Kal Raustiala 00:08
Good morning, everyone.
I'm Kal Raustiala, director of the UCLA Burkle Center for International Relations. And I am glad to welcome you to our event today about the case of Jamal Khashoggi. I think as many of you know, he was a reporter for The Washington Post who was brutally murdered by Saudi agents while in the consulate, the Saudi consulate in Turkey. And his death, and the resulting investigations into the causes of his death in the role of the Saudi state, raise many very important and interesting issues. And we're really lucky to have with us today two speakers who I think will be terrifically insightful on our understanding of this tragic case and what it may mean going forward for issues of both journalism, dissent and human rights around the world. So in a moment, I'm going to introduce our two panelists. When they have completed their initial remarks, I will then come onscreen, we will have a brief discussion between the three of us. And as we usually do, we will then turn to questions from the audience, which can be sent in through the Q&A feature. So please do send in your questions, we will cull through them, I will pose them to the panelists. And we will finish at 12 noon Los Angeles time, so in approximately 55 minutes, so we should have ample time for questions from any of you. So with that in mind, I'm going to introduce our panelists briefly and then invite them on to the screen. So we have two, as I mentioned, our first in sort of the speaker order is David Kay. David is a professor of law at the University of California, Irvine, a former colleague of mine at UCLA, and most importantly, for our purposes today, is the former UN special rapporteur on freedom of expression. Joining David is Dr. Agnes Callamard, who is currently director of Colombia's Global Freedom of Expression Initiative and currently UN special rapporteur on extrajudicial summary or arbitrary executions. So, both David and Agnes have worked in the UN human rights system and as a result, come at this with a diversity of perspectives, but both with an understanding of the case drawn from their experiences working as UN special rapporteurs and elsewhere. So, let me invite both David and Agnes to come on screen if they haven't already. And David can start us off. Thank you.
David Kaye 02:51
Great, Cal, thank you so much for inviting me and inviting Agnes. I thought what I would do is it just make a few thematic points that perhaps we'll get into over the course of the discussion. And I wanted to address some of these issues, both from the perspective of the work that in particular Agnes has done a special rapporteur, in particular her work preparing and investigating — I mean, her investigation and preparing a report on the murder of Jamal Khashoggi, which remains the most important and most robust statement of facts of the case to date. But I also want to start really by putting this into some context. And so I want to make three general points. So the first point is, as we all know, Jamal disappeared into the Saudi consulate in Istanbul on October 2nd in 2018. And very soon after that, it was it was evident to people around the world that that there was something suspicious going on here. And, and it was very clear also, after, really after a matter of days, that he had been murdered. And the information about that was, if we put ourselves back into October of 2018, really quite uncertain. I mean, there was no information available. And within a couple of weeks Agnes and I called for the UN, in particular, the UN Secretary General, to launch an inquiry into the disappearance of Jamal Khashoggi and an investigation into his likely murder. And I want to mention this at the outset, merely to highlight, at least from my perspective, something that is, I think, been gnawing at me and many others, which is the international community's general failure to ensure accountability and broad-based investigation into this crime. Agnes and I called for the UN to investigate. The Secretary General basically said that he didn't have the authority to conduct an investigation. My view is that given what followed and all that Agnes talked about — the investigation in Turkey, but given that Turkey was ultimately willing to allow her to conduct her investigation in Turkey — I think that the failure of the UN overall, of the Secretary General to launch a high-level inquiry, in a way presaged the basic failure of the international community to address the murder. The second point that I want to make, again, as a matter of thematic issue, is the role of surveillance ... in all of this. Interestingly, if you watch the film, "The Dissident" by Brian Fogle and I, even though Agnes and I are in it — so this isn't a self-promotion, I encourage people to take a look at "The Dissident" — the film really highlights how surveillance is a pervasive form not only of investigation, because we see their cameras at the Istanbul [consultate] that indicate when Jamal was going in and out of the consulate and then going in and not reappearing, but also, surveillance of Jamal: surveillance of his network of friends, his network of allies, almost certainly contributed to not only the pressure that Jamal felt, not only the pressure that many of the activists and journalists around him felt, but also almost certainly played a role in giving the Saudis a sense of what Jamal wanted to do and when he would be in Istanbul. There's much more to learn about the role of surveillance. But one thing to take away from the murder of Jamal Khashoggi is that surveillance, 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. And then, and we could talk about any of that as we go forward, and then the last point that I want to make just as a thematic issue is, obviously we're talking about this, because the Biden administration, to its credit, released the U.S. intelligence community's assessment that MBS, that is, the Prince Mohammed bin Salman, bears culpability for the murder of Jamal Khashoggi. And that's a point that I'm sure Agnes will talk about in terms of her investigation.
