The Murder of Jamal Khashoggi: Immunities, Inviolability and The Human Right To Life

The Murder of Jamal Khashoggi: Immunities, Inviolability and the Human Right to
Life
Marko Milanovic*
1. Introduction
On 2 October 2018, Jamal Khashoggi, a dissident Saudi journalist residing in the United
States, where he was a columnist for the Washington Post, was murdered in the Saudi consulate
in Istanbul. He was visiting the consulate to obtain a certificate of divorce from his former wife,
so that he could proceed to marry his Turkish fiancée, Hatice Cengiz, who was waiting for him
in a car outside the consulate. According to media reports relying on the findings of the
governments of Turkey and the United States, Khashoggi was killed by Saudi agents and his
body was then dismembered with a bone saw; his remains are yet to be found.1
Saudi authorities initially rejected reports of Khashoggi’s death in the Turkish press,
only to be forced by the accumulating weight of evidence, including the existence of an audio
tape of the murder obtained by Turkish intelligence, to acknowledge the killing a few weeks
later. The official line of the Saudi government is that Khashoggi’s killing was a ‘rogue
operation’ and a ‘huge mistake,’ which was not authorized by the country’s crown prince and
de facto ruler, Mohammed bin Salman.2 As part of addressing this ‘mistake,’ the Saudi king
dismissed a number of officials, while 11 unnamed individuals are standing trial for
Khashoggi’s death in Riyadh. Prosecutors are seeking the death penalty for five of the
defendants.3 However, US intelligence agencies have concluded that Khashoggi’s killing was
premeditated and almost certainly carried out on orders from the crown prince;4 after attending
a closed-door briefing by the director of the CIA, Republican Senator Lindsey Graham stated
* Professor of Public International Law, University of Nottingham School of Law; Professorial Research
Fellow, Deakin Law School. This paper was finalized on 26 March 2019. I would like to thank Anne van
Aaken, Basak Cali, Monica Hakimi, Alexandra Huneeus, Jacob Katz Cogan, Dominic McGoldrick, Mervat
Rishmawi, Sangeeta Shah, Yuval Shany, Sandesh Sivakumaran, Christian Tams, and Philippa Webb for their
comments.
1
See, e.g., ‘Jamal Khashoggi killing: what we know and what will happen next,’ The Guardian, 27 October
2018, at https://www.theguardian.com/world/2018/oct/27/jamal-khashoggi-killing-what-we-know-and-what-
will-happen-next.
2
See ‘White House declines to submit report to Congress on Khashoggi killing,’ Washington Post, 8 February
2019, at https://www.washingtonpost.com/politics/white-house-declines-to-submit-report-to-congress-on-
khashoggi-killing/2019/02/08/fdab7f96-2bd4-11e9-984d-9b8fba003e81_story.html?utm_term=.928943c70caf
(quoting Adel al-Jubeir, the Saudi minister of state for foreign affairs).
3
Ibid.
4
Ibid.
Electronic copy available at: https://ssrn.com/abstract=3360647

that there was ‘not a smoking gun – there’s a smoking saw’ connecting the crown prince to the
killing, adding that one would have to be ‘wilfully blind’ not to see this.5
It is undeniable that Saudi Arabia has paid an enormous political cost for Khashoggi’s
killing – a Saudi government official reportedly stated that the reputational damage suffered
by Saudi Arabia was ‘10 times worse than 9/11 [which was carried out largely by Saudi
hijackers].’6 It is undeniable that the reputational cost that Saudi Arabia paid for this single
death is much higher than that for its unconscionable involvement in the war in Yemen, in
which it is responsible for the death and suffering of thousands. It is also undeniable that this
disproportionality in international outrage is largely due to the compelling individual story of
Khashoggi’s death, the grisly circumstances of his demise in the consulate, and the fact that he
was a well-connected journalist working for the Washington Post, with powerful friends in
politics and the media. And it is equally undeniable that state reactions to Khashoggi’s are
interwoven with many other political considerations.
But that is not my concern here. What I wish to do in this article is to look at
Khashoggi’s murder and its consequences from the standpoint of international law, and human
rights law in particular. Some legal issues that arise in that regard are trivial, even if they are
politically extremely controversial. For example, it is legally irrelevant whether, in fact,
Mohammed bin Salman ordered Khashoggi’s death or not.7 Saudi Arabia incurs state
responsibility for an internationally wrongful act committed by its organs acting in their official
capacity, such as intelligence and state security officials, even if that act was committed ultra
vires.8 Whether the crown prince’s underlings exceeded his orders or failed to inform him of
the supposedly unauthorized operation – which involved a team of 15 agents, including a
forensics expert specializing in rapid dissections, and two private jets9 – simply does not affect
the attribution of, and hence responsibility for, the operation to Saudi Arabia.
5
‘'Zero chance' Khashoggi murder happened without crown prince, says US senator – video,’ The Guardian, 4
December 2018, at https://www.theguardian.com/world/video/2018/dec/04/zero-chance-khashoggi-happened-
without-crown-prince-says-us-senator-video.
6
See ‘Trumplomacy: Five takeaways from Pompeo trip to Middle East,’ BBC News, 17 January 2019, at
https://www.bbc.co.uk/news/world-us-canada-46908510.
7
Which he most probably did. See also ‘Year Before Killing, Saudi Prince Told Aide He Would Use ‘a Bullet’
on Jamal Khashoggi,’ New York Times, 7 February 2019, at
https://www.nytimes.com/2019/02/07/us/politics/khashoggi-mohammed-bin-
salman.html?emc=edit_na_20190207&nl=breaking-news&nlid=47276260ing-news&ref=headline (discussing a
conversation between the crown prince and one of his aides, intercepted by US intelligence agencies, in which a
year before Khashoggi’s killing the prince talked about putting him to death if he did not return to Saudi Arabia
willingly or forcibly).
8
See Art. 7 of the International Law Commission’s Articles on State Responsibility.
9
See ‘Jamal Khashoggi: details of alleged Saudi hit squad emerge,’ The Guardian, 10 October 2018, at
https://www.theguardian.com/world/2018/oct/10/alleged-saudi-hit-squad-linked-to-jamal-khashoggi-
disappearance.

It is similarly unquestionable that the Saudi operation against Khashoggi was a
violation of Turkey’s sovereignty and of its rights under diplomatic and consular law.10 But
while condemning Saudi Arabia for these violations would be both right and without difficulty,
for international law to care only about the violations of the rights of the state in which he was
killed would also profoundly fail to legally capture our sense of moral outrage over
Khashoggi’s death. In addition to any criminal responsibility that may exist under either
Turkish or Saudi domestic law, the most serious violation of international law at stake here is
that of Khashoggi’s human right to life, and an attempt – ultimately unsuccessful due to the
operation’s public exposure – to forcibly disappear him. This violation is compounded by that
of the freedom of expression, since the reason for Khashoggi’s killing was his speech critical
of the Saudi regime, and that of the prohibition of cruel, inhuman and degrading treatment
regarding Khashoggi’s next of kin, due to the manner of his killing and the desecration and
disappearance of his corpse.11
Officials of several states have used the language of international law to criticize the
conduct of the Saudi government, but there have been few explicit references to Khashoggi’s
human rights in that regard. For example, the US Secretary of State Mike Pompeo expressed
the view that ‘[t]he killing, the murder of Jamal Khashoggi in the consulate in Turkey violates
the norms of international law. That much is very, very clear.’12 He did not, however, specify
what these norms were. Similarly, a joint statement by the foreign ministers of the UK, France
and Germany speaks of these countries’ commitment to the freedom of expression and their
respect ‘for the norms and values to which the Saudi authorities and us are jointly committed
under international law.’13 Again, however, there was no explicit reference to the violation of
Khashoggi’s human rights as such.
In that regard, Khashoggi’s murder is reminiscent of another recent state-organized
assassination, the March 2018 poisoning of Sergei and Yulia Skripal in the British town of
Salisbury, ostensibly at the hands of Russian intelligence officers using a lethal novichok nerve
agent. While the Skripals ultimately recovered, Dawn Sturgess, an ordinary British citizen
10
See Ratner, ‘The Khashoggi Murder: How Mohammed Bin Salman Underestimated International Law,’
Lawfare, 22 October 2018, at https://www.lawfareblog.com/khashoggi-murder-how-mohammed-bin-salman-
underestimated-international-law.
11
See, e.g., ECtHR, Akkum v. Turkey, no. 21894/93, 24 March 2005, paras. 252-259; Akpınar and Altun v.
Turkey, no.56760/00, 27 February 2007, paras. 84-87; Kovalev v. Belarus, Communication No.
2120/2011,Views of the Human Rights Committee adopted on 29 October 2012, para. 11.10.
12
See ‘Interview With Brian Kilmeade of The Brian Kilmeade Show,’ 31 October 2018, at
https://www.state.gov/secretary/remarks/2018/10/287029.htm.
13
See ‘Jamal Khashoggi's death: joint statement by UK, France and Germany foreign ministers,’ 21 October
2018, at https://www.gov.uk/government/news/joint-uk-france-and-germany-statement-on-jamal-khashoggis-
death.

incidentally exposed to the poison, died from it later in the year. Like Saudi Arabia’s, Russia’s
conduct was also vigorously criticized using the language of international law. But here, too,
that language has generally been used with regard to the rights of the British state, rather than
with regard to the human rights of the victims. The prime minister, Theresa May, thus spoke
of a violation of British sovereignty and the prohibition on the use of chemical weapons, as did
a joint statement of the leaders of the UK, US, France and Germany. 14 The prime minister
moreover argued that the operation was a violation of the prohibition on the use of interstate
force.15 She did not, however, mention the human rights of the actual victims.16
Somewhat surprisingly, perhaps the most explicit official references to human rights
regarding the killing of Khashoggi are those of the US government. Acting pursuant to the
Global Magnitsky Act,17 the United States sanctioned 17 Saudi individuals ‘for serious human
rights abuse resulting from their roles in the killing of Jamal Khashoggi.’18 It similarly labelled
Khashoggi’s killing as an ‘arbitrary deprivation of life’ in the State Department’s country report
on human rights in Saudi Arabia.19 At the international level, on the other hand, the UN Special
Rapporteur for extrajudicial, summary or arbitrary executions, Agnes Callamard, has launched
an investigation into Kashoggi’s death as part of her mandate; as of the time of writing, she has
published a set of preliminary observations and plans to submit a final report to the UN Human
Rights Council in June 2019.20 Her report, based inter alia on a field visit to Turkey, concluded
that the evidence ‘demonstrates a prime facie case that Mr. Khashoggi was the victim of a
brutal and premeditated killing, planned and perpetrated by officials of the State of Saudi
14
See ‘Salisbury attack: Joint statement from the leaders of France, Germany, the United States and the United
Kingdom,’ 15 March 2018, at
15
See ‘PM Commons Statement on Salisbury incident response,’14 March 2018, at
https://www.gov.uk/government/speeches/pm-commons-statement-on-salisbury-incident-response-14-march-
2018. For a discussion, see Akande, ‘The Use of Nerve Agents in Salisbury: Why does it Matter Whether it
Amounts to a Use of Force in International Law?,’ EJIL: Talk!, 17 March 2018, at https://www.ejiltalk.org/the-
use-of-nerve-agents-in-salisbury-why-does-it-matter-whether-it-amounts-to-a-use-of-force-in-international-law/.
16
See Milanovic, ‘The Salisbury Attack: Don’t Forget Human Rights,’ EJIL: Talk!, 15 March 2018, at
https://www.ejiltalk.org/the-salisbury-attack-dont-forget-human-rights/.
17
The Act provides for the imposition of sanctions on individuals ‘responsible for extrajudicial killings, torture,
or other gross violations of internationally recognized human rights committed against individuals in any
foreign country seeking to expose illegal activity carried out by government officials, or to obtain, exercise, or
promote human rights and freedoms.’ See at https://www.congress.gov/bill/114th-congress/senate-bill/284c.
18
See ‘Global Magnitsky Sanctions on Individuals Involved in the Killing of Jamal Khashoggi,’ 15 November
2018, at https://www.state.gov/secretary/remarks/2018/11/287376.htm.
19
See at https://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm.
20
See Callamard, ‘Preliminary observations of the human rights inquiry into the killing of Mr. Kashoggi
following the country visit to Turkey,’ at
https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=24143&LangID=E.

Arabia and others acting under the direction of these State agents,’ a ‘grave violation’ of the
human right to life.21
This article will seek to comprehensively analyze Khashoggi’s killing from the
standpoint of the human right to life. It will set out the relevant legal framework, addressing
inter alia the issue that Saudi Arabia is not a party to what would otherwise be the most relevant
human rights treaty, the International Covenant on Civil and Political Rights (ICCPR). It will
examine not only the obligations of Saudi Arabia, but also those of Turkey and the United
States, in protecting Khashoggi’s right to life from third parties, and ensuring respect through
an effective investigation of his killing and mutual cooperation for the purpose of that
investigation. It will also look at the extraterritorial scope of these various obligations. We will
see in that regard how the reticence of some states in using the language of human rights in
respect of Khashoggi’s murder is motivated at least partly by a desire to avoid contradicting
their earlier positions regarding the use of lethal force in counter-terrorism operations abroad,
in which a standard argument has been that human rights law simply does not apply.
Finally, the article will examine possible norm conflicts between state obligations under
human rights law and their obligations under diplomatic and consular law, such as the
inviolability of diplomatic and consular premises, agents, and means of transportation.
International lawyers have devoted much attention to conflicts between human rights and the
law of state immunity in situations where the responsibility of a state for human rights
violations – often mass atrocities – is being assessed ex post facto before the courts of some
other state.22 We are similarly used to thinking about conflicts between immunities and human
rights in terms of the right of access to a court, as an aspect of the right to a fair trial. 23 The
Khashoggi killing, however, provides us with an opportunity for a different kind of case study:
a normative conflict between diplomatic and consular immunities, on the one hand, and state
substantive and procedural obligations under the right to life, on the other, in the context of a
real-time violation of that right, rather than its adjudication ex post facto.
21
Ibid., paras. 10 and 7. Callamard has also requested an official visit to Saudi Arabia, but the visit had not
happened by the time of her preliminary report – ibid., para. 17.
22
See, e.g., Jurisdictional Immunities of the State (Germany v. Italy, Greece intervening), Judgment, ICJ
Reports 2012, p. 99; Ferrini v.Federal Republic of Germany, Corte di Cassazione (Sezioni Unite), judgment no.
5044, 6 November 2003, (2004) 87 Rivista di diritto internazionale 539; H. Fox and P. Webb, The Law of State
Immunity (OUP, 3rd ed., 2015) 154-155.
23
See, e.g., Al-Adsani v. United Kingdom [GC], no. 35763/97, ECtHR, Judgment, 21 November 2001; Jones
and Others v. the United Kingdom, nos. 34356/06 and 40528/06, ECtHR, Judgment, 14 January 2014; Fox and
Webb, supra note 22, at 172-173.

2. The Legal Framework: Human Rights and Diplomatic and Consular Law
A. Human rights obligations binding on Saudi Arabia, Turkey and the United States
Turkey and the United States are both parties to the ICCPR, while Turkey is also a party
to the ECHR. However, Saudi Arabia is not a party to the ICCPR. It is also not a party to the
UN Convention for the Protection of All Persons from Enforced Disappearance, but is a party
to the Convention against Torture (CAT). The only human rights treaty that could have directly
protected Khashoggi’s right to life (and freedom of expression) is a regional convention
concluded within the Arab League, the revised 2004 Arab Charter on Human Rights, to which
Saudi Arabia has been a party since 2009.24 Article 5 of the Arab Charter reproduces verbatim
the language of Article 6(1) ICCPR: ‘1. Every human being has the inherent right to life. 2.
This right shall be protected by law. No one shall be arbitrarily deprived of his life.’ Article
32(1) of the Charter ‘guarantees the right to information and to freedom of opinion and
expression, as well as the right to seek, receive and impart information and ideas through any
medium, regardless of geographical boundaries.’
Thus, while Khashoggi’s killing is a manifest violation of the right to life, it is important
to be clear about the sources of Saudi Arabia’s obligation to respect his right to life. That source
cannot be the ICCPR, which Saudi Arabia has not consented to; the relevant obligations can
however stem from the Arab Charter or from customary international law.25
The discussion that follows will focus on Khashoggi’s killing as a violation of the right
to life; it will not examine in detail other human rights which may have been violated. In
particular, I will not examine the attack on Khashoggi as an enforced disappearance or an
instance of torture or inhuman or degrading treatment, although it could potentially so qualify.
It is possible that, as Saudi Arabia claims, Khashoggi’s death was the result of a botched capture
or abduction operation – Saudi Arabia has conducted a number of such operations in the past
24
See http://hrlibrary.umn.edu/instree/loas2005.html?msource=UNWDEC19001&tr=y&auid=3337655. For
status of ratifications see http://unipd-centrodirittiumani.it/en/spilli/Ratification-and-signature-status-of-the-
Arab-Charter-on-Human-Rights-2004/147. On the Arab Charter see generally Rishmawi, ‘Arab Charter on
Human Rights (2004),’ Max Planck Encyclopedia of Public International Law, at
http://opil.ouplaw.com/home/EPIL. Rishmawi, ‘The League of Arab States and human rights,’ in S. Sheeran and
N. Rodley (eds.), Routledge Handbook of International Human Rights Law (Routledge, 2013) 483.
25
For some of the classical examinations of the topic of customary human rights law, see, e.g., Simma and
Alston, ‘The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles’ (1988-1989) 12
Australian Yearbook of International Law 82; Symposium on customary international human rights law in
(1995-1996) 25 Georgia Journal of International and Comparative Law (issues 1 and 2); Dimitrijevic,
‘Customary Law as an Instrument for the Protection of Human Rights,’ (2006) ISPI Working Paper 7, at
https://www.ispionline.it/it/documents/wp_7_2006.pdf.

several years,26 and any such abduction would in fact satisfy the definition of an enforced
disappearance.27 But as the primary outcome of the operation was Khashoggi’s death, the right
to life is simply a better fit for the case than the prohibition of enforced disappearance. Finally,
for reasons of space I will not discuss the freedom of expression extensively, nor the violations
of the rights of Khashoggi’s family members due to the nature of his killing and the mental
suffering they have had to endure.28
It is at this point also important to recall the jurisdiction clauses of the three human
rights treaties relevant to our analysis, which set out their scope of application and the
overarching obligations of states parties to respect and protect human rights. Article 1 ECHR
thus provides that states parties – here Turkey – will ‘secure to everyone within their
jurisdiction the rights and freedoms’ in the Convention; Article 2(1) ICCPR stipulates that each
state party – here the United States and Turkey – ‘undertakes to respect and to ensure to all
individuals within its territory and subject to its jurisdiction the rights recognized in the present
Covenant.’ Finally, Article 3(1) of the Arab Charter resembles that of the ICCPR, but is
different on two points: each state party ‘undertakes to ensure to all individuals subject to its
jurisdiction the right to enjoy the rights and freedoms set forth herein.’ While it does not
explicitly mention the obligation to respect, the Charter also omits the ICCPR’s reference to
territory,29 which some states parties to the ICCPR, like the United States and Israel, have
interpreted as a dual requirement that precludes any extraterritorial applicability of the treaty.30
I will examine the issue of extraterritorial application in detail below; for now suffice
it to say that international human rights courts and treaty bodies have developed a complex,
and at times contradictory jurisprudence, which has nonetheless coalesced around two basic
approaches to the interpretation of the jurisdiction clauses in the treaties.31 First, the spatial
model of state jurisdiction, whereby a person will be within a state’s jurisdiction, and thus have
26
See, e.g., ‘Saudi campaign to abduct and silence rivals abroad goes back decades,’ Washington Post, 4
November 2018, at https://www.washingtonpost.com/world/saudi-campaign-to-abduct-and-silence-rivals-
abroad-goes-back-decades/2018/11/04/ce6b801c-dc8a-11e8-8bac-
bfe01fcdc3a6_story.html?noredirect=on&utm_term=.23f59dc17c91.
27
Cf. Callamard, supra note 20, para. 10: ‘The mission could not firmly establish whether the original intention
was to abduct Mr. Khashoggi, with his murder planned only in the eventuality of this abduction failing.’
28
See, e.g., UN Human Rights Committee, ‘General Comment No. 36 (2018) on article 6 of the International
Covenant on Civil and Political Rights, on the right to life,’ UN Doc. CCPR/C/GC/36, 30 October 2018, para.
56.
29
I am very grateful to Mervat Rishmawi for her help regarding the authentic Arabic text of the Charter and for
confirming the accuracy of the English translation above.
30
See, e.g., US second and third periodic reports to the Human Rights Committee, submitted in one document,
UN Doc. CCPR/C/USA/3, 28 November 2005, Annex I. See also Dennis, ‘Application of Human Rights
Treaties Extraterritorially in Times of Armed Conflict and Military Occupation,’ (2005) 99 AJIL 119.
31
See generally M. Milanovic, Extraterritorial Application of Human Rights Treaties: Law, Principles, and
Policy (OUP, 2011).

rights vis-à-vis the state, if he or she is located in a territory or area under the state’s control.32
Second, the personal model, whereby an individual will be within or subject to a state
jurisdiction if they are, as a person, under the authority or control of a state agent.33 Both
approaches have been applied to consulates and embassies or to the conduct of consular and
diplomatic agents in the case law.34 I will therefore be examining this threshold applicability
issue regarding Khashoggi with respect to Saudi Arabia, the United States, and Turkey.
B. Different obligations stemming from the right to life
Let us now briefly look at the different obligations that states have as a corollary of the
right to life. For the purpose of the discussion to follow I will make two basic assumptions.
First, that state obligations under the Arab Charter are identical to those under the ICCPR. This
is in my view a reasonable assumption to make in light of the fact that the language of Article
5 of the Arab Charter is in fact identical to that of Article 6(1) ICCPR, i.e. that it was the clear
intention of the Charter’s states parties to reproduce the terms of the ICCPR, when they could
well have chosen some other formulation.35 Similarly, the final preambular paragraph of the
Charter expressly refers to and reaffirms the UDHR and the ICCPR. I am also not aware of any
official statements of the states parties interpreting Article 5 of the Charter differently.
Obviously there is room for disagreement on how Article 5 of the Charter and Article 6(1)
ICCPR should be interpreted and applied to specific problems, but again in my view it is
reasonable to treat them in the same way.
The second assumption that I will make is more contestable: that the content of the
customary right to life binding on Saudi Arabia is also identical to the content of Article 6(1)
ICCPR. The existence of content of customary human rights is notoriously hard to pin down,
especially because it is impossible to divorce state practice constituting such custom (coupled
with opinio juris) from the practice of applying relevant human rights treaties binding on
states.36 There is nonetheless widespread agreement that customary law protects human rights,
32
See, e.g., Loizidou v. Turkey, no. 15318/89, ECtHR, Judgment (preliminary objections), 23 February 1995,
para. 62. See more Milanovic, supra note 31, at 127 et seq.
33
See, e.g., Lopez Burgos v. Uruguay, Human Rights Committee, (1981) 68 ILR 29, Communication No.
R.12/52, UN Doc. Supp. No. 40 (A/36/40) at 176 (1981). See more Milanovic, supra note 31, at 173 et seq.
34
See Milanovic, supra note 31, at 154 et seq.
35
For example, Article 2 ECHR is formulated very differently from Article 6 ICCPR, even though the
differences are not material for the analysis that follows, in particular Turkey’s obligation to secure or protect
the right to life.
36
For an extensive and largely sceptical discussion, see Thirlway, ‘Human Rights in Customary International
Law: An Attempt to Define Some of the Issues,’ (2015) 28 Leiden Journal of International Law 495.

that among these rights is the right to life, and that an extrajudicial execution is a manifest
violation of that right.37 In that sense I think it is again reasonable to proceed from the
assumption that the content of the customary right to life, including corresponding state
obligations, is identical to its treaty incarnations, unless a persuasive argument is made to the
contrary.
As for that content, human rights institutions agree that in this context the right to life
entails three basic obligations. First, the negative duty of states to respect the right to life, i.e.
to refrain from using lethal or potentially lethal force against individuals arbitrarily, without a
proper, justified reason for doing so. The right to life is qualified, not absolute. Any such use
of force has to pursue a legitimate aim (e.g. protection of the lives of others) and be strictly
necessary and proportionate for the achievement of that aim, an extreme measure of last
resort.38
The second duty of states is the substantive positive obligation to ensure, secure or
protect the right to life even against threats to the life of an individual from third parties, be
that from a private person or some other state – this is the essence of the Article 6(1)
ICCPR/Article 5 Arab Charter requirement that the right to life be ‘protected by law.’39 While
the negative obligation to respect only requires states to refrain from acting in a way that could
lead to an unjustified deprivation of life, the positive obligation to protect requires them to take
affirmative steps to secure the enjoyment of this right. As the Human Rights Committee
explains in its recent General Comment No. 36:
States parties are thus under a due diligence obligation to undertake reasonable positive
measures, which do not impose on them disproportionate burdens, in response to
reasonably foreseeable threats to life originating from private persons and entities,
whose conduct is not attributable to the State. Hence, States parties are obliged to take
adequate preventive measures in order to protect individuals against reasonably
foreseen threats of being murdered or killed by criminals and organized crime or militia
groups, including armed or terrorist groups. … States parties must take appropriate
measures to protect individuals against deprivation of life by other States, international
organizations and foreign corporations operating within their territory or in other areas
subject to their jurisdiction.40
37
See, e.g., Human Rights Committee, General Comment No. 24, UN Doc. CCPR/C/21/Rev.1/Add.6, 4
November 1994, para. 8; Ratner, supra note 10.
38
UN Human Rights Committee, ‘General Comment No. 36 (2018) on article 6 of the International Covenant
on Civil and Political Rights, on the right to life,’ UN Doc. CCPR/C/GC/36, 30 October 2018, para. 12. See also
McCann and Others v. United Kingdom, no. 18984/91, ECtHR, Judgment, 27 September 1995, paras. 146-150;
Finogenov and Others v. Russia, nos. 18299/03 and 27311/03, ECtHR, Judgment, 20 December 2011, paras.
206-208. For a general overview of General Comment 36, see Joseph, ‘General Comment 36,’ in (2019) HRLR
(forthcoming).
39
See General Comment 36, para. 18.
40
Ibid., paras. 21-22.

This is an obligation of means, not of result; it is one of due diligence, requiring states to do
only what is feasible and could reasonably be expected of them.41
The third relevant duty of states also stems from the general obligation to secure or
ensure the right to life, and that is the positive procedural obligation to effectively investigate
any allegation of an unlawful deprivation of life, whether at the hands of state agents or by
third parties.42 Investigations into allegations of violation of Article 6 must always be
independent, impartial, prompt, thorough, effective, credible and transparent, and in the event
that a violation is found, full reparation must be provided, including, in view of the particular
circumstances of the case, adequate measures of compensation, rehabilitation and
satisfaction.43
The analysis below will thus look at three sets of issues with regard to the murder of
Jamal Khashoggi. First, Saudi Arabia’s negative obligation to refrain from using lethal force
against individuals without sufficient justification. It is trivial that Saudi Arabia could have no
such justification, and it does not offer any; but there is a much more difficult question of the
extraterritorial applicability of Saudi Arabia’s duty to respect Khashoggi’s right to life. Second,
the substantive positive obligation to protect Khashoggi’s right to life on the part of the United
States and Turkey in light of the foreseeable threat to his life by Saudi Arabia. Third, the
positive procedural obligation to effectively investigate Khashoggi’s killing which potentially
applies to all three states, and includes the duty of these states to cooperate with each other in
conducting a full and effective investigation.44 I will also address the question of the
extraterritorial applicability of both the substantive and the procedural obligations.
C. Relevant diplomatic and consular law
Khashoggi was killed in the Saudi consulate in Istanbul; the relevant treaty is therefore
the Vienna Convention on Consular Relations (VCCR). It is useful to contrast consular
privileges and immunities to those of diplomats under the Vienna Convention on Diplomatic
Relations (VCDR). The VCCR was drafted two years after the VCDR and generally used the
41
See, e.g., Finogenov v. Russia, para. 209; Velasquez Rodriguez v. Honduras, Judgment, 29 July1988, Inter-
Am.Ct.H.R. (Ser. C) No. 4 (1988, para. 172.
42
General Comment 36, para. 27.
43
Ibid., para. 28.
44
See ibid., para. 28: ‘States should support and cooperate in good faith with international mechanisms of
investigation and prosecutions addressing possible violations of article 6.’ See also Finogenov v. Russia, paras.
268-272 for an overview of Strasbourg case law on the procedural aspect of Article 2 ECHR.
10

latter as a starting point, with departures from VCDR formulations being deliberate decisions
of the states parties to diminish consular privileges and immunities compared to diplomatic
ones.45 Saudi Arabia (as the sending state), Turkey (as the receiving state), and the United
States (as a third state) are all parties to both the VCCR and the VCDR. My inquiry will
generally focus on questions of possible norm conflict between positive obligations of states to
protect the right the life and effectively investigate unlawful deaths with their negative
obligations to respect the inviolability and immunities of certain premises, objects and agents.
I will now briefly examine the relevant rules of diplomatic and consular law in that regard.46
First, the inviolability of consular and diplomatic premises is provided for by Article
31 VCCR and Article 22 VCDR respectively. The consular privilege is (as is generally the
case) a weaker version of the diplomatic one. Thus, under Article 31(1) and (2) VCCR:
1.Consular premises shall be inviolable to the extent provided in this article.
2.The authorities of the receiving State shall not enter that part of the consular premises
which is used exclusively for the purpose of the work of the consular post except with
the consent of the head of the consular post or of his designee or of the head of the
diplomatic mission of the sending State. The consent of the head of the consular post
may, however, be assumed in case of fire or other disaster requiring prompt protective
action.
Under Article 22(1) VCDR, however: ‘The premises of the mission shall be inviolable. The
agents of the receiving State may not enter them, except with the consent of the head of the
mission.’ The VCDR thus lacks the qualified consular reference to inviolability, the
designation of premises used exclusively for work of the post, or to a presumption of consent
for the purpose of entry in case of fire or other disaster.47
Second, the VCCR provides for no privileges for the residence of a consular officer or
the head of a consular posts.48 However, under Article 30(1) VCDR: ‘The private residence of
a diplomatic agent shall enjoy the same inviolability and protection as the premises of the
mission.’
Third, when it comes to the inviolability of the agents of the receiving state, Article
41(1) VCCR provides that: ‘Consular officers shall not be liable to arrest or detention pending
trial, except in the case of a grave crime and pursuant to a decision by the competent judicial
authority.’ Article 41(2) provides for the committal of a consular officer to imprisonment in
45
See more Foakes and Denza, ‘The Appointment and Functions of Consuls,’ in I. Roberts (ed.), Satow’s
Diplomatic Practice (OUP, 7th ed., 2017) 120, para. 8.31 et seq.
46
For a comprehensive examination of consular law, see L. Lee and J. Quigley, Consular Law and Practice
(OUP, 3rd ed., 2008).
47
See also Lee and Quigley, supra note 46, at 355 et seq.
48
See ibid., at 360-361.
11

cases of a grave crime. On the other hand, under Article 29 VCDR: ‘The person of a diplomatic
agent shall be inviolable. He shall not be liable to any form of arrest or detention.’ In short,
while the inviolability of a diplomat is absolute – at least as far as the text of the VCDR is
concerned – that of the consular officer is limitable in cases of a ‘grave crime,’ a term which is
vague and left undefined in the Convention, but which would clearly include murder under any
conceivable view.49 Similarly, while Article 44 VCCR permits the receiving state to compel a
consular officer to give evidence on matters that are not connected with the exercise of their
functions,50 Article 31(2) VCDR provides that ‘[a] diplomatic agent is not obliged to give
evidence as a witness.’
Fourth, with regard to the inviolability of the consular and diplomatic bag, Article 35
VCCR and Article 27 VCDR both provide for the inviolability of official correspondence and
that the consular or diplomatic bag shall not be opened or detained. However, Article 35(3)
VCCR allows the competent authorities of the receiving state to request that the bag be opened
if they have serious reason to believe that it contains something other than official
correspondence or articles intended for official use; this can only happen, however, if the
authorities of the sending state consent to the bag being opened. Otherwise, the consular bag
must be returned to its place of origin. The VCDR contains no analogous regime. Both the
VCCR and the VCDR protect the inviolability of the consular or diplomatic courier.
Fifth, while Article 22(3) VCDR stipulates inter alia that ‘the means of transport of the
mission shall be immune from search, requisition, attachment or execution,’ Article 31(4)
VCCR immunizes the means of transport of the consular post only from requisition for
purposes of national defence or public utility. It does not, in other words, protect the consular
car or vehicle from search in the way that the diplomatic car is protected.51
Sixth, under both Article 55(1) VCCR and Article 41(1) VCDR: ‘Without prejudice to
their privileges and immunities, it is the duty of all persons enjoying such privileges and
immunities to respect the laws and regulations of the receiving State.’ Note how any violation
of this duty to respect domestic law does not remove the privilege and immunities of consular
or diplomatic agents, except as otherwise provided for in the Conventions. Similarly, Article
55(2) VCCR and Article 41(3) VCDR stipulate that consular and diplomatic premises shall not
49
See ibid., at 433-438.
50
See ibid., at 481 et seq.
51
See also Lee and Quigley, supra note 46, at 363.
12

be used in any manner incompatible with the exercise of consular or diplomatic functions
(which, obviously, do not include murder).52
Finally, it is important to note that while it is manifest that Saudi Arabia violated its
obligations towards Turkey under Article 55 VCCR by allowing its consular agents to engage
in conduct contrary to Turkish domestic law, e.g. by assisting the actual assassins, and by
allowing its consular premises to be used in a manner incompatible with the exercise of
consular functions (i.e. murder), so did Turkey most likely violate its obligations towards Saudi
Arabia to respect the inviolability of its consular premises, pursuant to Article 31 VCCR, by
subjecting these premises to some kind of electronic surveillance, at least insofar that
surveillance involved the physical planting of any listening devices on the premises of the
consulate.53 It was through this surveillance, of course, that Turkish authorities obtained an
audio recording of the moment of Khashoggi’s killing. I will address the consequences of these
violations of the VCCR below.
3. Before the attack
A. Generally
I will now examine the obligations of states before the attack on Khashoggi had
materialized. The main obligation of Saudi Arabia in that regard is the same as the one during
the attack itself, the negative obligation to refrain from arbitrary deprivations of life, and I will
therefore address it in the next section. Here, however, I will look at the positive obligation to
protect Khashoggi’s right to life on the part of the United States and Turkey.
Three basic questions need to be answered with regard to the positive obligation to
protect an individual. First, at what point does it arise, i.e. what is its scope of application.
Second, once that threshold is crossed, what is the standard of conduct expected of the
protecting state. Third, whether on the facts the state acted accordingly. Human rights bodies
have extensively dealt with these questions in their case law.54 The threshold and the standard
of conduct issues both require that a balance be struck between, on the one hand, the need for
52
See also ibid., at 74-77.
53
For an extended discussion of surveillance and consular and diplomatic missions, see Lee and Quigley, supra
note 46, at 346-348.
54
See supra notes 39-41 and accompanying text.
13

states to act affirmatively to protect the life of individuals from third parties, and, on the other
hand, the need to avoid imposing unrealistic and excessive burdens on states.
In the European context, the leading case remains Osman.55 According to the Court,
there is
in certain well-defined circumstances a positive obligation on the authorities to take
preventive operational measures to protect an individual whose life is at risk from the
criminal acts of another individual. … [B]earing in mind the difficulties involved in
policing modern societies, the unpredictability of human conduct and the operational
choices which must be made in terms of priorities and resources, such an obligation
must be interpreted in a way which does not impose an impossible or disproportionate
burden on the authorities. Accordingly, not every claimed risk to life can entail for the
authorities a Convention requirement to take operational measures to prevent that risk
from materialising.56
The Court thus held that the positive obligation will apply if ‘the authorities knew or ought to
have known at the time of the existence of a real and immediate risk to the life of an identified
individual or individuals from the criminal acts of a third party.’57 The applicant does not need
to demonstrate that the state’s failure to perceive the risk to their life was a result of gross
negligence or willful disregard of the duty to protect life.58
Once the risk threshold is crossed, the state authorities will be responsible if ‘they failed
to take measures within the scope of their powers which, judged reasonably, might have been
expected to avoid that risk,’ i.e. ‘did not do all that could be reasonably expected of them to
avoid a real and immediate risk to life of which they have or ought to have knowledge. This is
a question which can only be answered in the light of all the circumstances of any particular
case.’59 As we have already seen, the Human Rights Committee’s approach is very similar, if
somewhat more loosely framed, with state parties being ‘under a due diligence obligation to
undertake reasonable positive measures, which do not impose on them disproportionate
burdens, in response to reasonably foreseeable threats to life.’60
B. Threshold inquiry: foreseeability of the threat
55
Osman v. United Kingdom [GC], no. 23452/94, ECtHR, Judgment, 28 October 1998.
56
57
Ibid., para. 116.
58
Ibid.
59
Ibid. See also subsequent cases affirming and developing the Court’s approach, e.g. Mastromatteo v. Italy
[GC], no. 37703/97, ECtHR, Judgment, 67-99; Tagayeva and Others v. Russia, no. 26562/07, ECtHR,
Judgment, 13 April 2017, paras. 481-493.
60
14

