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The death of
Jamal Kashoggi: Issues of Human Rights Violations and International Law |
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Jumoke Adegbonmire* |
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Abstract |
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State responsibility is a cardinal principle of
international law. The doctrine of State sovereignty under international law
accords StatesÕ legal personality and requires that they fulfill
international obligations. International law imposes obligations on States to
perform their duties in ensuring that a breach of international law does not
go unpunished. Consequences for such actions means that States need to adhere
to procedural and substantive law in addition to offering reparation for the
violation of an international obligation. In the past, violation of an
international obligation was only attributed to States as they were
considered to be the only entity that could possess rights and duties within
the international sphere. Therefore States were considered to be the only
ones that could be criminally liable for acts that could be attributed to
them. But the development in human rights law and the advent of rules governing
personal criminal responsibility has extended the scope of international
obligations under international law to include States and individuals as
being liable for international crimes. The international law disallows
immunity from prosecution in foreign domestic courts for the most serious
crimes: Re-Pinochet case. This
means State responsibility and individual responsibility for wrongful acts
are not mutually exclusive.
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Key words: customary international law, extradition, human rights,
Khashoggi, torture. |
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Introduction |
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It has been six months since the death of Jamal
Kashoggi inside the Saudi Consulate in Istanbul, Turkey. On October 2, 2018
Jamal Kashoggi a journalist, Saudi dissident and a Washington post columnist
was killed inside the Saudi consulate in Istanbul, Turkey. Kashoggi was at
the Saudi consulate to obtain documents to marry his Turkish fiancŽe, Hatice
Cengiz. Turkish investigations reported the incident as a case of torture and
premeditated murder perpetrated by Saudi intelligence officials. The Sky News
headline for 15th of November 2018 reads thus, ÔJamal Kashoggi murder: Five
suspects may face death penaltyÕ. Reports show that, Saudi ArabiaÕs public
prosecutor is seeking the award of death penalty for five people charged with
the murder of Jamal Kashoggi. |
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Saudi Arabia
Government in a coy manner refused to accept direct responsibility for the
death of the journalist and for the crimes committed. On the contrary, it
blames the officials of its State intelligence unit for carrying out the
alleged operations and crimes without the necessary approval from Mohammed
Bin Salman Al Saud, the Deputy Prime Minister and Crown Prince to the throne
of Saudi Arabia. But under human rights laws and international criminal law, individuals may be held criminally responsible for
international crimes (Article 7(1) ICTY and Article 6(1) ICTR)[i]
and human rights violations. Saudi Arabia claims that the government did not
approve the operation but this is open to arguments and other
interpretations. However, the article will focus on Ôindividual liabilityÕ of
officials of Saudi intelligence for international crimes and human rights
violations in relation to legal instruments which requires a duty on the part
of the State to ensure that those liable for such crimes are punished. |
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Fundamental nature of
International Human Rights Laws: |
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Saudi Arabia can be expected to respect the
provisions of international instruments, which have been recognized as norms
of customary international law even though it is not a party to such an
instrument. First, by virtue of being a member of the United Nations (UN), is
charged with the responsibility to uphold universal human rights laws
(preamble to the UN Charter) and secondly, due to the recognition that some
of the provisions of International Covenant on Civil and Political Rights
(ICCPR)[ii]
and Universal Declaration of Human Rights (UDHR)[iii]
have become recognized as norms of customary international law. The ICCPR is
a legally binding treaty though Saudi Arabia is not a party to the instrument,
which means it is not bound by the instrument. But Saudi Arabia is obliged to
respect some of its provisions due to the universally binding character of
some of the rights included in the Covenant. For example, the right to life
(Article 6), prohibition of torture (Article 7) and prohibition from slavery
(Article 8) are all considered as having reached the status of Customary
International Law (CIL). Meaning these rights has Ôa universally binding
character.Õ The important feature of CIL is believed to be its ability to
bind States which have not consented to its rules. In North Sea Continental Shelf Cases, the International Court of
Justice (ICJ) stated that a rule that: |
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Ôpassed into the general corpus of international law accepted as such by opinio juris so as to have become
binding even for countries which have never, and do not, become parties to
the ConventionÉState practice, including that of States whose interests are
specifically affected, should have been both extensive and virtually
uniformÉas to show a general recognition that a rule of law or legal
obligation is involved.Õ[iv]
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Article 38 outlines the source of international law
thereby creating a method by which international law becomes binding on
States. In Article 38 (1) (b) of the Statute of ICJ gives the definition of
international custom Ôas evidence of a general practice accepted as lawÕ. The
criterion adopted in North Sea
Continental Shelf Cases is that for an act to constitute international
custom: |
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Ônot only must the facts concerned amount to a
settled practice, but they must also be such, or be carried out in such a
way, as to be evidence of a belief that this practice is rendered obligatory
by the existence of a rule of law requiring it. The need for such belief,
i.e., the existence of a subjective element, is implicit in the very notion
of the opinio juris sive necessitatis.
