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Law of Diplomatic and Consular Immunity: With reference to Jamal Khashoggi's murder

The murder of Jamal Khashoggi has become a part of worldwide news as the murder takes into account the international law on diplomatic and consular immunity. The insensate murder of Jamal Khashoggi blew the world not just because it was too inhumane in its nature but also due to the place where Jamal Khashoggi was murdered i.e. inside Saudi Consulate in Istanbul which enjoys special protection under International Law. Relevant treaties which give special protections to diplomats and consuls are Vienna Convention on Diplomatic Relations (VCDR) & Vienna Covention on Consular Relations (VCCR).

According to media reports the Saudi agents were responsible for the murder of Khashoggi. Saudi Arabia incurs State responsibility for commission of intentional wrongful acts by the organs, such as intelligence and State security officials, even if that act was committed ultra vires.[1] It is not at all debatable that Saudi operation against Khashoggi was a violation of Turkeys sovereignty and of its rights under diplomatic and consular law.

The research article focuses upon the law of diplomatic and consular immunity with respect to Jamal Khashoggis murder but also some refrence has also been given to human rights regarding the Killing of Khashoggi. Under the Global Magnitsky Act[2], the United States sanctioned 18 Saudi individuals for serious human rights abuse resulting from their roles in the killing of Jamal Khashoggi.

The research article would deal with the facts of the case of Khashoggis killing and state obligations under diplomatic and consular law, such as inviolability of diplomatic and consular premises, agents, and means of transportation. Jamal Khashoggis muder also provides a normative conflict between diplomatic and consular immunities.
  1. Brief of The Murder of Jamal Khashoggi

    Jamal Khashoggi, a dissident Saudi journalist residing in the United States, where he was a columnist for the Washington Post, was murdered in the Saudi Consulate in Istanbul on October 02, 2018. He visited the consulate to obtain a certificate of divorce from his former wife, so that he could marry his Turkish fiancée, Hatice Cenzig, who was waiting for him in a car outside the consulate. According to the media reports, Khashoggi was murdered by Saudi agents and his body was then dismembered with a bone saw; his remains are yet to be found.[3]

    Saudi authorities first rejected the reports of Khashoggis death in the Turkish press but acknowledged the killing after few weeks because of the presence of an audio tape of the murder obtained by Turkish intelligence. The official line given by Saudi government is that Khashoggis killing was a rogue operation and a huge mistake which was not authorized by the countrys crown prince, Mohammed Bin Salman.[4] US intelligence agencies have concluded that Khashoggis killing was pre-mediated and almost certainly carried on the orders of crown prince.[5]

    Khashoggis killing has been described as an arbitrary deprivation of life in the State Departments country report on human rights in Saudi Arabia. At the international level, the UN Special Rapporteur for extrajudicial, summary or arbitrary executions, Agnes Callamard, has launched an investigation into Kashoggis death as part of her mandate.

    She has published a set of preliminary observations and plans to submit a final report to the UN Human Rights Council in June 2019. Her report, based inter alia on a field visit to Turkey, concluded that the evidence demonstrates a prime facie case that Mr. Khashoggi was the victim of a brutal and premeditated killing, planned and perpetrated by officials of the State of Saudi Arabia and others acting under the direction of these State agents.

  2. How Is VCCR & VCDR Is Connected To Mr. Jamal?

    Jamal Khashoggi was killed in the Saudi consulate in Istanbul. The treaty which is significant in this case is Vienna Convention on Consular Relations. There is a contrast between the immunities and privileges available to diplomats under Vienna Convention on Diplomatic Relations[6] and the immunities and privileges available to consular under Vienna Convention on Consular relations. Saudi Arabia (as the sending state).

    Turkey (as the receiving state) and United States (as a third state) are all parties to both VCDR and VCCR. The author will now briefly examine some of the rules of diplomatic and consular law which are important with reference to this case:
    The inviolability of consular and diplomatic premises is provided for by Article 31 VCCR and Article 22 VCDR respectively. The consular privilege is weaker than the diplomatic privilege.

    Thus, under Article 31(1) and (2) VCCR:
    Consular premises shall be inviolable to the extent provided in this article.

    The receiving state cannot enter the premises of consulate. He can only enter the premises with the permission of the head of the consulate in case of natural calamity or the situation which needs a protection of the receiving state.

    The VCCR and VCDR differ in case of searching the residence of the consuls and diplomats. VCCR does not give any kind of protection from searching of the residence of the consular but at the same time the residence of a diplomat enjoys the privilege that it cannot be searched by the receiving state in any case.

