An Interesting Jurisdictional Theory in the Khashoggi Case

I am quoted in a long article by Ali Younes for Al Jazeera about a new communication to the ICC asking it to investigate the murder of Jamal Khashoggi, which was committed one year ago today. The communication advances two theories for why the Court has or could have jurisdiction over Khashoggi’s murder. The article quotes me responding to one: a Security Council referral. In this post, I want to briefly comment on the second jurisdictional theory, which is equally doomed to fail but still quite interesting: the idea that the Court already has jurisdiction over the murder, which means that the OTP could investigate it proprio motu.

That idea, of course, immediately confronts a seemingly insuperable obstacle: assuming that Mohammed bin Salman and his security forces were responsible for the murder — which the CIA has concluded — the crime was committed by the nationals of a non-state party (Saudi Arabia) on the territory of a non-state party (Turkey). So the Court does not have jurisdiction.

The communication tries to get around that problem by invoking the logic of the Myanmar jurisdiction decision (without actually citing it). Here is what it argues (p. 6):

The Court may also exercise jurisdiction over crimes against humanity if they occur in whole or in part in one or more States which are parties to the Rome Statute. Jordan is a State Party, and the Crown Prince’s crimes against humanity were perpetrated in part through the kidnapping of Faisal al-Jarba in Jordan by the Crown Prince’s Saudi Rapid Intervention Group.

The communication does not go beyond this statement, so we need to unpack the argument. The argument is not that an essential element of Khashoggi’s murder took place on the territory of a state party, nor even that part of the murder took place on the territory of one. Instead, the communication is implicitly arguing that as long as one of the acts that forms part of a widespread or systematic attack on a civilian population takes place on the territory of a state party, the ICC has jurisdiction over any crime against humanity that is committed as part of that widespread or systematic attack, regardless of its location. It thus does not matter that Khashoggi’s murder was not committed on the territory of a state party, because one of the acts that establishes Saudi Arabia’s widespread or systematic attack on civilians was: the kidnapping of Faisal al-Jarba in Jordan. The Court thus has jurisdiction over Khashoggi’s murder.

This is a clever argument — but one that cannot succeed. The ICC might have jurisdiction over al-Jarba’s kidnapping, but that does not mean it has jurisdiction over Khashoggi’s murder simply because the kidnapping and murder (arguably) took place as part of the same widespread and systematic attack on a civilian population. The Myanmar jurisdiction decision makes clear that the territorial-jurisdiction inquiry is crime-specific: a crime is only within the jurisdiction of the Court if an element or part of that particular crime took place on the territory of a state party. Here is paragraph 74:

The Chamber considers it appropriate to emphasise that the rationale of its determination as to the Court’s jurisdiction in relation to the crime of deportation may apply to other crimes within the jurisdiction of the Court as well. If it were established that at least an element of another crime within the jurisdiction of the Court or part of such a crime is committed on the territory of a State Party, the Court might assert jurisdiction pursuant to article 12(2)(a) of the Statute.

Indeed, the Pre-Trial Chamber’s lengthy analysis of whether an element or part of the crimes against humanity of persecution and other inhumane acts would have been completely unnecessary if the Chamber had embraced the Khashoggi communication’s jurisdictional theory. There is no question that the deportation of the Rohingya to Bangladesh and Myanmar’s subsequent refusal to let them return home were part of the widespread and systematic attack on the Rohingya civilian population. According to the communication’s theory, therefore, the ICC would have jurisdiction over every crime against humanity committed as part of that widespread and systematic attack, even ones that took place solely on the territory of Myanmar — murder, sexual violence, etc. Yet the Pre-Trial Chamber not only did not discuss those crimes, it did not even discuss whether there was a widespread or systematic attack against the Rohingya. It simply assumed there was for sake of its crime-specific jurisdictional analysis.

As I said in the Al Jazeera article, I think the communication is important because it will focus international attention on Mohammed bin Salman’s responsibility for Khashoggi’s murder. But the (sad) fact remains that the Security Council will not refer the murder to the ICC and the Court does not have territorial jurisdiction over the crime. So for now, impunity will continue to reign.