Preliminary observations of the human rights inquiry into the killing of Mr. Kashoggi following the country visit to Turkey

1. As UN Special Rapporteur on extrajudicial, summary or arbitrary killings and leading an international human rights inquiry into the killing of Saudi journalist Mr. Jamal Khashoggi, I undertook a visit to Turkey from 28 January to 3 February 2019. I was very grateful to be accompanied for this purpose by Baroness Helena Kennedy, Queen’s Counsel; Duarte Nuno Vieira, Full Professor of Forensic Medicine and Forensic Sciences and of Ethics and Medical Law at the University of Coimbra and Paul Johnston, homicide and major crimes investigation consultant.  As my human rights inquiry is on-going, I confine this statement to key issues that we have identified thus far.  These and other matters will be followed up with the Turkish authorities and others over the coming weeks.

Methodology

2. During my stay in the country, I benefited from the close cooperation of, and had many useful conversations with, officials of the Government of Turkey.  We met with the Minister of Foreign Affairs, the Minister of Justice, the Chief of Turkish Intelligence, the Chief Prosecutor of Istanbul and a number of other stakeholders, including from the civil society and the media community. We also met with the UN country team and I wish to thank the Office of the UN Resident Coordinator for the support provided in facilitating the visit.
3. I am grateful for the frank exchange of views with Government officials.  I am also grateful for the access they provided to some of the crucial information they hold about Mr. Khashoggi’s murder, including to parts of the chilling and gruesome audio material obtained and retained by Turkish Intelligence agency.  We were not able, however, to carry out an in-depth technical examination of this evidence. For instance, we have not had the opportunity to independently authenticate the audio material.
4. This mission was also unable to undertake other crucial inquiries, largely, but not only, due to time constraints. For instance, we could not meet with the investigators that have been working on the case, such as the chief police investigator and relevant forensic and crime scene specialists.  Requests for these meetings were made and are matters of on-going discussions with the Turkish authorities.
5. In addition, I have been promised access to forensic, scientific and police reports that the Turkish Government acknowledges are critical to my inquiry for reasons that I set out below.  It is my expectation that these documents will be made available to me shortly.  
6. I am grateful to the Turkish authorities’ commitment to remain engaged and to continue to cooperate fully with my inquiry. I stand ready to continue our exchange on relevant issues as my inquiry progresses and as the Turkish government makes additional information available to me.

Grave violation of a foundational human right: the right to life

7. Mr. Khashoggi was a well-known journalist employed by the Washington Post; he was a scholar of Middle East politics; a man who, according to his friends and colleagues, “loved Saudi Arabia.”  His murder was a violation of the most fundamental of all rights, the right to life.  On October 2, Mr. Khashoggi entered the Consulate of the Kingdom of Saudi Arabia, by appointment, to obtain papers needed to pave the way for him to marry his fiancé, Ms Hatice Cengiz. She waited outside the Consulate for him to exit, but brutally slain within the Consulate, he never returned. The bitter reality of his murder made all the more poignant by the joyous purpose for which he entered the Consulate.

Relevant International Legal Standards

8. As a human rights inquiry into the killing of Mr. Khashoggi, the methodology demands necessarily that we focus on the steps taken to date by the relevant state authorities both in Turkey and Saudi Arabia.  Specifically we must focus on those states which have the duty to investigate his death; on those which have been involved in the investigation; and on their findings or assessments. The international legal framework guiding the mission in Turkey includes the Minnesota Protocol for the investigation of extrajudicial executions, along with the UN Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions.  International law requires that investigations be: (i) prompt; (ii) effective and thorough; (iii) independent and impartial; and (iv) transparent.
9. The Turkish authorities’ compliance with these standards was seriously curtailed and undermined by Saudi Arabia’s unwillingness, for some 13 days, to allow Turkish investigators access to the crime scenes. Our interviews suggested to us that the Turkish government’s concerns over diplomatic immunity and over the risks of escalation of the political crisis may have been a consideration. 

Prima facie case

10. The evidence presented to us during the mission to Turkey demonstrates a prime facie case that Mr. Khashoggi was the victim of a brutal and premeditated killing, planned and perpetrated by officials of the State of Saudi Arabia and others acting under the direction of these State agents.  The mission could not firmly establish whether the original intention was to abduct Mr. Khashoggi, with his murder planned only in the eventuality of this abduction failing. What is abundantly clear is that much planning and preparation took place following Mr. Khashoggi’s initial visit to the consulate on 28 September:  the establishment and travel of the three teams that carried out the operation; the presence of a look-alike of Mr. Khashoggi who was seen leaving the consulate; the presence of a forensic doctor; the escape of the teams’ members and, of course, the disposal of Mr. Khashoggi’s body – the whereabouts of which is still unknown. The Turkish authorities, subsequently, were also deliberately denied the access and in-depth technical examination needed to discover, preserve and analyse evidence on the killing.

