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Concerns regarding the investigation and prosecution for the killing of Saudi journalist Jamal Kashoggi

28 March 2019

As UN Special Rapporteur on extrajudicial, summary or arbitrary killings, I am issuing this statement in response to remarks by officials of the Kingdom of Saudi Arabia, including those made by the Head of the Saudi human rights commission during the March 2019 session of the UN Human Rights Council.  

Mr. Bandar bin Mohammed al-Aiban told the Human Rights Council that the killing of Mr. Khashoggi constituted an “unfortunate accident” and a “heinous crime”.  He further asserted that the international “investigation” into the killing of Mr. Khashoggi amounted to “interference” and he further advised that everyone alleged to be involved in the murder was already facing justice in the Kingdom.

Background

In January 2019, I announced I would lead an independent international human rights inquiry into the killing of Saudi journalist Jamal Khashoggi, under the terms of my mandate as UN Special Rapporteur on extrajudicial, summary or arbitrary killings.  I am scheduled to present the findings of my inquiry at the June 2019 session of the UN Human Rights Council.

Supported by technical experts of international standing - Helena Kennedy, a Queen’s Counsel, Duarte Nuno Vieira, a forensics expert, and Paul Johnston, a homicide and major crimes investigator, I undertook a visit to Turkey from 28 January to 3 February 2019.  I subsequently have met with officials in the United States, France, the United Kingdom and Canada.  I have also requested a country visit to the Kingdom of Saudi Arabia.  

My initial findings concerning the relevant trials conducted by Saudi Arabia

I have received reports and other preliminary evidence suggesting that twenty-one individuals were detained originally by the Government of Saudi Arabia in connection with the killing of Mr. Khashoggi.

Currently, eleven of those are under trial with the death penalty being sought against five of the eleven.  I have also learned that the Government of Saudi Arabia has invited representatives of the of the five Governments that are permanent members of the Security Council to attend at least some of the hearings, and that four hearings have already taken place.

As I set out in my preliminary observations of February 7, 2019, the murder of Mr. Khashoggi raises potentially three separate violations of international and customary law: i) a violation of the jus cogens norm against extrajudicial killing; ii) a violation of the Vienna Convention on consular and diplomatic relations regarding the lawful use of diplomatic mission and immunity; and iii) a violation of the customary ban on extraterritorial enforcement of a state’s laws or policies.  As such, in addition to the rights of the victim and his family, at stake are key rules of international relations, grounded in international law, customs and reciprocity, the rights of Turkey and other States under international treaties and law. Therefore, investigation into Mr. Khashoggi’s murder, and prosecution of the alleged perpetrators, call for the highest level of transparency and impartiality.  

However, to date, the trial of those alleged to be involved in the killing of Mr. Khashoggi has proceeded largely in secrecy, both in terms of the proceedings and substance.  The identity of those on trial has not been released and neither have the details of the charges brought against them. The trial is held behind closed doors.  While countries that are Security Council members have been invited to observe the proceedings, they have done so under conditions which also have not been made public. 

Despite this approach, the Government of Saudi Arabia still appears to believe it is meeting its international obligations.  It emphasizes that contrary to its customary practice, it has opened (at least some of) the trial hearings to a degree of observation by some member states.  While any degree of greater openness is welcome, the presence of these observers under these conditions cannot on its own accord legitimacy to the process or credibility to its ultimate outcome.

Steps that Government of Saudi Arabia must take to meet its international obligations

I call on the Government of Saudi Arabia to take the following steps towards meeting its international obligations in the investigation of Mr. Khashoggi’s disappearance and death: 

Make public the names of all individuals under prosecution and the details of the charges they face. 

While I have information as to the identity of those being tried, including of those facing the death penalty, as yet, I do not consider it appropriate to release information whose disclosure falls directly under the responsibility of Saudi Arabia. 

I am aware that under Saudi law, the names of those indicted are rarely made public. However, as I have highlighted, this trial is not only a domestic matter. Domestic provisions regarding the identity of those indicted should be deemed inapplicable.  Moreover, the Government of Saudi Arabia has previously ignored those privacy provisions when to do so has served its purposes.  For example, in regard to the on-going trial of women’s rights advocates, it released the identities of four accused namely Aziza al-Yousef, Loujain al-Hathloul, Eman al-Nafjan and Hatoon al-Fassi.

Make public the trial proceedings and all evidence against the accused. 

The current proceedings contravene international human rights law according to which the right to a fair trial involves the right to a public hearing: “The publicity of hearings ensures the transparency of proceedings and thus provides an important safeguard for the interest of the individual and of society at large. Courts must make information regarding the time and venue of the oral hearings available to the public and provide for adequate facilities for the attendance of interested members of the public, within reasonable limits, taking into account, inter alia, the potential interest in the case and the duration of the oral hearing.”1  Only under exceptional circumstances2, may courts exclude all or part of the public.

