How Turkey can move forward with prosecuting Khashoggi’s killers

After weeks of denial, Riyadh has accepted its involvement in the killing of Saudi critic, Jamal Khashoggi, dismissing five top officials and arresting 18 others. This is how legal experts say the case can proceed.

Turkey will not allow Saudi Arabia to get away with murder, President Erdogan said after the acknowledgement of Riyadh’s murder of dissident Jamal Khashoggi. An Indonesian journalist holds a placard during a protest over the killing in front of the Saudi embassy in Jakarta, Indonesia, October 19, 2018. (Beawiharta / Reuters)

With the recognition by Riyadh that its operators had killed the Saudi critic Jamal Khashoggi in its Istanbul consulate, it raises the question of how Turkey—where the crime has been committed—can put the perpetrators on trial.  

Turkish President Recep Tayyip Erdogan has indicated in his speech that Turkey will take every measure to investigate the murder and reveal all the facts related to the case. 

"We will surely investigate this murder committed within our borders with all its dimensions and do whatever is necessary,” Erdogan said in his address to AK Party parliamentarians.

He has also demanded that Saudi officials extradite 18 officials who were arrested by the kingdom this week over their involvement in the crime. 

Riyadh has also dismissed five top officials including the Saudi Kingdom’s second-highest ranked intelligence official. 

Erdogan’s demand bases itself on the principle of territoriality. If the alleged perpetrators are out of the host country territories, the host country can ask extradition from states where the fugitives are located according to the rule. 

In the Khashoggi case, the crime was committed by Saudi operators on Turkish soil. 

“The perpetrators of the murder are clear. [They are Saudi officials.] The crime has been committed in our soil. It’s pretty normal that Turkish judiciary should be able to prosecute them,” said Nihat Bulut, a law professor at Istanbul Sehir University. 

Even if the perpetrators had diplomatic immunity at the time of the killing, Riyadh could not use it as a shield for a felony like the one its officials committed against Khashoggi. 

Despite the Vienna Convention of 1963, which regulates diplomatic immunity, the convention still allows states to capture, detain and arrest alleged perpetrators if they commit a felony against an individual or individuals in its territory according to Ersan Sen, a prominent Turkish law professor, who specialises in criminal law. 

Turkish President Recep Tayyip Erdogan addresses members of parliament from his governing AK Party during the party’s parliamentary meeting in Ankara on October 23, 2018. (Tumay Berkin / Reuters)

"Diplomatic immunity, which is a part of the Vienna Convention, will be debated," Erdogan also recalled. 

Turkey shows all indications that it will pursue the case to its full extent.

 "As Turkey, we will follow this matter until the very end, making sure that whatever international law and our legislation requires will get done," Erdogan said.

He also invoked international sentiment to pursue the case saying that Ankara will fulfil its mission “not just as a matter of its right to sovereignty, but also on behalf of the international community and the collective conscience of humanity."

His point appealing to the collective conscience of humanity is not a coincidental reference.

“A citizen cannot be extradited by the citizen’s state,” is one of the strongest legal principles across continents, Bulut told TRT World. 

Based on external accusations, “No sovereign state will [usually] accept to extradite its citizens because it is directly related to the issue of sovereignty.” 

Like other rules, there are exceptions to this rule outlined in the Rome Statute of the International Criminal Court (ICC). The main exceptions are holocaust, war crimes, and crimes against humanity, said Bulut. 

“If the reports are accurate, the acts against Mr. Khashoggi are serious violations of international human rights law, including the law to protect the individual from torture and forced disappearance,” said Stephen Rapp, who led the war crimes unit of US State Department in the past. 

Saudi officials might be prosecuted in an international court over Khashoggi case, experts say. Presiding Judge Robert Fremr, center, stands in the courtroom during the closing statements of the trial of Bosco Ntaganda, a Congo militia leader, in The Hague, Netherlands, on Aug. 28, 2018. Ntaganda is facing charges of war crimes and crimes against humanity allegedly committed in the eastern Ituri region of Congo from 2002-2003. (Bas Czerwinski / AP Archive)

In his speech, Erdogan might be indicating that the Turkish state will apply one of these exceptions, possibly, a crime against humanity, to ensure the extradition of the Saudi perpetrators to Ankara. 

But there could be another legal obstacle to deny or delay Turkey’s extradition if Saudi Arabia exhausts domestic remedies before the fulfilment of an extradition request or an international prosecution, Bulut says.

Saudi judicial authorities might directly take legal action against the alleged perpetrators and eventually punish them, leaving no leeway for a Turkish extradition request or an international prosecution. 

Even if Saudi courts have not taken any action, “the perpetrators could also demand from the courts to prosecute them,” Bulut said. 

Beyond extradition, Turkey might demand a full international investigation over the murder. 

It is clear that the Khashoggi killing is a political killing based on his political opposition to the Saudi government, de-facto run by the inexperienced son of King Salman, Crown Prince Mohammad bin Salman, whose heavy-handed measures have made many around the world doubt the direction of the oil-rich country. 

The actual perpetrators of the crime used a consulate, a diplomatic mission, and diplomatic immunity as a legal shield to conduct their crime against a Saudi citizen on foreign soil, which begs the question: could they have possibly been working outside the orders of the royal family?

Erdogan described the crime as "premeditated murder."

If Turkey wants to go after Khashoggi’s killers in the international arena by using the accusation of a 'crime against humanity', then, the ICC will make a decision on whether the Khashoggi murder constitutes that crime under its jurisdiction or not. 

Beyond the ICC, suspected Saudi officials can be prosecuted in an international tribunal established under the auspices of UN.  

“These kinds of acts give rights to the victims and others to raise this issue in international bodies and may open possibilities of private litigation,” Rapp told Washington Post.

Until now, the way Turkey has thoroughly followed the case has made many around the world to applaud the country’s law enforcement and prosecution offices, crediting Erdogan to lead a difficult case in a sophisticated and comprehensive manner. 

“Turkey is not making a political case over the Khashoggi murder. It’s going after the murder in a legal sense. That’s the most precise way” to follow the case, Bulut, the Turkish law professor, observed.