Enforced Disappearance

11. The distress caused to Mr. Khashoggi’s loved ones and friends is beyond measure.  Officials we met during the mission were also clearly deeply troubled by the circumstances of his killing. The continued absence of Mr. Khashoggi body has brought with it even greater suffering. From an international human rights perspective, this means that Mr. Khashoggi was also subject to an enforced disappearance. It is unconscionable that the Saudi Arabia authorities continue to fail to disclose the whereabouts of Mr Khashoggi’s remains, after having admitted that he met his death within their custody in their consular premises.

Crime Scene Investigation

12. It is my assessment that woefully inadequate time and access was granted to Turkish investigators to conduct a professional and effective crime-scene examination and search. Crime-scene protection and meticulous examination are key to every criminal investigation the world over, especially when it comes to the most serious crimes. Every minute that passes between the commission of a crime and the examination of the crime scene is a diminished opportunity to discover crucial evidence. Every minute that passes without protecting the integrity of the crime scene makes the collection of evidence more problematic with adverse consequences as to its admissibility. Mr. Khashoggi was murdered on 2nd October. However, Turkish investigators, accompanied by Saudi investigators, only had access to the Consulate on the 15th October and to the Consulate residence on 17th October. 

13. The evidence made available to us thus far indicates that prior to 15th October, up to four attempts were made to eliminate forensic evidence from the scene. We were also told that some re-painting had taken place during that period.  In spite of these efforts, given sufficient time, skilled and well-equipped crime-scene investigators would still expect to find ‘trace-evidence’ of the commission of a murder such as that of Mr. Khashoggi. However, premises the size of the Consulate and the residence would take many days to examine thoroughly, especially if ‘clean-ups’ had taken place.  
14. Delayed and limited access imposed by the authorities of Saudi Arabia to the criminal forensic investigation, severely limited its potential to produce telling evidence and was deeply regrettable.
15. In spite of the circumstances, the Turkish police did undertake extensive investigation work, including by reviewing thousands of hours of CCTV to piece together the movements of various members of the Saudi teams dispatched at the Consulate, investigating the routes they followed, the hotels rooms they occupied, etc.

Accountability

16. The killing of Mr. Khashoggi raises fundamental questions regarding the nature of cross-border criminal accountability.  The Turkish Chief Prosecutor has informed the mission that he is in the process of building the case for trial.  Turkey has requested the extradition of 11 suspects reportedly tried in Saudi Arabia and international arrest warrants through Interpol concerning 20 individuals.
17. Arguably due to international pressure, there are now 11 individuals facing trial in Saudi Arabia for the murder of Jamal Khashoggi. However, the proceedings to date raise major concerns, including with regard to the lack of public information about the identity of those on trial, the transparency and fairness of the proceedings, and the potential application of the death penalty.  I have requested an official country visit to Saudi Arabia so that the authorities there can directly provide me with relevant evidence, their findings regarding the killing of Mr. Khashoggi and shed light on the prosecution and trial of the suspects, along with the basis for their denial of Turkey’s demands for extradition of the suspects.
18. The killing of Mr. Khashoggi also raises important questions regarding the role of “Intelligence” evidence.  Surveillance over the content of diplomatic communication and documents by the host State, is prohibited under the Vienna Convention on Consular Relations (VCCR). I welcome the Turkish Government’s transparency in making public the fact of its recording of Saudi communication and surveillance of the Saudi consulate and in providing us access to the content of some of its recordings. Disclosing material of this nature raises sensitive issues related to the practices, methodologies, sources and extent of intelligence gathering over foreign diplomatic presences worldwide. The role of intelligence-gathered evidence in facilitating accountability for a human rights violation has a range of implications in courts around the world. The admissibility of such evidence in criminal proceedings in Turkey and elsewhere will raise, no doubt, complex legal questions, as would the ability of Judge(s) and defence lawyers to fully access, question, interact with and challenge such evidence. 
19. While acknowledging the Turkish Government’s determination, reiterated throughout the mission, to establish the truth of Mr. Khashoggi’s murder, in keeping with the appropriate methodology of human rights work, the mission sought access to independent investigation that could have corroborated the facts and findings. I note that very little independent investigation and reporting have taken place, including by the Turkish media and civil society. The information on the murder thus far available can all be traced back to one source only (the Turkish Government). It has not been subjected to the type of scrutiny by local civil society actors and the media one would expect for a crime of this nature. This state of affairs, deeply detrimental to the search for truth, may be attributed in part to the shrinking space for civil society in general, including independent journalism and media in Turkey, that the UN Special Rapporteur on freedom of expression has highlighted in his 2016 mission report.  As noted above, an absolute absence of independent investigative reporting characterizes the Saudi Arabia investigation and trial.

