A/HRC/41/CRP.1
433. Second, as highlighted previously, under international human rights law, the killing
of Mr. Khashoggi is a violation of a jus cogen norm; a norm that “holds the highest
hierarchical position among all other norms and principles. As a consequence of that
standing, jus cogens norms are deemed to be "peremptory" and non-derogable.” 352 The
prohibition against arbitrary deprivation of life, such as an extrajudicial killing, is also part
of customary law. The killing of Mr. Khashoggi further attracts the matter of individual
responsibilities of the State officials responsible for the execution. In addition, the
circumstances of the execution of Mr. Khashoggi mean that at least two additional
international obligations have been violated, namely those arising from the VCCR and the
prohibition against extraterritorial use of force under the UN Charter.
434. These characteristics give rise to the second compelling argument as to why the
execution of Mr. Khashoggi constitutes an international crime. Violations of jus cogens
norms by definition, “affect the interests of the world community as a whole because they
threaten the peace and security of humankind and because they shock the conscience of
humanity.”353
435. A counter-argument may be that a single state premeditated killing, as gruesome as
its execution may have been, does not “shock humanity,” and therefore that it does not reach
the level of gravity required for an international crime. On the other hand, there is no valid
legal argument according to which a single crime is deemed less “serious” or less shocking
than several. A single war crime violates international humanitarian law and may constitute
an international crime providing for universal jurisdiction. Several crimes may attract a
higher sentence than a single one does, however that does not make the single crime less
“serious”. Ultimately, “gravity” is about ethical and political considerations, and
determinations may also reflect cultural and other sensitivities. Governments, parliaments
and the judiciary have used their discretion (including prosecutorial discretion) to determine
which crimes in their respective jurisdiction are deemed ‘international’ (in addition to war
crime, crimes against humanity, genocide and the crime of aggression) and thus able to attract
universal jurisdiction
436. The position that the execution of Mr. Khashoggi constitutes an international crime
calling for universal jurisdiction may raise concerns over extended jurisdiction. At this point
the Special Rapporteur is not suggesting that all single extrajudicial executions should be
universally investigated and prosecuted. However, she emphasizes that there are no a priori
legal or normative reasons to suggest that a single execution cannot rise to the level of an
international crime. Contextual, case by case, analysis should be the guide. As far as the
execution of Mr. Khashoggi is concerned, the nature of this single crime is both unusual and
serious enough (i.e. cross-border; use of a consulate; extraterritorial use of force; a journalist
in exile in the US and Turkey; a possible act of torture, a continuing disappearance, persistent
international impact), alongside the aforementioned problems regarding its investigation and
prosecution to date, to raise it to the level of an international crime over which States should
claim universal jurisdiction.
437. As a consequence of the analysis that the nature of the execution of Mr. Khashoggi
amounts to an international crime attracting universal jurisdiction, the Special Rapporteur is
calling on States to take the necessary measures to establish their competence to exercise
jurisdiction under international law over this crime of extrajudicial execution when the
alleged perpetrator(s) are present in any territory under its jurisdiction, unless it extradites or
surrenders the alleged offender to another State in accordance with its international
obligations or surrenders him or her to an international tribunal with jurisdiction over the
alleged offences. Perpetrators should not be allowed to benefit from any legal measures
exempting them from criminal prosecution or conviction. All States have an obligation to
ensure that any persons identified as individually responsible by an independent, impartial
and effective investigation into the extrajudicial execution of Jamal Khashoggi are promptly
brought to justice.
352
353
M. Cherif Bassiouni, International Crimes: Jus Cogens and Obligatio Erga Omnes, 59 Law &
Contemp. Probs. 63 (1996), p.67
Bassiouni, 1996, p.69
87
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