After two weeks of prevarication the Saudi government has admitted that the dissident journalist Jamal Khashoggi was murdered in their consulate in Istanbul. Details have been drip-fed to the media by the Turkish authorities, which have contained an unusual amount of detail about ho Khashoggi died, who was involved and importantly where and when the murder took place. A combination of international pressure and detailed disclosures, likely to have been obtained by the latest surveillance technology, that has forced the Saudis to change their earlier denials. All this begs the question, does international and domestic law allow diplomats and consuls to get away with murder?
The tragic murder of PC Yvonne Fletcher on 17 April 1984 as a result of gunfire from inside the Libyan Embassy in London, is a grim reminder that diplomats have committed murder and got away with it. After a stand-off of some 10 days, the authorities had to allow those within the Embassy, including it is assumed the murderer, to leave the UK without arrest because of the diplomatic immunity they enjoyed. It raises the question whether the same scenario will be played out in the Khashoggi murder or whether in this instance there is a course of justice that can be pursued.
One of the key differences from the PC Fletcher murder is that those who allegedly committed the murder of Khashoggi were on consular premises and not diplomatic premises. If the reports prove accurate, none of those allegedly involved enjoyed diplomatic status, although some may have been consular officials. The fact that this murder was committed on consular premises, allegedly by those who did not enjoy diplomatic status, opens up the possibility of them being brought to justice.
Diplomats and diplomatic premises attract an almost unique level of immunity from crimes grave and small, including murder. The Vienna Convention on Diplomatic Relations 1961(VCDR) grants wide ranging immunities to diplomatic staff that includes, immunity from arrest or detention (Article 29), a prohibition on entering their private residences and searching them (Article 30), immunity from summons or subpoena as a witness and immunity from prosecution (Article 31). In addition, the embassy / mission itself is sovereign territory and cannot be entered (Article 22). As a result, as a signatory to the convention, the UK was prevented from from taking effective action in 1984. However, these immunities can be waived by the 'sending state' under Article 32. This rarely happens.
The same immunities are not enjoyed by consuls or consular officials. These individuals are governed by the Vienna Convention on Consular Relations 1963 (VCCR). Importantly, for example under VCCR, the inviolability of consular premises does not turn these premises into 'territory' of the sending state. Article 31 provides that consular premises are inviolable 'to the extent provided in this article', The principle of inviolability limits what Turkey can do on the premises of Saudi Arabia’s consulate without Saudi Arabia’s consent; however, it does not give Saudi Arabia carte blanche to engage in unlawful conduct. Similarly, consular officials are not entitled to absolute immunity from legal proceedings in the receiving state. Article 41 provides that 'consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority'. There is no prohibition on instituting criminal proceedings against a consular officer, and the alleged conduct here would certainly amount to a 'grave crime'.
The VCCR opens up the possibility of pursuing a criminal prosecution if the evidence which has been suggested exists, can be admissible in a criminal court and if those who are alleged to have been involved are brought before such a court. These are of course two big 'ifs', particularly as the suspects are presently in Saudi Arabia. Much depends on the willingness of the Turkish authorities to release the information they have in a form that can be used as evidence in a court. There are precedents which provide some encouragement that these obstacles can be overcome. The trial of the Lockerbie suspects, for the Pan Am terrorist attack, is one such example as is the ongoing trial in the Hague of the murder of Rafic Hariri: where there is the political will, there is often a legal way. The co-operation of Saudi Arabia is a pre-requisite.
Advances in technology including forensic, cctv, covert and remote surveillance and satellite technology, that makes possible the gathering of damning and detailed evidence, so swiftly after such a tragic incident. It may well be that it is the use of such technology that has wrong-footed the Saudi authorities and forced them to deploy the 'Beckett defence': a few over enthusiastic, 'rogue' employees acting well beyond their remit.. The key to whether those responsible can be brought to justice depends on the collective political will of the international community to hold those accountable to the rule of law and the willingness to hand over the key evidence and translate it into admissible evidence in a court of law. Saudi Arabia can choose to make this a reality, or hinder a fair trial in Turkey or in a third party country.
The coming weeks and months will reveal whether the rule of international law is to be upheld or whether we have reached a new low which allows murderers to get away with murder in plain sight.
Sailesh Mehta is a barrister at Red Lion Chambers. He was a founding member of the Bar Human Rights Committee. Nicholas Hall (who assisted with research for this article) is a pupil barrister at Red Lion Chambers.