The State concerned must therefore feel that they are conforming to what
amounts to a legal obligation. The frequency, or even habitual character of
the acts is not in itself enough.Õ[v]
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L.D.M Nelson seems to be of the opinion that, it
is, necessary to consider the impact created by acts performed by States
within the societal structure. He opined that: |
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Ônevertheless, it is submitted that to discover
whether a uniform practice among States constitutes a custom in international
law what ought to be examined is not the psychological motivation of the
States concerned but the social ends of their external acts. Thus the
difference between acts in the field of ceremonial and protocol and, for
instance, acts delimiting the lateral continental shelf boundaries would lie
not on whether States in performing these acts were motivated by a sense of
legal obligation or not but on social importance of the particular practice
to the international community.Õ[vi] |
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According to J. Charney suggested that beyond the
scope of state practice and opinio
juris, multilateral forums also aid in the crystallization of the rules
of international law: |
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ÔRather than state practice and opinio juris,
multilateral forums often play a central role in the creation and shaping of
contemporary international law. Those forums include the United Nations
General Assembly and Security Council, regional organizations, and standing
and ad hoc multilateral diplomatic conferences, as well as international
organizations devoted to specialized subjects. Today major developments in
international law often get their start or substantial support from proposals,
reports, resolutions, treaties or protocols debated on such forums. At other
times, the potential new law is developed through the medium of international
relations or the practices of specialized international institutions and at
later stages is addressed in international forums. That process draws
attention to the rule and helps to crystallize it.Õ[vii] |
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For States which do not consent to the rules of
customary international law, their actions does not nullify such rules
according to the joint opinion of five judges in the Fisheries Jurisdiction Case that, ÔState practice must be common,
consistent and concordantÕ.[viii]
If State practice is common, consistent and concordant as regards a rule of
CIL then the violation of such a rule will be considered as a breach of
customary law. |
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While
an international treaty such as the ICCPR is binding only on parties who have
expressed their consent to be bound by its provisions, a rule of CIL does not
need this type of consent and therefore binds all states without distinction.
In the international field there is, at present, no statutory international
law or code.[ix] In other
words, international law, so far, is only of a customary character. |
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This notion was
further expressed by J. Charney in ÔThe Persistent Objector Rule and the
Development of Customary International LawÕ that: |
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ÔWhen the question of consent is
directly addressed, most writers argue that States do not have the free will
to decide whether or not to be bound by rules of international law. The
obligation to conform to rules of international law is not derived from the
voluntary decision of a State to accept or reject the binding force of a rule
of law. Rather, it is the societal context which motivates States to have an
international law and obligates them to conform to its norms.Õ[x] |
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In addition, the manner in which States adhere to
customary law is propagated by the way StatesÕ conduct international affairs.
Looking at the way the international community encourages continuity as
regards the protection of human rights and humanitarian law principles even
in relation to succession of States, there is no doubt that the protection of
human rights law does not involve the loss of autonomy or sovereignty for a
State. This is expressed in the Separate Opinion by Judge Weeramantry in the Application of the Genocide Convention
(Bosnia and Herzegovina v Yugoslavia (Serbia and Montenegro) (Indication of
Provisional Measures) on whether each new State that separated from
Yugoslavia could assume treaty-based responsibilities in relation to the
Genocide Convention: |
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ÔHuman rights and humanitarian treaties
involve no loss of sovereignty or autonomy of the new State, but are merely
in line with general principles of protection that flow from the inherent
dignity of every human being which is the very foundation of the United
Nations Charter. It is sufficient for the purposes of this Opinion to note a
variety of reasons why it has been contended that human rights and
humanitarian treaties in general attract the principle of automatic succession.