    Now coming to the inviolability of the agents of the receiving state and analysing it with respect as to what is given in VCCR & VCDR and also on which kind of crime [7] can a receiving state enter the consulate.

    · According to Article 41(1) of VCCR, Consular office shall only be violable in case of grave crime.
    · According to Article 29 of VCDR, the diplomat will not be liable or would not be arrested in the case of any kind of crime. He is immune to the next level.
    · According to Article 44 of VCCR, a consular officer can be forced to give evidence to the receiving state.
    · According to Article 31(2) VCDR, a diplomat cannot be forced in any of the condition to give the evidence.

    Under both Article 55(1) VCCR and Article 41(1) VCDR: 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. Note how any violation of this duty to respect domestic law does not remove the privilege and immunities of consular or diplomatic agents, except as otherwise provided for in the Conventions. Similarly, Article 55(2) VCCR and Article 41(3) VCDR stipulate that consular and diplomatic premises shall not be used in any manner incompatible with the exercise of consular or diplomatic functions (which, obviously, do not include murder).

  3. Whether The Murderers can be tried Under Turkish Law?

    The murder took place in Saudi consulate and Saudi Arabia has state responsibility because the acts were committed by the by consuls and the people appointed by Saudi and the crime was committed under Saudi consulate which is immune to the inviolability by the receiving state.

    The Vienna Convention on Diplomatic Relations (VCDR) is part of customary international law and is regarded as the most widely based multilateral regimes in the field of international relations. Diplomatic relations govern the friendly nature between the states. In Jamal Khashoggis murder case, Saudi Arabia sent some of the people from Saudi to kill Jamal Khashoggi.

    The persons sent by Saudi were diplomats and come under the definition of VCDR as diplomats, who are immune to the extent that they cannot be tried by the receiving state.[8] Diplomats are immune from the criminal jurisdiction of the receiving state i.e. a diplomat cannot be tried by the receiving state. Since under VCCR & VCDR, Turkey was under many restrictions so it could not provide any help to Jamal Khashoggi and further after the death, the investigation became more difficult because of VCDR & VCDR.

    Saudi Arabia has used its diplomatic power in a wrong manner by sending its people who are immune under VCDR to kill Jamal Khashoggi. Diplomacy should not be used in a wrong manner and to do acts which are against human rights and international norms. Immunity given to diplomats and consulars under VCDR and VCCR should not be taken for granted and these immunities must not also be confused with impunity.

    However, Turkey has no right to enter Saudis Consulate as it is absolutely inviolable under VCCR. In Hostages case, the same issue had been discussed by International Court of Justice, that diplomat is free from the jurisdiction of the receiving state. The facts of the case were that Iran was trying the US diplomat under its criminal Jurisdiction.

    So the ICJ held that Iran violated VCCR & VCDR by truing that diplomat because he had diplomatic immunity. A new point comes into picture where though a diplomat is free from the jurisdiction of the receiving state (Turkey in this case) but is not free from the jurisdiction of the sending state (Saudi Arabia in this case). It implies that the accused can be tried by Saudi Arabia.[9] Hence the murderers could not be tried under Turkish Law.

  4. Whether Turkey Fulfilled Its Obligation To Investigate And Prosecute The Murderers?

    The position of Turkey being the receiving state is quite different. Turkish authorities put forward their willingness to investigate into the matter. Turkey had some restrictions due to VCCR and VCDR but despite those restrictions Turkish police did investigate into the matters which include reviewing thousands of hours of CCTV, following each and every step taken by the murderers.

    The question that comes into our mind is that whether Turkey fulfilled its obligation. There are four conditions that come to the mind of author that Turkey could have avoided but it did not. First condition being that Turkey should not have allowed the Saudi hit team members to leave country. Second condition being that it should not have allowed Saudi consul general to leave Turkey. Third being that it should not have delayed in searching the consulate and last but not the least that it should not have delayed in searching the vehicles and residence of consul-general.

    Allowing the Saudi agents to leave:
    The first question that arises in mind is that did Turkey had knowledge of the people when they were leaving Istanbul on two private jets at 7 and 11 pm on 2nd October. There comes two situations that if Turkey did not have knowledge of who these people were then there is no fault on part of Turkey but if Turkey knew who they were and what purpose they had then atleast it could have prevented their departure.

