Almost two months have passed since Saudi Arabian journalist Jamal Khashoggi was killed in Saudi Arabia’s (SA) consulate in Turkey. Khashoggi was a critic of the SA government, lived in self-exile in the United States, and wrote for the Washington Post before he disappeared. SA could bear responsibility if evidence shows that the State affirmatively ordered or carried out Khashoggi’s murder or failed to protect him from torture and other cruel, inhuman, or degrading treatment or punishment. Additionally, if the Crown Prince, Mohammed bin Salman (MBS) is linked to Khashoggi’s torture and death, he and his associates could face criminal charges using different modes of criminal liability through the principle of universal jurisdiction under the Convention Against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT).
Currently, SA has charged eleven individuals allegedly responsible for Khashoggi’s death, but the international community fears bias from a SA investigation due to the State’s delay in acknowledging his killing and its failure to produce his body. CNN reported that Riyadh has maintained that neither MBS nor his father, King Salman, knew of the operation to target Khashoggi. However, Turkish investigators and the CIA allegedly have evidence that Khashoggi was strangled and dismembered by an assassination squad, including a part of MBS’s own security detail, that arrived from SA shortly before Khashoggi’s death. Moreover, the Washington Post reported that CIA sources concluded that MBS ordered the assassination.
SA has signed CAT, in which Article 1 bans torture “for any reason…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.” Additionally, under Articles 2, 4, 6, and 7, the State has positive obligations to prevent torture, investigate when violations occur, and punish whoever is in involved in the violation. The Committee Against Torture will likely find that SA violated CAT under these articles if it failed to define and criminalize torture under its domestic laws, failed to protect Khashoggi from torture in its jurisdiction, and additionally, fails to adequately investigate and punish the individuals responsible.
Unfortunately, SA has not signed the CAT’s Optional Protocol. Therefore, the U.N. Committee Against Torture only has quasi-judicial authority to review the State and determine whether there was a violation. Review often has strong political consequences, but the administrative process only occurs every four years. In this case, the review process is not the best enforcement mechanism because SA’s last report was in 2016, so the country will not be obligated to report again until 2020.
After the CIA’s recent conclusions, international criminal accountability is becoming more feasible. Articles 5, 6, and 7 of CAT allows criminal prosecution through universal jurisdiction. For example, Article 5 requires that state parties can “take measures as may be necessary to establish its jurisdiction over [acts of torture],”in cases where the alleged offender is present in any territory under its jurisdiction. Also, as exemplified in the famous Pinochet case, Article 8 of CAT establishes that alleged perpetrators are extraditable if found in a country that is party to the convention. The International Court of Justice (ICJ) determined that any state party to CAT, including the United States, can invoke responsibility of another state that has allegedly failed to comply with its obligations under the treaty. However, the United States has dismissed universal jurisdiction in the past, and President Trump’s recent statements rebuffing the CIA’s findings seem to support SA. Still, there are other countries with more aggressive mechanisms for prosecuting torture by universal jurisdiction. Human Rights Watch has asked Argentina to investigate MBS’s involvement in Khashoggi’s case because he plans to attend the G20 Summit in Buenos Aires on November 30, 2018. Argentina’s constitution recognizes universal jurisdiction for torture and therefore could be an avenue to hold MBS criminally liable.
Even if an investigation cannot prove that MBS ordered Khashoggi’s killing, he could still be culpable under the principle of command responsibility. Stephen Rapp, the former U.S. State Department ambassador-at-large for war crimes issues, explained, “Liability under the principle of ‘command responsibility’ requires showing of effective control, reason to know of conduct and failure to prevent the acts or punish those directly responsible.” According to CIA sources, due to the structure of the SA government, Khashoggi’s death would not have happened without MBS’s knowledge and authorization, and thus, he would likely be responsible.
Under the principle of head-of-state immunity, MBS might argue that he is immune from international crimes, but personal immunities only apply to official acts. MBS has maintained that Khashoggi’s torture and killing was a “rogue operation,” and additionally, in Pinochet, the House of Lords found that torture, as defined by CAT, cannot be an official act. However, in Congo v. Belgium, the ICJ concluded that, according to customary international law, sitting heads-of-state cannot be prosecuted in national courts abroad. Therefore, unless King Salman removes MBS from his post, prosecution of MBS through universal jurisdiction will be a challenge.
Under CAT, SA and its actors can face state and individual responsibility for the death of Jamal Khashoggi; however, the legal strategy will depend on the international community’s willingness to prosecute and the evidence uncovered in the coming weeks.