These reasons apply with special force to treaties such as the Genocide
Convention or the Convention against Torture, leaving no room for doubt
regarding automatic succession to such treaties.Õ[xi] |
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By
virtue of its membership in the UN, it is very pertinent to uphold such
rights as stated in Article 9 of the UDHR and ICCPR, which does not allow
anyone to be subjected to arbitrary arrest, detention or exile. Also Article
10 of UDHR and Article 14 of the ICCPR entitles individuals to a fair and public
hearing by an independent and impartial tribunal as against any criminal
charges brought an individual. Also, Article 6: right to life and Article 7:
freedom from torture is of a fundamental nature as it permits no derogation
due to recognition of the peremptory nature of these rights. Some of the
provisions of these instruments are recognized as norms of customary
international law. |
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Aspects of
International Law in Jamal KashoggiÕs case: |
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The act of torture and murder by the officials of Saudi
intelligence violates KashoggiÕs basic right to life as stated in articles 6
& 7 of ICCPR. The prohibition of torture is contained in the ÔConvention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
PunishmentÕ.[xii] Torture
is defined in article 1(1) of the Convention and article 5(2) allows for
State parties to undertake universal jurisdiction in respect of the act of
torture. Both Saudi Arabia and Turkey are States Parties to the Torture
Convention[xiii]
and contracting parties to the torture Convention are under duties inter alia
to take measures to prevent such activities in territories under their
jurisdiction (article2); not to return a person to a country where he may be
subjected to torture (article 3). |
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In line with article 4 States are required to
prosecute offenders alleged to have committed the crime of torture. The key
elements for the assertion of universal jurisdiction in relation to an
international crime such as the act of Torture are[xiv],
the definition of the crime of torture under the Convention Against Torture;
it must be established that the State parties have obligations to prevent the
act under its jurisdiction and to treat it as a punishable offence under its
criminal law; the state needs to establish jurisdiction over this international
crime, in this case on the basis of territoriality and nationality (Article
5)[xv];
contracting States must ensure that the crime of torture is included in its
domestic laws as an extraditable offence[xvi]
and in the event that an extradition treaty does not exist between the
contracting parties, the requesting party can use the provisions of the
convention as the legal basis for extradition in respect of such offences
(article 8(2));[xvii] the
convention also stipulates that contracting parties have the obligation to
extradite or prosecute, aut dedare aut
judicare (Article 7).[xviii] In addition, article 14 makes a
provision for remedies for persons who suffer the acts of torture. |
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Other
international legal instruments such as humanitarian law and human rights
treaties also prohibit the act of torture. The prohibition of torture derives
from a number of instruments: 1990 International Convention on the Protection
of the Rights of all Migrant Workers and Members of their Families (article
10);[xix]
1948 Universal Declaration of Human Rights (Article 5);[xx]
2006 Convention on the Rights of Persons with Disabilities (article 15);[xxi]
1989 Convention on the Rights of the Child (article 37(a));[xxii]
African Charter on Human and PeoplesÕ Rights (article 5);[xxiii]
European Convention on Human Rights (article 3);[xxiv]
1989 European Convention for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment;[xxv]
Inter-American Convention on Human Rights (article 5(2));[xxvi]
1987 Inter-American Convention to Prevent and Punish Torture;[xxvii]
the Arab Charter on Human Rights (article 8).[xxviii]
For international humanitarian law, the 1949 Four Geneva Conventions:[xxix]
common article 3 to the four Geneva Conventions, article 12 for the First and
Second Geneva Conventions, article 17 and 87 of the Third Geneva Convention,
article 32 of the Fourth Geneva Convention. Also for the Additional Protocol
I, articles 75 (2) (a) & (e), 85[xxx]
and Additional Protocol II, article 4 (2) (a) & (h).[xxxi]
Other articles include: articles
50 & 51 (Convention I & II), 130 (Convention III), 147 (Convention
IV) and Additional Protocol I, article 85. |
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An
overwhelming majority of States consider the act of torture as violating the
rule of jus cogens. Rules of jus cogens are substantive rules
recognised to be of a higher status from which no derogation is permitted.[xxxii]
It is a peremptory norm as well as a rule of international law. Article 41
(2) of the ILCÕs Articles on State Responsibility (2001) provides that Ôno
State shall recognise as lawful a situation created by a serious breach by a State of an
obligation arising under a peremptory norm of general international law.Õ[xxxiii]
It has also been suggested that State conduct violating a rule of jus cogens may not attract a claim of
State immunity. The violation of this rule allows for perpetrators to be
tried in a domestic court. As stated in Article 53 of the Vienna Convention
any domestic law which conflicts with this rule of jus cogens is considered void.[xxxiv]
