Slain columnist Jamal Khashoggi has been named Time Magazine’s person of the year for his work in journalism along with other journalists who have faced political persecution for their work. The premeditated murder of Jamal Khashoggi who was a fierce critic of the Saudi Crown Prince inside Saudi Arabia’s consulate building in Istanbul, Turkey sent shockwaves around the world. Khashoggi entered the Saudi Arabian consulate in Istanbul in order to obtain documents related to his planned marriage with a Turkish lady but he never came out of the premises.
Though initially the Saudi Arabian Government denied the death, when international pressure started building, it finally conceded that Khashoggi was murdered inside the consulate.
Though the murder was committed inside the consulate premises, yet the Turkish Government has made it clear that it will not allow the crime to go unpunished. Facts which have come out till now suggest that more than a dozen Saudi nationals are involved in his murder and the Crown Prince of Saudi Arabia may have been behind the gruesome killing.
The power and authority of the Turkish authorities in investigating the crime falls under the realm of International law. The law comprises of customary law, Vienna Convention on Diplomatic Relations (1961) and Vienna Convention on Consular Relations (1963). Customary law clearly prohibits states from sending their agents to the territory of another state to execute their own laws or policies as the state breaching the rule violates international law’s ban on intervention in the internal affairs of other states.
Also, prohibition of the use of force is one of the cardinal jus cogens rules of international law. Foreign embassies and consulates do not form part of the territory of the State that occupies it and they remain subject to the jurisdiction of their host country.
Thus, Turkish authorities can investigate the murder. But the Vienna conventions do provide certain safeguards. Vienna Convention on Diplomatic Relations provides the foreign embassies and the diplomatic agents with many immunities. But the Vienna Convention on Consular Relations provides a limited number of protections to consular premises and personnel.
Article 31 provides that consular premises are inviolable and the authorities of the receiving State cannot 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. But the sending state has also some responsibilities. Article 5 of Vienna Convention on Consular Relations states that consular functions consist of protecting the interests of the sending State and of its nationals, both individuals and bodies corporate, within the limits permitted by International law as well as helping and assisting nationals of the sending State.
Article 55 of Vienna Convention on Consular Relations demands respect for the laws and regulations of the receiving State. It states that without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of the State and more importantly the consular premises could not be used in any manner incompatible with the exercise of consular functions.
One of the prominent cases discussing the inviolability of diplomatic premises is the Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran, 1980, ICJ). During the Iranian revolution, on 4 November 1979, the United States Embassy compound in Tehran was overrun by an armed group of several hundred people wherein the Iranian security personnel simply disappeared from the scene and made no apparent efforts to deter or prevent the demonstrators from seizing the Embassy’s premises.
The militants then also seized some other buildings, including the various residences, on the Embassy compound and all the diplomatic and consular personnel and other persons present in the premises were seized as hostages, and detained in the Embassy compound for a long period. In this case the ICJ was asked by the United States to declare the gross illegality of the act. The ICJ observed that the rules of diplomatic law constitute a self-contained regime which, on the one hand, lays down the receiving State’s obligations regarding the facilities, privileges and immunities to be accorded to diplomatic missions and, on the other, foresees their possible abuse by members of the mission and specifies the means at the disposal of the receiving State to counter any such abuse.
The World Court observed that the Iranian Government did not break off diplomatic relations with the United States and at no time before the events of 4 November 1979 had the Iranian Government declared, or indicated any intention to declare, any member of the United States diplomatic or consular staff in Tehran persona non grata. The Iranian Government did not employ the remedies placed at its disposal by diplomatic law specifically for dealing with activities of the kind of which it complained.
Instead, it allowed a group of militants to attack and occupy the United States Embassy by force, and to seize the diplomatic and consular staff as hostages. The Court held that Iran by its conduct had violated in several ways the obligations owed by it to the United States under international conventions as well as under long-established rules of general international law.
Various accounts suggest that Khashoggi was tortured, strangled and finally dismembered. Torture has been barred under various International Conventions. Article 5 of the Universal Declaration of Human Rights provides that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”
Article 6 of the International Covenant on Civil and Political Rights states that every human being has the inherent right to life and this right shall be protected by law. Also no one can be arbitrarily deprived of his life. Article 7 further provides that: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”
Article 2 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment states that each State Party has to take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. Even an order from a superior officer or a public authority cannot be invoked as a justification of torture. The Convention further provides that all State Parties have to ensure that all acts of torture are made offences under its criminal law and appropriate penalties are provided which take into account their grave nature.