That's an essential point: that the U.S. has acknowledged MBS's role. And beyond that, the United States under the Biden administration has also initiated a set of new tools, which it refers to as the Khashoggi Ban. And I think that those tools may be important, they're fairly limited. But they're… the tools show that there is the possibility of holding those responsible for crimes like this accountable. The tools are interesting and maybe we could talk about some of them as we go forward. They involve restrictions on travel. They involve a kind of naming and shaming that is common in the human rights universe. I think that the release of this information, however, also shows that there's a kind of limited scope of the Biden administration's approach, and we could talk about why it might not have gone further. But I think in a way at this stage, it seems that the administration has missed an opportunity to highlight MBS's responsibility and not only to say he was responsible, but also to impose some consequences. And as far as we can tell, right now, there are no consequences for MBS himself for his role in the murder, for his ordering of the murder of Jamal Khashoggi. Now, it may be that that will change over time. It may be that as diplomacy develops, we'll see a kind of limited role in the relationship between the United States and Saudi Arabia of Jamal — of MBS. I tend to doubt that. And I think it really, it's important for us to have a conversation about what it might mean for the U.S. to take a harder role and hold a harder line and really hold MBS accountable for the kind of the kind of crime that he's set in motion here. So I'm going to stop there just by highlighting those three points. And I'm going to turn it over to Agnes, who, as I said, produced the most important, most robust investigation of the Khashoggi murder to date. So I'll turn it over to you Agnes.
Agnes Callamard 10:38
Thank you very much, David, and thank you for the invitation. It's a pleasure to, to join you and to share some thoughts about the accountability... the search for accountability for the crime against Jamal Khashoggi. I'm going to make three points myself. First, the nature of the crime as an international crime, the second, the level of responsibility and three, some avenues for accountability. So very, very briefly, in terms of the nature of the crime, I have personally described it as an international crime, but before going there, it presents very multipolar multiple dimensions. 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. It's a violation of the UN Charter, prohibiting 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. In addition, it is also a wrongful act against Turkey. It is, in my view, a wrongful act against the United States, because Jamal Khashoggi was a U.S. resident. And it was a wrongful act against the entire international community, given all of the above multiple violations. That led me to conclude that it was an international crime site, analyze the seriousness of the crime, the gravity of the crimes. And it may be certainly not a consensual position within our community, but I believe that he can call upon international universal jurisdiction.The second point I want to make regarding the crime is that it is also a state crime. In other words, the responsibility of Saudi Arabia is directly involved, it is not — as they try to claim and continue to claim — a rogue operation. The evidence is there pointing to the responsibility of the state, as per international law regarding the nature of state responsibilities. In my report, I compare international standards on state responsibility, I analyze what a rouge permission is under international law. And I conclude that under no circumstances can we describe what happened as a rogue operation. And the killing involved 15 individuals, 14 of whom worked for the state, a number of them worked very closely to the Crown Prince. The operation was premeditated, it was planned, it was organized and there is evidence to it. It required a lot of resources that were all covered by the state. Some of them included, for instance, a so-called private jet, which we found out subsequently were actually directly, indirectly owned by the Crown Prince, or belong to a foundation that is owned by the Crown Prince. Some of those individuals traveled with a diplomatic passport. The killing took place in, in a consulate, the counsul himself was involved. So all the evidence points to the state responsibility. That, of course, does beg the question as to what we mean by state: who in the state?In my own investigation, I hinted to criminal responsibility, but did not go fully into that issue, suggesting that the responsibility of the Crown Prince was involved, but that I did not have the evidence proving or highlighting or demonstrating whether he ordered the crime, which would be at one end of the spectrum, or whether maybe [he] simply failed to protect or turn a blind eye to what was going on. That was, in my view, the importance of the report that has been produced recently by the intelligence community of the United States. It provided maybe not material evidence, but certainly the analytical finding of the U.S. intelligence community regarding the direct responsibility of the Crown Prince for ordering the crime. So once we have those two dimensional… three dimensions — a crime with a multiple human rights violations, which in my opinion can call upon universal jurisdiction, a