Vol. 40 Guest Editor
For weeks now, the world media has been shaken by the news of the murder of Saudi journalist, Jamal Khashoggi. It has been reported that on October 2, 2018, he was murdered after entering the Saudi consulate in Istanbul, Turkey.
While details are lacking, what we know so far is that a crime took place at a consulate with the potential involvement of consulate employees, a place and a group of people that enjoy an array of privileges and immunities according to settled rules of international law.
These sparse facts are enough to raise significant questions. The main issues that arise concern the extent of such consular immunities and the ability to exercise jurisdiction to investigate and prosecute Khashoggi’s murder.
What is the significance of the consulate being the scene of the crime?
The fact that the scene of the crime was a consulate has played a pivotal role in the revelation of events to the global media. Pursuant to Article 31(2) of the Vienna Convention on Consular Relations (VCCR)—a treaty that both Turkey and Saudi Arabia are parties to—consular premises are inviolable. This means that unless there is a disaster (like a fire) that would require “prompt protective action,” the officials of the sending state need to give their permission for the authorities of the receiving state to enter and search the premises.
As a result, in this case Turkish authorities had to wait for Saudi authorization to search the premises and were only able to obtain it practically two weeks after Khashoggi’s disappearance. This lapse in time, along with the Saudi’s changing narrative in the midst of evidence leaks and press reports to the contrary, has fed suspicions that Saudi Arabia has been trying to thwart investigations. Despite this, as of now it appears that Turkish and Saudi authorities are trying to collaborate, and Saudi officials have given permission for more extensive searches into the consulate’s premises. In any event, by virtue of this crime occurring in the consulate, there is no question that the premises have been used in a manner “incompatible with the consular functions as laid down in the present articles or by other rules of international law,” in breach of Article 55(2) of VCCR. In recognition of this, Federica Mogherini, the High Representative of the EU for Foreign Affairs and Security Policy, has called Khashoggi’s disappearance and murder a “shocking violation” of the said article.
What about the suspects of the crime?
Saudi Arabia has now identified and arrested 18 suspects in connection with the murder: three were consulate employees. Although the Saudi government has not made claims regarding the consular immunity of the employees, we should nevertheless keep this possibility in mind in the event that such considerations are raised.
It is widely known that diplomatic agents enjoy immunity from criminal jurisdiction under Article 31 of the Vienna Convention on Diplomatic Relations, even concerning their conduct beyond the scope of their official functions. But consulate employees are in a different situation. Article 43(1) of VCCR only grants them “functional immunity,” meaning that it only extends to acts performed in the exercise of consular duties. Moreover, Article 41(1) of VCCR allows for an exception to the personal inviolability of consular officers from arrest or detention in case of a “grave crime.”
The article does not specify what would constitute a grave crime, but the commentary of the International Law Commission—the body that drafted the treaty—may be of assistance. Although it does not single out murder, it emphasizes that criminal proceedings are not excluded as a means of sanctioning a consular official and that the purpose of consular immunity is to ensure that a consular official’s daily functions are not hampered when a minor offence is committed. In light of a potentially premediated murder, it is difficult to imagine that this would be regarded as a “minor offence.”
Which country will exercise jurisdiction over this case?
In his speech on October 23, 2018, the Turkish president, Recep Tayyip Erdoğan, called for the suspects to be tried in Turkey, asserting Turkey’s territorial jurisdiction over a crime committed on its land. There is no doubt that Turkey has such a prerogative. However, Saudi Arabia has emphatically rejected Turkey’s requests for the extradition of the suspects—all of whom are Saudi nationals and currently in that country—asserting that it will exercise jurisdiction over its own nationals. Article 42 of the Saudi Constitution states that the question of extradition will be dealt with according to international agreements. Since extradition between the two countries is not governed by any international treaty, there is no doubt that Saudi Arabia also has the liberty to deny such a request. Thus, unless the political climate changes in such a way that would compel Saudi Arabia to allow the extradition of the suspects, it seems that Turkey will not be able to exercise jurisdiction.
The Turkish authorities have made clear that they will not let any cover up interfere with their investigation of the murder. Because of the legal status of the consulate premises, the Turkish authorities still need the constant collaboration of the Saudi authorities to collect evidence and unveil the events that took place. And since Saudi Arabia is not under any legal obligation to extradite the suspects, it has more legal leverage to conduct the investigation and prosecute the suspects on its own terms. Under these circumstances, the fact that there is not a treaty governing extradition between the two countries and that the crime occurred in a consulate greatly protects Saudi Arabia at this point. However, regardless of how the investigation and prosecution move forward, there is no question that a violation of Article 55 of VCCR has already taken place, which undoubtedly will increase Turkey’s political pressure on Saudi Arabia. This will also increase pressure by the international community on Saudi Arabia to refrain from further impropriety. The Saudi government will need to choose its next steps very wisely if it wants to curtail escalation of the political and legal dispute.
