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How international law could be used to prosecute Khashoggi's killers

Ben Keith and Rhys Davies

After weeks of lies and misdirection, Saudi Arabia has finally admitted that Jamal Khashoggi died inside its consulate in Istanbul. The truth, however, is yet to emerge from the fog of deceit. There can be very few people in the around the world who will accept the Saudi explanation that a fist fight broke out, resulting in Jamal Khashoggi’s death.

The rest of the world still demands answers and the overwhelming evidence points to a deliberate, gruesome premeditated killing. The allegations of torture, and the butchery of Khashoggi’s body, are particularly shocking. Even more so if – as many commentators believe – they were deliberately ordered by the state.

A barbaric assassination and dismemberment which the Saudis have attempted to cloak in the shroud of their embassy and diplomatic immunity? Those crimes would rank amongst the very worst perpetrated in a diplomatic mission in modern times, with the use of diplomatic premises a terrifying development, indicating that Saudi Arabia has no regard for international law.

This case shows the legal crossroads that the international community has reached. A perfect storm of politics and law colliding means decisions as to what to do next are fraught with problems.

There are legal remedies available to Khashoggi’s fiancee though international bodies, but most of the legal consequences can be dealt with by Turkey. The question is how far Saudi Arabia will cooperate and how far Turkey will really want to push this issue. It is only if Turkey fails that others will take up the torch.

There are a host of legal measures that could be used bring the perpetrators to justice. Mohammed bin Salman may be untouchable inside the Kingdom of Saudi Arabia, and practically speaking any punishment meted out to him will come from within Saudi Arabia. However, international mechanisms can also be brought to bear upon the Saudi government.

Human rights groups have already called upon the United Nations to intercede and conduct a fair and transparent investigation. There are already a number of UN instruments, such as the Working Group on Disappearances and the Special Rapporteur for non-judicial executions, who might launch investigations and reports.

While UN findings may not immediately appear to be the most robust of responses to this apparent outrage, Mohammed bin Salman and the Saudi regime have demonstrated consistently that they are sensitive to outside criticism, as evidenced by the severing of diplomatic ties with Canada. Any UN finding critical of bin Salman and Saudi Arabia would be a significant blow to their prestige.

The hit squad itself must also now become a legal target. The US enacted its global Magnitsky Act in 2016, enabling the US government to impose sanctions after human rights abuses by government officials around the world. They could stop any of the men gaining visas to travel to the US and ask for support from the EU. This would drastically reduce the movement of its targets and cause significant financial hardship.

Personal sanctions could be instituted against the men and perhaps broader sanctions restricting trade between Saudi Arabia and the West.

Many countries, including the UK, subscribe to the doctrine of universal jurisdiction, enabling the UK to bring charges and try individuals accused of committing serious crimes such as torture and crimes against humanity in domestic courts. Many of the alleged hit squad have now been named. Investigating those individuals, and the bringing of charges, would send a serious message that the British government is willing to uphold international law and human rights.

In the meantime, those individuals would be restricted in travel and would face arrest if they ever tried to come to the United Kingdom.

There is also the question of extradition. Turkey could ask for the extradition of the death squad and the Saudi consular officials who have now fled. There is no extradition treaty between Saudi Arabia and Turkey (or, for that matter, the UK) – but that does not necessarily prevent extradition. It would be rare but not unprecedented for an ad hoc agreement to be signed to extradite the men. A recent example of this was the attempt to extradite Rwandans accused of war crimes from the UK to Rwanda.

The Vienna Convention governs diplomatic immunity but does not allow murder and torture to take place on foreign soil; that would be a deliberate manipulation of international law. The punishment is political rather than legal as ambassadors can be withdrawn, diplomatic ties downgraded and financial sanctions imposed.

The Turkish prosecutors have the power to prosecute the death squad for murder, kidnapping and torture – but the question is whether Riyadh will cooperate by surrendering the individuals. The finely balanced politics make that outcome unlikely.

The UK’s response has been strong in condemning the actions of Saudi Arabia. Nevertheless, it should go further. We should seek to sanction the men responsible and be ready to prosecute them should they ever come to the UK.

Ben Keith and Rhys Davies are barristers who specialise in international law