state crime, Saudi Arabia, and involving the direct responsibility now we know for ordering it, of the Crown Prince — what should be done? In my report, I suggested a range of possible actions for holding those accountable, those responsible accountable, I made it clear that we could not be held hostage by the Saudi legal system and its lack of independence, and that we could not be expecting that system to hold the mastermind, at least, to account. I recommended that we looked at individual sanctions for those personally responsible and culpable, including against the Crown Prince, to the extent that he is not benefiting from immunity so far, in my view, he's not truly the head of state. So there are a range of individual sanctions against the Crown Prince, as set, that could be put in place. I also believe that some form of sanctions against the state could be made. I am very careful with state sanctions, they tend to be very blunt, and very, not very zoomed in terms of their impact. But at least when it comes to weapons, when it comes to surveillance technology, I think we are quite safe on those forms of export. And we could impose sanctions, meaning, preventing Saudi Arabia from accessing weapons and information technology. I also think that the corporate actors have a very important role to play. I was particularly interested in the role played by so-called PR firms and communication firms. We've already heard about the technology firms, so I won't go back there. But it felt to me that those firms that are involved in building an image of Saudi Arabia, which they know A, is false, and B, is used to hide the truth about the violations committed by the state and by individuals. It felt to me that those corporations, many of which are either, you know, European or American, should reflect on where do their responsibilities lie in terms of human rights protection. It's a very difficult area. And I did not suggest that there should be censorship. But I thought it was an interesting issue. And I regret that so far, those actors have not really addressed their responsibility in the context of building or creating images which are really there to hide human rights violations. I think it's an interesting area which deserve more attention.I also turn my attention to the international system, which as David pointed out, has shown to be not fit for purpose when it comes to this kind of targeted assassination. I wish… I want to highlight the fact that there is no doubt in my mind that we are moving into an era where we're going to see a multiplication of those targeted actions, extraterritorial, or indeed, territorially, because of the nature of the international system we live in. And as an international community, we really do not have the instrument either to protect individuals before they are killed or abducted or disappeared, or after they have been abducted or killed and killed um, in... outside their country — in the countries where they have sought refuge or asylum. I have suggested that the international community equip itself with an international investigatory mechanism that will have the capacity to conduct criminal and human rights investigations, either to support those national actors prepared to do it, or in parallel with national actors. And that those, that instrument, should also seek to identify avenues for accountability. Where can people face a judge and a trial? So that will be my quick contribution to the conversation tonight. Thank you very much.
Kal Raustiala 21:54
Great, well, thank you both for really excellent opening remarks. And I want to get into some of the details about possible responses and the existing responses. There's so many elements to this. But just for context, how would you characterize this case? I realize it is a unique case in many respects, and a tragic and shocking one. But it's not the only example of journalists or dissenters being targeted abroad, reporters in particular, and so I'm just curious how you would situate it. Are there other analogous cases that you might point to? Do you see this as a species of a larger genus which is troubling and worrisome in the international community today? Or is this sort of unique to Saudi Arabia?
David Kaye 22:42
I don't know. I'm sure Agnes would like to say a few words about this. But one thing I would say is, first, there are differences here, there are unusual elements, right? The fact of MBS's direct involvement, the fact that this was a murder that took place in a consulate in a foreign country. I mean, there are different elements here that are, you know, are troubling, and are also unique in certain ways. But I do think it's important to situate it in the broader environment of attacks on the media, attacks on journalists. And by attacks, I mean, not just the physical attacks, which we see around the world, but also the overall repression of independent voices around the world. And I'd also put it into the context of near total impunity for attacks on journalists worldwide. I mean, this was an issue that when I was a special rapporteur, Agnes and I would struggle over regularly, because, as I think we both indicated, the international community isn't really fit for purpose to deal with that problem. There are tools that could be used in order to improve the situation. But I think generally speaking, this all fits into a category of impunity for attacks on journalists that is a real global epidemic in many respects.