International legal implications: diplomatic immunity

20. Mr. Khashoggi’s killing further generates complex and significant questions of state sovereignty and international law. Since the events of 2nd October 2018, much has been said of the struggle between the two states that are seeking to control the public narrative about Mr. Khashoggi’s killing, nationally and internationally.  It appeared to me during the mission that Turkey views it as a violation of national sovereignty and a matter of national security. Under international law, the murder violated international law and core rules of international relations, including the requirements for lawful use of diplomatic missions. As a human rights scholar put it, “Those rules, developed to protect states from one another’s misdeeds, are central to the stability of the state system.”  These dimensions were central concerns for the mission to Turkey and will continue to be so as my inquiry progresses.
21. Critically, the circumstances of the killing of Mr. Jamal Khashoggi, and the response by Saudi State representatives in its aftermath may be described as “immunity for impunity.”  Yet, guarantees of immunity were never intended to facilitate the commission of a crime and exonerate its authors of their criminal responsibility or to conceal a violation of the right to life.
22. The VCCR sets out hat Consular premises cannot be entered or searched without permission, but the private residence of a Consul could be.  Further, consular personnel are immune to criminal prosecution but only for acts performed in the exercise of their official consular functions.  We were told that that Turkey initially sought not to escalate the issue further, including for fear of retaliation by the Saudi authorities. As a result, between 2nd and 15th October, diplomatic solutions and attempts at collaboration between the Turkish and Saudi Prosecutor took first priority but failed to provide investigators with access to the crime scene. In the meantime, evidence showed that “clean up” of the crimes scenes were undertaken by Saudi authorities. These inevitably reduced the chance of securing admissible evidence and thus robbed investigators of collecting essential evidence about what had happened and who was responsible.
23. The killing of Mr. Khashoggi raises important questions regarding the legal implementation and limitations of the diplomatic immunity guarantees, and demonstrates the difficulties of enforcement whenever these guarantees are violated, such as in complex international and regional political environments. There is thus an important role for the international community, including the United Nations decision-making bodies and Member States that require further scrutiny and elaboration.

  
International legal implications: conflict of jurisdiction

24. Mr. Khashoggi’s murder also raises important questions over jurisdictions and conflicts of claims over multiple jurisdictions. The international community, including international legal and human rights community, has an important role to play by clarifying and developing, where necessary, constructive perspectives on this element. Both Turkey and Saudi Arabia are making claims of jurisdiction over the crime. How should such conflicts of claims be responded to, and by whom, in order to ensure and provide full accountability for the violation and justice to Mr. Khashoggi.  Besides these two states, given the ripple effect of the killing and the many international legal and political issues it raises, jurisdiction should also be claimed by and through international processes.

International Implication: Global Pattern of arbitrary killings, including extraterritorially

25. The killing of Mr. Khashoggi is part of a well-documented pattern of killings globally of journalists, human rights defenders, activists and opponents of various governments. Fleeing abroad in search of safety has become less and less a reliable form of protection. The tentacles of covert intelligence services are spreading across the world, reminiscent of the cold-war era. The international community must take a strong and collective stand against these practices.  Such practices breach national sovereignty and amount to violations of international law. The fate of those who dare to criticize their government’s policies and practices hangs in the balance of the of the international community response to Mr. Khashoggi’s murder.

A role for the United Nations

26. What was presented to my mission in Turkey raises grave issues for the international community. These issues include the abuse of diplomatic immunity, conflicts over jurisdiction, the destruction of evidence, the abuse of fundamental human rights and of international law - altogether an affront to the Rule of Law has taken place bringing dire consequences for Jamal Khashoggi and his family but also for the world at large.
27. The international implications of Mr. Jamal Khashoggi killing became even more apparent during this week-long mission, reiterating the important roles yet to be played by the international community, including by the United Nations and member States. It remains my view that the human rights inquiry I am committed to undertake into the murder of Mr. Khashoggi is a necessary step, among a number of others, towards crucial truth telling about and formal accountability for the gruesome murder of Mr. Khashoggi. The final report of this inquiry will make a range of recommendations as to the further actions that should be taken by the UN and member States, including for the purpose of formal criminal accountability, and their bases in international law.

A call for further evidence

28. I intend to continue to consider the available evidence in the weeks to come and would urge anyone who has knowledge or reliable information about what took place before, during and after Mr. Khashoggi’s murder to share it with us before the final report is produced for the June session of the Human Rights Council.  
29. I would also welcome submissions from anyone who has an interest in and expert view on the international implications of this case in respect to international laws and norms, the safety of critics and opponents, journalists and human rights defenders, and the role of the United Nations.
30. At this point, in the aftermath of Mr. Khashoggi killing, Turkey stands out for its role in pursuing the truth and accountability in this case. The killing of Mr. Khashoggi raises also major issues related to tolerance for and protection of dissent and of freedom of the media.  With regard to Turkey continuing standing, I call on the Turkish authorities to take all the necessary measures to implemented related recommendations of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, and the Working Group on Enforced or Involuntary Disappearances, following their respective missions to Turkey in 2016.