Under customary international law, the international community have come to
recognise the prohibition of torture as acquiring the status of jus cogens stemming from evolving
State practice and decisions of judicial bodies — Furundžija case.[xxxv]
In this case, the State has an obligation Ôtowards the international
community as a wholeÕ─ that is, erga omnes
obligations — Barcelona
Traction case.[xxxvi]
Meaning States have a legal interest in protecting the violations of these
obligations. The prohibition of torture as a peremptory norm of international
law permits no derogation and this is applicable to all States. |
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Also,
prosecutorial process can be carried out by another State under the doctrine
of universal jurisdiction based on the nature of one the crimes committed by
the officials. That is, the act of torture and other cruel, inhuman or
degrading treatment meted out on the victim. The principal ground for a
criminal proceeding by the Turkish government is territoriality. This
warrants an assertion of universal jurisdiction by Turkey on the bases of
territoriality[xxxvii], also
the act violates a rule of jus cogens and
as such create erga omnes obligation
for Turkey to prosecute the breach of an international obligation. Turkey
will be fulfilling its international obligation in the event that Saudi
Arabia declines in prosecuting its State officials for this violation of
fundamental human rights of jus cogens nature. |
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The Pinochet case |
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On the issue of diplomatic immunities for the Saudi
intelligence officials, consideration should be given to the decisions in the
Pinochet cases,[xxxviii] which challenged the immunity of
foreign heads of State from criminal proceedings before foreign courts in the
context of the implementation of torture. The judicial decisions in this case
centred on the issue of conferring immunity ratione materiae on Heads of State as regards criminal prosecutions
for international crimes.[xxxix]
The basis for PinochetÕs extradition was the 1972 European Convention on
Extradition.[xl] The Crown
Prosecution on behalf of the Kingdom of Spain applied for General PinochetÕs
extradition to Spain. A second arrest warrant was issued charging Pinochet
with torture and conspiracy to torture. The House of Lords decided Augusto
Pinochet did not enjoy immunity ratione
materiae from extradition proceedings on the charges of torture and
conspiracy to torture.[xli] |
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Owing
to the prohibition of torture as stated in article 5(2) and 7 of the Torture
Convention, this doctrine allows other States to exercise extraterritorial
jurisdiction over offenders who are guilty in committing a breach of a rule
of jus cogens which offends the
international community as a whole. In addition, Saudi government
intelligence personnel committed gross violations of human rights, which
apart from torture included abduction, murder and
enforced disappearance.[xlii] |
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The
international community should not condone any form of extrajudicial
activities against any individual including a serious breach of an obligation
arising under a peremptory norm of general international law. |
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Conclusion |
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One of the existing reasons for the consensual
nature of international law is that it preserves the international legal
system. The observance of international law prevents the breach of
international obligations. International law relies on the formulation of
international agreements to which the signatories agree to adhere to. The principle
of good faith is one of the basic principles governing the performance of
legal obligations by signatories to international agreements. The principle
of pact sunt servanda in treaty law
stipulates that States consent to be bound in good faith by the obligation
created in the treaty. |
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One
of the very good ways by which the consensual nature of international law can
be preserved is by ensuring the observance of international agreements such
as treaty laws. Adhering to the rules of treaty laws even in criminal
prosecutions of foreign citizens before the municipal courts of other
countries is very important to the international community. Criminal
prosecutions before the municipal courts of other countries for the most
serious crimes committed by highranking officers should not be disallowed on
the basis of immunity ratione materiae.
The nature of the crime should serve as the basis for assertion of
jurisdiction over these State officials. The positive side to this will be
that, States will respect their international obligations and this will in
turn preserve the international legal system. |
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The
need for a legal regulatory framework ensures stability and allows recourse
to these rules when conflicts arise between States. The disregard for these
rules is often not encouraged within the international community because it
alters the behavioural patterns of States who have consented to adhering to a
rule of international law. This is why States are usually encouraged to act
reasonably in order to avoid confrontations. This equals to protecting the
elements of tolerance, reciprocity and the rewards that come with it. |
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Notes |
