MURDER OF JAMAL KASSOGGI - The beginning of a new regime relating to Sovereign Immunity and Economic Sanctions?

MURDER OF JAMAL KHASHOGGI- The Beginning of a New Regime Relating to Sovereign Immunity and Economic Sanctions?

The ghastly murder of the Saudi National, Turkish and US resident Mr. Jamal Khashoggi in the Saudi Consulate Office in Istanbul, Turkey has opened the Pandora’s Box. Diplomatic and consular immunity is among one of the first principles of Customary International Law to evolve and probably acquire the status of Jus Cogens. These principles were codified in two conventions- namely, The Vienna Convention on Diplomatic conditions, 1961, and the Vienna Convention of Consular Relations, 1963. Subsequently, the concept of Diplomatic immunity was also extended to employees of International Organizations.

Mr. Khashoggi was one of the well-known faces in the Saudi Arabian Political landscape. He held important positions in the Saudi Foreign Affairs Ministry, and later became a critic of the Saudi monarchy and the royal family coterie. In fact, he went to the Saudi Consulate in Istanbul essentially to get his divorce papers validated, a prerequisite for him to marry a woman who is a US National and a Turkish resident. But, Saudi officials had other plans. For whatever reason, the Saudi Arabian Government wanted him back in Saudi Arabia. His family, including his son, also a US National, then resident in Saudi Arabia was on their ‘Exit Control List’. Mr. Khashoggi entered the Saudi Arabian Consulate in Istanbul with a State of the Art Apple watch which was paired with his fiancée’s cell phone. He also intimated to his girlfriend that if he did not return by 5:30 p.m., then the Turkish Authorities must be alerted about his disappearance.

Mr. Khashoggi was no ordinary journalist. He was working with the Washington Post. He had the right contacts in the Turkish Foreign Office. He was probably the only Arab journalist who was granted the rare privilege of interviewing Osama Bin Laden when he was in Afghanistan. Since Mr. Khashoggi did not exit the Arabian Consulate in Istanbul, the Turkish Government wanted to know what happened to Mr. Khashoggi. In fact, Turkish Government claimed that the Apple watch that Mr. Khashoggi wore on the fateful day had given a lot of leads and even credible evidence to suggest that Mr. Khashoggi was tortured and murdered in Saudi Consulate. They further claimed that to facilitate this diabolic act, the Saudi Government flew in bodyguards, airline pilots, and even a forensic surgeon. Predictably, the Saudi Government, to begin with, pleaded ignorance about the disappearance of Mr. Khashoggi. But later, confronted with irrefutable evidence, the Saudi Arabian Government conceded that there was a fist fight between the Saudi Arabian Consulate as the USA now says that it was the worst cover-up in the history interrogation. Initially, the Trump administration warned Saudi Arabia that if the information about the ghastly murder of Mr. Khashoggi is true, then Saudi Arabia will receive cruel punishment from the USA. British, French and German investors boycotted the Saudi Arabian Government’s Economic Welfare Fund meeting. Our neighbour Mr. Imran Khan duly attended the meeting and got a 6 Billion US Dollars bonanza (3 billion US dollars for Balance of Payments guarantee and another 3 billion US dollars for the purchase of oil from Saudi Arabia)-But that is besides the point.

People in India, by and large, are, indifferent to Khashoggi’s murder. Sabrimala, Rafale purchase and the rivalry in CBI attract more leaders and viewers. In fairness, we must state that the Indian media has been reporting the Khashoggi’s disappearance, his murder, the reaction of the global community and response of Saudi Arabia. In my opinion, this incident is going to have a substantial impact on two important principles of International Law, namely- Sovereign immunity and the rights of the third-party states in the prevailing global trade wars initiated by the USA.

To begin with, under classical international law, as well as under the Vienna Convention on Consular relations, the premises of foreign nations which are used primarily for diplomatic and Consular functions will deserve Absolute Immunity from the legal process of the host country. Admittedly, Mr. Khashoggi was also a citizen of Saudi Arabia. Saudi Arabia’s criminal justice administration system has attracted the attention of the global community. Canada expressed their reservation against the practices of Saudi Arabia and paid a stiff economic price. Currently, Saudi Arabia and Canada do not have an ambassador in each other’s territory. Saudi Arabia follows the Islamic legal system, whereby the victim of a murder can forgive the offender. In other countries, in grave offences even the victim cannot protect the offender against the punishment imposed by the legal system. Coming back to International law, in this incident, the offenders have gone back to Saudi Arabia and admittedly the Saudi Arabian Government is contemplating domestic criminal law action against them. In fact, it is rumoured that one of the offenders met with a suspicious accident soon after the incident. After the announcement of Saudi Arabia about the proposed legal action, surprisingly, Turkey and USA have substantially reduced their focus and attention on this issue. Saudi Arabia had also permitted the son of Late Khashoggi to leave Saudi Arabia. However, the fiancée of Mr. Khashoggi had refused the meeting with Mr. Donald Trump because she felt that he will use it as a public relation ploy and refraining from imposing the cruel punishment that Mr. Donald Trump threatened to impose on Saudi Arabia. But, the following are the unanswered fundamental questions-

A. Whether Saudi Arabia will be legally correct in killing Mr. Khashoggi in their Consular premises in an incident that was described as a fist fight?

B. If it is illegal, is there any legal remedy against it? Who can avail the remedy?

C. Now that Saudi Arabia has admitted that Mr. Khashoggi lost his life in the Saudi Consulate, will Turkey be entitled to know what happened to Mr. Khashoggi’s dead body or his parts?

D. If USA indeed sticks to its threat of punishing Saudis, will Saudi Arabia keep quiet or would it mean the beginning of yet another economic war, this time with a Sunni Islamic Nation?

E. If the murder was pre-mediated had the Saudi crown prince had concurred with the plan earlier, will he be declared as a persona non grata in third countries?

F. Assuming that there’s a full-fledged fair trial of the murderers of Mr. Khashoggi in Saudi Arabia, will Turkey and USA have a right to participate in the trial because admittedly their interests were also affected in this incident?

One other country that is following the developments eagerly is the Islamic Republic of Iran. When USA imposed trade sanctions on Iranian oil, it is expected of Saudi Arabia to meet the oil needs of third countries including China and India from Saudi Arabia sources. However, if USA imposes any punishment for Saudi Arabian misdemeanour, then Saudi Arabia may once again play their oil sanction games. Because of this fact and also due to the ICJ interim orders against the legality of USA’s economic sanctions against USA, I expect Iran to get some respite from US sanctions. European Nations have already made their displeasure with Saudi Arabia very clear and Saudi Arabia may not be very happy to meet European, Chinese and Indian oil needs on the same concessional terms that Iran has been compelled to do all along.

Maybe, one year from now on we can revisit the Khashoggi incident and analyse how much this event has influenced global foreign affairs.