A/HRC/41/36
Vienna Convention on Consular Relations and of the prohibition against the extraterritorial
use of force in time of peace (in accordance with customary law and the Charter of the
United Nations). In killing a journalist, the State of Saudi Arabia also committed an act that
is inconsistent with a core tenet of the United Nations, namely the protection of freedom of
expression. As such, it can be credibly argued that the State of Saudi Arabia used force
extraterritorially in a manner inconsistent with the purposes of the United Nations.
Furthermore, the circumstances of the killing of Mr. Khashoggi may constitute an act of
torture under the terms of the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, ratified by Saudi Arabia. Lastly, the killing of Mr.
Khashoggi also constitutes to this date an enforced disappearance, since the location of his
remains has not been established.
Individual liability
8.
The Special Rapporteur has determined that there is credible evidence warranting
further investigation of the individual liability of high-level Saudi officials, including the
Crown Prince. She warns against a disproportionate emphasis on identifying who ordered
the crime, pointing out that the search for justice and accountability is not singularly
dependent on finding a “smoking gun” and the person holding it. The search is also, if not
primarily, about identifying those who, in the context of the commission of a violation,
have abused, or failed to fulfil, the responsibilities of their positions of authority.
Duty to investigate and consular immunity
9.
The Special Rapporteur has found that the investigations conducted both by Saudi
Arabia and by Turkey failed to meet international standards regarding investigation into
unlawful death.
10.
The Special Rapporteur found that, under the terms of the Vienna Convention, Saudi
authorities were under no legal obligation to grant the Turkish investigators access to the
consular premises. However, Saudi Arabia was under an international obligation to
cooperate with the Turkish authorities in the investigation of the killing of Mr. Khashoggi.
Such cooperation necessarily demanded that Saudi Arabia grant the Turkish authorities
access to the consulate in a prompt and effective fashion and in good faith. Consular
immunity was never intended to enable impunity.
11.
The Special Rapporteur found credible evidence pointing to the crime scenes having
been thoroughly, even forensically, cleaned, which indicates that the Saudi investigation
was not conducted in good faith and that it may amount to obstructing justice.
12.
Turkish investigators, accompanied by Saudi investigators, only had access to the
consulate on 15 October 2018 for 6 hours and to the consular residences on 17 October for
around 13 hours, where they also had to search the entire consular vehicle fleet. Their
scientific and forensic inquiries were limited to “swabbing” and they were not allowed to
drain a well located in the residence. The limitations imposed by Saudi Arabia on the
Turkish investigation cannot be justified by the need to protect consular operations.
13.
Turkish investigators decided not to search the Saudi consulate without proper
authorization from the Saudi authorities. The Special Rapporteur found that this was the
appropriate way to proceed: creating an exception to the Vienna Convention, which states
that consular premises are inviolate, for the purpose of an investigation would have been
unnecessary and disproportionate.
14.
The Special Rapporteur also found that the fear expressed by Turkey of an
escalation of the situation and retribution meant that the consular residences and consular
cars were also not searched without permission, even though they are not protected by the
provisions of the Vienna Convention.
15.
The Special Rapporteur regrets that it appears that no international body or other
State came forward with an offer to mediate between the two parties to negotiate prompt
and effective access to the crime scene. That could also have helped to de-escalate the crisis,
protect equally the Vienna Convention and human rights and address the fear of retaliation.
Instead, it appears that other Member States pondered rather only their own national and
4
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents