Law in the headlines: Justice for murdered Saudi dissident Jamal Khashoggi

It is an essential question to address if there is to be a categorical message sent that such egregious crimes against dissidents will not be tolerated. The Saudi authorities may have thought that they could get away with this atrocity; they have escaped censure for so many serious human rights violations over many decades. But now that the international community has been confronted so explicitly with how opponents of the Saudi government are treated, and the demand for accountability has grown on an unprecedented scale, it is more vital than ever that these calls for justice are reliably followed through to reveal the whole truth.

As the elaborate schemes by those behind the killing are no doubt being hatched to try to manage and limit the damage, the United Nations and governments around the world must stand firm and not bow to pressure either to accept an inadequate criminal justice process or to kick this case into the long grass. The case is now an international one with global consequences. Many argue therefore that it cannot be settled as a purely domestic affair, and certainly that Saudi Arabia should not be permitted to have exclusive jurisdiction over the investigation. It would require the Saudi leadership to inquire into its own activities and decide whether they should prosecute themselves, which is clearly unworkable.

Jurisdiction issues

The permanent International Criminal Court (ICC) in The Hague would not have jurisdiction unless the UN Security Council referred the case to the court, as neither the country where the events took place nor the country of the perpetrators are signed up as parties to the ICC Statute. In this case the ICC would only be able to investigate crimes against humanity. It would thus have to be shown that Mr Khashoggi’s murder formed part of a widespread or systematic attack on civilians. There is undoubtedly evidence of dissidents and human rights defenders being targeted in Saudi Arabia. Hundreds have been detained or disappeared. There have been countless cases of torture and cruel treatment documented by the United Nations and NGOs. Most recently, over a dozen women activists who had campaigned for the ban on women driving to be lifted, were jailed by the Saudi authorities in June this year. They remain in custody, accused of being traitors and a threat to national security, and could face very long prison sentences.

Shrouded in secrecy

I co-authored an investigative report in January 2018 with Lord Ken Macdonald QC about opponents who had been arrested en masse in Saudi Arabia in September last year. These were not the persons, including members of the royal family, who were held in the Ritz Carlton hotel later that year. They certainly did not receive ‘five star’ treatment. The report noted that over 60 dissidents, journalists, clerics and activists had been arrested or disappeared in a major crackdown by the Saudi authorities in September 2017. Certain of the families of those detained asked for the findings of the report to be made public to try to push governments and the United Nations to act to release those arbitrarily imprisoned. Yet they remain in jail with the exact whereabouts of many still unknown. Some have been threatened with execution. The report, entitled ‘Shrouded in Secrecy: The Human Rights Situation in Saudi Arabia following arrests in September 2017’ (January 2018), was provided to the UN Human Rights Council for its consideration during the Universal Periodic Review (UPR) of the human rights situation in Saudi Arabia which took place in Geneva during the week of 5 November 2018.

Establishing the right forum

Even with this evidence of a wider campaign which demonstrates that the Khashoggi killing was not an isolated incident, it is most unlikely that the Security Council will refer the matter to the ICC for investigation and prosecution. Alternatives must be explored. One option would be to establish an internationalised court in The Hague or elsewhere with the involvement of both Saudi Arabia and Turkey, and to include international judges, prosecutors, and investigators. This model has worked very effectively in other situations in which ad hoc hybrid courts (a combination of national and international components) have been set up to investigate very serious and sensitive crimes, including for example in Lebanon following the assassination of the former Prime Minister of Lebanon. The Special Tribunal for Lebanon (STL) was established in The Hague, and trials have been conducted there. Similar courts were used in Sierra Leone, Cambodia, and East Timor. Such a court has also recently been set up for Kosovo under the auspices of the European Union. These courts and the prosecutors’ offices are all staffed by a mixture of nationals from the countries concerned and international experts. There is also a precedent that could be drawn on from the special court that was set up to try the alleged Lockerbie bombers in The Netherlands, widely viewed as a centre for international criminal justice and dispute resolution.

"The critical questions are: whether a genuine and transparent investigation will be conducted reaching to the highest levels; and which is the appropriate body to undertake such a sensitive inquiry and prosecution?"

In all these instances it has been necessary to elevate the cases to the international realm with the direct input of both the countries concerned and the international community, given the complexities and challenges of the litigation, the implications of the outcomes, and very importantly in order to lend legitimacy and credibility to the investigations and prosecutions. These same considerations are clearly at play in the present case.

Were such a court created for the Khashoggi case it could be backed by the UN, with provisions that require the cooperation of Saudi Arabia and all states. The Saudi government has stated that it is determined to find out what happened – Saudi agreement to such a court would demonstrate their true commitment to justice and accountability. If they are unwilling, the UN, Saudi’s allies and all countries should insist on such an internationalised judicial process in order for Saudi Arabia to maintain their international standing. This is the least that States can do, even if they are not prepared to impose sanctions on Saudi Arabia or embargo further arms’ exports to the Kingdom.

Mr Khashoggi was due to speak at an event in Washington DC just after he made his fateful trip to the Saudi embassy in Istanbul. It had been organised for those targeted by the Saudi government to raise profile in the United States about their plight. Human rights lawyers and experts speaking at the event were decidedly skeptical if there had been any kind of reform happening in Saudi Arabia, as all those who had raised any criticisms of the government had been systematically silenced (www.saudiarabiaconference.com). The ruthless operation to eliminate Mr Khashoggi accentuated that point in the most tragic way possible. That is why it is so important to establish the right forum to unearth the facts and all the relevant evidence, without there being any questions over the independence and rigour of the investigative process. The evidence has to be followed wherever it leads up the chain of command, and those accused must face trial before a credible and impartial court that will have the full confidence of Mr Khashoggi’s family and all those affected by human rights violations in Saudi Arabia, as well as the wider international community.

Rodney Dixon QC practices from Temple Garden Chambers in London and The Hague. He specialises in international law and human rights, appearing before international and regional courts, the UN and international bodies, and national courts. He is the co-author of Archbold International (Sweet & Maxwell, 5th ed) on international criminal courts.