    Turkey did not need to arrest them but simply all it had to do was prohibit them from leaving. The reports claim that the Saudi agents had diplomatic passports that is why their bags were not checked.[10]

    Allowing the Saudi consul-general to leave:
    The decision of the Turkish authority which was in question was that they allowed the Saudi consul-general in Istanbul, Mohammad al-Otaibi, to leave the country on 16th October, the day before his residence was to be searched by Turkish authorities.

    Turkey knew at this point that the consul was involved in the operation. The Saudi Consul general was entitled to privileges and immunities. But these immunities are not unqualified. While the protection of the inviolability of a member of a diplomatic mission under Article 29 VCDR is categorical, and they are exempted from any obligation to give evidence as a witness under Article 31(2) VCDR, the same is not true for consular officers.

    Article 41(1) VCCR permits the arrest or detention of a consular officer for a grave crime, while Article 44 VCCR permits the receiving state to compel a consular officer to give evidence on matters not connected with the exercise of their functions, as murder obviously is not.

    In short, nothing in consular law prevented Turkey from arresting the consular general. He was not a diplomat. The immunities which he had were lesser and the immunities available to the staff were also lesser in power.

    Delay in searching the consulate:
    The delay in searching the consulate was caused by Turkey waiting for Saudi consent to enter the premises and there was the deliberate obstruction on Saudis part in this regard. The threat to Khashoggis life could be treated as the a disaster which needed a protective action.[11] The issue here is that what more could Turkey had done? It already had put pressure on Saudi Arabias government to provide consent for its entry.

    Turkey on its part could have notified Saudi Arabia to give consent for search immediately and if Saudi would refuse it and then Turkey would have no option left than to break the consular relations between the two states. If Turkey would have broken the consular relations then the consequences would be like that Turkey would have terminated the consular functions of all members of consular post and Second, per Article 27(1)(a) VCCR, the receiving state should protect the consular premises of the sending state in case of any conflict.

    The receiving states duty to respect the inviolability of consular premises thus, becomes transformed into the duty to respect and protect the consular premises. There is no doubt that this duty is of a lesser order than the one to respect inviolability, and that position is the same under diplomatic law. In particular, the duty to respect and protect consular premises does not prohibit the law enforcement agents of the receiving state from searching those premises as the scene of a crime.

    The Turkish authorities have tried to find out what happened to Khashoggi but the desire was dominated by political considerations.[12] Some decisions made by Turkish authorities were not required by the need to respect consular privileges and immunities and were, at least arguably, in violation of their duty to effectively investigate the killing.

  5. Reaction of International Communities

Saudi Arabia first denied the murder of Jamal Khashoggi but later on it accepted that Khashoggi was killed inside the Saudi Consulate in Turkey. After this news there was so much of commotion and there came different reactions of the International Community which are as follow:
  1. United Nations
    Antonio Guterres, who is secretary general of the United Nations expressed his grief when he came to know that Riyadh confirmed Khashoggis death. The UN chief has asked for the immediate action to look that who all were behind this brutal killing of Khashoggi inside the consulate. Antonio Guterres also extended his condolences to the near and dear ones of Khashoggi.
  2. France
    France also expressed the grief and extended condolences. France has also asked for investigating the matter and to find out the ones who were responsible for such a massive attack on humanity. Le Drian who is a French Foreign minister said that when the actual people who are responsible behind this will come to the knowledge then no deviation from international law would be followed in case where humanity is abused in such a way.[13]
  3. USA
    White House spokesperson Sarah Sanders said - We will continue to closely follow the international investigations into this tragic incident and advocate for justice that is timely, transparent, and in accordance with all due process. We are saddened to hear confirmation of Mr Khashoggi's death, and we offer our deepest condolences to his family, fiance, and friends.

Conclusion
The murder of Jamal Khashoggi is of great significance when it comes to international law and especially to law of diplomatic and consular immunities. One of the key feature of this case is using consular premises as the place of murder. Diplomatic and consular privileges and immunities were used wrongfully and ultra vires in this case. Khashoggis murder when viewed from international point of view revolves around the human right to life and the rules of diplomatic and consular law. Saudi Arabia used the powers of diplomats and consulars in a wrong manner to give success to its plan i.e. murder of Jamal Khashoggi.

Turkey was in the obligation to protect the life of Khashoggi if it would have known about the murder of the journalist. Turkey under Article 2 ECHR and Article 6 ICCPR could have entered consulate if it was clear to it that entering was the only way to save the life of Jamal Khashoggi. Khashoggis killing is a significant potential for norm conflicts between human rights and consular privileges and immunities.