It is my view that exceptional circumstances – “prejudicial to the interests of justice” – do not exist in respect to the trial of those accused of the killing of Mr. Khashoggi.  However, if the Saudi Arabia Court believes that the trial does warrant proceedings behind closed doors, it should issue a robust, comprehensive public explanation as to why this is the case. 

One of the key objectives of trial observation ought to be to reinforce the rightto a public trial and the right to a fair trial.  The presence of unidentified international observers could be perceived as lending credibility to what are non-public and profoundly problematic proceedings.

Any Governments observing the trial/s should insist that the Saudi authorities open the trial to the public, make the identity of defendants publicly available, and detail publicly all charges laid. They should release information regarding the circumstances, rules and outcomes of their observation.

Invite international, independent, expert to monitor the trials.

Observations by certain States, through their diplomatic personnel, is insufficient and cannot provide credible validation of the proceedings or of the investigation itself.
The Kingdom of Saudi Arabia should issue invitations to international, independent monitors who have a recognized track record in monitoring trials and who can bring expertise both in international standards governing fair trials and in investigations under the Minnesota Protocol on the Investigation of Potentially Unlawful Deaths.
I am aware that the OHCHR and the International Bar Association have both requested such invitations.

Make public details of efforts to establish the location of Mr. Khashoggi’s remains and associated findings

The continued disappearance of Mr. Khashoggi’s remains is an ongoing violation of international law under Article 17 of the UN Declaration on the Protection of All persons from Enforced Disappearances.  As the Working Group on Enforced and Involuntary Disappearances notes, “the act begins at the time of the abduction and extends for the whole period of time that the crime is not complete, that is to say until the state acknowledges the detention or releases information pertaining to the fate or whereabouts of the individual.”3  

Further, the Human Rights Committee and the Committee against Torture have determined that enforced disappearance constitutes an act of torture within the meaning of Article 1” of the Convention Against Torture.  The extreme distress caused to the surviving family and loved ones by not knowing what has happened is recognized under international law as a form of torture.4

If the Government asserts that it does not know the whereabouts of Mr. Khashoggi’s remains, it nonetheless should disclose all aspects of its efforts to locate them, including the details of any witness interviews that it has undertaken.

Make public the fate of those initially detained

The Saudi judicial authorities should also explain whether the ten individuals initially detained but not charged have been released, and if so on what grounds.  They should explain whether the individuals concerned are in any way affiliated with the Government and if so, in what capacity, formal or informal.

The steps I have set out will not - on their own - ensure a proper investigation of Mr. Khashoggi’s murder under international law, nor will they ensure a fair trial as defined by international standards.  However, they will provide some assurance that the Government of Saudi Arabia and its key officials accept that the State has a responsibility to comply with international law in investigating a “heinous crime” that constitutes also a violation of international human rights, and of the rights too of fellow sovereign states.  Senior officials and representatives within Saudi Arabia are criminally responsible, even after Mr. Khashoggi’s murder, should they fail to investigate and prosecute those responsible for serious human rights violations, in accordance with international law. 

The Government of Saudi Arabia would further demonstrate good faith if it were to open its efforts to international review. 

The Special Rapporteur accordingly renews her request for permission to undertake a country visit to Saudi Arabia to pursue her investigation into the fate and whereabouts of Mr. Khashoggi, and would welcome a positive response to that request. 

Notes:

1. Communication No. 215/1986, Van Meurs v. The Netherlands, para. 6.2.

2.  CCPR/C/GC/32: General Comment No. 32 on Article 14: Right to equality before courts and tribunals and to a fair trial, state that “Article 14, paragraph 1, acknowledges that courts have the power to exclude all or part of the public for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would be prejudicial to the interests of justice. Apart from such exceptional circumstances, a hearing must be open to the general public, including members of the media, and must not, for instance, be limited to a particular category of persons. Even in cases in which the public is excluded from the trial, the judgment, including the essential findings, evidence and legal reasoning must be made public, except where the interest of juvenile persons otherwise requires, or the proceedings concern matrimonial disputes or the guardianship of children.”

3. Working Group on Enforced or Involuntary Disappearances, General Comment on Enforced Disappearance as a Continuous Crime

4. See for instance UN Human Rights Committee, “El-Megreisi v Libyan Arab Jamahiriya”, Communication No. 440/1990, UN Doc. CCPR/C/50/D/440/1990 (1994); Rafael “Mojica v. Dominican Republic”, Communication No. 449/1991, UN Doc. CCPR/C/51/D/449/1991 (1994). The UN Human Rights Committee ruled specifically on enforced disappearance as a form of torture in Sri Lanka in “Sarma v Sri Lanka”, Views, 31 July 2003, para. 9.5