Saudi Arabia’s Crown Prince is either behind the assassination of the journalist, Jamal Khashoggi, or has no control. Either way, the situation begs a serious response
Saudi Crown Prince Mohammed Bin Salman (the now notorious ‘MBS’) recently admitted his “full responsibility” for the murder of Jamal Khashoggi – in MBS’s words “a mistake”. This begs close scrutiny and an appropriate response.
MBS still maintains, unbelievably, that he didn’t order the barbaric assassination of the Washington Post columnist, one year ago inside the Saudi Consulate in Istanbul, Turkey. Indeed he insists he didn’t have any knowledge of the killing, so what does his admission of “responsibility” mean?
Two of the crown prince’s closest advisors are accused of orchestrating the murder of journalist Jamal Khashoggi. “How could you not know [about the murder]?” Norah O’Donnell asks MBS https://t.co/2SdoYXxQ92 pic.twitter.com/jLSxoLVvdm
— 60 Minutes (@60Minutes) September 30, 2019
In the Kingdom of Saudi Arabia (KSA), “l’état c’est moi” essentially holds for Saudi King Salman bin Abdulaziz Al Saud and his son MBS, the Crown Prince. Given the debilitating illness of the King, MBS is the de facto ruler. That’s the
political and legal reality in Riyadh.
As a practical matter, Saudi Arabia is neither a weak nor poor state – in fact, it’s proven capable of widespread repression and control with the most modern means. The operation to eliminate Khashoggi inside Turkey was sophisticated and involved considerable human and material resources. It was no back alley hit.
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Still, for a split second, let’s give MBS the benefit of the doubt. If it is true that he did not approve or know of the operation, then how could it have occurred? Who else in the Kingdom, then, holds such power and means, absent any authority? Could this happen beyond the control of the monarchy?
Saudi Arabia is neither a weak nor poor state – in fact, it’s proven capable of widespread repression and control with the most modern means.
As a matter of International Law, the KSA is the entity that is held responsible for what is undoubtedly the extra-judicial killing of Jamal Khashoggi. That responsibility is direct and not easily shed.
According to the 1963 Vienna Convention on Consular Relations, to which 179 states are parties – including Saudi Arabia and Turkey – the Saudi Consulate in Istanbul was established by KSA and recognised by Turkey as “inviolable” for the effective performance of consular functions. However, while there is some legal ambiguity around what constitutes ‘consular functions’ under international law, including the United Nations Charter, it is safe to say that an extra-judicial killing is not included in the definition. Of course, extra-judicial killing anywhere is a violation of international law.
Under general international law, a state is legally responsible for such acts within its territorial jurisdiction and/or by the actions of its state agents. In the case of a disappearance or murder within a state’s own consular premises, it is presumed that the state has effective control. Moreover, the actions of persons employed by the state – especially its security services – are also presumptively attributable to the state. There is ‘credible evidence’ that suggests that Jamal Khashoggi ‘disappeared’ – was murdered and dismembered – within the Saudi Consulate at the hands of Saudi agents.
Holding to account those individuals responsible for the murder of Jamal Khashoggi is also a matter of state responsibility. There are two options. Based on the place of the murder, KSA could and should cooperate with Turkey in the investigation and eventual criminal prosecution of those individuals in Turkey, under Turkish law. No diplomatic immunities would apply since the alleged perpetrators were not members of the consular staff and, moreover, they evidently acted outside any permissible function of the consulate. The second option would be for KSA to apply its own law, arresting and prosecuting all the alleged perpetrators.
“l’état c’est moi”: in Saudi Arabia, the state and the King are essentially one and the same.
The Saudis have baulked at the first option. Instead, the KSA is reportedly prosecuting eleven individuals for the murder based on the narrative that it was ordered by former deputy intelligence chief Ahmed al-Asiri; the intelligence community and others believe that Saud bin Abdullah al-Qahtani – a close associate of the King and MBS – was, in fact, the ring-leader for the assassination. Al-Asiri and al-Qahtani have both been relieved of their high-level positions and Turkey has sought their extraditions, but neither is currently being prosecuted and both are understood to be free.
Of course, if a thorough investigation of all suspects were to take place, it would likely be established whether the perpetrators acted under the orders of senior Saudi officials. However, KSA has effectively undermined the process, destroyed evidence and thereby compromised the prosecution.
Imposing the death penalty would also silence some of the alleged perpetrators forever. In fact, the names of those arrested, accused and prosecuted remain formally unknown as the Saudi criminal process remains under a shroud of secrecy.
All of this prejudices the process and weighs heavily against Saudi claims of innocence.
Which brings us back to “l’état c’est moi”: in Saudi Arabia, the state and the King are essentially one and the same. If MBS truly did not order, approve or even know of this complex operation to murder Jamal Khashoggi, then it must mean MBS is not in effective control of the state. This is a deeply disturbing conclusion which would imply that MBS/KSA is entirely unreliable and that any presumed legitimacy of authority – by virtue of effective control – is unmerited. That would be a harbinger of chaos within the state, region and beyond and a conclusion that the Saudi’s themselves are unlikely to welcome.
Therefore the conclusion must be that Saudi Arabia – specifically MBS the de facto ruler – is guilty of Khashoggi’s murder and must be held duly accountable.
Either conclusion is hugely problematical, not least for supposed allies who must grapple with the implications and face the consequences of maintaining support for KSA under MBS’s rule.
In this circumstance, business as usual with KSA seems an absurdity. Therefore, any state intending to attend the 2020 G20 in Saudi Arabia, hosted by MBS, should carefully consider their options. To do otherwise would be to ignore this reality at the world’s peril.