The Khashoggi Case: Implications of the Report of the U.N. Special Rapporteur

The UN Special Rapporteur on extrajudicial, summary or arbitrary executions, Agnes Callamard, released her report into the killing of journalist Jamal Khashoggi last Wednesday. The report traces with careful detail the run up to, and the eventual extrajudicial execution of Jamal Khashoggi in the Saudi Arabian consulate in Turkey, analyzing the available evidence and applicable international law. 

The release of the report created shockwaves in the immediate aftermath. However, this week the U.S. President indicated his refusal to pursue any further course of action, calling it “heavily investigated”. He also made the implicit connection between the reticence to pursue the matter further and the continuing sale of arms by the U.S. to the kingdom. It is also worth noting in this context the UK court of appeals decision, also last week, that ordered the suspension and reconsideration of arms sales to Saudi Arabia. 

While some commentators hold out little hope for change in the near future, what is the legal significance of the special rapporteur’s report?

The report makes a clear case for the state responsibility of Saudi Arabia not just for the violation of the right to life due to the killing of Mr. Khashoggi, but also for the lack of proper investigation and dubious ongoing trials. The rapporteur comes to the conclusion that given the involvement of state agents, Saudi Arabia cannot disclaim responsibility by claiming that these state agents went “rogue”. And in fact, the evidence points to this scenario being unlikely, but rather, premeditation being the most likely. On the trials currently underway in Saudi Arabia, the rapporteur points out problematic aspects of the trials including secrecy and the opaque nature of the proceedings. She also highlights the co-option of members of the UN Security Council as trial observers, with members of the diplomatic community asked to sign non-disclosure agreements. Further, such trial observation would not be able to rectify fundamental problems with the trials themselves, and instead points to the potential complicity of the UN Security Council itself in a what may amount to a “miscarriage of justice”. The rapporteur has recommended suspension of the trials and indicated that the application of the death penalty in would amount to “arbitrary killing” by the state. Agnes Callamard also points to the “credible evidence meriting further investigation” regarding the involvement of the Crown Prince Mohammed Bin Salman. 

This case has given rise to new legal issues that have not been addressed before, such as the relationship between the Vienna Convention on Consular Relations, the right to life enshrined in UN treaties, and the prohibition on the extra-territorial use of force. The rapporteur also scrutinizes the role of the private sector, and in particular those companies that sell software to the authorities that enables surveillance. 

By virtue of the work of Mr. Khashoggi, this case has become a lightning rod in a renewed focus on the work of journalists and the threats to freedom of expression world over. The report squarely places the onus on all states to address the increasing repression of journalists and human rights defenders. It also singles out the need for proactive fair warning in case of threats to journalists, inquiring into what the U.S and Turkish intelligence agencies knew previously. Turkey is asked to honour international legal obligations and commitments to free speech, and to release jailed journalists.  

In her recommendations, the rapporteur makes specific suggestions as to the next steps – for investigation and prosecution via an ad hocor hybrid tribunal, and the possibility for states to exercise what is known as “universal jurisdiction”, which allows prosecution of individuals for international crimes, regardless of whether the state has a direct link to the victim or location of the crime. She has also recommended investigation by the U.S Federal Bureau of Investigation. Furthermore, in order to address similar cases in the future, a “Standing Instrument” for criminal investigation into targeted killing of journalists and human rights defenders should be established, which would investigate and assist in the preparation of files to enable a swifter response.

The special rapporteur has used her mandate and initiative to undertake this investigation. Besides the report itself, follow-up of the recommendations is crucial. Callamard exhorts the UN Secretary General to initiate a follow-up criminal investigation without waiting for it to be triggered by a state. 

While the next steps do not hinge on the U.S administration, the reaction yesterday is indicative of the approach other states may also take. However, the UN Special Rapporteur has made it just that bit harder to ignore the extrajudicial execution of a prominent journalist in the most brazen fashion. The report lays out in black and white the legal basis on which to proceed. Any such impediment to entrenched impunity is a welcome development.