khashoggi. Many have also viewed the 11
man hit squad as scape goats since in the end, it is more than
clear that they were acting under instructions.
- THE UNITED NATION’S REPORT
Following a global outcry about the death of Khashoggi, which
even Saudi Arabia did not envisage in what is till date, considered
as the biggest political mistake of Mohammed Bin Salman, the United
Nations set up a committee to investigate the matter and submit a
comprehensive report. It is largely referred to as the
“Callamard’s UN Report”
The report had the following findings:
- That the killing of Mr. Khashoggi’s constituted an
extrajudicial killing for which the State of the Kingdom of Saudi
Arabia is responsible. His attempted kidnapping would also
constitute a violation under international human rights law. - The killing of Mr. Khashoggi further constituted a violation of
the Vienna Convention on Consular Relations (thereafter VCCR) and
of the prohibition against the extra-territorial use of force in
time of peace (customary law and UN Charter). In killing a
journalist, the State of Saudi Arabia also committed an act
inconsistent with a core tenet of the United Nations. - Further, the circumstances of the killing of Mr.
Khashoggi may constitute an act of torture under the terms of the
Convention Against Torture, ratified by Saudi Arabia. Finally, the
killing of Mr. Khashoggi may also constitute to this date an
enforced disappearance since the location of his remains has not
been established. - The Special Rapporteur has determined that there is
credible evidence, warranting further investigation of high-level
Saudi Officials’ individual liability, including the Crown
Prince’s. this further buttressed the position of America’s CIA
that Mohammed Bin Salman ordered the killing of Jamal Khashoggi.
This technically means that Mohammed Bin Salman killed
Khashoggi. - The Special Rapporteur also found that under the terms of the
VCCR, Saudi authorities were under no legal obligation to grant
access to the Consular premises to the Turkish investigators.
However, Saudi Arabia was under an international obligation to
cooperate with the Turkish authorities in the investigation of the
killing of Mr. Khashoggi. Such cooperation necessarily demanded
that they gave access to the consulate to the Turkish authorities
in a prompt and effective fashion and in good faith. The thinking
is that Consular immunity was never intended to enable
impunity.
People have often argued how Saudi Arabia can be held
accountable, seeing that from the look and feel of the event, there
was an explicit instruction from a top authority. In Turkey’s
investigation, a telephone call was intercepted and in that call,
one of the 11 persons currently being held and undergoing trials in
Saudi Arabia was heard to have called a top authority in Saudi
Arabia with the following words “Tell the boss that the deed has
been done”. One crucial issue that arises here is what is in
International Law, known as “State
Responsibility”.
Under Article 7 of the ILC Articles on State Responsibility,
Saudi Arabia incurs state responsibility for an internationally
wrongful act committed by its organs acting in their official
capacity, such as intelligence and state security officials, even
if that act was committed ultra vires their powers.
The Kingdom of Saudi Arabia has since taken timid steps towards
addressing its State responsibilities in terms of prosecution and
reparation. But these stop short of what is required under
international law. The accountability gap is all the more worrying
given that it concerns a crime that has received an unprecedented
level of attention and outcry internationally, including official
public condemnation world over. I am of the view that the on-going
trial in Saudi Arabia of 11 suspects in the killing of Mr.
Khashoggi, while an important step towards accountability, fails to
meet procedural and substantive standards. The trial is held behind
closed doors; the identity of those charged has not been released
nor is the identity of those facing the death penalty. At the time
of writing, at least one of those identified as responsible for the
planning and organizing of the execution of Mr. Khashoggi has not
been charged. The Government of Saudi Arabia has invited
representatives of Turkey and of the permanent members of the
Security Council to attend at least some of the hearings but the
move has not been seen as yielding any fruit since the observation
of the trial was upon. the conditional agreement to not disclose
its details and as such cannot provide credible validation of the
proceedings or of the investigation itself. It is particularly
concerning that, given the identity of the observers, the
institution of the UN Security Council itself has been made
complicit in what may well amount to a miscarriage of justice.
To date, the Saudi State has failed to offer public recognition
of its responsibility for the killing of Mr. Khashoggi and it has
failed to offer an apology to Mr. Khashoggi’s family, friends and
colleagues for his death and for the manner in which he was killed,
though a financial package offered to the children of Mr. Jamal
Khashoggi but it is questionable whether such package amounts to
compensation under international human rights law.
CONCLUSION
While global outcry persists because Khashoggi was not given the
privilege of resting in peace, it is pertinent to state that
International Law still have lots of loop holes and there’s need
for many treaties to be re-addressed to capture core enforceability
where there is a core violation of any international law
obligation. Although this matte is dicey because the victim was
killed by his own people in a place considered as the extension of
his home in a foreign land, the victim should not even be the focus
but the need to hold state parties truly accountable for their
actions. The United States has failed to take the pilot seat in
this matter for largely economic reasons, it is clearly on the
shoulders of the United Nations to take this steering ship and
sanction Saudi Arabia’s authorities since there is more than enough
to show that their top hierarchy were involved in the murder.
[1] International Court of Justice 15 December 1979
General Cause List 64
Small
Manhood And Premature Ejaculation Made Me Stay Away from Love
Making For 4yrs…But These Simple Solutions WORKED! Also, Your
Enlarged Prostate Can Be Reversed Now! Click Here To See My
Breakthrough![1]
The Principles of Nigerian
Environmental Law — Order Your Copy
Now!!! 
The Principles of Nigerian
Environmental Law is a complete, comparative and international
handbook on the fundamental principles governing the protection,
conservation and sustainable utilization of the environment in
Nigeria….Click to read
more Written
By Professor Damilola S. Olawuyi, LL.B
(1st Class), BL (1st Class), LL.M (Calgary),
LL.M (Harvard), DPhil (Oxford) Professor of Law and
Director, OGEES Institute, Afe Babalola University, Ado Ekiti.
For more information or to order your copies,
please contact Mr. Keji Kolawole: [email protected][4] ,
Tel: +234 81 40000 988[2][3]
Subscribe ToNairalaw News!
References
- ^
Small Manhood And Premature Ejaculation
Made Me Stay Away from Love Making For 4yrs…But These Simple
Solutions WORKED! Also, Your Enlarged Prostate Can Be Reversed Now!
Click Here To See My Breakthrough!
(foreverliving.com.ng) - ^
The Principles of Nigerian
Environmental Law — Order Your Copy Now!!!
(nairalaw.com) - ^
Click to read & comment now
(nairalaw.com) - ^
[email protected]
(nairalaw.com)