Agnes Callamard 24:18
Yeah, I mean, I completely agree with David's point. A few additional, maybe, points. As I have mentioned, we are seeing ... at least an increase in extraterritorial actions by governments who are intent to chase their dissidents abroad. That's, in my view, a new characteristic of the world we live in. For the last 20 years or so, most countries were actually keen to get rid of their dissidents, not killing them, but just ask them to leave basically. The new phenomena is, in fact, in my view, very much in keeping with the Cold War feeling that we are experiencing. And during the Cold War, countries such as the Soviet Union, first of all, were guarding their frontiers against those seeking to leave the country and preventing their dissidents from getting outside. And that is what we are seeing now, there is a real attempt on the part of many governments to either kill, silence, imprison, but they are seeking to control the information, the image of the country, and so on. And that translates by actions outside.Just yesterday, in my own country, France, a journalist from Azerbaijan was attacked by about six or seven individuals who all claimed when they were beating him up almost to death, that they were doing so because he was criticizing the government. There are several cases, I didn't know if Azerbaijan was involved, but Iran is a country that has very much targeted its people and dissidents abroad, Saudi Arabia, of course, Russia is doing so frequently, and China. There is a recent report by Freedom House, which is well documenting the targeting of dissidents abroad. And for... even for those targets, outside the countries of repression, often in countries that are supposedly democratic, even in those contexts, we do not have the proper response yet. I have called on governments to be mindful of the fact that we are in a new era and that if they are going to welcome dissidents, which I really call on them to do, then they need to be prepared to take actions and to strengthen their, you know, their alert to what may be done to them. I just came across very recently, to something that no one is doing. They have in their legal framework, they have the concept of "refugee spying." And by this they mean, refugee that are spying on other refugees, usually at the behest of their government of origin. Or they may not be refugees, they may be just representatives of the state and so on. ... It's an actual crime, to spy on a refugee on behalf of a country of origin. That, to me is an interesting tool that needs exploring. So yes, Jamal's crime is exceptional at many levels, but it is also symptomatic of the world we live in and of our, and of the necessity for us to really create and tailor our tools to respond to them.
Kal Raustiala 28:33
This is really for either of you, but do you think that trends that you just described Agnes, which are very disturbing, in a sense, you pointed to authoritarian governments, unsurprisingly, and we've certainly seen many discussions and analysis of the rise of authoritarianism around the world. The other aspect is one that's maybe closer to David's work when you were special rapporteur, which is the rise of the internet. And so I wonder to what degree is the focus on extraterritorial acts, meaning acts outside the state that is perhaps concerned with them, maybe it appropriately concerned — is that the result of digital technologies? In some ways, it's simply authoritarianism run rampant? What do you think is driving this?
David Kaye 29:18
Yeah, it I mean, I think it's those things and more, right? On the one hand, you have these new, you have the new technologies — everybody's online — you know, we rapidly moved from feeling like the internet was a place for freedom and organizing and exchange and so forth, and I think we've quickly come to see the dark side of that, which is that governments took advantage of it. And, you know, in the wake of the Snowden revelations in 2013, the conversation was around bulk collection, you know, mass surveillance. But I think what we see in a case like Jamal's and in many others is that we've had this rise of private actors, private companies, that are making their tools of surveillance available to anyone. And not just to authoritarian governments. I mean, there was a huge surveillance scandal in Mexico, in which the tool, the Pegasus tool — this is, uou know, the surveillance… the intrusive surveillance technology that's been developed and sold by the Israeli company, the NSO Group — you know, it was used against journalists, against lawyers, against families of opposition people. So we have this, you know, rise of private companies, and it has not been met with any constraint. You know, there's no constraint on the user side, the end user, the state, the military, whoever it might be. But there's also very little restraint on the export side. And so we've seen the rise of these technologies, we've seen the kind of the massive export of them around the world. And we may see some change here. I mean, Europe, is considering some new constraints on these kinds of technologies. But generally speaking, it's kind of open. And then I'll just conclude this point, which is that there are very few tools that individuals can use to defend themselves apart from, you know, sort of basic operational security, because the legal system is designed to make it very hard to bring suits extraterritorially. So it's very hard to sue the NSO Group, or it's very hard to sue the government of Saudi Arabia or MBS himself. And those are some of the kinds of things that probably need to change in order to bring some constraint in this space.