 Jamal Khashoggi was a Saudi journalist, who had recently fallen out of favor with the Saudi government, as he was critical of the Crown Prince Mohammed bin Salman’s policies. He was last seen entering the Saudi consulate in Istanbul, where he went to obtain a document certifying that he had divorced his ex-wife, so that he could marry his Turkish fiancée. It remains unclear whether he was murdered on the orders of the Crown Prince or, as the Saudi authorities claim, as a result of a “rogue operation”. Jamal Khashoggi: All you need to know about Saudi journalist’s death, BBC News (Oct. 31, 2018), https://www.bbc.com/news/world-europe-45812399.
 “2. The authorities of the receiving State shall not enter that part of the consular premises which is used exclusively for the purpose of the work of the consular post except with the consent of the head of the consular post or of his designee or of the head of the diplomatic mission of the sending State. The consent of the head of the consular post may, however, be assumed in case of fire or other disaster requiring prompt protective action.” Vienna Convention on Consular Relations, art. 31, Apr. 24, 1963, 596 U.N.T.S. 261 [hereinafter VCCR]
 Umut Uras, Turkey to search Saudi consulate for Jamal Khashoggi, Al Jazeera (Oct. 10, 2018), https://www.aljazeera.com/news/2018/10/turkey-search-saudi-consulate-jamal-khashoggi-181009143434025.html.
 Roy Gutman, Evidence Mounts of a Brutal Saudi Cover-Up in the Khashoggi Case, The Daily Beast (Oct. 18, 2018), https://www.thedailybeast.com/evidence-mounts-of-a-brutal-saudi-cover-up-in-the-khashoggi-case.
 Christopher Torchia and Zeynep Bilginsoy, Saudi Arabia and Turkey’s Top Prosecutors Discuss Joint Probe Into Jamal Khashoggi’s Killing, Time (Oct. 30, 2018), http://time.com/5438975/saudi-arabia-turkey-discuss-joint-probe-jamal-khashoggis-killing/.
 Sinem Koseoglu, Turkey to present probe findings to Saudi, request new search, Al Jazeera (Oct. 29, 2018), https://www.aljazeera.com/news/2018/10/turkey-present-saudi-probe-findings-request-consulate-search-181028145716739.html.
 European Council Press Release 588/18, Declaration by the High Representative on behalf of the European Union on the recent developments on the case of Saudi journalist Jamal Khashoggi (Oct. 20, 2018).
 Eddy Wax, Erdoğan: Suspects in Khashoggi killing should be tried in Turkey, Politico (Oct. 23, 2018), https://www.politico.eu/article/suspects-in-saudi-jamal-khashoggi-killing-should-be-tried-in-turkey-recep-tayyip-erdogan/.
 “1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. […]” Vienna Convention on Diplomatic Relations, art. 31, Apr. 18, 1961, 500 U.N.T.S. 95
 “1. Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of judicial functions.” (emphasis added) VCCR, art. 43.
 “1. 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.” VCCR, art. 41.
 Int’l Law Comm’n, Rep. of the Comm’n to the G.A., Draft Articles on Consular Relations with commentaries,  2 Y.B. Int’l Law Comm’n 92, p. 116, para. 13.
 Yarno Ritzen, Slim chance Khashoggi killers will be tried in Turkey: experts, Al Jazeera (Oct. 25, 2018), https://www.aljazeera.com/news/2018/10/khashoggi-killers-face-justice-turkey-181024184320013.html.
 Heba Saleh and Laura Pitel, Saudi Arabia rules out extradition of Khashoggi suspects, Financial Times (Oct. 27, 2018), https://www.ft.com/content/a391c7ec-d9fc-11e8-9f04-38d397e6661c. One suspect has reportedly died in a car crash upon his return to Saudi Arabia: Alex Lockie and John Haltiwanger, One of the men suspected of killing Jamal Khashoggi reportedly died in a car crash after returning to Saudi Arabia, Business Insider (Oct. 18, 2018), https://www.businessinsider.com/khashoggi-suspect-mashal-saad-al-bostani-reportedly-dead-in-car-crash-2018-10.
 Al Nizam Al Asasi lil Hukm [Constitution] Mar. 1992, art. 42 (Saud.)
 Turkey’s Treaty of Amity with Saudi Arabia dated May 31, 1930 does not address extradition.