Foreign Relations & International Law

What International Law Tells Us About the Khashoggi Investigation

Scott R. Anderson
Monday, October 15, 2018, 10:31 AM

Almost two weeks have passed since prominent Saudi dissident and journalist Jamal Khashoggi disappeared into Saudi Arabia’s consulate building in Istanbul, Turkey. While Saudi officials claim that he left the building shortly after arriving, his departure was not captured on any nearby surveillance cameras—nor observed by his fiancée, who was waiting for him outside.

President Trump with Saudi Crown Prince Mohammed bin Salman, March 2017 (Source: Wikimedia/The White House)

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Almost two weeks have passed since prominent Saudi dissident and journalist Jamal Khashoggi disappeared into Saudi Arabia’s consulate building in Istanbul, Turkey. While Saudi officials claim that he left the building shortly after arriving, his departure was not captured on any nearby surveillance cameras—nor observed by his fiancée, who was waiting for him outside. Turkish authorities have not made any official accusations, but individuals familiar with their investigation have told the media that they believe Khashoggi was murdered while inside the building. Subsequent reporting has revealed that Saudi Arabia’s de facto ruler, Crown Prince Mohammed bin Salman (widely known as “MBS”) may have authorized an earlier operation to lure Khashoggi, a frequent critic, back to Saudi Arabia for detention. Whether what happened in Istanbul was a continuation of this effort or something else entirely remains unknown.

Khashoggi’s disappearance has shocked the conscience of the international community and triggered a complex diplomatic crisis. One contributor to this complexity is international law, which provides privileges and immunities to Saudi consular facilities and personnel that limit Turkish authorities’ ability to access them absent Saudi consent. To date, however, Turkish authorities have stopped well short of these limits and continued to coordinate with Saudi Arabia on matters where its consent is not legally required. This approach likely reflects a desire on Turkey’s part to avoid an open confrontation, due to concerns with how Saudi Arabia might respond to the limited diplomatic remedies that Turkey could pursue if the two were to spar over the investigation. More recently, however, there have been signs that Turkish President Recep Tayyip Erdogan is seeking international support that might balance the scale and enable a stronger response—an effort that is likely to present a serious challenge to the Trump administration’s close relationship with Saudi Arabia.

The State of the Investigation

Turkish investigators have not yet produced any hard evidence linking Saudi Arabia to Khashoggi’s disappearance. That said, media accounts of the investigation—relying heavily on leaks by anonymous Turkish officials—paint a damning picture. And while there have been occasional inconsistencies in what has leaked, enough facts have been independently verified to vouch for its general credibility.

According to these accounts, a team of nine men—later identified as Saudi agents—took a private plane from Riyadh to Istanbul early in the morning on Oct. 2, the day of Khashoggi’s scheduled meeting at the consulate. The men checked into hotels before proceeding to the consulate building, where non-Saudi employees were excused for the day. When Khashoggi arrived for his meeting in the early afternoon, the Saudi agents are alleged to have detained, interrogated and killed him before dismembering his corpse. Two hours later, a pair of consular vehicles traveled from the consulate to the nearby residence of the Saudi consul general, where they remained for several hours. Around the same time, a second flight from Riyadh dropped off six additional Saudi agents, whose subsequent activities in Istanbul are unknown. By evening, all but two of the team members—who left earlier on commercial flights—are believed to have departed on the two private planes, each of which departed Istanbul for another city in the region before quickly returning to Riyadh.

Saudi officials have denied any knowledge of Khashoggi’s fate and repeatedly expressed their desire to assist with any investigation. Despite prodding from Erdogan, however, Saudi Arabia has failed to produce footage from its internal surveillance system, which it claims was not working during Khashoggi’s visit. Nor has it granted Turkish requests for an unfettered search of the Saudi consulate building, official vehicles and consul general’s residence. Instead, at Saudi Arabia’s request, Turkish and Saudi officials have formed a joint working group to conduct the investigation, which is still negotiating the terms of access. On Monday, Oct. 15, reports emerged that an agreement may have been reached on access to the consulate building, but on what conditions is unknown.

Legal Limitations

Contrary to popular belief, foreign embassies and consulates remain subject to the jurisdiction and laws of their host country. This makes Turkey primarily responsible for investigating Khashoggi’s disappearance and pursuing any prosecutions in line with its domestic laws and procedures. International law does, however, provide certain foreign government officials and facilities with privileges and immunities that can make investigation and prosecution more difficult. The best known originate with the Vienna Convention on Diplomatic Relations (VCDR) and protect foreign embassies and diplomatic agents from a wide array of intrusions. The related Vienna Convention on Consular Relations (VCCR), however, provides consular facilities and personnel with a far more limited set of legal protections—a difference that has substantial implications for the Khashoggi investigation.

Under the VCCR, only “consular premises”—defined as buildings or parts of buildings used exclusively for the purposes of the consular post, as well as ancillary land—are entitled to inviolability, meaning they cannot be entered or searched without permission from the Saudi government. This extends to vehicles owned by the consulate but not the private residences of consular officials. Hence, Turkish officials need Saudi Arabia’s permission to search its Istanbul consulate building and official vehicles, but not the separate residence of the Saudi consul general—where some believe Khashoggi’s body may be located.