On the facts of Khashoggi’s killing, therefore, the first question is whether either the
United States or Turkey knew, or ought to have known, of a real and immediate risk to
Khashoggi’s life at the hands of the government of Saudi Arabia. Was, in other words, the
threat to Khashoggi’s life ‘reasonably foreseeable’ to either state? The threshold standard does
not require actual knowledge or certainty of such a threat; it is an assessment of risk. The
Committee’s standard of reasonable foreseeability does not require that the threat was actually
foreseen, but that it could and should have been foreseen, just like the European Court’s ‘ought
to have known’ standard. This assessment will necessarily be contextual, and will always
depend on (1) the information the state actually had in its possession at the relevant time and
(2) information that it did not possess but could have obtained as a reasonable follow-up from
the information it did actually already have.61
The issue, therefore, is what the United States and Turkey knew about the Saudi threat
against Khashoggi’s life, and when they obtained such information. Obviously, any appraisal
of what these governments actually knew can at this moment only be tentative and incomplete,
in the absence of some kind of investigatory process, whether internal or external, in that
regard. Moreover, while the US executive branch is exposed to various internal pressures that
could lead it disclose information contrary its narrow interests, whether for example through
the reporting of independent media or through Congressional oversight, the same cannot be
said of the Turkish government. The increasingly authoritarian Erdogan regime is largely in
control of the Turkish media, intelligence agencies and law enforcement institutions. Indeed,
the unfolding narrative of the Khashoggi affair has been carefully managed by the Turkish
government, e.g. through the selective leaking of intelligence or investigatory information to
regime-friendly Turkish press. The Turkish government is not really subject to meaningful
independent oversight internally, and will certainly not disclose information that would go
against its own interests in the whole affair, except by implication or in error.62 In other words,
it is very difficult to reliably assess what the Turkish government knew and when, and that
difficulty is only somewhat less acute with regard to the US government.
That said, as far as we are able to understand this today, what did the two governments
actually know? First, they were fully aware of the wider context – an increasingly repressive
regime in Saudi Arabia, which has aggressively suppressed dissent within its borders and had
61
Compare, for example, the European Court’s finding in Finogenov that Russia had no specific information of
a terrorist plot to take hostages in the Dubrovka theatre in Moscow, to its finding in Tagayeva, at para. 491,
regarding the Beslan school hostage taking that Russia had sufficiently specific information about a planned
terrorist attack.
62
Cf. Callamard, supra note 20, para. 19.
15

conducted various operations outside its borders, including abductions, targeting prominent
Saudi critics of the regime. Similarly, they were aware that Khashoggi was a prominent voice
opposing the regime and had a unique platform as a journalist working for the Washington
Post, which would inevitably cause the Saudi regime to see him in a hostile light. Second, both
the United States and Turkey have extensive intelligence capabilities, both generally and vis-
à-vis Saudi Arabia specifically. In particular they had access to human intelligence (i.e. sources
within the Saudi government), signals intelligence (e.g. through various methods of electronic
interception of communications), and possibly surveillance of key facilities, such as the Saudi
consulate in Istanbul in which the murder eventually took place.
Third, in that regard, we know that a year before the killing, the US intelligence
agencies intercepted a conversation between the Saudi crown prince, Mohammed bin Salman,
and a top aide, in which the prince told that aide that he would ‘use a bullet’ on Khashoggi if
he did not return to Saudi Arabia and end his criticism of the government.63 In a different
intercepted conversation a few days before, with another senior courtier, Saud al-Qahtani –
allegedly the supervisor of the 15-man team which later killed Khashoggi64 – the prince stated
that Khashoggi had grown too influential, that his criticism was tarnishing the prince’s image,
that Saudi Arabia should not care about international reaction to how it handles its own citizens
and that he ‘did not like half-measures — he never liked them and did not believe in them.’65
Apparently, however, while the United States was in the possession of the recordings of these
conversations, which were intercepted electronically, the conversations were not transcribed
and analyzed until after Khashoggi’s death, with analysts poring over years of the prince’s
voice and text communication that was routinely collected by the US National Security
63
See supra note 7.
64
See ‘How the man behind Khashoggi murder ran the killing via Skype,’ Reuters, 22 October 2018, at
https://www.reuters.com/article/us-saudi-khashoggi-adviser-insight/how-the-man-behind-khashoggi-murder-
ran-the-killing-via-skype-idUSKCN1MW2HA. Qahtani has been in charge of the crown prince’s extensive
efforts to control social media; he has also been involved in Saudi electronic surveillance programmes (with
some of the interception tools having purchased from an Israeli company), which may have intercepted some of
Khashoggi’s messages and increased the regime’s perception of him as a threat. See ‘How a chilling Saudi
cyberwar ensnared Jamal Khashoggi,’ Washington Post, 7 December 2018, at
https://www.washingtonpost.com/opinions/global-opinions/how-a-chilling-saudi-cyberwar-ensnared-jamal-
khashoggi/2018/12/07/f5f048fe-f975-11e8-8c9a-
860ce2a8148f_story.html?noredirect=on&utm_term=.8ab76e6ddf10; ‘Jamal Khashoggi's private WhatsApp
messages may offer new clues to killing,’ CNN, 4 December 2018, at
https://edition.cnn.com/2018/12/02/middleeast/jamal-khashoggi-whatsapp-messages-intl/index.html.
65
Supra note 63.
16

Agency.66 In other words, the United States had this information in its possession but it was
not processed in such a way that its implications could be understood at the relevant time.67
Fourth, according to intelligence reports described to the Washington Post, the United
States also intercepted – and apparently processed and analyzed – Saudi conversations which
pointed to a plan to detain and abduct Khashoggi, prior to his killing.68 Fifth, in a similar vein,
an Observer journalist reported that ‘[a]t least a day before Khashoggi appeared at the Saudi
consulate in Istanbul, an NSA official told [the journalist], the agency had Top Secret
information that Riyadh was planning something nefarious—though exactly what was not clear
from the intercepts. This was deemed important because Khashoggi is a legal resident of the
United States, and is therefore entitled to protection. According to the NSA official, this threat
warning was communicated to the White House through official intelligence channels.’69
Sixth, while little is known about Turkish signals intelligence acquisitions regarding
Khashoggi, one can reasonably assume that at least some relevant information was in Turkey’s
possession. In particular, Turkey had extensive surveillance capabilities as to the premises of
the consulate itself, which Turkey has itself disclosed when it made public the existence of a
recording of the moment and aftermath of Khashoggi’s killing.
In that regard, the timeline of the killing is of great relevance. In particular, recall that
Khashoggi went to the Saudi consulate in Istanbul twice. First, he went to the consulate
unannounced on 28 September to inquire about the issuance of a divorce certificate; he was
apparently well received and was later told to return for the certificate on 2 October. On 29
September Khashoggi traveled to London to speak at a conference, returning to Istanbul on 1
October.70 His second, fatal visit to the consulate then happened around 1pm on 2 October; a
66
Ibid.
67
The United States is also in possession of 11 encrypted messages between the crown prince and al-Qahtani,
exchanged in the hours before and after Khashoggi’s death, but does not know their contents – see ‘CIA
Intercepts Underpin Assessment Saudi Crown Prince Targeted Khashoggi,’ Wall Street Journal, 1 December
2018, at https://www.wsj.com/articles/cia-intercepts-underpin-assessment-saudi-crown-prince-targeted-
khashoggi-1543640460.
68
See ‘Crown prince sought to lure Khashoggi back to Saudi Arabia and detain him, U.S. intercepts show,’
Washington Post, 10 October 2018, at https://www.washingtonpost.com/world/national-security/crown-prince-
sought-to-lure-khashoggi-back-to-saudi-arabia-and-detain-him-us-intercepts-show/2018/10/10/57bd7948-cc9a-
11e8-920f-dd52e1ae4570_story.html?utm_term=.248434c10506.
69
See ‘NSA: White House Knew Jamal Khashoggi Was In Danger. Why Didn’t They Protect Him?,’ The
Observer, 10 October 2018, at https://observer.com/2018/10/nsa-source-white-house-knew-jamal-khashoggi-
danger/.
70
See ‘Key moments surrounding the killing of Jamal Khashoggi,’ Associated Press, 22 October 2018, at
https://www.apnews.com/874760d515fa4ce0b6f2fa9e28d5f49a.
17

few hours later his fiancée reported him missing by calling the police and Yasin Aktay, an
advisor to President Erdogan.71
The decision of Saudi authorities to launch the specific operation that resulted in
Khashoggi’s death thus must have been made quickly after his first consulate visit on 29
September. Arrangements also had to be made to prepare the premises of the consulate for the
operation, and these also had to be made in the narrow window between 29 September and 1
October – for example, it has been reported that consulate staff were given a day off for 2
October,72 and that CCTV in the building was disabled.73 Some discussion of the planned
operation thus had to take place on the premises of the consulate before 2 October, and we
know that Turkish authorities had these premises and staff under some kind of surveillance. It
is thus entirely possible that Turkey was in possession of some information indicating a threat
to Khashoggi’s life before the killing.
Moreover, in the early hours of 2 October, around 3am, a private plane carrying
members of the Saudi team that killed Khashoggi landed at Ataturk airport; others arrived
during the day via commercial flights.74 It is likely that the arrival of 15 Saudi agents did not
go unnoticed by Turkish intelligence services. The agents left Turkey on two private jets later
in the evening of 2 October.75
In sum, based on the evidence publicly available today we cannot say that it is
conclusively established that either the United States or Turkey knew of a real and immediate
risk to Khashoggi’s life at the hands of the Saudi state. This is the case even if, as reported, the
United States had intercepted some conversations of the crown prince which indicated such a
threat, since these conversations were simply collected, but not transcribed and analyzed. 76 In
an era of automated acquisition of intelligence in huge quantities it would be unreasonable to
consider a state as ‘knowing’ such information before it is processed in some way and subjected
to human analysis, nor can a state reasonably be expected to analyze all signals intelligence it
acquires in real time. But the relevant threshold standard, recall, is not strictly that the relevant
states knew of a specific threat to Khashoggi’s life, but that they ought to have known of such
71
See ‘Aus diesem Grund ging Khashoggi beim zweiten Mal unbesorgt in das Konsulat,’ Die Welt, 26 October
2018, at https://www.welt.de/politik/deutschland/article182794750/Seine-Verlobte-im-Interview-Aus-diesem-
Grund-ging-Khashoggi-beim-zweiten-Mal-unbesorgt-in-das-Konsulat.html.
72
See ‘Jamal Khashoggi: murder in the consulate,’ The Guardian, 21 October 2018, at
https://www.theguardian.com/world/2018/oct/21/death-of-dissident-jamal-khashoggi-mohammed-bin-salman.
73
See ‘Turkey's Erdogan says there's strong evidence to show that the Khashoggi killing was planned,’ CNBC,
23 October 2018, at https://www.cnbc.com/2018/10/23/turkey-khashoggi-statement-by-erdogan.html.
74
Associated Press, supra note 70.
75
Ibid.
76
Supra note 63.
18

a threat or that it was reasonably foreseeable to them. And here there are many indications that,
upon further factual inquiry, this somewhat looser standard could have been satisfied.
Finally, if the risk threshold was crossed, it is difficult, without further inquiry, to
pinpoint the exact time at which it was crossed for either the United States or Turkey. This
could have happened in very close proximity to the killing, or weeks or months earlier. In
particular, recall that an intelligence report that Riyadh was planning something nefarious was
communicated to the White House a day before Khashoggi’s killing,77 and the discussion above
regarding Turkey’s surveillance of the consulate in the critical period from 28 September to 2
October and the admission into Turkish territory of the Saudi agents in the morning of 2
October. The exact time at which the risk threshold was crossed is, as we shall see, relevant
also for the issue of the extraterritorial applicability of the duty to protect Khashoggi’s life.
C. Due diligence
Let us assume that the risk or foreseeability of threat threshold was crossed for both the
United States and Turkey, so that their duty to protect Khashoggi’s right to life was engaged.
The issue then becomes what these states could reasonably have been expected to do to protect
his life. This is an obligation of due diligence, which, as we have seen in Osman, must not
impose a disproportionate burden on the state. In ordinary policing circumstances, this context-
dependent duty could, for example, require the state to protect persons placed at particular risk
because of specific threats, such as journalists or public figures, through measures such as the
assignment of around-the-clock police protection.78
In Khashoggi’s case, the barest minimum of special measures of protection would have
been for the two states to inform Khashoggi of the existence of the threat against him. That
warning alone would have likely dissuaded Khashoggi, who was already familiar with the
increasingly aggressive tactics of the Saudi regime against those who criticized it publicly, 79
from going to the Istanbul consulate. At the very least he would have lived to see another day.
A possible objection to the duty to warn could be that a warning might potentially
compromise intelligence-gathering sources and methods, and therefore impose a
77
Supra note 69.
78
See General Comment No. 36, para. 23.
79
Cf. Khashoggi’s last column written for the Washington Post, published posthumously – Khashoggi, ‘What
the Arab world needs most is free expression,’ Washington Post, 17 October 2018, at
https://www.washingtonpost.com/opinions/global-opinions/jamal-khashoggi-what-the-arab-world-needs-most-
is-free-expression/2018/10/17/adfc8c44-d21d-11e8-8c22-fa2ef74bd6d6_story.html?utm_term=.932311c02721.
19

disproportionate burden on the state. However, that objection is not persuasive. A warning
could easily have been framed in such a way that Khashoggi would not have known anything
about the methods used to obtain the relevant information (e.g. electronic surveillance), so that
there was no risk that the methods in question could be compromised or publicly exposed.80
Similarly, it is immaterial whether any of the relevant information was obtained by either
Turkey or the United States unlawfully. For example, the Turkish surveillance of the Istanbul
consulate was arguably a violation of the inviolability guaranteed to the consulate under Article
31 VCCR, at least if it involved the physical planting of any listening devices.81 Some of the
US intelligence could also have been obtained in violation of Saudi sovereignty, but that is
immaterial for the operation of the protective obligation under the right the life. Whatever the
illegality in the acquisition of the information may have been (if any), it had already happened,
and the relevant states had already chosen to act unlawfully. Once they have obtained the
information that reliably indicated that the life of a human being was at risk, they could not
simply ignore it on the basis that the acquisition of the information was unlawful.82
Finally, it is important to note that US domestic policy already expressly acknowledges
the existence of a duty to warn, demonstrating that there is nothing inherently impractical in
such an obligation. Under Intelligence Community Directive 191 (ICD 191), adopted by the
Director of National Intelligence pursuant to the National Security Act:
An IC element that collects or acquires credible and specific information indicating an
impending threat of intentional killing, serious bodily injury, or kidnapping directed at
a person or group of people (hereafter referred to as intended victim) shall have a duty
to warn the intended victim or those responsible for protecting the intended victim, as
appropriate. This includes threats where the target is an institution, place of business,
structure, or location. The term intended victim includes both U.S. persons, as defined
in EO 12333, Section 3.5(k), and non-U.S. persons.83
80
Consider as just one example the case of a Rwandan dissident living in Belgium, Faustin Twagiramungu, who
was warned by Belgian security services of an apparent plot by the Rwandan government to assassinate him
(Rwanda has a long record of such activity). According to a report, ‘Twagiramungu said Belgian authorities did
not explain the nature of these threats. "They only told me that they were informed about the threat by a third
country," he said. "They talked emotionally. They said this was very serious. I started fearing what could happen
to me. I have to be very careful."’ See ‘Rwandan dissident in Belgium warned of suspected targeted attack,’ The
Globe and Mail, 14 May 2014, at https://www.theglobeandmail.com/news/world/rwandan-dissident-in-belgium-
a-suspected-target/article18653424/.
81
See supra note 53 and accompanying text.
82
Cf. A and others v Home Secretary (No 2), [2005] UKHL 71, [2006] 2 AC 221, paras. 47, 68, 92 (House of
Lords holding that evidence obtained through torture would be inadmissible in any legal proceedings, but that
the police should act on information obtained through torture to protect life, e.g. if it disclosed the existence of a
bomb).
83
ICD 191, 21 July 2015, section E.1, available at https://fas.org/irp/dni/icd/icd-191.pdf.
20

Note how this duty would extend to Khashoggi even if the intelligence that the US had was
that the Saudi government planned ‘only’ to forcibly kidnap him, rather than kill him, and that
the duty would apply regardless of Khashoggi’s citizenship or location. A number of
exceptions or waivers to this duty are set out in ICD 191 – for example, if warning the
individual would unduly endanger US government personnel, sources, methods, intelligence
operations, or defence operations.84 But none of them appear to be even plausibly relevant to
Khashoggi’s situation, and again, Khashoggi could easily have been warned without
compromising intelligence sources and methods.85 As of the time of writing, it remains unclear
why the US intelligence agencies failed to inform Khashoggi of threats to his life and liberty.86
Turkey, as the state in which the killing took place, could have done at least one more
thing to protect Khashoggi’s right to life – it could refused the admittance of the Saudi agents
onto its territory. Again, it is very possible that Turkish intelligence services knew or suspected
that the 15 men arriving in Istanbul on 2 October were agents of the Saudi government. And it
is similarly possible that Turkish intelligence services knew or suspected that these individuals
could be involved in a threat to Khashoggi’s life. Turkey was under no obligation to allow them
in. Had they been refused entry, the killing would obviously not have taken place, at least not
as and when it actually happened.87
D. Extraterritorial application
This brings us to the question of the extraterritorial application of the obligation to

protect Khashoggi’s life. This is not an issue of direct relevance to Turkey, since Khashoggi
was killed in its territory. If Turkey knew or ought to have known about the risk to Khashoggi’s
84
Ibid., section F
85
See also Goodman, ‘Did the U.S. Fail Its “Duty to Warn” Jamal Khashoggi? How U.S. Directive 191 Applies
to Kidnapping Threats,’ Just Security, 10 October 2018, at https://www.justsecurity.org/61001/united-states-
fail-duty-warn-jamal-khashoggi-intelligence-directive-191-applies/.
86
More information might become available soon through leaks to the press or Congressional oversight. A
lawsuit has also been filed by the Knight First Amendment Institute at Columbia University, pursuant to the
Freedom of Information Act, asking for a judicial order compelling the relevant agencies to disclose records in
their possession regarding Saudi threats to Khashoggi and their failure to warn him thereof. See ‘U.S. spy
agencies sued for records on whether they warned Khashoggi of impending threat of harm,’ Washington Post,
20 November 2018, at https://www.washingtonpost.com/world/national-security/us-spy-agencies-sued-for-
records-on-whether-they-warned-khashoggi-of-impending-threat-of-harm/2018/11/20/21ef3750-ed21-11e8-
8679-934a2b33be52_story.html?noredirect=on&utm_term=.70c96613e5b9. See also at
https://knightcolumbia.org/content/knight-institute-and-committee-protect-journalists-v-cia-foia-suit-records-
governments-duty.
87
The decision of the Turkish authorities to allow the assassins entry is to some extent comparable with that of
the British authorities in McCann to allow the entry of three Irish Republican Army terrorists into Gibraltar,
which set the stage for their subsequent fatal encounter with British special forces. See McCann and Others v.
United Kingdom, no. 18984/91, 27 September 1995, para, 205.
21

life, this foreseeability threshold must have been crossed while he was on Turkish soil. The
issue is more complex, however, with regard to the United States. If the US government knew
or ought to have known about the threat to Khashoggi’s life while Khashoggi was present on
its territory, which as a US resident he was for extended periods of time, the duty to protect
under Article 6 ICCPR clearly applied – that the threat would have materialized outside US
territory is irrelevant. If, however, the risk threshold was crossed vis-à-vis the United States
while Khashoggi was outside the United States – for example, if the US government only
acquired the necessary information when Khashoggi was already in Istanbul – the issue then is
whether the protective duty applied when he was outside US territory.
The question of principle, in other words, is whether the positive obligation to protect
life extends to an individual located outside a state’s territory, if a specific threat to that
individual’s life is foreseeable to the state. This question has no obvious answer. As explained
above, the jurisprudence of human rights bodies has coalesced around two basic approached to
the extraterritorial applicability of human rights treaties, which revolve around the
interpretation of the notion of state jurisdiction in these treaties. First, that they will apply to
individuals located outside a state’s territory but within a territory or area under the state’s
control. Second, that they will apply if the individual is outside the state’s territory but is under
the authority or control of a state agent.88 Recall also that the official position of the US
government is that it does not accept that the ICCPR applies extraterritorially under any
circumstances,89 although it might be more willing to accept that customary IHRL applies
extraterritorially.90 Note in that regard that the official view of the US government that
Khashoggi’s killing was an arbitrary deprivation of life and a human rights violation
88
89
The US position regarding the extraterritorial application of the ICCPR is unlikely to change in the near term,
and is of course tied up with higher-order questions of the applicability of human rights law to US
counterterrorism operations abroad or in armed conflict. A window of opportunity existed during the Obama
administration to change this view, with the then State Department Legal Adviser, Harold Koh, advocating
within the government that its position was untenable and had to be changed. This effort failed due to the lack of
agreement from other major agencies within the US government. Koh’s memorandum on the extraterritorial
application of the ICCPR was then leaked to the New York Times a few days before the consideration of the US
fourth period report by the Human Rights Committee. See more ‘U.S. Seems Unlikely to Accept That Rights
Treaty Applies to Its Actions Abroad,’ New York Times, 6 March 2014, at
https://www.nytimes.com/2014/03/07/world/us-seems-unlikely-to-accept-that-rights-treaty-applies-to-its-
actions-abroad.html; Goodman, ‘The Koh Memo’s Impact on the Current US Position (A Reply, in part, to Ben
Wittes),’ Just Security, 11 March 2014, at https://www.justsecurity.org/8124/koh-memos-impact-current-
position-a-reply-part-ben-wittes/.
90
See Goodman, ‘Human Rights Law and U.S. Military Operations in Foreign Countries: The Prohibition on
Arbitrary Deprivation of Life,’ Just Security, 19 February 2019, at
https://www.justsecurity.org/62630/international-human-rights-law-u-s-military-operations-foreign-countries-
prohibition-arbitrary-deprivation-life/.
22

necessarily assumes some theory of extraterritorial applicability of treaty or customary IHRL,
as otherwise there could be no human rights violation.91
That said, let us proceed on the basis that the US view on the ICCPR is mistaken (as it
is).92 The basic problem is still that the scenario in which the United States learns of threats to
Khashoggi’s life only when he is already outside US territory is not a good fit with either the
spatial or personal models of jurisdiction in human rights treaties. When in Istanbul, Khashoggi
would not be in any area or territory controlled by the US government, nor would he in any
sense be under the authority or control of a US state agent. The United States would simply be
in possession of information about him or about threats to his life, which it did not acquire from
him but by intercepting the communications of third parties. In my prior work, I have advocated
for a model of extraterritorial application whereby state negative obligations would apply
without any territorial limitation, while substantive positive obligations, like the duty to protect
life, would require a jurisdictional link.93 Even on that generally expansive view the ICCPR
would not apply extraterritorially to protect Khashoggi since he would not be under the control
of a US state agent or in US-controlled territory.
But, in its recent General Comment No. 36, the Human Rights Committee endorsed an
even more expansive theory of extraterritoriality: ‘a State party has an obligation to respect and
to ensure the rights under article 6 of all persons who are within its territory and all persons
subject to its jurisdiction, that is, all persons over whose enjoyment of the right to life it
exercises power or effective control.’94 The Committee thus shifted the focus of the
jurisdictional inquiry from that of power or control over territory or over the person, to that of
power or control over the enjoyment of the right to life.95 In doing so, the Committee effectively
endorsed the functional theory of the extraterritorial application of human rights treaties, which
has academically long been advocated for by Yuval Shany, now the chairperson of the Human
Rights Committee and together with the late Sir Nigel Rodley the principal drafter of General
91
92
I cannot discuss this point more for reasons of space, but also because it has been extensively covered in the
literature. See more Van Schaack, ‘The United States’ Position on the Extraterritorial Application of Human
Rights Obligations: Now is the Time for Change,’ (2014) 90 International Law Studies 20; Milanovic, supra
note 31, at 222-227.
93
See Milanovic, supra note 31, at 209-222.
94
95
Cf. also ibid., para. 22 (discussing state positive obligation to regulate activities in areas or places subject to
their jurisdiction that have a direct and reasonably foreseeable impact on the right to life of individuals outside
their territory).
23

Comment No. 36.96 Under the functional approach, the scope of state obligations – including
positive obligations – would depend on their capacity to fulfil them.97
While neither the Committee’s jurisprudence, nor that of any other human rights body,
has yet addressed a scenario in which a state possesses information about the threat to the life
of a person located outside its territory, the functional theory the Committee endorsed could
capture such a scenario. On the assumption that it had specific information about a lethal threat
to Khashoggi, which if disclosed could have saved his life, the US exercised control over
Khashoggi’s enjoyment of his right to life. It had the capacity to protect that right, and thus the
duty to protect it, regardless of his location or his status as a US resident. It should also be
reiterated that the due diligence expectation of the state in a scenario like this one is a very
modest one – the upshot is simply the duty to warn the individual. That said, the problem with
the Committee’s approach is that it is essentially limitless – whenever the state would be
capable of doing something it would have the obligation to do so, and for better or worse no
threshold jurisdictional inquiry would really apply.
F. Conclusion
In sum, it is very possible that the United States or Turkey knew, or ought to have
known, of a real and immediate risk to Jamal Khashoggi’s life posed by agents of the Saudi
state, i.e. that this risk was reasonably foreseeable to them. This is certainly what media
reporting on US signals intelligence regarding Khashoggi would seem to indicate, although no
definitive conclusions can be made in this respect without further inquiry. If the duty to protect
life was triggered, then either state arguably failed to fulfil it by not warning Khashoggi of the
existence of the risk, and in Turkey’s case by admitting Saudi agents onto its territory. The
extraterritorial applicability of the ICCPR is a complicating factor with regard to the United
States, but not insurmountably so.
Other states could easily have been in a similar position. For example, it has been
reported that the British signals intelligence agency, GCHQ, intercepted Saudi communications
96
See Shany, ‘Taking Universality Seriously: A Functional Approach to Extraterritoriality in International
Human Rights Law,’ (2013) 7 The Law & Ethics of Human Rights 47.
97
A good point of comparison here would be the approach of the ICJ to the positive obligation of states to
prevent genocide under Article 1 of the Genocide Convention, in the Bosnian Genocide case. The Court held
that the duty to prevent applied to all states, regardless of where a genocide might be committed, but that the
extent of the duty varies with the state’s capacity. See Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, ICJ
Reports 2007, p. 43, at para. 183.
24

indicating that ‘members of the royal circle’ had ordered Khashoggi’s abduction. According to
one newspaper report, which has not been confirmed by other press outlets:
[A] highly-placed [intelligence] source confirms that MI6 had warned his Saudi
Arabian counterparts to cancel the mission - though this request was ignored. “On
October 1 we became aware of the movement of a group, which included members of
Ri'āsat Al-Istikhbārāt Al-‘Āmah (GID) to Istanbul, and it was pretty clear what their
aim was. “Through channels we warned that this was not a good idea. Subsequent
events show that our warning was ignored.” Asked why MI6 had not alerted its Five
Eye intelligence partner, the US (Khashoggi was a US resident) the source said only:
“A decision was taken that we’d done what we could.”98
Again, this report and its sourcing have not been confirmed by other outlets; the British Foreign
Secretary denied that he personally knew of the threat to Khashoggi, but refused to comment
(and deny) the original press report as such.99 It is thus entirely possible that the UK intelligence
agencies knew of the threat to Khashoggi’s life but failed to warn him. Recall in that regard
that Khashoggi was actually in London from 29 September to 1 October 2018, the day before
his killing.100 That visit alone would likely have obviated any possible extraterritoriality issue
under the ECHR vis-à-vis the United Kingdom. If, in other words, on 1 October the UK knew
or ought to have known of a real risk to Khashoggi’s life, the protective duty was triggered and
the UK manifestly failed to do anything about it.
Let us now move to the moment of the murder itself.
4. During the attack
A. Generally
Reports on Khashoggi’s final moments are conflicting, even if most of them are
ultimately sourced to the Turkish government. Khashoggi entered the consulate after 1pm on
2 October. Shortly after 3pm, surveillance footage shows vehicles with diplomatic license
plates leaving the Saudi consulate for the consul-general’s home some 2 kilometers away.
Around 3.30pm Khashoggi’s fiancée reported him missing to the Turkish authorities. At 7pm
98
See ‘Khashoggi BOMBSHELL: Britain 'KNEW of kidnap plot and BEGGED Saudi Arabia to abort plans,’
The Express, 29 October 2018, at https://www.express.co.uk/news/world/1037378/Khashoggi-murder-news-
saudi-arabia-chemical-weapons-use.
99
See ‘Foreign Secretary tells MPs he had no prior knowledge of Khashoggi murder plan,’ Mail Online, 30
October 2018, at https://www.dailymail.co.uk/wires/pa/article-6333295/Foreign-Secretary-tells-MPs-no-prior-
knowledge-Khashoggi-murder-plan.html.
100
See supra note 70.
25

a Saudi private jet took six members of the Saudi hit team to Cairo, and then onwards to Riyadh.
At 11pm a second private jet took seven other assassins first to Dubai, and then to Riyadh; two
others left on commercial flights.101
As for the manner of the execution, some reports indicated that Khashoggi was tortured
before he was killed, or that he was being dismembered while still alive.102 The current official
Saudi version is that Khashoggi died in a fistfight which went out of control with agents whose
plan was to capture him.103 Other reports mention him being given an injection with a lethal
dose of a sedative.104 Finally, more recent reports say that Khashoggi was strangled or
suffocated, either with a rope or a plastic bag.105
The final act of Khashoggi’s killing probably did not take more than a few minutes. He
could have been interrogated for some time before that, but the killing most likely took place
within no more than an hour of him entering the consulate. The exact timeline is of course yet
to be reliably reconstructed. In this section of the article I will examine Saudi Arabia’s negative
obligation to respect Khashoggi’s right to life and Turkey’s positive obligation to protect him.
I will in particular look at possible normative conflicts between Turkey’s human rights
obligations and its duty to respect the inviolability of the consulate under the VCCR.
B. Saudi Arabia’s negative obligation to respect Khashoggi’s right to life and its
extraterritorial application
As noted above, Saudi Arabia’s violation of its obligation not to deprive individuals
arbitrarily of their life under Article 5 of the Arab Charter and customary IHRL is manifest, in
101
See supra note 70.
102
See ‘Jamal Khashoggi's killing took seven minutes, Turkish source tells MEE,’ Middle East Eye, 16 October
2018, at https://www.middleeasteye.net/news/jamal-khashoggis-killing-took-seven-minutes-turkish-source-tells-
mee; ‘Jamal Khashoggi Tortured In Front Of Top Saudi Diplomat: Reports,’ Huffington Post, 17 October 2018,
at https://www.huffingtonpost.co.uk/entry/jamal-khashoggi-tortured-saudi-diplomat-
reports_us_5bc736d8e4b0d38b5873dc98.
103
See ‘Saudi Arabia fires 5 top officials, arrests 18 Saudis, saying Khashoggi was killed in fight at consulate,’
Washington Post, 19 October 2018, at https://www.washingtonpost.com/news/world/wp/2018/10/19/saudi-
government-acknowledges-journalist-jamal-khashaoggi-died-while-in-that-countrys-consulate-in-
istanbul/?utm_term=.416b8aa950e2.
104
See ‘Jamal Khashoggi’s final months as an exile in the long shadow of Saudi Arabia,’ Washington Post, 22
December 2018, at https://www.washingtonpost.com/world/national-security/jamal-khashoggis-final-months-
an-exile-in-the-long-shadow-of-saudi-arabia/2018/12/21/d6fc68c2-0476-11e9-b6a9-
0aa5c2fcc9e4_story.html?utm_term=.f338be137e2e.
105
See ‘'I can't breathe.' Jamal Khashoggi's last words disclosed in transcript, source says,’ CNN, 10 December
2018, at https://edition.cnn.com/2018/12/09/middleeast/jamal-khashoggi-last-words-intl/index.html; ‘'I'm
suffocating': Khashoggi's last words, says Turkish reporter,’ Al Jazeera, 11 November 2018, at
https://www.aljazeera.com/news/2018/11/suffocating-khashoggi-words-turkish-reporter-
181111085534099.html.
26

the sense that Saudi Arabia could not offer any kind of justification for Khashoggi’s killing
that could be regarded as even potentially legitimate from the standpoint of the right to life.
What is not obvious, however, is whether the Charter and the relevant customary rule even
applied to Khashoggi, i.e. that they protected him while he was located outside Saudi territory.
This is again a question of extraterritorial application, but this time of the negative
obligation to refrain from using lethal force without justification. And this is a question that is
in no way unique to the Khashoggi killing. We have confronted it repeatedly in the past couple
of decades, whether in the context of the use of lethal force in armed conflict or in plain or not-
so-plain state-sponsored assassinations. From drone strikes in the war on terror, to the killing
of Osama bin Laden in Pakistan by US special forces, to the assassination of Alexander
Litvinenko and the attempted assassination of Sergei and Yulia Skripal by Russian secret
agents, to the killing of Kim Jong-nam in Malaysia on the orders of his half-brother, the North
Korean dictator Kim Jong-un – all of these cases raise the fundamental threshold question of
whether the target of the use of force is protected by human rights law at all. As a general
matter, powerful states have been reluctant to accept that human rights treaties would apply to
kinetic uses of force outside their territory, especially in areas not within their control, because
they tend to see IHRL as an excessive constraint on their freedom of action.
There have been important cases on this set of issues before human rights courts and
treaty bodies. The most notorious of these is of course Bankovic, in which the European Court
of Human Rights held that an individual would not be within a state’s jurisdiction in the sense
of Article 1 ECHR only on the basis that state dropped a bomb on him from the air.106 Other
cases followed, some of which partially overruled Bankovic, most notably Al-Skeini,107 but the
Court has nonetheless remained reluctant to extend the reach of the Convention to purely
kinetic uses of force abroad, as it is morally and logically compelled to do. 108 This is
particularly the case with the personal conception of jurisdiction as the exercise of authority or
control over the victim by a state agent, the issue here being whether the factual power to kill
a person qualifies as such authority or control. In my view it surely does; the personal model
of jurisdiction is prone to collapse as it cannot be limited non-arbitrarily, which is why I have
argued that negative obligations should be territorially unlimited.109 The European Court has
not said so, however, and is yet to properly confront a case post Al-Skeini which deals with the
106
Banković and Others v. Belgium and Others [GC] (dec.), no. 52207/99, 12 December 2001.
107
Al-Skeini and others v. United Kingdom [GC], no. 55721/07, Judgment, 7 July 2011.
108
See generally Milanovic, ‘Al-Skeini and Al-Jedda in Strasbourg,’ (2012) 23 EJIL 121, at 127-133.
109
See Milanovic, supra note 31, at 209-222.
27

use of lethal force against an individual in an area not under the state’s control.110 It has,
however, acknowledged that the use of physical force against an individual by a state agent can
constitute the exercise of authority or control over that individual, and thus state jurisdiction,
at least in some circumstances; it has also acknowledged that when a state exercises such
authority and control over an individual it only needs to secure those rights of that individual
which are relevant to their situation, so that rights under the ECHR can be divided and
tailored.111
Other human rights bodies have never been as restrictive as the European Court on
matters of extraterritorial application. There is no doubt, for example, that the Human Rights
Committee would find a person in a situation like Khashoggi’s to be protected by the ICCPR,
whether pursuant to its more general approach to issues of extraterritorial application as set out
in General Comment No. 31,112 or to its new, even more expansive functional approach in
General Comment No. 36.113 Even the European Court would likely found a person like
Khashoggi protected by the ECHR, if not under the personal model of jurisdiction, then on the
basis that Khashoggi was killed on the premises of a consulate or while under the authority of
consular agents and thus within the sending state’s jurisdiction.114
In sum, Saudi Arabia was under an obligation to respect Khashoggi’s right to life under
the Arab Charter and customary IHRL when its agents killed him in the Istanbul consulate.
This position could be reached on several different grounds: (1) that the negative obligation to
respect the right to life and refrain from lethal force applies without any territorial limitation;
110
British courts have notably done so in Al-Saadoon, where in the High Court Leggatt J considered that per Al-
Skeini the personal conception of Article 1 jurisdiction as authority and control over an individual exercised by a
state agent necessarily captures the use of lethal force against that individual, while in the Court of Appeal
Lloyd Jones LJ held that he did not think that the European Court intended the principles articulated in Al-Skeini
to go so far, and that it should be for the European Court to extend them if it wanted to do so. See
Surveillance. See Al-Saadoon & Ors v. Secretary of State for Defence [2015] EWHC 715 (Admin), paras. 95-
100; Al-Saadoon & Ors v. Secretary of State for Defence [2016] EWCA Civ 811], paras. 69-73.
111
Al-Skeini, paras. 136-137.
112
Human Rights Committee, General Comment No. 31, Nature of the General Legal Obligation on States
Parties to the Covenant, UN Doc. CCPR/C/21/Rev.1/Add.13 (2004), para. 10: ‘a State Party must respect and
ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party,
even if not situated within the territory of the State Party.’ See also Lopez Burgos v. Uruguay, (1981) 68 ILR 29,
Communication No. R.12/52, UN Doc. Supp. No. 40 (A/36/40) at 176 (1981), para. 12.3: ‘it would be
unconscionable to so interpret the responsibility under article 2 of the Covenant as to permit a State party to
perpetrate violations of the Covenant on the territory of another State, which violations it could not perpetrate on
its own territory.’
113
114
See, e.g., Bankovic, para. 73: ‘Additionally, the Court notes that other recognised instances of the extra-
territorial exercise of jurisdiction by a State include cases involving the activities of its diplomatic or consular
agents abroad and on board craft and vessels registered in, or flying the flag of, that State. In these specific
situations, customary international law and treaty provisions have recognised the extra-territorial exercise of
jurisdiction by the relevant State.’ See also Milanovic, supra note 31, at 154-160.
28

(2) that killing an individual constitutes an exercise of authority or control, and thus
jurisdiction, over that individual; (3) that Khashoggi’s killing took place in a Saudi consulate.
And if the Arab Charter and customary IHRL applied to Khashoggi’s killing, as they did, the
violation of the right to life is manifest. That said, I would reiterate that the reluctance of some
states to explicitly use human rights language in their criticism of Saudi Arabia stems at least
in part from a desire to avoid contradictions with their own prior positions. In other words, it
is not easy for the US and UK governments to criticize Saudi Arabia for violating Khashoggi’s
right to life when under their own theories, developed and argued by their own lawyers, they
would not have had to respect human rights law if they wished to use lethal force against an
individual outside their borders, at least absent territorial control.
C. Turkey’s positive obligation to protect Khashoggi’s right to life
1. Applicability
Moving now to Turkey, let us examine its obligation to protect Khashoggi’s right to
life from third parties, triggered from the moment it knew or ought to have known of a real and
immediate risk to his life. Turkey’s overarching obligation to ensure or secure Khashoggi’s
right to life continued applying after his entry into the Saudi consulate in Istanbul. Khashoggi
remained within Turkey’s jurisdiction for the purposes of the applicability of the ICCPR and
the ECHR, even if he was also concurrently within Saudi jurisdiction.115 The area of the
consulate remained Turkish territory and under Turkish control, even if Turkey had consented
to the presence of the consulate and assumed international obligations with regard to its
inviolability. There is no reason of principle why the notion of jurisdiction could not cover such
concurrent scenarios.116
As explained above, Khashoggi was likely killed very shortly upon entering the
consulate, at the most within an hour.117 We know that Turkey has audio recordings of his last
moments and of some of the things said and done to him. It is not entirely clear by which
methods exactly Turkey obtained these recordings. Reports differ on whether Turkey had
listening devices on the premises of the consulate, surveilled the consulate through the use of
115
Cf. Ilaşcu et al. v Moldova and Russia [GC], no. 48787/99, 8 July 2004; Catan and Others v Moldova and
Russia [GC], nos. 43370/04, 8252/05 and 18454/06, 19 October 2012 (concurrent jurisdiction of Russia and
Moldova over Transnistria).
116
See Milanovic, supra note 31, at 147-151, 153-154, 159-160.
117
29

a powerful directional microphone, tapped the communications of the Saudi hit team, or had
combined some of the methods above.118
2. Apparent conflict of norms
Now, imagine if, through whatever method, Turkish intelligence services were listening
to the goings-on in the consulate in real time, i.e. had a good idea of what was happening to
Khashoggi as it was occurring, rather than collecting this information through automated
processes and analyzing it only after the fact. Imagine also if the Turkish police had constables
or other security forces available in the vicinity of the consulate, who could be there reasonably
quickly. Both of these assumptions are in the realm of possibility, although they were likely
not borne out on the facts because of the very short time window within which Khashoggi was
killed. But again, it is perfectly possible that Turkish intelligence services knew what was going
on. If they did, the positive obligation to protect Khashoggi’s life could clearly no longer be
met simply by warning him – it was far too late for that. In this scenario, Turkey would have
had to intervene directly to prevent the murder, by force if necessary.
In such a scenario, Turkey would have faced an apparent conflict of norms. On the one
hand, its positive obligations under the ICCPR and the ECHR would be telling it to send its
police forces or other security services into the consulate, to prevent the killing from taking
place. On the other hand, if it did so, it would be in prima facie violation of its obligation to
respect the inviolability of the consulate under Article 31 VCCR, which specifically prohibits
agents of the receiving state from entering consular premises without the consent of the head
of the consular post – that same Saudi consul-general who was, at the time, witnessing the
brutal assault on Khashoggi.119
What, then, should Turkey have done in such a situation?
3. Norm conflict avoidance and resolution
118
See the reports in supra note 104: ‘What happened inside might never have emerged were it not for listening
devices planted in the Saudi Consulate by Turkish intelligence. The recordings span several days and capture
operatives discussing in advance of Khashoggi’s arrival their plans to subdue and kill him, according to Western
intelligence officials;’ and supra note 72: ‘Scenarios range from a bug placed in the consulate itself to a
directional microphone focused on the building from outside – both technically within the realms of Turkey’s
capabilities. Another possibility, being discussed in Turkey and elsewhere, is that some members of the hit
squad recorded the abduction on their phones for trophy purposes, or to reveal back home. And that those
recordings were either intercepted in real time or retrieved from at least one of the killers’ phones.’
119
See ‘Jamal Khashoggi: Turkish police search Saudi consul's residence,’ BBC News, 17 October 2018, at
https://www.bbc.co.uk/news/world-middle-east-45887556.
30

Norm conflicts are nothing terribly extraordinary in either domestic or international
law.120 In international law they are an aspect of the wider phenomenon of fragmentation,
which is a consequence both of its relative success and expansion and of its decentralization
and lack of coherence.121 Specifically, international law lacks some of the tools that domestic
legal systems possess in addressing norm conflicts, a problem which becomes particularly
acute when human rights norms potentially conflict with other rules of international law.122
In that regard, the standard approach to apparent or potential normative conflicts in both
domestic and international law is to try to avoid the conflict, if possible. Avoidance is normally
done through various techniques of harmonious interpretation. Such interpretative techniques
can, depending on the system and on the context, be more or less consistent with the text and
purposes of both norms, or can verge on forcible rewriting or amendment. A genuine norm
conflict arises only if such avoidance is impossible.123 The limits of the possible are fluid.
Generally speaking, harmonious interpretation may require that one of the apparently
conflicting norms be ‘read down’ or that exceptions from the rule it lays down are ‘read in,’ in
order to avoid the conflict.
If a conflict cannot be avoided through interpretation, it might be resolved. The
resolution of norm conflicts is different from their avoidance in that there is an express reliance
on some kind of rule which will prioritize one norm over the other. In domestic systems this is
generally done through hierarchy – e.g. a constitutional rule will trump a conflicting statutory
one – or rules such as lex posterior, e.g. that a later in time statute will prevail.124 The difficulty
with international law in that regard is that its hierarchies are rudimentary, and that its law-
making processes are diffuse and decentralized.125 It is rarely feasible to think of relationship
between specialized branches of international law, be it IHRL, the law of armed conflict, trade
law, or diplomatic and consular law, in terms of hierarchy.
120
For a leading treatment of the subject, see J. Pauwelyn, Conflict of Norms in Public International Law: How
WTO Law Relates to other Rules of International Law (CUP, 2003); for a classical study, see Jenks, ‘Conflict of
Law-Making Treaties,’ (1953) 30 BYBIL 401.
121
See generally ILC, Fragmentation of International Law: Difficulties Arising from the Diversification and
Expansion of International Law, UN Doc. A/CN.4/L.682 (2006) (finalized by Martti Koskenniemi, hereinafter
ILC Fragmentation Study);
122
See generally Milanovic, ‘Norm Conflict in International Law: Whither Human Rights?,’ (2009) 20 Duke
Journal of Comparative & International Law 69.
123
See, e.g., Pauwelyn, supra note 120, at 272.
124
See, e.g., Milanovic, supra note 122, at 73-75. See also ILC Fragmentation Study, para. 34: ‘There is no
single legislative will behind international law. Treaties and custom come about as a result of conflicting
motives and objectives - they are “bargains” and “package-deals” and often result from spontaneous reactions to
events in the environment.’
125
See generally Weil, ‘Towards Relative Normativity in International Law?,’ (1983) 77 AJIL 413.
31

This is why jus cogens, hierarchy-based arguments against state immunity have so often
failed,126 as e.g. in Germany v. Italy before the ICJ.127 Nor is it obvious to say, for example,
that the right to life is in all its relevant aspects a rule of jus cogens, riddled as it is with
exceptions and caveats. It is simply inconsistent with the nature of the international legal
system to argue that the right to life somehow ipso facto overrides all other rules of international
law that may conflict with it, as if it simply sat at the apex of a normative hierarchy.
That international law is not organized as a pyramid of rules in hierarchical layers and
that it does not have a centralized legislator can therefore lead to uncomfortable consequences:
there are some norm conflicts which are genuine, in the sense that they cannot be avoided
through interpretation, but are also unresolvable, in the sense that no meta-rule exists which
can allow us to prioritize one conflicting norm over the other.128 Some antinomies are simply
there to stay. Just like in domestic law a person can conclude contracts which contain
contradictory commitments – e.g. selling the same house to two different people, or committing
to teaching at two different universities at the same time – so can states assume contradictory
obligations in international law. When faced with such a situation of unresolvable norm
conflict, the state will have to make an essentially political choice: which norm to respect, and
which to violate, and be prepared to suffer the consequences of its violation.129
With this in mind, let us go back to the conflict of obligations that Turkey was
potentially faced with, between IHRL on the one hand and diplomatic and consular law on the
other.
4. Reading down IHRL or diplomatic and consular law?
As we have seen, it first needs to be established whether the apparent norm conflict
between IHRL and diplomatic and consular law can be avoided through interpretation, so that
one of the conflicting norms gives way to the other. First, in that regard, can Turkey’s positive
obligation to protect the right to life be read down in such a way as to accommodate its
obligation to respect the inviolability of consular premises? As a formal matter, the answer to
that question is a clear yes – recall that the duty to protect life is one of due diligence. It only
126
See, e.g., Bianchi, ‘Human Rights and the Magic of Jus Cogens,’ (2008) 19 EJIL 491; Milanovic, supra note
122, at 71-72.
127
See supra note 22, paras. 92-97 (Court holding that there was no conflict between the customary rules of
state immunity and jus cogens rules prohibiting murder of civilians in armed conflict, since the former operated
purely on a procedural plane). See also Fox and Webb, supra note 22, at 324-325.
128
See Pauwelyn, supra note 120, at 418 et seq.
129
See Milanovic, supra note 122, at 117-119, 128-131..
32

requires a state to do all that it can reasonably expected to do under the circumstances, which
can easily be said to encompass the need to respect other applicable rules of international law.
One could refer in that regard to the aspect of the rule of interpretation in Article 31(3)(c) of
the Vienna Convention on the Law of Treaties, under which the interpretation of a treaty shall
take into account ‘any relevant rules of international law applicable in the relations between
the parties,’ or to the frequent references of human rights bodies, and the European Court in
particular, to the fact that human rights law forms part of international law and cannot be
interpreted in a vacuum.130
In other words, the positive obligation is so inherently flexible that it could easily be
interpreted more narrowly to avoid conflicts with other rules of international law, such as those
regarding diplomatic and consular privileges and immunities. The problem with this approach
is not that it is formally implausible, but that it is normatively entirely unappealing.131 The duty
to protect life would essentially be rendered into a nullity, despite the pressing, urgent need to
save Khashoggi’s life from state agents abusing the privileges and immunities of the consular
post. It seems much more preferable to see whether flexibility could come from the other end,
that of diplomatic and consular law.
Second, in that regard, it is crystal clear that diplomatic and consular premises do not
lose their status and inviolability simply because such status is being abused.132 The real issue,
therefore, is not whether the Saudi consulate in Istanbul lost its entitlement to inviolability
because it was being used in a manner incompatible with diplomatic and consular functions,
but whether there is a relevant exception to the inviolability rule.
Crucially in that respect, we should recall that the inviolability provision in Article 31
VCCR is drafted in far less absolute terms than its equivalent in Article 22(1) VCDR, which
seems to contain a categorical protection of inviolability and a total ban on entry by the agents
of the receiving state without the consent of the head of mission. But even this absolute VCDR
prohibition has questioned. No less an authority on diplomatic law than Eileen Denza has
remarked that: ‘[i]n the last resort, however, it cannot be excluded that entry without the
130
See, e.g., Behrami and Behrami v. France, Saramati v. France, Germany, and Norway [GC] (dec.), nos.
71412/01, 78166/01, 2 May 2007, para. 122.
131
I openly admit to a rights-protective bias in this regard.
132
See, e.g., Akande, ‘The Julian Assange Affair: May the UK Terminate the Diplomatic Status of Ecuador’s
Embassy?,’ EJIL: Talk!, 17 August 2012, at https://www.ejiltalk.org/may-the-uk-terminate-the-diplomatic-
status-of-ecuadors-embassy/ (discussing the issue of whether the status of the premises of the Ecuadorian
embassy in London could be terminated due to an unlawful grant of asylum to Julian Assange).
33

consent of the sending State may be justified in international law by the need to protect human
life.’133 According to Rosanne van Alebeek:
The drafting history of the Convention shows that there was not sufficient support to
create an exception to the inviolability of mission premises for cases of ‘extreme
emergency’. Most members of the ILC did assume that in customary international law
some exceptions existed but it was generally thought unwise to codify these exceptions
... Most commentators agree that in case of extreme emergency, for example when
necessary to protect human life, mission premises may be entered by the receiving State
even against the express will of the sending State.134
In a similar vein, in the Tehran Hostages case the ICJ was prepared to in extremis read
down the equally categorical protection of the inviolability of diplomats: ‘[n]aturally, the
observance of this principle [of inviolability] does not mean—and this the Applicant
Government expressly acknowledges—that a diplomatic agent caught in the act of committing
an assault or other offence may not, on occasion, be briefly arrested by the police of the
receiving State in order to prevent the commission of the particular crime.’135
Another useful analogy would be to the categorical inviolability of the diplomatic bag,
which has historically been the subject of much controversy since it easily amenable to abuse,
e.g. through smuggling. A particularly helpful example is the 1984 attempted kidnapping of
Umaru Dikko by Nigerian agents in London. After being kidnapped, Dikko was sedated and
put in a large shipping crate bearing the addresses of origin (the Nigerian High Commission in
London) and destination (the Nigerian Foreign Ministry in Lagos). The crate was however not
properly labelled as a diplomatic bag, and was subsequently found and opened by British police
who rescued Dikko. However in his testimony to the House of Commons Foreign Affairs
Committee, the Foreign Secretary confirmed that even if the crate was a diplomatic bag, his
advice would have been that it would have been necessary to ‘[take] fully into account the
overriding duty to preserve and protect human life.’ The Committee subsequently welcomed
‘this acceptance that the inviolability of the bag cannot take precedence over human life.’136
Until the killing of Khashoggi, perhaps the most notorious example of the use of
diplomatic or consular premises for lethal purposes was the 1984 shooting incident outside the
133
E. Denza, Diplomatic Law (OUP, 4th ed., 2016) 123.
134
Van Alebeek, ‘Diplomatic Immunity,’ Max Planck Encyclopedia of Public International Law, available at
http://opil.ouplaw.com, para. 8 (citing inter alia Denza; Brown ‘Diplomatic Immunity: State Practice under the
Vienna Convention on Diplomatic Relations,’ (1988) 37 ICLQ 53, 86-87; Herdegen ‘The Abuse of Diplomatic
Privileges and Countermeasures not Covered by the Vienna Convention on Diplomatic Relations,’ (1986) 46
ZaöRV 734.
135
United States Diplomatic and Consular Staff in Tehran (United States v. Iran), Judgment, ICJ Reports
1980, p. 3, at 40, para. 86.
136
Denza, supra note 133, at 203.
34

Libyan embassy in London. On 17 April 1984, during an anti-Gaddafi protest outside the
embassy, two gunmen from within the embassy opened automatic fire at the crowd. Many of
the protesters were wounded, and a 25-year old police constable, Yvonne Fletcher, was killed.
In response UK authorities laid siege to the embassy at St. James’s Square, but did not enter it
by force. The siege lasted for 11 days, at which point the UK severed diplomatic relations with
Libya, requiring (and allowing) all those in the embassy to leave the country.
There is a key difference between this case and Khashoggi’s. The embassy was the
source of the lethal threat, but the individuals whose life was in danger were outside it, and
could move out of the vicinity. In other words, after the shooting there was no ongoing threat
to the life of any specific person, which would have necessitated British authorities entering
the embassy without Libya’s permission.137
In sum, even in the case of categorical diplomatic protections for inviolability there are
arguably implicit exceptions in situations in which there is an immediate threat to human life.
Even so, Khashoggi was not killed on the premises of an embassy, but on those of a consulate.
The protection for the inviolability of such premises is lower. Under Article 31(2) VCCR: ‘[t]he
authorities of the receiving State shall not enter that part of the consular premises which is used
exclusively for the purpose of the work of the consular post except with the consent of the head
of the consular post or of his designee or of the head of the diplomatic mission of the sending
State. The consent of the head of the consular post may, however, be assumed in case of fire
or other disaster requiring prompt protective action.’
Two points could usefully be made here. First, that in murdering Khashoggi on the
premises these were no longer ‘used exclusively for the purpose of the work of the consular
post,’ resulting in a loss of protected status. This does not, however, seem to be the intention
of this language. Again, the principle that abuse does not result in loss of inviolability is
fundamental in diplomatic and consular law. It would make little sense to say that in the space
of an hour the premises of the consulate stopped being used exclusively for consular work and
thus ipso facto lost protection. The idea here is rather than consulates are in practice frequently
combined with other establishments, and that in such cases inviolability extends only to those
137
The UK government, in dialogue with the House of Commons Foreign Affairs Committee, contemplated the
availability of self-defence as the basis for entry into an embassy without consent. Both the government and the
Committee agreed that on the facts of the London shooting the requirements for self-defence were not met, as
there was no continued shooting emanating from the embassy – see Denza, supra note 133, at 121-122. See also
Higgins ‘UK Foreign Affairs Committee Report on the Abuse of Diplomatic Immunities and Privileges:
Government Response and Report,’ (1986) 80 AJIL 135.
35

parts of the premises used exclusively for consular purposes.138 Second, unlike the VCDR, the
VCCR explicitly creates an assumed consent exception to inviolability ‘in case of fire or other
disaster requiring prompt protective action.’ The reference to a fire or other disaster would
indicate that the primary purpose of this provision was to cover sudden events threatening life,
such as fires, floods, earthquakes and the like. However, labelling the premeditated assault on
Khashoggi as such a disaster is probably not too great of a stretch. The fact that the urgency
was created by the agents of the sending state seems immaterial, as after all they could have
caused a fire themselves as well, and Khashoggi’s situation certainly required prompt
protective action.139 In other words, the disaster need not be natural – we would likely all agree
that the assumed consent exception in Article 31(2) VCCR applied if the consular staff inside
the post were say being attacked by a terrorist group, and the receiving state sent its police
inside the consulate to stop the attack without waiting for permission from the head of the
assailed consular post. There is no reason why the result should be any different in a reverse
scenario. As Lee and Quigley have noted:
There may be room for argument that reasonable cause to believe that a crime of
violence has been, is being, or is about to be committed could be regarded as a ‘disaster
requiring prompt protective action’. This argument would be easier to make in the event
of violence against a person, rather than against property.140
In sum, entry by Turkish authorities into the consulate during the attack on Khashoggi
would arguably not have violated Article 31 VCCR, either because of the assumed consent
exception in Article 31(2) or because of an implicit exception for entry without consent
justified by the urgent need to protect human life.
5. Distress as a circumstance precluding wrongfulness
Alternatively, even if the entry into the consulate would have been wrongful, that
wrongfulness could have been precluded by distress. Under the rule codified in Article 24(1)
ASR ‘[t]he wrongfulness of an act of a State not in conformity with an international obligation
138
See d’Aspremont, ‘Premises of Diplomatic Missions,’ Max Planck Encyclopedia of Public International
Law, available at http://opil.ouplaw.com, para. 32; Lee and Quigley, supra note 46, at 359.
139
The inclusion of the assumed consent for disasters exception in the VCCR was quite deliberate, as was the
omission of such an exception in the VCDR – see Denza, supra note 133, at 118-119. In fact, the ILC Draft
Articles on Consular Relations, which formed the basis for the negotiation of the VCCR, did not have an
assumed consent exception, even though they expressly considered such a scenario; the exception was included
in state negotiations on the ILC draft. See ILC Draft Articles on Consular Relations, with commentaries, (1961)
2 Yearbook of the ILC 92, at 110.
140
Lee and Quigley, supra note 46, at 358.
36

of that State is precluded if the author of the act in question has no other reasonable way, in a
situation of distress, of saving the author’s life or the lives of other persons entrusted to the
author’s care.’ All of the requirements of this rule would have been met on the facts of
Khashoggi’s case, had Turkish authorities entered the Saudi consulate without consent: (1)
Khashoggi’s life was clearly in danger; (2) his life was entrusted to Turkey’s care, as he was
present on Turkish territory and Turkey had an obligation under IHRL to protect his right to
life; (3) there was no other reasonable way of saving his life. Therefore, even if Turkey’s
decision to enter the consulate to save Khashoggi’s life would have been wrongful under
Article 31 VCCR – and, as we have seen above, it arguably would not have been – that
wrongfulness would have been precluded by distress.
While the operation of distress in these circumstances appears fairly straightforward, a
possible objection could be made that distress cannot operate with regard to violations of
consular or diplomatic privileges and immunities. In that regard, in Tehran Hostages the ICJ
remarked that: ‘[t]he rules of diplomatic law … constitute a self-contained régime which, on
the one hand, lays down the receiving State's obligations regarding the facilities, privileges and
immunities to be accorded to diplomatic missions and, on the other, foresees their possible
abuse by members of the mission and specifies the means at the disposal of the receiving State
to counter any such abuse.’141 The existence and nature of self-contained regimes in
international law have attracted much scholarly attention.142 For our purpose, the issue is
whether the self-contained nature of diplomatic and consular law, such as it is, categorically
excludes reliance on secondary rules regarding circumstances precluding wrongfulness such as
distress.
In my view, the answer to that question is clearly in the negative. It is one thing to say,
as the Court did in Tehran Hostages, that countermeasures against diplomats and diplomatic
premises are excluded by special rules of international law. The policy rationale for this
exclusion is the avoidance of a tit-for-tat escalation that countermeasures frequently lead to and
the need to keep diplomatic channels open at all times. But it simply does not follow from that
position that all of the secondary rules of state responsibility are displaced by diplomatic law
– they quite clearly are not.143 Nor does it follow that none of circumstances precluding
wrongfulness could ever be invoked with regard to violations of diplomatic and consular law.
141
Tehran Hostages, para. 86.
142
See, e.g., ILC Fragmentation Study, paras. 123-190.
143
For an extensive argument and more background in this regard, see Simma and Pulkowski, ‘Of Planets and
the Universe: Self-contained Regimes in International Law,’ (2006) 17 EJIL 483, at 491-494, 512-516.
37

The ILC certainly does not say so in its ASR commentaries, in which it discusses the
inadmissibility of resort to countermeasures in violation of the obligation to respect the
inviolability of diplomatic or consular agents, premises, archives and documents, per Article
50(2)(b) ASR.144 Like the Court in Tehran Hostages, the Commission only refers to
countermeasures and not any of the other circumstances precluding wrongfulness, noting that
‘[i]f diplomatic or consular personnel could be targeted by way of countermeasures, they would
in effect constitute resident hostages against perceived wrongs of the sending State,
undermining the institution of diplomatic and consular relations. The exclusion of any
countermeasures infringing diplomatic and consular inviolability is thus justified on functional
grounds.’145 Again, no such rationale exists for distress as a circumstance precluding
wrongfulness – for reliance on that rule to be excluded one would have to find a lex specialis
rule displacing it, and such a rule simply does not exist.146
D. Conclusion
This section has shown how Saudi Arabia’s obligations under the Arab Charter and
customary IHRL extended to the conduct of its agents in its consulate in Istanbul, and how
accordingly Saudi Arabia is responsible for violating the negative aspect of the right to life.
Again, it is irrelevant whether the Saudi agents acted on the orders of Mohammed bin Salman
or against them; Saudi Arabia is nonetheless responsible for the ultra vires conduct of its organs
acting in their official capacity.147
Similarly, Turkey’s positive obligation to protect Khashoggi’s life continued even after
his entry into the consulate. It was engaged if Turkey knew, or ought to have known, of the
risk to Khashoggi’s life. If the obligation was triggered, Turkey could have fulfilled it by
sending its police or other agents into the Saudi consulate, if need be without consent. Had
Turkey done so, it would not have breached the inviolability of the consulate under the VCCR,
and even if it did, that wrongfulness would have been precluded by distress. It is only if Turkey
had some other feasible alternative to rescue Khashoggi that the analysis above would have
been different – for example, it is possible that Turkish authorities could have contacted Saudi
144
ILC ASR Commentary, at 339, para. 14.
145
Ibid., at 340, para. 15.
146
Cf. Article 55 ASR and commentary. See also J. Crawford, State Responsibility: The General Part (CUP,
2013) 697 (arguing that the ILC excluded only a narrow core of obligations under diplomatic and consular law
from the remit of legitimate countermeasures, and that countermeasures not affecting that core would be
permissible).
147
See Art. 7 ILC ASR.
38

authorities or agents on the ground to tell them that they knew of the threat to Khashoggi’s life,
which they should desist from immediately. Obviously, it is entirely dependent on the facts,
which are yet to be firmly established, whether such a warning or indeed a forcible entry into
the consulate could actually have been effective.
5. After the attack
A. Generally
After Khashoggi’s death, the substantive negative and positive obligations were
extinguished, but the positive procedural obligation to investigate his death was triggered for
both Saudi Arabia and Turkey. Khashoggi was subject to the jurisdiction of both states at the
moment of his death. Like the substantive positive obligation to protect life, the procedural
obligation to investigate is also one of due diligence, i.e. it does not require the state to do the
impossible, but only what could reasonably be expected of it in the circumstances. In other
words, it is inherently flexible.148 Investigations into allegations of violation of the right to life
must always be independent, impartial, prompt, thorough, effective, credible and transparent,
and in the event that a violation is found, full reparation must be provided.149 I will now
examine the obligations of Saudi Arabia and Turkey in this regard, as well as the obligation of
these two states, and also the United States, to cooperate in effectively investigating
Khashoggi’s death.
B. Saudi Arabia’s obligation to investigate
It is manifest that Saudi Arabia is in violation of its procedural obligation to investigate

Khashoggi’s death, on multiple grounds. Its agents covered up the evidence of the murder and
actively obstructed Turkish efforts to investigate it. Its own internal investigation has lacked
any transparency. It is obvious that Saudi law enforcement authorities have no real
independence from the executive, the conduct of which they are supposed to be investigating,
particularly with regard to the question whether the crown prince ordered Khashoggi’s killing
148
See, e.g., Al-Skeini, paras. 161-177, esp. para. 168: ‘the Court considers that in circumstances such as these
the procedural duty under Article 2 must be applied realistically, to take account of specific problems faced by
investigators.’
149
General Comment No. 36, para. 28.
39

or knew that the operation would take place. It is equally obvious that the outcome of the Saudi
trial of 11 unnamed individuals charged with Khashoggi’s death, which is shrouded in secrecy,
is going to be determined by whatever the Saudi royals want the judges to say rather than by
any kind of genuine pursuit for the truth.
As the Special Rapporteur noted in her preliminary observations:
The Turkish authorities [were] deliberately denied the access and in-depth technical
examination needed to discover, preserve and analyse evidence on the killing. … It is
unconscionable that the Saudi Arabia authorities continue to fail to disclose the
whereabouts of Mr Khashoggi’s remains, after having admitted that he met his death
within their custody in their consular premises.
It is my assessment that woefully inadequate time and access was granted to Turkish
investigators to conduct a professional and effective crime-scene examination and
search. Crime-scene protection and meticulous examination are key to every criminal
investigation the world over, especially when it comes to the most serious crimes. Every
minute that passes between the commission of a crime and the examination of the crime
scene is a diminished opportunity to discover crucial evidence. Every minute that passes
without protecting the integrity of the crime scene makes the collection of evidence
more problematic with adverse consequences as to its admissibility. Mr. Khashoggi was
murdered on 2nd October. However, Turkish investigators, accompanied by Saudi
investigators, only had access to the Consulate on the 15th October and to the Consulate
residence on 17th October.
The evidence made available to us thus far indicates that prior to 15th October, up to
four attempts were made to eliminate forensic evidence from the scene. We were also
told that some re-painting had taken place during that period. In spite of these efforts,
given sufficient time, skilled and well-equipped crime-scene investigators would still
expect to find ‘trace-evidence’ of the commission of a murder such as that of Mr.
Khashoggi. However, premises the size of the Consulate and the residence would take
many days to examine thoroughly, especially if ‘clean-ups’ had taken place.
Delayed and limited access imposed by the authorities of Saudi Arabia to the criminal
forensic investigation, severely limited its potential to produce telling evidence and was
deeply regrettable.150
In short, there is simply no doubt that Saudi Arabia is in violation of the procedural
limb of the right to life.151
C. Turkey’s obligation to investigate
150
Callamard, supra note 20, paras. 10-14.
151
See also ibid., para. 17.
40

The position of Turkey is, of course, very different. As a general matter Turkish
authorities have demonstrated willingness to effectively investigate Khashoggi’s death, and
indeed much of what we know of his killing is directly the product of their investigative efforts.
Had Turkey wanted to be complicit in the Saudi cover-up of the murder, it easily could have
been, but it chose differently. As the Special Rapporteur explains, ‘[i]n spite of the
circumstances, the Turkish police did undertake extensive investigation work, including by
reviewing thousands of hours of CCTV to piece together the movements of various members
of the Saudi teams dispatched at the Consulate, investigating the routes they followed, the
hotels rooms they occupied, etc.’152
That said, the work of the Turkish investigators has also been subject to considerations
of high politics. In particular, it has been limited and will be limited by whatever goals President
Erdogan – no huge champion of the freedom of the press or human rights more generally –
wishes to achieve in his management of the Khashoggi affair. And there are a number of
specific decisions made by Turkish authorities that are at the very least arguably inconsistent
with Turkey’s obligation under the ECHR and the ICCPR to effectively investigate
Khashoggi’s death: (1) allowing the members of the Saudi hit-team to leave Turkey; (2)
allowing the Saudi consul-general to leave Turkey; (3) delaying the search of the premises of
the consulate; (4) delaying the search of the residence of the consul-general; (5) possible issues
with searches of the consulate’s vehicles.
I will now address each of these in turn. As with the scenario of the positive obligation
to protect Khashoggi’s life during the attack, which we have looked at above, some of these
points raise issues about possible norm conflicts between the IHRL obligation to effectively
investigate and consular privileges and immunities. In that regard, the key difference with the
previous scenario is that the urgency to protect the right to life is no longer there, since
Khashoggi was already dead. There is accordingly less of an imperative to interpret diplomatic
and consular law flexibly so as to accommodate IHRL. Similarly, distress as a circumstance
precluding wrongfulness could not be relied on after Khashoggi’s death, as its applicability is
strictly limited to situations which actively pose a threat to human life. As I will show, however,
when properly interpreted consular privileges and immunities did not, in fact, pose a legal
obstacle to a prompt and effective investigation with regard to all but one of the points above.
1. Allowing the Saudi agents to leave
152
Ibid., para. 15.
41

The first, and most consequential, decision of the Turkish authorities that is open to
question is that of allowing the Saudi agents to leave Istanbul on two private jets at 7 and 11pm
on 2 October.153 Obviously, if Turkey had no idea who any of these people were, it could hardly
be faulted for allowing them to leave. But if it did know who they were and what their purpose
was, or harboured suspicions in that regard, then at the very least it could have prevented their
departure. It did not need to arrest or detain them, at least not immediately – all it had to do
was prohibit them from leaving.
And again, it seems quite possible, if not likely, that Turkish security services knew or
should have known that they were dealing with Saudi agents. Notwithstanding whatever
surveillance they had in the consulate and whether the information collected was being
processed in real time, Turkish authorities were alerted to Khashoggi’s disappearance after
3pm that day, almost 4 and 8 hours, respectively, before the Saudi private jets departed.
Moreover, all luggage is X-rayed immediately upon entry into the terminal building of Ataturk
airport; according to reports and still photos published in the Turkish press the airport
authorities could see that the luggage of the Saudi contained ‘10 telephones and a wireless
communications system, as well as two syringes, two electro-shock devices, a signal jammer,
staplers and cutting tools,’154 enough, at the minimum, to trigger suspicion and question them.
The same reports claim that the Saudi agents carried diplomatic passports, which is why
their bags were not subjected to manual inspection.155 But that a person is a holder of a
diplomatic passport, the issuance of which lies solely within the discretion of the issuing state,
says nothing about their entitlement to any privileges and immunities under international
law.156 The Saudi agents had no such entitlement, as they were neither members of the
diplomatic mission in Ankara, nor officers of the consular post in Istanbul, nor had special
mission immunity.
153
154
See ‘Jamal Khashoggi's killers carried syringes, electro-shock devices and cutting tools as they left Istanbul,
says report,’ The Independent, 13 November 2018, at https://www.independent.co.uk/news/world/middle-
east/jamal-khashoggi-murder-saudi-arabia-syringes-cutting-tools-consulate-istanbul-turkey-a8631651.html. See
also ‘İnfaz timinin X-Ray’e takılan cinayet aletleri: Telsiz, telefon, şırınga, şok cihazı...’, Sabah, 13 November
2018, at https://www.sabah.com.tr/gundem/2018/11/13/infaz-timinin-x-raye-takilan-cinayet-aletleri-telsiz-
telefon-siringa-sok-cihazi-1542100973.
155
Ibid. See also ‘Turkey releases passport scans of men it says were involved in journalist’s killing,’
Washington Post, 16 October 2018, at https://www.washingtonpost.com/world/middle_east/turkey-releases-
passport-scans-of-men-it-says-were-involved-in-journalists-killing/2018/10/16/f425892e-d163-11e8-83d6-
291fcead2ab1_story.html?utm_term=.7048b0eaa5d4.
156
See, e.g., US Department of State, ‘Diplomatic and Consular Immunity: Guidance for Law Enforcement and
Judicial Authorities,’ at https://www.state.gov/documents/organization/150546.pdf, at 17-18.
42

2. Allowing the Saudi consul-general to leave
The second questionable decision of the Turkish authorities was that they allowed the
Saudi consul-general in Istanbul, Mohammad al-Otaibi, to leave the country on 16 October,
the day before his residence was to be searched by Turkish authorities.157 At this point Turkey
definitely knew enough about Khashoggi’s killing, and knew that the consul was involved in
the operation or was at the very least a witness to it. One recording obtained by Turkish security
services allegedly has the consul addressing the members of the hit-team as they were
assaulting Khashoggi, telling them: ‘Do this outside. You're going to get me in trouble.’158 On
6 October, four days after the murder, al-Otaibi led Reuters reporters on a macabre tour of the
consulate, opening cupboards and filing cabinets to show them that Khashoggi was not there,
denying any knowledge of his abduction and dismissing allegations of the involvement of his
mission in Khashoggi’s disappearance as ‘disgusting.’159
Again, at a minimum al-Otaibi was a material witness regarding Khashoggi’s murder,
yet he was nonetheless allowed to leave. Unlike the members of the Saudi hit-team, however,
al-Otaibi was entitled to privileges and immunities, since he was the head of the consular post
in Istanbul. But these immunities are not unqualified.160 While the protection of the
inviolability of a member of a diplomatic mission under Article 29 VCDR is categorical, and
they are exempted from any obligation to give evidence as a witness under Article 31(2)
VCDR, the same is not true for consular officers. Article 41(1) VCCR permits the arrest or
detention of a consular officer for a ‘grave crime,’ while Article 44 VCCR permits the receiving
state to compel a consular officer to give evidence on matters not connected with the exercise
of their functions, as murder obviously is not.161
157
See ‘Saudi consul general leaves Turkey for Riyadh: Turkish broadcasters,’ Reuters, 16 October 2018, at
https://www.reuters.com/article/us-saudi-politics-dissident-consul/saudi-consul-general-leaves-turkey-for-
riyadh-turkish-broadcasters-idUSKCN1MQ23T; ‘Senior Saudi diplomat in Istanbul when Khashoggi was killed
drops out of sight,’ Washington Post, 12 November 2018, at https://www.washingtonpost.com/world/senior-
saudi-diplomat-in-istanbul-when-khashoggi-was-killed-drops-out-of-sight/2018/11/12/85f8e406-d7b1-11e8-
8384-bcc5492fef49_story.html?utm_term=.ae897dd4ab61.
158
See ‘Jamal Khashoggi: Turkish police search Saudi consul's residence,’ BBC News, 17 October 2018, at
https://www.bbc.co.uk/news/world-middle-east-45887556.
159
See ‘Saudi Arabia opens up consulate after journalist vanishes,’ Reuters, 6 October 2018, at
https://www.reuters.com/article/us-saudi-politics-dissident-consulate/saudi-arabia-opens-up-consulate-after-
journalist-vanishes-idUSKCN1MG0RC.
160
See also Lee and Quigley, supra note 41, at 435-436.
161
See also ibid., at 487-488.
43

There was, in short, nothing in consular law that would have prevented Turkey from
arresting al-Otaibi or at least questioning him as a witness and prohibiting him from leaving
the country, as any reasonable line of inquiry would have required for an investigation to be
effective. He was simply not a diplomat. The immunities he was entitled to were of a lesser
and more qualified kind. The same goes for any other staff of the consulate who may have had
information about the murder.162
3. Delay in searching the consulate
This brings us to the most difficult issue in the interaction between Turkey’s obligation
to investigate under IHRL and its duties under consular law – the delayed search of the premises
of the consulate, which only took place on 15 October and was limited in scope. Since almost
two weeks had passed, Saudi authorities had ample opportunity to tamper with the crime
scene.163 The delay was caused by Turkey waiting for Saudi consent to enter the premises, and
deliberate Saudi obstruction in that regard.
Here, however, Turkey was legally impeded from entering the consulate, unlike in the
scenario of entry for the purpose of saving Khashoggi’s life which we have looked at above.
While the threat to Khashoggi’s life could be treated as a disaster requiring prompt protective
action, which could have triggered distress or the assumed consent exception to inviolability
per Article 31(2) VCCR, this is not the case when it becomes known that Khashoggi is already
dead. Investigating Khashoggi’s death is, in other words, not as compelling a reason for an
exception from inviolability as saving his life would have been.
The issue, then, is whether Turkey could have done anything more than it already did
by putting public pressure on Saudi Arabia to provide its consent for entry, especially as a
prompt search of the crime scene would under ordinary circumstances have been an
indispensable requirement for Turkey’s compliance to effectively investigate the killing.
Turkey did have one such option. It could have notified Saudi Arabia that it should provide
consent for the search immediately, and that if it refused to do so Turkey would have no choice
but to sever consular relations between the two states. Severance could take immediate effect,
162
One such individual was an intelligence officer and the deputy head of the Saudi consulate, Ahmad Abdullah
al-Muzaini. Muzaini made a quick trip to Riyadh after Khashoggi first visited the consulate on 28 September.
He returned to Istanbul the day before the killing and was photographed passing through Ataturk airport with
heavy luggage. He left the country again at 9.35 pm on the evening of Khashoggi’s killing. See ‘Saudi King
Stands by Crown Prince as Outrage Over Khashoggi Killing Spreads,’ New York Times, 19 November 2018, at
https://www.nytimes.com/2018/11/19/world/middleeast/saudi-arabia-king-salman-khashoggi.html.
163
Supra note 150.
44

and would have had two main legal consequences. First, it would have terminated the consular
functions of all members of the consular post, whom Turkey would have been obliged to give
necessary time to prepare their departure and leave the country, per Article 26 VCCR. But that
inviolability of the consular officers would have been no greater than the one that they would
have enjoyed otherwise, i.e. they would still be liable for arrest for grave crimes and could be
compelled to testify.
Second, per Article 27(1)(a) VCCR, ‘[i]n the event of the severance of consular
relations between two States … the receiving State shall, even in case of armed conflict, respect
and protect the consular premises, together with the property of the consular post and the
consular archives.’ The receiving states duty to respect the inviolability of consular premises
thus, in the case of severance of consular relations, becomes transformed into the duty to
respect and protect the consular premises. There is no doubt that this duty is of a lesser order
than the one to respect inviolability, and that position is the same under diplomatic law.164 In
particular, the duty to respect and protect consular premises does not prohibit the law
enforcement agents of the receiving state from searching those premises as the scene of a crime.
This is, in fact, precisely what the UK government did with regard to the 1984 shooting incident
at the Libyan embassy in London, which resulted in the death of Yvonne Fletcher – it severed
diplomatic relations, allowed the embassy staff to leave the country, and then searched the
embassy after a deadline that it had set had passed.165
Had it either obtained consent or severed consular relations and searched the consulate
without consent upon severance, Turkey would have been in a much better position to comply
with its IHRL obligation to effectively investigate Khashoggi’s death. Doing so would,
however, have come at a cost. While Turkey would have been perfectly within its rights to
several consular relations, this would inevitably have deeply aggravated its relations with Saudi
Arabia. It is genuinely difficult to say that human rights law could reasonably expect a state to
pay such a price, i.e. that the expected political fallout, including possible Saudi retaliation
(however unjustified) is worth nothing in the balance and that Turkey’s authorities should be
owed little or no deference in making this kind of judgement.
4. Delay in searching the consul’s residence
164
See Denza, supra note 133, at 147, 396-402
165
Ibid.
45

No such difficulty exists, however, when it comes to the delay in searching the consul-
general’s residence. Here, too, Turkey was waiting for Saudi consent, which it obtained only
on 17 October.166 The delay and restricted access given likely severely compromised the
information that could usefully be obtained from the residence, which could have been
particularly helpful in establishing what ultimately happened to Khashoggi’s body. Readers
will recall that shortly after 3pm on 2 October, surveillance footage showed vehicles with
diplomatic license plates leaving the Saudi consulate for the consul-general’s residence.167 It is
very possible that Khashoggi’s remains were in those vehicles, and that they were somehow
later disposed of on the premises of the residence. Some reports have alleged that Khashoggi’s
dismembered body was dissolved in acid in the consul’s residence, and that there was some
‘biological evidence’ to that effect in the residence garden.168 More recent reports allege that
Khashoggi’s body was likely burned in a large outdoor furnace in the residence garden over a
period of three days.169
Legally, the key point here is that the residence of a consul enjoys no inviolability
whatsoever.170 Only the residence of a diplomatic agent does, per Article 30(1) VCDR. No
equivalent provision exists in the VCCR.171 ‘Neither the consul’s residence nor property has
any inviolability.’172 There was and there exists no need at all – at least not legally – to obtain
Saudi consent to search those premises, or accept any limits on how and to what extent the
search is to be conducted. Again, in waiting for consent Turkey was likely trying not to
excessively antagonize the Saudi government, but it is on much shakier ground here than with
regard to the search of the consulate itself when it comes to its compliance with IHRL.
5. Search of consular vehicles
The same goes for the search of any consulate vehicles. The Saudi hit-team appears to
have used at least seven different cars before and after the killing. A number of press reports
166
Supra note 150.
167
See supra note 70.
168
See ‘Jamal Khashoggi's body was 'dissolved', says Erdoğan adviser,’ The Guardian, 2 November 2018, at
https://www.theguardian.com/world/2018/nov/02/jamal-khashoggi-body-dissolved-acid-erdogan-adviser.
169
See ‘Jamal Khashoggi's body likely burned in large oven at Saudi home,’ Al-Jazeera, 4 March 2019, at
https://www.aljazeera.com/news/2019/03/jamal-khashoggi-body-burned-large-oven-saudi-home-
190304011823218.html.
170
See Lee and Quigley, supra note 46, at 360-361.
171
This is deliberate – see ILC Draft Articles on Consular Relations, with commentaries, supra note 139, at 110,
para. 9 (noting that only a very few bilateral conventions and municipal systems recognized the inviolability of a
consular residence).
172
Foakes and Denza, supra note 45, para. 8.39.
46

have suggested that Turkish authorities could not search some of these cars, or other cars
belonging to the consulate, due to consular immunity. 173 But again, unlike a diplomatic car, a
consular vehicle enjoys no immunity or inviolability. While Article 22(3) VCDR stipulates that
‘the means of transport of the mission shall be immune from search, requisition, attachment or
execution,’ Article 31(4) VCCR immunizes the means of transport of the consular post only
from requisition for purposes of national defence or public utility, and does not protect them
from search.174
6. Conclusion
In short, Turkish authorities have demonstrated a genuine desire to find out what
happened to Khashoggi,175 although that desire is inevitably tempered by political
considerations. That said, some decisions made by Turkish authorities were not required by the
need to respect consular privileges and immunities and were, at least arguably, in violation of
their duty to effectively investigate the killing.
D. Obligation to cooperate, including on the part of the United States
The final aspect of the positive procedural obligation that I will examine is the duty of
states to cooperate in effectively investigating Khashoggi’s death. In a situation in which the
evidence required to put together a full picture of a person’s unlawful death is located in two
or more different states, generally the only way of assembling that picture is for these states to
cooperate. Traditionally this has been done through often difficult and time-consuming
processes such as mutual legal assistance or extradition requests, which tend not to work
efficiently even in cases which are political insignificant. Clearly that it hardly going to work
in Khashoggi’s case – we have already seen how, on the one hand, Saudi Arabia has put a
number of individuals on trial and point-blank refused Turkish requests to extradite the
173
See, e.g., ‘Jamal Khashoggi: Saudi consulate car found abandoned in Istanbul, Turkish police say,’ The
Independent, 22 October 2018, at https://www.independent.co.uk/news/world/asia/jamal-khashoggi-dead-saudi-
arabia-consulate-car-istanbul-turkey-latest-police-investigation-a8596086.html; ‘Turkish police find clothes in
suitcases locked in abandoned Saudi consular car,’ Hurriyet, 23 October 2018, at
http://www.hurriyetdailynews.com/three-suspicious-luggages-locked-in-saudi-consular-car-abandoned-in-
istanbul-parking-lot-138174.
174
This is again a deliberate choice of the drafters of the VCCR; the original proposal of the ILC was to give
consular vehicles the same inviolability as the consular premises, reproducing mutatis mutandis the text of
Article 22 VCDR – see ILC Draft Articles on Consular Relations, with commentaries, supra note 139, at 109.
175
See also Callamard, supra note 20, paras. 16 and 19.
47

suspects, while, on the other hand, the forensic evidence of the killing, such as it is, is located
in Turkey, where the murder actually happened.
Transnational investigations have attracted comparatively little attention from the
standpoint of the procedural limb of the right to life. Cases in which a crime crosses state
borders, or evidence of the crime does so, are hardly rare. But they have generally not been
litigated before human rights bodies on grounds that the procedural limb has been violated
because the states involved did not cooperate sufficiently. The one exception is the European
Court of Human Rights. In fact, the Grand Chamber of the Court very recently decided the case
of Güzelyurtlu and Others v. Cyprus and Turkey,176 in which it systematized and developed its
approach to the duty to cooperate. The facts of the case were as follows. In January 2005, a
Turkish Cypriot businessman, who used to live and work in the separatist and unrecognized
Turkish Republic of Northern Cyprus (TRNC) but moved to southern Cyprus after the collapse
of his business, was brutally murdered, together with his wife and daughter, in the Cypriot
government-controlled part of Cyprus. The murder suspects all fled to the TRNC. The case
concerned alleged failures on the part of Cyprus and Turkey, which is in control of the TRNC,
to cooperate to adequately investigate the murders.
One issue in the case was the extraterritorial scope of the procedural obligation to
investigate. The Court found unanimously that Turkey was under an obligation to cooperate in
investigating the murders, even though they did not take place on its territory or even on the
territory controlled by the TRNC. The obligation to cooperate was engaged because TRNC
authorities had initiated a domestic investigation, in accordance with their own legal rules, and
because nebulously-defined ‘special features’ existed which created a jurisdictional link
between Turkey and the victims, primarily the fact that the suspects were present in a territory
controlled by Turkey.177 This is an approach that is hard to square with either the spatial or
personal models of jurisdiction, which focus on the location of or state control over the victim,
not the location of the perpetrator, although the Court’s bottom line would fit well with the
Human Rights Committee’s functional approach in General Comment No. 36.178 Nor does the
Court’s approach require that the deprivation of life was allegedly done by a state agent. All
that is required is either the initiation of a domestic investigation or the presence of the suspects
on the state’s territory, of which the state is aware.
176
Güzelyurtlu and Others v. Cyprus and Turkey [GC], no. 36925/07, 29 January 2019.
177
178
48