In the Hissène Habré case, Habré was the President of the Republic of Chad from 1982-1990, during which time large-scale violations of human rights were allegedly committed.
Habré was overthrown in 1990. Belgian nationals of Chadian origin filed complaints with civil-party application against Habré with a Belgian investigating judge alleging serious violations of international humanitarian law, crimes of torture and the crime of genocide. As Habré was resident in Senegal having been granted political asylum, Belgium alleged that Senegal failed to prosecute Habré and thus violated the obligation to prosecute or extradite provided for in Article 7 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and in customary international law.
In the case Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal, 2012), Belgium requested the World Court to adjudge and declare that Senegal is obliged to bring criminal proceedings against Habré and, failing that, to extradite him to Belgium. It requested the Court to adjudge and declare that Senegal breached its obligations of the Convention by failing to bring criminal proceedings against Hissène Habré, unless it extradites him. Belgium alleged that Senegal breached its international obligations by failing to incorporate in its domestic law the provisions necessary to enable the Senegalese judicial authorities to exercise the universal jurisdiction provided for in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
The World Court observed that obligation on the State to criminalise torture and to establish its jurisdiction over it finds equivalents in the provisions of many international conventions for combating international crimes. This obligation, which has to be implemented by the State concerned as soon as it is bound by the Convention, has in particular a preventive and deterrent character. The Convention against Torture thus brings together 150 States which have committed themselves to prosecuting suspects in particular on the basis of universal jurisdiction. The Court thus held that Senegal by failing to make immediately a preliminary inquiry into the facts relating to the crimes allegedly committed by Habré, and by failing to submit the case of Habré to its competent authorities for the purpose of prosecution, had breached its obligations under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
The grave crime committed by Saudi Arabia can entail serious consequences. Responsibility of States for Internationally Wrongful Acts (2001) provides that every internationally wrongful act of a State entails the international responsibility of that State. There is an internationally wrongful act of a State when conduct consisting of an action or omission is attributable to the State under international law; and constitutes a breach of an international obligation of the State. The characterisation of an act of a State as internationally wrongful is governed by international law. Such characterisation is not affected by the same act being deemed lawful by internal law. The conduct of a person or group of persons is to be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of that State in carrying out the conduct.
United States has also recently passed the Global Magnitsky Human Rights Accountability Act. This Act empowers the President of the United States to impose sanctions with respect to any foreign person the President determines is responsible for extrajudicial killings, torture, or other gross violations of internationally recognized human rights committed against individuals in any foreign country who seek to expose illegal activity carried out by government officials; or to obtain, exercise, defend, or promote internationally recognized human rights and freedoms, such as the freedoms of religion, expression, association, and assembly, and the rights to a fair trial and democratic elections.
The President of the United States also signed Executive Order 13818 of 20 December 2017 which declares national emergency with respect to serious human rights abuses and corruption globally. It states that the threat of the prevalence and severity of human rights abuse and corruption that have their source, in whole or in substantial part, outside the United States, have reached such scope and gravity that they threaten the stability of international political and economic systems. It states that human rights abuse and corruption undermine the values that form an essential foundation of stable, secure, and functioning societies.
Now United States, under the authority of Executive Order 13818, has imposed sanctions on 17 Saudi Arabian individuals for serious human rights abuse resulting from their roles in the killing of Khashoggi. This action was taken by implementing and building upon the Global Magnitsky Human Rights Accountability Act. As a result of this action, all of these individuals’ assets within U.S. jurisdiction are blocked, and U.S. persons are generally prohibited from engaging in transactions with them.
UN High Commissioner for Human Rights Michelle Bachelet has rightly observed that in view of the seriousness of the situation surrounding the disappearance of Khashoggi, the inviolability or immunity of the relevant premises and officials bestowed by treaties such as the 1963 Vienna Convention on Consular Relations should be waived immediately as under International law, both a forced disappearance and an extra-judicial killing are very serious crimes, and immunity should not be used to impede investigations.
(The writers are Mumbai-based advocates and legal consultants)