The VCCR similarly provides only limited legal protections to Saudi consular personnel who may have been involved in or have knowledge of Khashoggi’s disappearance—any of which Saudi Arabia may choose to waive at any time. While consular officers—meaning those Saudi officials who perform consular work, not support or technical staff—are generally protected from arrest and detention, there is an exception for “grave crimes” that almost certainly covers murder and kidnapping. Other consular personnel receive no such protections. And while all consular personnel are immune to criminal prosecution for acts performed in the exercise of their consular functions, Saudi Arabia would have to claim that Khashoggi’s murder was an official act in order to assert this defense—and even then it seems unlikely to apply. Nor does anything in the VCCR prohibit the Turkish government from compelling Saudi consular personnel to serve as witnesses so long as their testimony does not relate to their consular functions. (That said, if consular officers were to decline to testify, Turkish authorities could not subject them to coercive measures or penalties.) To date, however, Turkish authorities do not appear to have pursued any of these measures in relation to Saudi consular personnel, including those who were present the day of Khashoggi’s disappearance.

Moreover, these legal protections—like the separate privileges and immunities provided by the VCDR—generally only apply to individuals whose presence Saudi Arabia has flagged for Turkish authorities prior to their arrival in-country. For this reason, it seems unlikely that any of the 15 identified Saudi agents who allegedly participated in Khashoggi’s murder, all of whom now appear to have returned to Saudi Arabia, are entitled to any legal protections. This means that Turkey may freely question, arrest, and prosecute them, or formally request assistance from Saudi Arabia in doing so—a step Turkish authorities have not yet taken.

In each area, Turkey is choosing to coordinate its investigation with Saudi Arabia more closely than is strictly required as a matter of international law. Perhaps it is doing so as a simple matter of diplomatic courtesy. Or maybe it believes that this approach was the most likely to secure eventual permission to access the consulate building, a key area where Saudi consent is strictly required. More likely, however, Turkey simply feels it has a weak hand to play in making such demands, as the diplomatic remedies that international law authorizes if Saudi Arabia resists brings with them some substantial downsides.

Diplomatic Remedies

Both the VCCR and VCDR anticipate the possibility that a foreign state will use the privileges and immunities they provide for unlawful purposes. For this reason, each treaty obligates the recipients of those legal protections to respect the laws of their host country. Where this does not occur, a host country may pursue an array of diplomatic measures to sanction the non-complying parties and end its malfeasance. In Turkey’s present situation, however, these remedies are of limited usefulness as each seems certain to provoke a Saudi response with the potential to be far more damaging.

The most common response when foreign diplomatic and consular officials act inappropriately is to declare those officials persona non grata and expel them from the country. While this is traditionally a remedy for offenses committed by the actual personnel being expelled, it is entirely at the host country’s discretion—and several nations have used it to respond to objectionable activities on the part of a foreign government as a whole. In the present case, Turkey could use this authority to expel the Saudi consul general and other consular personnel who are either believed to be complicit or refuse to cooperate with the investigation.

Turkey could also choose to close Saudi Arabia’s consulate in Istanbul altogether. Consulates and embassies can only operate with the host country’s consent. Once that consent is withdrawn, consular personnel are provided a reasonable window of time in which to wind down their operations and depart the country before losing their legal protections. Closing the consulate would not necessarily give Turkish authorities access to Saudi Arabia’s consulate building as the VCCR allows Saudi Arabia to transfer responsibility for the premises to a third party in order to preserve its inviolability. That said, there is some precedent for accessing diplomatic and consular facilities after they are shut down, particularly if they are at the center of a criminal investigation.

Either of these responses could be extended to other Saudi diplomatic and consular facilities and personnel as well. Most notably, Turkey could choose to expel the Saudi ambassador from Ankara or recall its own ambassador back from Riyadh, two common diplomatic means of signaling serious displeasure. Or it could take the extreme step of severing diplomatic and consular relations with Saudi Arabia altogether.

There is little doubt that Turkey could legitimately deploy these measures in an effort to advance the investigation into Khashoggi’s disappearance. If Saudi Arabia resisted Turkey’s efforts to interview or arrest Saudi consular personnel, for example, or search the consul general’s residence, then Turkey could expel several of its diplomats. Or if Saudi Arabia were to continue to deny access to its consulate building and official vehicles, then Turkey could shut the facility down. None of these measures would necessarily remedy the problem with the investigation, but they would punish Saudi Arabia for its intransigence and apparent complicity. And given the egregious nature of Saudi Arabia’s alleged offense, few in the international community are likely to object.

