A/HRC/41/CRP.1
basis to believe, at the time of the inquiry, that the underlying act or event occurred. This
standard gives rise to a legal responsibility for the State or other actors to respond…”3
44.
To evaluate the recordings, in the absence of copies or clones, she asked for the expert
opinion of others who had access to the recordings, including representatives of foreign
governments. Their opinions were given to her informally. She also, to the extent possible,
triangulated Intelligence (information and analysis) with other facts, such as CCTV footage,
interviews, contextual information, historical patterns, etc.
45.
This report lists allegations for which no independently verified evidence could be
identified, including allegations made in media articles reporting on information supposedly
leaked by US Intelligence officials, in the first place, from the CIA. Such evidence is not
considered to be a sufficient basis on which to extract definite conclusions. This does not
mean that such allegations are incorrect. It means that to date the Special Rapporteur has not
been able to substantiate them.
46.
The Special Rapporteur reviewed four potentially credible hypotheses related to the
unlawful death of Mr. Khashoggi: 1) premeditated killing: 2) rendition with premeditated
killing if rendition proved unsuccessful; 3) the result of an accident in the course of rendition;
4) a decision to kill on site by members of the Saudi team.
47.
As is commonly the case in criminal investigations, the Special Rapporteur relied on
facts and logical inference to draw her conclusions. It is also accepted in law that
circumstantial evidence when taken together can offer compelling evidence of
responsibilities. Conduct preceding specific incidents can also give rise to justifiable
inferences as can evidence as to the nature of relationships between relevant actors. For
instance, knowledge of the decision-making approach and hierarchy within a Government
can allow reasonable inferences to be drawn as to who had knowledge of a well organised,
resourced and carefully conducted mission by state personnel.
Overlapping legal frameworks
48.
The inquiry into the killing of Jamal Khashoggi sought to select and evaluate facts
against international human rights law. Such an approach, however, was not sufficient. For
instance, the killing raises questions of jurisdiction over its adjudication which go to the heart
of accountability. Similarly, the fact that the killing took place in a consulate, in violation of
the Vienna Convention on Diplomatic and Consular Relations (VCDCR), is central to the
analysis of the facts and to any assessment of responsibilities. This inquiry has thus
recognized and is grounded in the recognition of the complementarity of international
criminal and human rights law. In addition, it analysed the facts against the VCDCR and the
UN Charter provisions on the extraterritorial use of force.
49.
This inquiry does not amount to a criminal investigation whose findings could be
presented in a court of law. However, it could not ignore questions related to individual
liability given the facts of the case, the focus on accountability and the effort to address
impunity. Fact finding into killings of human rights defenders or journalists cannot confine
itself to identifying State responsibilities alone. To the extent possible, such fact finding
should establish the criminal responsibility of the perpetrators of the crime and of the crime’s
intellectual authors. Where the Special Rapporteur found there was credible and compelling
evidence regarding the responsibilities of specific individuals, including high-level officials,
she called for additional criminal investigation or prosecution.
Naming alleged perpetrators
50.
To meet these accountability objectives, the Special Rapporteur also had to determine
whether or not to disclose the names of those who are suspected of involvement in the
execution of Mr. Khashoggi. The decision not to disclose names usually stems from the
necessity to avoid prejudicing the fairness of future trials and to prevent reprisals. In the case
of the killing of Mr. Khashoggi, the names of (at least) 19 persons have been disclosed by
3
Report of the Secretary-General's Panel of Experts on Accountability in Sri Lanka, 2011,
https://www.un.org/News/dh/infocus/Sri_Lanka/POE_Report_Full.pdf.
11
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