Agnes Callamard 31:57
Yeah, I don't have much to add to what David has said. I think, you know, we need to possibly see the digital revolution as having accelerated and strengthened the process of repression in the online… you know, pushing the boundaries of repression in the online world. You know, one aspect of the cases that David and I have worked on is that in addition to being the object of surveillance online, almost everyone we work with, on behalf of whom David worked particularly, they are the victims of a real attempt to silence them or to troll them or to ensure that their voice is not getting the… or is not reaching the audience that it could, or that it should. They are the object of campaigning online, there are multiple thousands, millions of trolls. So all of this environment is part and parcel of the repression in the 21st century and the silencing of critical voices. And many people have argued that the reason why some individuals are targeted, including for killing, is because of their profile in the online world. And that is triggering very drastic actions on the part of state.
Kal Raustiala 33:56
You both mentioned crimes and a sense legal remedies in various ways. And while we're not going to get in any depth on the legalities, I think it is interesting to talk about what could be done. So first of all, already, there's some actions by the U.S. government that were referenced in your earlier remarks. I guess one question is whether those are sufficient in your eyes to deal with, or to react to, such a horrific murder of someone who, you know, as you mentioned, he was a U.S. resident was obviously, you know, in what should have been a safe place: in a consulate in Turkey. But in addition, there are lawsuits percolating. I believe his widow has brought a lawsuit in U.S. court. And so I'm just curious about whether you think those sorts of remedies have some hope for addressing these problems, or do you think that they're unfortunately going to go sort of nowhere? Either of you.
David Kaye 35:03
So, I mean, I'll be very interested to hear what Agnes says on this. But I mean, maybe two quick responses. One, clearly there's more that the Biden administration could have done. And, you know, there's a kind of sliding scale. I mean, it didn't have to be a response that basically imposed harsh sanctions directly on MBS immediately. I mean, there could have been some conduct conditionality on the diplomatic relationship with him. I mean, I'm not a Saudi expert, so I don't know exactly how that would unfold. But the fact of identifying him as culpable, and yet not holding him directly accountable, in some ways, highlighted a kind of impotence and, in fact, impunity that MBS enjoys. And I think that's problematic. And so, you know, you could imagine the administration saying that it wouldn't deal directly with MBS for some period of time until there was some direct form of accountability that was meaningful and genuine. I mean, I think there are steps like that, that could have taken place, and some of the steps that Agnes talked about, in terms of state responsibility. But I think there's a broader point here as well, which is that, you know, these kinds of approaches need to be multilateral, you know. It's really not just for one state to be the first mover and to decide, you know, it alone is going to change the equation, you know. The Biden administration could work with others, there's a coalition of governments, led by the UK, Canada, Austria and a few others, that are very focused on the protection and safety of journalists worldwide. The administration could work with that coalition and identify some steps that could be taken as a group against MBS. And I think that might have taken some of the edge off of the perceived problem of the U.S. alone doing that.
Kal Raustiala 37:20
Agreed.
