International system, U.S. fail to hold MBS accountable for murder of Khashoggi

UCLA International Institute, April 2, 2021 — “I think that the failure of the UN overall, of the Secretary General, to launch a high-level inquiry… presaged the basic failure of the international community to address the murder [of Jamal Khashoggi],” said UC Professor of Law David Kaye at a recent webinar organized by the Burkle Center for International Relations.

Jamal Khashoggi was a Saudi journalist living legally in the United States who was brutally murdered in the Saudi consulate in Istanbul on October 2, 2018.

Kaye, former UN special rapporteur on the promotion and protection of freedom of opinion and expression and author of a UN report on surveillance and human rights (2019), spoke together with Agnès Callamard, director of the Global Freedom of Expression Initiative at Columbia University, at the March 18, 2021 online event moderated by Burkle Center Director Kal Raustiala.

Callamard, who was named secretary general of Amnesty International this week, concurred with Kaye that the current international system was “not fit for purpose” to address targeted state assassinations of journalists and dissidents living in third countries.

While serving as UN special rapporteur on extrajudicial, summary or arbitrary executions, Callamard authored a UN investigation and report on the Khashoggi killing (2019).

“We are seeing ... an increase in extraterritorial actions by governments who are intent [on chasing] their dissidents abroad,” she remarked. “There is a real attempt on the part of many governments to either kill, silence, [or] imprison [critics].” Khashoggi’s murder, observed Kaye, “fits into a category of impunity for attacks on journalists that is a real global epidemic in many respects.”

The administration of President Joe Biden recently released a U.S. intelligence report on Khashoggi’s death that found Crown Prince Mohammed Bin Salman (known as “MBS”) of the Kingdom of Saudi Arabia responsible for ordering the journalist’s murder. However, the failure of the U.S. to introduce punitive measures against MBS personally disappointed both speakers.

“[A]s far as we can tell right now, there are no consequences for MBS himself for his role in the murder,” remarked Kaye. Callamard concurred —  and urged the U.S. Congress to keep pushing to hold the Crown Prince accountable.

Surveillance, an international crime and a state murder

The two human rights experts drew attention to several key factors that played a role in Khashoggi’s murder. Kaye underlined the rise of private actors who sell intrusive surveillance programs, such as the Pegasus program of the Israeli firm NSO Group, to repressive authoritarian governments. The absence of national controls on the export of such programs, as well as the lack of legal tools required to prosecute attendant human rights abuses, have enabled such actors to escape accountability, he said.

Kaye also stressed the growing role of surveillance in both investigations and suppression of dissidents by sovereign states. “The kind of invasive surveillance that we see coming out of the use of tools — of hacking of mobile devices and other kinds of devices — is a real pervasive problem that contributes to the kinds of things like the crime of the murder of Jamal Khashoggi,” he remarked.

Callamard defined Khashoggi’s murder as a multidimensional international crime. “It’s an extrajudicial killing. It’s an enforced disappearance. It’s an act of torture. It’s a violation of the Vienna Convention on Consular Relations,” she remarked.

“It’s a violation of the UN Charter, [which prohibits] the extraterritorial use of force in time of peace. And it is a crime inconsistent with the core tenant of the United Nations, which is the protection of freedom of expression,” she continued.

Callamard also labeled the murder a state crime. “In my report,” she explained. “I compare international standards on state responsibility, I analyze what a rogue permission is under international law and I conclude that under no circumstances can we describe what happened as a rogue operation.

“[T]he killing involved 15 individuals, 14 of whom worked for the state — a number of them worked very closely [with] the Crown Prince. The operation was premeditated, it was planned, it was organized and there is evidence [for] it,” she asserted.

She recommended the use of individual sanctions against people personally responsible for Khashoggi’s murder (including MBS), as well as targeted sanctions against Saudi Arabia to prevent the country’s access to weapons and surveillance technology.

The French human rights expert also pointed to the outsize role that large public relations and communications firms are currently playing in facilitating massive disinformation about dissidents, as well their online harassment, by hostile governments. These firms, emphasized Callamard, currently bear no responsibility — reputational or otherwise — for their actions.

The challenge of enforcing accountability

The international community, said Callamard, needs to equip itself with an international investigatory mechanism to conduct criminal and human rights investigations and to identify potential avenues for accountability for such crimes.

Kaye called for strict export controls on intrusive information technology tracking software. The speakers also envisioned the potential use of national legal frameworks both to prosecute the actors behind targeted assassinations and to protect dissidents living in third countries from aggressive surveillance.

“In Germany,” remarked Callamard, “there is now a universal jurisdiction case against MBS for crimes against humanity in relationship to his treatment of journalists, including Jamal Khashoggi. Will it work?” she asked.

“I don't know, but it is certainly worth trying because if international law or national law is not able to protect us, I think we’ve really got to do something to change it.”

Kaye added, “[Just as] the United States has chipped away at sovereign immunity in terrorist cases, it could do the same here.” That is, he explained, U.S. courts could potentially assert that cases of cross-border surveillance were subject to U.S. jurisdiction.

Crown Prince Mohammed Bin Salman is already paying a price for ordering Khashoggi’s murder, observed Callamard. “I think he is more or less a de facto persona non grata in many countries around the world,” she said.

“And how did that happen? It happens because of pressure. It happens because the international media have worked, and worked relentlessly. It happens because civil society has done so, because Hatice [Cengiz]* has done so, because of my report.

“And we've got to keep the pressure on, not just for him, but for the rest of would-be killers of journalists or anyone else... [T]hey need to understand that there is a price to be paid. It may not be a judge [who] will deliver that price. It may not be a government that will deliver that price, but there will be a price to be paid,” she concluded.

*Hatice Cengiz, a Turkish citizen, was the fiancée of Jamal Khashoggi at the time of his death. The purpose of his visit to the Saudi consulate in Istanbul in October 2018 was to procure paperwork for their impending marriage.