Milanovic: The Murder of Jamal Khashoggi: Immunities, Inviolability and the Human Right to Life

Marko Milanovic (Univ. of Nottingham - Law) has posted The Murder of Jamal Khashoggi: Immunities, Inviolability and the Human Right to Life. Here's the abstract:

On 2 October 2018, 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. This article seeks to comprehensively analyze Khashoggi’s killing from the standpoint of the human right to life. It sets out the relevant legal framework, addressing inter alia the issue that Saudi Arabia is not a party to what would otherwise be the most relevant human rights treaty, the International Covenant on Civil and Political Rights. It examines not only the obligations of Saudi Arabia, but also those of Turkey and the United States, in protecting Khashoggi’s right to life from third parties, and ensuring respect through an effective investigation of his killing and mutual cooperation for the purpose of that investigation. It also looks at the extraterritorial scope of these various obligations.Finally, the article examines possible norm conflicts between state obligations under human rights law and their obligations under diplomatic and consular law, such as the inviolability of diplomatic and consular premises, agents, and means of transportation.

The article argues that the fundamentals of the operation of the right to life in its various aspects regarding Khashoggi are reasonably clear. First, before the killing, the positive duty to protect Khashoggi’s life was triggered if Turkey and the United States knew, or ought to have known, of a real and immediate risk to Khashoggi’s life. It seems possible, if not likely, that these two states, and potentially others as well, did in fact possess such information so that the threat to Khashoggi’s life was reasonably foreseeable to them. If such was the case, at the very minimum these states had the duty to warn Khashoggi of the threat, which they did not do.

Second, there is no doubt that Saudi Arabia was in flagrant violation of the negative obligation to refrain from arbitrary deprivations of life. As for Turkey, if it knew, or ought to have known, of the threat to Khashoggi’s life in the premises of the Saudi consulate in Istanbul, it would have been required by its obligation to protect his life to forcibly enter the consulate if that was the only way of saving his life.

Third, Khashoggi’s killing engaged the procedural positive obligation to investigate his death. The article shows that many of the decisions that Turkey had made which compromised the effectiveness of the investigation, but which Turkey claimed it had to pursue in order to respect consular privileges and immunities, were in fact not required by consular law. For example, no rule of international law required Turkey to allow the Saudi agents to leave the country, to allow the consul-general and other members of consular staff to leave the country, or to ask Saudi Arabia for consent to search the consul-general’s residence or the consulate’s vehicles.

The article concludes that regardless of whether accountability for Khashoggi’s killing is ever fully realized, this does not change the fact that his right to life was protected by international law, as was the right to life of countless other victims of authoritarian regimes worldwide. The murder was a violation of the rights Khashoggi himself had had under international law, not simply those of the Turkish state. It deserves to be discussed in those terms.