On the merits of the case the Court found no issues with the conduct of the parallel
investigations in Cyprus and the TRNC; what was at stake was solely the duty to cooperate.179
In that regard, the Court held that:
In cases where an effective investigation into an unlawful killing which occurred within
the jurisdiction of one Contracting State requires the involvement of more than one
Contracting State, the Court finds that the Convention’s special character as a collective
enforcement treaty entails in principle an obligation on the part of the States concerned
to cooperate effectively with each other in order to elucidate the circumstances of the
killing and to bring the perpetrators to justice.
The Court accordingly takes the view that Article 2 may require from both States a two-
way obligation to cooperate with each other, implying at the same time an obligation to
seek assistance and an obligation to afford assistance. The nature and scope of these
obligations will inevitably depend on the circumstances of each particular case, for
instance whether the main items of evidence are located on the territory of the
Contracting State concerned or whether the suspects have fled there.
Such a duty is in keeping with the effective protection of the right to life as guaranteed
by Article 2. Indeed, to find otherwise would sit ill with the State’s obligation under
Article 2 to protect the right to life, read in conjunction with the State’s general duty
under Article 1 to “secure to everyone within [its] jurisdiction the rights and freedoms
defined in [the] Convention”, since it would hamper investigations into unlawful
killings and necessarily lead to impunity for those responsible. Such a result could
frustrate the purpose of the protection under Article 2 and render illusory the guarantees
in respect of an individual’s right to life. The object and purpose of the Convention as
an instrument for the protection of individual human beings require that its provisions
be interpreted and applied so as to make its safeguards practical and effective.180
The Court further emphasized that the duty to cooperate was one of means, not one of result,
and that it only requires states to take reasonable steps, acting in good faith and consistently
with other rules of international law, avoiding possible issues of norm conflict.181
On the merits the Court thus found that Turkey failed to comply with its duty to
cooperate with Cyprus, but that Cyprus did not fail in its duty to cooperate with Turkey. In
particular, the Court held that the submission of an extradition request from Cyprus to Turkey
via informal channels was appropriate in the absence of diplomatic relations between the two
states. It also found that the refusal by Cyprus to submit its whole investigation file to TRNC
authorities was not unreasonable, since it would under the circumstances be tantamount to a
waiver of Cyprus’ jurisdiction over a crime committed on its territory to the authorities of an
unrecognized entity established on its territory.182 Turkey, on the other hand, was faulted for
179
Güzelyurtlu, para. 221.
180
181
Ibid, paras. 235-236.
182
49

not making a minimum effort to cooperate by refusing to even consider the Cypriot request for
the extradition of the suspects.183 The Court was unanimous on the issue of the extraterritorial
scope of the duty to cooperate and on Turkey’s failure to comply with it, while the decision
that Cyprus was not responsible was made by 15 votes to 2.184
The analogy with Khashoggi’s case is reasonably straightforward. Both Turkey and
Saudi Arabia have initiated domestic investigations, and the suspects are present in Saudi
territory (and were additionally the state’s own agents). The duty to cooperate would thus be
triggered, notwithstanding any other potential issues regarding the two states’ parallel
investigations. And while Turkey was reasonably accommodating to various Saudi requests in
how the investigation was to be conducted, e.g. with regard to the search of the consulate and
the consul-general’s residence, Saudi Arabia point-blank refused to even consider extraditing
the suspects to Turkey, where the murder took place, and has hardly been forthcoming in
sharing whatever evidence it has at its disposal. It seems reasonably clear, therefore, that Saudi
Arabia is in violation of its duty to cooperate.
The key question here is of course to what extent should the European Court’s approach
to the duty to cooperate under the procedural limb of Article 2 ECHR be generalizable to other
human rights treaties, such as the ICCPR or the Arab Charter, or for that matter to state
obligations under customary IHRL. In its General Comment No. 36 the Human Rights
Committee expressed its view that ‘States should support and cooperate in good faith with
international mechanisms of investigation and prosecutions addressing possible violations of
article 6.’185 The most natural way of reading this sentence would be that the duty to cooperate
extends to investigatory mechanisms established at the international level, such as a UN
tribunal, commission or special mandate, but not necessarily as referring to a duty of states to
cooperate with each other.186
It is also unclear whether the duty to cooperate should extend to states who had no
involvement of their own agents in an individual’s death and do not have the suspects on their
territory, but only possess evidence which may be relevant to an investigation. Such is, of
course, the position of the United States (and perhaps also the United Kingdom and some other
governments) with regard to Khashoggi. These third states may have in their possession crucial
183
184
Ibid.,
185
186
In fact footnote 136, which the Committee uses to support this sentence, refers to its 2012 concluding
observations on Kenya, in which it commented on Kenya’s obligation to cooperate with the International
Criminal Court.
50

items of evidence, particularly in the form of intercepted communications or other types of
signals intelligence.187 Obviously even if a duty to cooperate existed and was triggered it would
not be absolute, but would be limitable by reference to other legitimate goals, such as the need
to avoid compromising intelligence-gathering sources and methods.
6. Conclusion
The murder of Jamal Khashoggi is in many respects a truly extraordinary case. But it
is by no means unique – authoritarian states assassinate journalists and political dissidents with
some frequency. The use of consular premises as the scene of the killing is, of course, one
special feature of this affair. And while diplomatic and consular privileges and immunities are
abused all the time, this is not normally done in so spectacular a fashion.
What makes Khashoggi’s killing so fascinating from the standpoint of an international
legal analysis is the interplay between the human right to life and the rules of diplomatic and
consular law. The fundamentals of the operation of the right to life in its various aspects are
reasonably clear. First, before the killing, the positive duty to protect Khashoggi’s life was
triggered if Turkey and the United States knew, or ought to have known, of a real and
immediate risk to Khashoggi’s life. It seems possible, if not likely, that these two states, and
potentially others as well, did in fact possess such information so that the threat to Khashoggi’s
life was reasonably foreseeable to them. If that was the case, at the very minimum these states
had the duty to warn Khashoggi of the threat, which they did not do.
Second, moving to the moment of the attack on Khashoggi, there is no doubt that Saudi
Arabia was in flagrant violation of the negative obligation to refrain from arbitrary deprivations
of life under Article 5 of the Arab Charter and customary international law. As for Turkey, if
it knew, or ought to have known, of the threat to Khashoggi’s life in the premises of the Saudi
consulate in Istanbul, it would have been required by its obligation to protect his life under
Article 2 ECHR and Article 6 ICCPR to forcibly enter the consulate if that was the only way
of saving his life. Third, Khashoggi’s killing engaged the procedural positive obligation to
investigate his death. As we have seen, while these fundamentals are reasonably clear there are
also many complex questions of scope and applicability, such as the issue of extraterritoriality,
187
See supra notes 98-100 and accompanying text. See also ‘CIA concludes Saudi crown prince ordered Jamal
Khashoggi’s assassination,’ Washington Post, 16 November 2018, at
https://www.washingtonpost.com/world/national-security/cia-concludes-saudi-crown-prince-ordered-jamal-
khashoggis-assassination/2018/11/16/98c89fe6-e9b2-11e8-a939-
9469f1166f9d_story.html?noredirect=on&utm_term=.4f0850758f88 (discussing US intercepts of conversations
mentioning Khashoggi between the crown prince and his brother, the Saudi ambassador to the United States).
51

the triggering of the duty to protect life, or the duty to cooperate. And there is a significant
potential for norm conflicts between human rights on the one hand, and consular privileges and
immunities on the other.
Norm conflicts between human rights and immunities are nothing new for international
lawyers. We are used to looking at conflicts between state immunity and justice for past mass
atrocities committed by state armed forces.188 We are also used at looking at conflicts between
the imperative to fight against impunity and the rules of international law protecting the
immunities ratione personae and ratione materiae of high-ranking state officials.189
Khashoggi’s case, however, allows as to look at a set of possible norm conflicts between
immunities and human rights unfolding in real time, as states have to make various operational
decisions and prioritize one set of concerns over the other. This is not, in other words, a case
about procedural immunity rules conflicting (or not) ex post facto with state substantive
obligations, but a conflict between obligations operating on the same substantive plane. This is
especially the case for human rights obligations applying before and during the attack on
Khashoggi, when the imperative to save his life operated with full force.
In that regard, the analysis above has shown that most of the norm conflicts between
immunities and the right to life could have been avoided in Khashoggi’s case. This is primarily
because Khashoggi was killed on the premises of a consulate and not those of a diplomatic
mission, and because consular privileges and immunities are significantly weaker than
diplomatic ones. First, had Turkish authorities forcibly entered the Saudi consulate in Istanbul
in an attempt to save Khashoggi’s life they would have been justified in doing so, either through
the operation of exceptions from the inviolability rule regarding consular premises or by
invoking distress as a circumstance precluding wrongfulness. Second, many of the decisions
that Turkey had made which compromised the effectiveness of the investigation, but which
Turkey claimed it had to pursue in order to respect consular privileges and immunities, were
in fact not required by consular law. No rule of international law required Turkey to allow the
Saudi agents to leave the country, to allow the consul-general and other members of consular
staff to leave the country, or to ask Saudi Arabia for consent to search the consul-general’s
residence or the consulate’s vehicles. Only the consular premises were protected by
inviolability.
188
189
See, e.g., Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium), Judgment, ICJ
Reports 2002, p. 3.
52

It is therefore unclear why Turkey acted as if international law laid such obstacles in
front of it, when in doing so it actually exposed itself to legal liability under IHRL for failing
to effectively investigate Khashoggi’s death. There are several possible explanations. First,
Turkey could have genuinely misunderstood the legal position, failing to appreciate the
attenuated nature of consular immunities. The confusion of consular privileges and immunities
with the more expansive diplomatic versions has certainly been pervasive in the coverage of
the Khashoggi affair. In fact, in a speech in parliament President Erdogan lamented the fact
that the ‘Vienna Convention’ – he did not specify which – inhibited the investigation through
the ‘diplomatic immunity’190 it provided for, commenting that it may need to be reviewed or
revised.191
Second, Turkey could have understood that it would have been legally entitled to take
the relevant investigative steps without Saudi consent, but nonetheless chose to ask for such
consent. It could have done so in order to avoid antagonizing Saudi authorities and a further
deterioration of their bilateral relationship. In particular, it could have been concerned about
(unjustified) retaliatory measures by Saudi authorities against Turkish citizens or diplomatic
and consular agents in Saudi Arabia. It could also have acted so to avoid any reputational cost
internationally from a perceived violation of norms protecting inviolability, even if legally its
course of action would have been justified. Or it could have had some other, less principled,
political reason.192 Whatever the reason for its conduct may have been, however, Turkey
arguably did not do all it could have done in investigating Khashoggi’s death.
The legal situation would have been much more difficult had Khashoggi indeed been
killed on the premises of a diplomatic mission. In that scenario Turkey would still have been
able to enter the premises of the mission without Saudi consent in order to save Khashoggi’s
life, either on the basis of an implied exception to inviolability in cases of an imminent threat
to human life or on the basis of distress, but it could not have performed most of the relevant
190
In the Turkish original ‘diplomatik dokunulmazlığa’ – see ‘Kaşıkçı'nın öldürülmesi Viyana Konsolosluk
Sözleşmesi'ni tartışmaya açtı,’ Hurriyet, 25 October 2018, at http://www.hurriyet.com.tr/dunya/kasikcinin-
oldurulmesi-viyana-konsolosluk-sozlesmesini-tartismaya-acti-40998026.
191
See ‘Turkey’s Erdogan says there’s strong evidence to show that the Khashoggi killing was planned,’ CNBC,
23 October 2018, at https://www.cnbc.com/2018/10/23/turkey-khashoggi-statement-by-erdogan.html; ‘Erdogan
says the Vienna Convention hamstrung Turkey’s search for Khashoggi. Here’s what that is.,’ Washington Post,
23 October 2018, at https://www.washingtonpost.com/world/2018/10/12/law-that-explains-why-turkey-cant-
search-saudi-consulate-khashoggi/?noredirect=on&utm_term=.59b5fb50b42f.
192
Cf. Callamard, supra note 20, para. 9: ‘The Turkish authorities’ compliance with these standards [of effective
investigation under human rights law] was seriously curtailed and undermined by Saudi Arabia’s unwillingness,
for some 13 days, to allow Turkish investigators access to the crime scenes. Our interviews suggested to us that
the Turkish government’s concerns over diplomatic immunity and over the risks of escalation of the political
crisis may have been a consideration,’ and para. 22: ‘We were told that that Turkey initially sought not to
escalate the issue [of immunity] further, including for fear of retaliation by the Saudi authorities.’
53

investigate steps without Saudi consent if it wished to avoid violating the VCDR. In such a
scenario the IHRL procedural positive obligation to investigate, which is inherently flexible,
could easily be read down to accommodate the more categorically framed diplomatic privileges
and immunities. But that it could be read down in such a way does not necessarily mean that it
should be read down so far as to render it completely ineffective in the circumstances. There is
always the possibility – an uncommon one, but not always inherently an undesirable one – that
Turkey would have found itself in a situation of unresolvable norm conflict, i.e. one in which
it could not comply with IHRL without violating the VCDR, and vice versa. To be clear, I am
not arguing here that human rights trump diplomatic immunity or inviolability in any
hierarchical sense, e.g. by virtue of jus cogens. These are norms on an equal footing, which
may be incongruent. In a situation of unresolvable conflict Turkey would have had a political
choice to make as to which norm to respect and which to violate, paying the legal and political
cost for whatever choice it made.
The harmonious co-existence of different rules of public international law is not some
kind of ultimate good towards which we must always strive. It involves a series of inherently
choices between competing considerations, choices which are inherently political. In fact,
Turkey already chose to violate the inviolability of the Saudi consulate, and effectively
admitted doing so, by subjecting its premises to surveillance, because it pursued some other
goals. It could also have chosen to go against that inviolability in order to conduct an effective
murder investigation, and thus comply with its obligations under IHRL. The price to be exacted
for that violation would likely not have been exorbitant, partly because Turkey could
reasonably argue that it was taking that step because of Saudi obstruction, and partly because
Saudi Arabia does not have the reputation of a state particularly mindful of the sanctity of
immunities under international law. Recall in that regard that in 2017 Saudi Arabia blatantly
violated the immunity and inviolability of a visiting head of government, the Lebanese prime
minister, Saad Hariri, whom it detained, verbally humiliated and beaten, forced to resign from
office, and released only after intervention from Western governments. Leading that assault on
Hariri was the same man who oversaw Khashoggi’s murder, Saud al-Qahtani – by education a
lawyer, but also a princely torturer, poet and propagandist.193
193
See ‘How the man behind Khashoggi murder ran the killing via Skype,’ Reuters, 22 October 2018, at
https://uk.reuters.com/article/uk-saudi-khashoggi-adviser-insight/how-the-man-behind-khashoggi-murder-ran-
the-killing-via-skype-idUKKCN1MW2H4; ‘Behind Prince Mohammed bin Salman’s Rise, Two Loyal
Enforcers,’ New York Times, 14 November 2018, at
https://www.nytimes.com/2018/11/14/world/middleeast/saudi-arabia-crown-prince-loyalists.html; ‘Why Saad
Hariri Had That Strange Sojourn in Saudi Arabia,’ New York Times, 24 December 2017, at
54

If the analysis in this article is correct, so that Saudi Arabia, and arguably also Turkey
and the United States, were in violation of their obligations under IHRL, the question remains
what the consequences of these violations should be. State responsibility for internationally
wrongful acts involves the duty of the relevant state to cease the act if it is still continuing and
to provide full reparation for any injury caused.194 In particular, Saudi Arabia is obliged to
cease any continuing obstruction of any domestic and international investigations into
Khashoggi’s death. Saudi, US and Turkish authorities are also obliged to cooperate to
investigate Khashoggi’s killing fully. Saudi Arabia should also monetarily compensate
Khashoggi’s next of kin for the moral damages that they sustained, both individually and on
Khashoggi’s behalf. Any US and Turkish responsibility for failing to protect Khashoggi’s life
depends on a further investigation of the relevant facts; at the very least reparation for such a
violation would require satisfaction, for example through a public acknowledgement of
responsibility.195
As for the criminal prosecution of the individuals responsible for Khashoggi’s death, it
is possible that the ongoing trials in Saudi Arabia will provide some measure of justice. But it
also seems inevitable that those implicated who are closest to the crown prince will be shielded
from responsibility. Because murder of a single individual is not itself a crime under
international law, and specifically is not a crime of universal jurisdiction, prosecutions of any
persons involved in Khashoggi’s death are likely possible only in Turkey or Saudi Arabia.
Turkey could, for example, ask Interpol to issue red notices regarding any of the relevant
suspects who may travel outside Saudi Arabia, but this will obviously be a matter for the
political judgment of the Turkish authorities. Finally, there is the possibility of a full
international investigation, such as the one authorized by the UN Security Council after the
assassination of Rafiq Hariri (Saad’s father, and former Lebanese prime minister). Hariri’s
killing was also simple murder under domestic law and not an international crime, but it
resulted in the establishment of the Special Tribunal for Lebanon. This only happened,
however, because there was political will in the Council to establish such a court, which has
https://www.nytimes.com/2017/12/24/world/middleeast/saudi-arabia-saad-hariri-mohammed-bin-salman-
lebanon.html?module=inline.
194
See Arts. 30 and 31 ILC ASR.
195
A good comparison point in that regard would be the public apology given by the UK government to Abdel
Hakim Belhaj for the UK’s role in his rendition to Libya, where he was subsequently imprisoned and tortured –
see, e.g., ‘Britain apologises for 'appalling treatment' of Abdel Hakim Belhaj,’ The Guardian, 10 May 2018, at
https://www.theguardian.com/world/2018/may/10/britain-apologises-for-appalling-treatment-of-abdel-hakim-
belhaj.
55

not actually been able to obtain custody over the most important suspects. Bearing in mind the
current political climate, the establishment of such a mechanism seems unlikely here.
That said, whether accountability for Khashoggi’s killing is ever fully realized does not
change the fact that his right to life was protected by international law, as was the right to life
of countless other victims of authoritarian regimes worldwide. The murder was a violation of
the rights Khashoggi himself had had under international law, not simply those of the Turkish
state. It deserves to be discussed in those terms.
56

The Murder of Jamal Khashoggi: Immunities, Inviolability and The Human Right To Life

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The Murder of Jamal Khashoggi: Immunities, Inviolability and The Human Right To Life

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The Murder of Jamal Khashoggi: Immunities, Inviolability and the Human Right to

Electronic copy available at: https://ssrn.com/abstract=3360647

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B. Different obligations stemming from the right to life

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C. Relevant diplomatic and consular law

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3. Before the attack

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B. Threshold inquiry: foreseeability of the threat

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This brings us to the question of the extraterritorial application of the obligation to

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4. During the attack

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C. Turkey’s positive obligation to protect Khashoggi’s right to life

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2. Apparent conflict of norms

3. Norm conflict avoidance and resolution

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4. Reading down IHRL or diplomatic and consular law?

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5. Distress as a circumstance precluding wrongfulness

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5. After the attack

B. Saudi Arabia’s obligation to investigate

It is manifest that Saudi Arabia is in violation of its procedural obligation to investigate

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C. Turkey’s obligation to investigate

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1. Allowing the Saudi agents to leave

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