“Consular functions consist in:
a. protecting in the receiving State the interest of the
sending State and of its nationals, both individuals and bodies corporate
within the limits permitted by international law;
....”
(Vienna Convention on Consular Relations 1963 Article
5)
After
18 days of denial of Jamal Khashoggi’s disappearance, and persistently informed
the world that he left the consulate building alive, Saudi Arabia’s authority
finally declared that the Saudi citizen, Washington
Post columnist and the
US resident had been died inside
the Saudi consulate premises in Istanbul, Turkey. Initially, Saudi’s official said that Khashoggi
died due to fist fight inside the building. But having realized the cause of death seemed
unconvincing, later, Saudi Foreign Affairs Minister, Adel bin Ahmed Al-Jubeir when interviewed
by Fox News Channel changed the story.
He told Fox that the cause of death yet to be known. Nonetheless, he
further stated that the Saudis had no idea where the body was.
Based
on these Saudi’s recognized facts alone, there is a sufficient evidence to accuse Saudi
breaching international law, namely Vienna Convention on Consular Relations
1963 (VCCR) to which that state is a state party. First, Saudi acknowledged that Khashoggi had
been died meaning that it had been lied before and failed to inform the immediate
family about his death. Under VCCR, the consulate of the sending State (Saudi)
shall function to “protect in the receiving State the interest of the
sending State and of its nationals.…”
Second,
whatever the cause of his death and for the fact that he died inside the
consulate building, consulate officials should maintain and respect the body and
deliver it to the family. It is blatantly weird when a high ranking official of
that country said that the country did not know where the body was. As the
building is under Saudi jurisdiction and its full control, of course it is
fully under its responsibility for whatever happens to the body.
Therefore,
international outcry has been growing not only because somebody died inside the
building but also because all circumstance evidences and facts provided by Turkey
press sourcing from Turkey authorities that are basically saying that Khashoggi
was intentionally tortured, murdered, and dismembered by allegedly state
officials who had flown from Saudi. Later, these facts were stated officially
by Turkey President, Recep Tayyip Erdogan. However, Saudi consistently lies and
changes the story over time without providing any prove corroborating its
story.
If
it is the case, how does international law deal with this situation? Article 1
of Responsibility of States for Internationally Wrongful Act says, “(e)very
internationally wrongful act of a State entails the international
responsibility of that State.” Thus, two elements required to trigger the
international responsibility of Saudi under this customary international law
are satisfied. First element is aggravated wrongful acts under international
law that is grave breaches of human rights like torture or cruel treatment,
summary killing, and the other one is ordinary wrongful act that is using
consulate premises contrary to the function stipulated in the VCCR. The second
element is the wrongful acts are attributable to a state. In this sense, the wrongdoers
are allegedly Saudi’s officials or at least persons ordered by state official.
While there is no circumstance that precludes the wrongfulness such as force majeure, self defense etc., thus the elements for international responsibility of a state are established. The
next question is what is the consequence? First of all, the violating state
should stop the wrongful acts. Although the torture and the killing already
stopped but the cause of the death seems to be concealed. It says that Saudi is
now making investigation. If so, it should be genuinely conducted to reveal the
truth not a way of covering up. The violating state owes not only to Turkey but
also to international communities the truth about what happened inside the
consulate that led to the Khashoggi’s death, the motives behind the killing,
revealing the body whereabouts and so forth. International fact finding should
be welcome. Then, it should prosecute and punish the perpetrators including the
mastermind.
Second,
the violating state offers assurance that the wrongful act never happens again.
It includes making changes of state policy that gives opportunity to the
wrongful act to happen. Third, international law requires the violating state
to make reparation including offering condolences and appropriate compensation
to the Khashoggi’s family.
May
Jamal Khashoggi rest in peace.
