A/HRC/41/CRP.1 unable to prosecute those high-ranking officials and other persons suspected of conspiracy or participation in the killing of Mr. Khashoggi.327 Prosecution in Turkey 405. At the time of writing this report, the Chief Prosecutor of Turkey had informed the Special Rapporteur that steps were being taken towards the laying of charges, for the purpose of holding a trial. The Special Rapporteur was informed that a trial in absentia could proceed but would not deliver sentences. A judicial process in Turkey would allow the evidence in possession of the Turkish authorities to be aired publicly and critically examined which would constitute an important step. However, notwithstanding the issue of jurisdiction and the limitations of a trial in absentia, the Special Rapporteur is concerned that the legitimacy of Turkey to deliver justice to Mr. Khashoggi is seriously weakened by fact of what Special Rapporteurs and others report as being the country’s repeated and widespread arbitrary detentions, and unfair trials, of journalists and others on the basis of their exercise of their right to freedom of expression.328 Prosecution in the United States 406. The United States government has an interest in punishing this extra-judicial killing. Mr. Khashoggi was a resident of Virginia and a columnist for the Washington Post. He had applied for, and received, an EB-1 visa and was awaiting his Green Card. His killing was intended to silence his free speech, a core liberty within the United States and one that is protected as a fundamental international human right. Should this murder have been a result of a conspiracy, and any act of the conspiracy took place within the United States, potentially even wire transfers, then the United States would have authority to prosecute this crime as a violation of 18 U.S.C. § 956 (conspiracy to kill, kidnap, maim or injure persons or damage property in a foreign country).329 The Federal Bureau of Investigation is authorized to, and should, investigate such a crime. 407. Civil suits could also be brought in the United States, although any suit directly against the perpetrators or the relevant State, will likely be challenged, successfully or not, on grounds that the United States lacks jurisdiction over the perpetrators or by claims of sovereign or diplomatic immunity. 330 For example, the Torture Victim Protection Act 331 provides that any individual who “subjects an individual to extrajudicial killing” shall be liable for damages to “any person who may be a claimant in an action for wrongful death”, thereby potentially providing a remedy to individuals harmed by Mr. Khashoggi’s death. Civil suits can also seek access to documents and other materials within the possession of the United States that might provide evidence as to who is responsible for Mr. Khashoggi’s death and whether the United States had prior information suggesting that Mr. Khashoggi was at risk. The Open Society Justice Initiative filed a Freedom Of Information Act (FOIA) request related to Mr. Khashoggi’s killing, “including but not limited to the CIA’s findings on the circumstances under which he was killed and/or the identities of those responsible” 332, and has since filed suit against the government for its failure to respond. FOIA requests were made by the Knight First Amendment Institute at Columbia University and the Committee to Protect Journalists seeking documents related to the United States government’s duty to warn under Intelligence Community Directive 191, but the United States has produced almost 327 328 329 330 331 332 She notes that if those on trial are finally convicted or acquitted of the offence, those persons may be protected from further prosecution in a foreign criminal jurisdiction or international criminal jurisdiction by the principle of double jeopardy under international law. See e.g. A/HRC/35/22 Add.3; OSCE Representative on Freedom of the Media, Official Visit to Turkey Concluding Statement, June 14 2019. Lee C. Bollinger, President of Columbia University, has suggested several bases on which to claim jurisdiction given the vital interests of the United States at issue. https://www.washingtonpost.com/opinions/how-the-us-could-prosecute-jamal-khashoggiskillers/2019/03/31/1f8a7f4c-5180-11e9-88a1-ed346f0ec94f_story.html The Special Rapporteur expresses no opinion as to the merits of those defences. 28 U.S.C. § 1350 note. https://www.opensocietyfoundations.org/press-releases/freedom-information-filing-seeks-disclosurecia-records-khashoggi-killing 81