Agnes Callamard 37:21
Yes, I think, you know, if we only begin actions knowing that they're going to work, I think we will not do much in the human rights world. So I personally welcome and salute those who are trying to bring about lawsuits and which, in the process, may be shaking and reshaping our legal understanding. So great on what's happening in the U.S. It's, you know, there are a couple of lawsuits by attaches and, and a few others. In Germany, 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? 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. You know, at the end of the day, we've got to find a way of making the law work for us — for our rights — and it may take a little while to shape it in form, so that it's fit for 2021 and beyond, but we have to do it. So I think, let's try out, let's try those tools and support them and explore them. And I fully agree with with David's point, I think it's dramatic that the Joe Biden's — not him personally — but that his administration has not acted on their conclusion that Mohammed bin Salman was responsible for ordering the killing of Jamal Khashoggi. I think they've done this, the minimum that they had to do under the constitution, which was to release the report. I welcome the fact that they allowed — not to, allow is wrong word, but after the previous president, I guess we have to use it — U.S. democratic institutions to play the role, because that's what they had asked. They had asked for that report, but they cannot just stop there. So I think we need to keep the pressure on. It cannot be permitted that the culpability of Mohammed bin Salman is found and put into the public domain, and then people say, but there is nothing we can do. That, to me is a very dramatic, very problematic response and message that we've got to challenge, and I hope the Congress is going to challenge it, too.
Kal Raustiala 40:26
Agreed, agreed. Do you see any scope for, and this will be the last question I'll pose before we'll open it up to the audience questions, for more multilateral approaches on the lines that David was suggesting? So in other words, within perhaps the UN Security Council or some other body? The U.S. has a history of being very aggressive on individualized sanctions, we have been very good at them. We have certain structural advantages that make them very effective. But a lot of countries prior to this case were concerned about the unilateralism of American sanctions, secondary sanctions in particular. Is it realistic to expect something more though, from the international community? I know you both have sort of explored this. Is that something we can expect to see in the next year or two?
Agnes Callamard 41:12
As a call? I mean, you know, David has already mentioned the coalition. And if they are not taking action, I'm not sure who else is going to do it. European Union has put forward a number of individual sanctions. I think when it comes to Saudi Arabia, I'm not hopeful at all. For the last two years in the murder of Jamal Khashoggi, the only place that has driven the search for accountability has been the United States and the [U.S.] Congress. And then, you know, the civil society space and the international media space. But the only force for change and for accountability has been found in the U.S. Europe has not, not been at all present. I understand, you know, the relationship between the UK, France, to a lesser extent, Germany, with Mohammed bin Salman, not him, but the country, is certainly a high priority and a lot of arms and weapons sales. You know, Canada has been initially very vocal, and then has become very quiet. So I wish we could call on the international community to take action, but I have, I have quite a lot of doubt. I think we need a driver, we need the force that is going to demonstrate that it can be done and that the whole world is not going to fall apart. You know that some sanctions can be imposed on an individual such as Mohammed bin Salman, and we need, the United States could really be that driver for others to follow suit, as it has been so far, on the sanction side of things.
Kal Raustiala 43:16
Agreed.
David Kaye 43:17
You know, I would just really quickly on that, the other part of this is that, you know, the business community has been shameless, in its, you know, return to Davos in the Desert and those kinds of engagements. And it really highlights the kind of -- there's a kind of craven quality that is shared by the private and public sectors toward MBS and toward the Saudis. And I mean, that it's very hard to break through that. I think that's something that we've seen over the last couple of years.
Kal Raustiala 43:50
I agree, it is disturbing. Okay, so we have a lot of very interesting questions. We'll go through them in the time we have remaining. So first one is directed at Agnes, or for Agnes. Agnes, can you talk about the practical aspects of leading such a high-profile and potentially dangerous UN investigation? Were you ever concerned for your own safety? And maybe that's a general question about these kinds of positions: Do you worry about that and yourself being targeted in some fashion?
Agnes Callamard 44:19
Um, no. I mean, you know, in the context of my investigation, I took precautions, but not so much for me as for the people I was meeting. I took precaution with my technology. I don't know, you know, I hope it worked. I hope it worked for the individuals I've met. I think the security concern came afterwards. You know, when you start talking and speaking up and not giving up — being quite persistent and undeterred, and I think that's when the risk increases. And, you know some governments get quite, quite annoyed with that level of persistence. You know, I've had threats, but um, I, you know, I'm not naive, but I'm also not too concerned, I will say. I just keep an eye. Let's put it this way.
Kal Raustiala 45:29
Good. Good.
David Kaye 45:30
I think Agnes raises also, an important point, is that whenever we do these kinds of investigations, there's a real concern about the people that we engage with. You know many people — when a special rapporteur goes into a country, you know, generally speaking, they have the security of the profile and the attention. But you know, we often meet people or we met people in different environments that, if it became known that they met with a UN investigator, they could be under very serious threat of surveillance, of attack, and so forth. And that's a sort of an added layer that I think we both take very seriously in all the work that we've done.
Kal Raustiala 46:14
It's a really good point. So next question is maybe aimed a little bit at David, but I think both of you will have insights on it. So on the topic of the rise of surveillance technologies, how does the Covid-19 pandemic change the norms and the acceptance of these technologies? And how can we ensure that they're used responsibly? It is interesting to contemplate how this might change — already, I think people are more accepting of surveillance in many respects, CCTV and so forth, but this is adding another layer. So do you see that as continuing this process?
David Kaye 46:49
Yeah, it's a really great question. And I do wonder about, you know, whether people will feel more, sort of, you know, a sense of acceptance of surveillance, given the role that it can play in dealing with disease. Although, you know, it may be that people's experience with contact tracing and other forms of surveillance during the pandemic have actually been not so great. And so, it may have soured some people on the potential power of surveillance technologies. But I do think that one thing we can take away from the pandemic, when, you know, while governments, many governments, have used it as a cover for repressive actions that they've always wanted to take, one thing we could take away is that some governments, South Korea being a good example, have really sought to put their surveillance program under a framework of the rule of law. And I think we should be trying to highlight those good examples, where surveillance was really, you know, focused on, you know, as it developed, on basic due process norms. And those kinds of norms are completely absent in the use of tools like Pegasus and other intrusive technologies. Part of that is because of the lack of real good export controls. The other part, though, is that we don't have the tools, as we both talked about, in order to hold those kinds of actors accountable. So hopefully, people will see the difference between those, and at least learn the lesson that surveillance can be constrained by law.
Kal Raustiala 48:39
David, can you just offer an example of a tool that you would like to have that we don't have?
David Kaye 48:45
A, like a legal tool?
Kal Raustiala 48:47
Yeah, yeah. Because you've twice mentioned that we don't have the tools to go after private actors in this way.
David Kaye 48:52
So, well, yeah. Like, yeah, so you know, one possibility, it's private actors or public actors. So just to give an example, an Ethiopian American activist was, was targeted — actually, his laptop was targeted — by Ethiopia several years ago and a couple of advocacy organizations sued the government of Ethiopia for that intrusion. And the intrusion was actually a domestic law intrusion, but the Foreign Sovereign Immunities Act and sovereign immunity, generally, stood in the way of holding Ethiopia accountable. So one fix could be just, as you know, the United States has chipped away at sovereign immunity in terrorist cases, it could do the same here, and say, essentially, in cases of cross-border surveillance, you know, that's an act that that is subject to U.S. jurisdiction.
Kal Raustiala 49:55
So just for the non-lawyers listening, the notion of sovereign immunity is that sovereigns as well as heads of state, this is something that he has mentioned, often foreign ministers —there's a limit to how many officials would be included in this — are often immune in national courts as a matter of international and national law. This may or may not apply to MBS himself, that's one of the interesting questions. He doesn't hold one of the traditional positions that would accord with some kind of head-of-state immunity. But Saudi itself would it would have sovereign immunity. So continuing on, we have time for a couple more, I think, before we close. So one of the questions is related to China. But it relates more generally to this issue of reaching out to citizens abroad or maybe acting in a way that's not in line with the government's position. So the question is, how should the international community respond to something like China's recent national security law — which is put in quotes — which provides that any behavior anywhere in the world by anyone that is considered or deemed to threaten Chinese national security is a crime? So I'm not sure that's an accurate portrayal of the law, but to the degree that it is, are those sorts of laws problematic, in that they allow governments or permit governments to reach anywhere, regardless of the local law? That's either of you.