The problem is that Saudi Arabia will almost certainly respond in kind, especially if Saudi officials are still vocally maintaining their innocence. Moreover, MBS’s well-established record of heavy-handed foreign policy makes clear that this response could extend well beyond diplomatic measures. This past summer, for example, MBS responded to a pair of tweets from Canada’s Foreign Ministry about Saudi Arabia’s arrest of a human rights activist not only by expelling the Canadian ambassador and withdrawing Saudi Arabia’s own but by cutting off all new bilateral trade and other forms of economic exchange. This threat of economic repercussions is likely to be particularly concerning for Erdogan, as such measures could severely damage Turkey’s already weakened economy and further undermine his popular support. And while Turkey could reciprocate with similar measures of its own, Saudi Arabia’s immense wealth gives it a decided advantage.

In this sense, for Turkey, the risks of openly confronting Saudi Arabia seem to outweigh the possible benefits. As a result, Turkey has avoided any official accusations and continued its formal coordination with Saudi Arabia—even as anonymous Turkish officials have continued to leak details regarding Saudi Arabia’s apparent guilt. If these dynamics persist, it’s even possible that Erdogan—whose increasingly autocratic regime has launched its own aggressive campaigns against dissidents and journalists, both at home and abroad—could reach some understanding that would allow the investigation to quietly stall out and MBS to save face. First, however, Erdogan seems intent on seeing whether he can improve Turkey’s strategic circumstances by seeking support from the international community.

Seeking International Support

Media coverage of the Khashoggi investigation has turned global opinion sharply against Saudi Arabia. Civil society groups have begun actively campaigning on Khashoggi’s disappearance. Several major corporations have severed business relations with Saudi Arabia or withdrawn from MBS-sponsored initiatives. And various heads of state have expressed concern and engaged Saudi Arabia diplomatically on the matter.

Turkey now appears to be quietly trying to turn these sentiments into political support. Over the past few days, Turkish intelligence officials have reportedly shared their ace in the hole with Western intelligence agencies: audio and video recordings of Khashoggi’s murder that Turkey appears to have acquired through its own covert surveillance of the Saudi consulate. Sharing this information is a significant act of good faith, as it can reveal sensitive sources and methods that Turkey may use to surveil other foreign governments. At present, however, it may also be the only way to firmly convince other governments of Saudi Arabia’s complicity in Khashoggi’s disappearance—a step that Turkey only needs to pursue if it is seeking their support in advance of a possible confrontation.

What might such support entail? One highly ambitious model would be the coordinated response to Russia’s poisoning of Sergei and Yulia Skripal earlier this year, in which approximately two dozen countries expelled dozens of Russian diplomats and shut down a number of Russian diplomatic and consular facilities. That said, Turkey may simply be seeking strong statements of support in the event that it has to deploy diplomatic measures against Saudi Arabia—or even quiet diplomatic engagement intended to make clear that Saudi Arabia will stand alone if it refuses to cooperate. Either way, the key consideration for Erdogan is likely to be whether the support he receives will be adequate to deter Saudi Arabia from retaliating—or to offset any harm that Turkey may incur if it does.

The decisive factor in this effort may well be the participation of the United States. Due to the United States’ close strategic relationship with Saudi Arabia, its support for any diplomatic measures would give other participating states important political cover and make it substantially harder for Saudi Arabia to retaliate. Erdogan’s relationship with the United States remains close to its nadir due to a number of heated bilateral disputes. Yet Turkey’s recent decision to release American pastor Andrew Brunson from captivity may be a sign that Turkey is seeking to mend ties—or at least secure relief from related U.S. sanctions—before any confrontation with Saudi Arabia comes to a head. And subsequent comments by President Donald Trump imply these efforts may be working, though it is too soon to tell for certain.

Members of Congress from both political parties have already called for a strong response to Khashoggi’s disappearance, going so far as to threaten arms sales and initiate a process that could result in sanctions against Saudi Arabia. But the Trump administration has prevaricated, expressing concern for Khashoggi’s whereabouts while reserving judgment and declining to increase pressure on Saudi leadership. No doubt this reflects the personal ties that various Trump administration officials have cultivated with MBS—as well as the indispensable role that Saudi Arabia has come to play in the Trump administration’s regional policy agenda, much of which stands to falter if relations with MBS decline.

The Khashoggi affair seems primed to test the limits of this relationship. Trump’s recent claim that Saudi Arabia will face “severe punishment” if it is found to have killed Khashoggi, which drew a heated response from Riyadh, may be a signal that relations are already fraying. And Saudi Arabia’s recent agreement to permit a search of its consulate building may indicate it is in fact feeling more pressure to cooperate. Yet the Trump administration has proven willing to sacrifice its own credibility in order to preserve its relationship with Saudi Arabia before and might do so again. Ultimately, the question is likely to come down to whether domestic and international outrage over Saudi Arabia’s actions will be enough to pressure Trump to push for accountability. Those seeking justice for Jamal Khashoggi are thus well-advised to direct their energies not just at Ankara and Riyadh, but towards Washington, D.C., as well.

Scott R. Anderson is a fellow in Governance Studies at the Brookings Institution and a Senior Fellow in the National Security Law Program at Columbia Law School. He previously served as an Attorney-Adviser in the Office of the Legal Adviser at the U.S. Department of State and as the legal advisor for the U.S. Embassy in Baghdad, Iraq.

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