Khashoggis life could have been saved by Turkish authorities if they would have entered the consulate without the delay and could have plead that it was a necessity to enter the consulate because of grave crime which was being committed in consulate. If the murder would have taken place in diplomat mission then Turkey could have entered the consulate after the permission but could not have investigated in a way it did in the present case because the immunities under VCDR are greater than those under VCCR.[14] In conclusion Saudi Arabia does not have reputation of a state particularly mindful of the sanctity of immunities under international law.

Saudi Arabia violated immunities given to it and hence the murderers should not be granted any kind of immunities under VCDR and VCCR because the crime they committed inside the consulate cannot be regarded as a function of consulate and secondly the crime was a prima facie grave violation of human right which is taking shelter under diplomatic and consular immunities and privileges.

Bibliography
  • Articles
    · Jonathan Brown, Diplomatic Immunity: State Practice under the Vienna Convention on Diplomatic Relations, 37 Intl & Comp. L.Q. 53 (1988).
    · International Commission of Jurists, The Arab Court of Human Rights: a Flawed Statute for an Ineffective Court, 2015.
  • Books
    · Malcolm N. Shaw, International Law,7th Edition Reprint 2015, Published by Cambridge University Press.
    · Mark A. Sammut, The Law of Consular Relations, 5th Edition Reprint 2012, Published by XPL publications.
  • Journal Article
    · Marko Milanovic, The murder of Jamal Khashoggi: Immunites, Inviolability and the Human Right to Life, HARV. BUS. REV., Jan-Feb 2019, at 12,13.
  • Newsarticle Articles
    · Mark Mazzetti, Year before killing, Saudi Prince told he would aide a bullet on Jamal Khashoggi, N.Y. TIMES, Feb 7, 2019 at A1.
    · Mark Mazetti, Killing of critic was on radar of Saudi Royal, N.Y. TIMES, Feb 8, 2019 at A1.
  • Internet
    · Marko Milanovic, The Legal Framework: Human Rights and Diplomatic and consular law, EJILTalk( July 3, 2019, 10:05 PM), https://www.ejiltalk.org/the-murder-of-jamal-khashoggi-immunities-inviolability-and-the-human-right-to-life-part-iii-during-the-attack/.
    · Marko Milanovic, Turkish positive obligation to potect life of Jamal Khashoggi, EJILTalk( July 4, 2019, 11:23 PM), https://www.ejiltalk.org/the- Turkish positive obligation to potect life of Jamal Khashoggi /

End-Notes:
  1. Art. 7 of the International Law Commissions Articles on State Responsibility.
  2. The Act provides for the imposition of sanctions on individuals responsible for extrajudicial killings, torture, or other gross violations of internationally recognized human rights committed against individuals in any foreign country seeking to expose illegal activity carried out by government officials, or to obtain, exercise, or promote human rights and freedoms.
  3. Jamal Khashoggi killing: what we know and what will happen next, The Guardian, 09 July 2019, at https://www.theguardian.com/world/2019/July/09/jamal-khashoggi-killing-what-we-know-and-what-will-happen-next.
  4. White House declines to submit report to Congress on Khashoggi killing, Washington Post, 09 July 2019, at https://www.washingtonpost.com/politics/white-house-declines-to-submit-report-to-congress-on-khashoggi-killing/2019/02/08/fdab7f96-2bd4-11e9-984d-9b8fba003e81_story.html?utm_term=.928943c70caf (quoting Adel al-Jubeir, the Saudi minister of state for foreign affairs).
  5. Ibid.
  6. Art. 31(1), VCDR, 1964
  7. Foakes and Denza, The Appointment and Functions of Consuls, in I. Roberts (ed.), Satows Diplomatic Practice (OUP, 7th ed., 2017) 120, para. 8.31 et seq.
  8. International Commission of Jurists, The Arab Court of Human Rights: a Flawed Statute for an Ineffective Court, 2015.
  9. Jonathan Brown, Diplomatic Immunity: State Practice under the Vienna Convention on Diplomatic Relations, 37 Intl & Comp. L.Q. 53 (1988).
  10. Mark Mazetti, Killing of critic was on radar of Saudi Royal, N.Y. TIMES, Feb 8, 2019 at A1.
  11. Mark Mazzetti, Year before killing, Saudi Prince told he would aide a bullet on Jamal Khashoggi, N.Y. TIMES, Feb 7, 2019 at A1.
  12. Mark Mazetti, Killing of critic was on radar of Saudi Royal, N.Y. TIMES, Feb 8, 2019 at A1
  13. International Commission of Jurists, The Arab Court of Human Rights: a Flawed Statute for an Ineffective Court, 2015.

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