Agnes Callamard 51:25
You know, they can draft those laws as much as they want, but I don't see how they can adjudicate them outside their jurisdiction. But I, you know, I don't know the details about the law but I think it's not… it's meant to send a signal. It's meant to threaten, it's meant to instill fear, it's meant to say we keep an eye on you. You think you're abroad, you think you're safe? No, no, no, we can reach you, we have the means to reach you. That's the purpose of the law, whether or not they can implement it, of course, they can't outside the territory. But that's not the purpose, I think. The purpose is really, it's to instill fear and to silence people, and to make them aware of the ever-growing power of the Chinese state outside China.
David Kaye 52:26
And this applies also to, you know, social media. So Chinese social media companies, for example, if you're a Chinese national anywhere in the world, you know, the kind of restrictions that the government imposes, basically, through social media companies, actually applies to people wherever they are. And so it's clear that China's taken a page from some of, I mean, the U.S.'s own extraterritoriality principles, you know, that have been around for decades, and is seeking to hold their own citizens accountable wherever they are.
Kal Raustiala 53:07
Yeah, I'm glad you've mentioned that, I'm not going to defend the Chinese government in any way in this regard. But it is true that it's not unique to them at all. And the United States actually has a number of laws, as do many other countries, that purport to regulate what citizens do when they're in other countries. And yes, it's right to say it's hard to enforce. But of course, people often come back, or their assets remain back. And so there are ways to exert that pressure. And we're probably the past master at doing that here in the United States. So just to close, there's many questions in the queue about MBS in particular, and why the United States as well as other countries seem unwilling to take the obvious step. Now, I know neither of you are Saudi, or Middle East politics, experts. But I can't not raise this question, because there's so many people are asking. So do you want to comment more on you know, why is it? I think you've sort of alluded to that already. But is there any realistic prospect that he will face some kind of justice?
David Kaye 54:12
Yeah, I, you know, it's, I think, been a little bit disappointing for people who really, I mean, again, the Biden administration has taken some forceful steps, you know, by releasingthe intelligence community's assessment, by taking other steps to, you know… what they've said is to "center human rights" as a matter of U.S. foreign policy. And I think the situation with respect to MBS highlights that if you are going to say that human rights is at the center of your foreign policy, it requires you to make some tough calls. It's an area where you can't have it both ways. And I do think that here, as Agnes suggested, there will continue to be pressure, you know, the pressure on MBS is not going to go away — it's probably never going to go away. And I think there should be continued efforts to move the administration to take to take MBS's culpability seriously. Why it hasn't, I think it goes to the, you know, the politics that we could all talk about, and the politics of the relationship, and a sense of where the Saudis fit into our overall Middle East policy. But it's unfortunate that they haven't take that taken the necessary step, which I would admit, is a maybe a hard step for them to take.
Agnes Callamard 55:40
And, yes, I think, you know, I think he is already facing much more difficulty than he was ever, that he probably ever imagined he will find himself into. I think he is more or less a de facto persona non grata in many countries around the world. Wherever he travels in western democracies, he could very well face a universal jurisdiction case, either for Jamal or for Yemen or, you know, we just I think that something has been broken around his image and around his protection. And I, you know, if I were in his shoes, I'm not sure I will travel to many places abroad, I think, certainly not to the U.S., unless some deals are being made that protect him against any kind of legal action. He is, you know, he is paying a price. It is not as if he has not paid the price. 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. It's a lesson in how we, members of the non-state community, can actually put some states in, you know, I will never say towards them that they are being held to account, but there is absolutely no doubt that it is a bloody uncomfortable position he's in — at many levels. 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. We need to... they need to understand that there is a price to be paid. It may not be a judge that will deliver that price. It may not be a government that will deliver that price, but there will be a price to be paid. And that's what… that's a message, and that's the actions we have to take to bring that message live.
Kal Raustiala 57:20
Well, that is a hopeful note to end on. And I agree, I think we will… we have not seen the end of the story. It's still quite early. So I really want to thank both of you, in particular Agnes, I know you're in France, it's quite late and we appreciate you coming in at this time. David, I know you're in D.C., it's maybe less late, but we still appreciate you being here. Thank you both. Thank you all for watching and listening. Have a great afternoon, everyone.
David Kaye 58:34
Thanks, Kal. Thanks, Agnes.
Agnes Callamard 58:37
Thank you. Thank you, everybody.