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The path(s) to justice in Jamal Khashoggi's murder
October 24, 2018
Author: Joel Simon
Source: Committee to Protect Journalists

In an emotional address to Turkey's parliament today, President Recep Tayyip Erdoğan described the murder of the journalist Jamal Khashoggi as a savage and premeditated act and demanded that Saudi officials be brought to Turkey to stand trial. Most of the information about the investigation that has emerged has come through leaks to the Turkish media. So the fact the Turkey's president would put his personal prestige on the line raised the stakes considerably.

What Turkish investigators appear to have uncovered thus far about the crime is astonishing. A good deal has been independently corroborated by journalists and media organizations, such as The New York Times, which demonstrated that several of the men allegedly dispatched from Riyadh to carry out Khashoggi's murder and dismemberment are part of Crown Prince Mohammed bin Salman's security detail.

But given Turkey's record as the world's leading jailer of journalists and a systematic violator of media rights, it is clear that whatever motivation Erdoğan has for taking on the Saudis is not a deep and abiding respect for press freedom. Turkey's judiciary is hardly independent; political dissidents have faced systematic state-directed persecution. Ensuring the credibility of the probe is one reason that Turkey should request that the United Nations establish an international investigation, as CPJ, Human Rights Watch, Amnesty International, and Reporters Without Borders outlined in an appeal made at the U.N. on October 18.

So far, Turkey is not playing ball. But there are other ways to secure the U.N.'s involvement, as noted in a Washington Post opinion column from David Kaye and Agnes Callamard, the U.N. special rapporteurs on free expression and summary executions, respectively. The Security Council or the Human Rights Council based in Geneva can also authorize a U.N. investigation.

As Kaye and Callamard noted, U.N. involvement is crucial to ensuring transparency and accountability and could form the basis for punitive actions against Saudi Arabia, including the "possible expulsion of diplomatic personnel, removal from U.N. bodies (such as the Human Rights Council), travel bans, economic consequences, reparations and the possibility of trials in third states."

The U.N. investigation could also serve as the basis for a criminal case under the U.N. Convention against Torture, to which Saudi Arabia is a signatory. The convention bans torture "inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity." Under the principle of universal jurisdiction, the case could technically be brought by any country that is signatory to the convention, including the United States.

In fact, a credible international investigation does not absolve the United States of its responsibility to pursue justice. On October 2, 22 U.S. senators sent a letter to President Donald Trump, formally triggering a provision of the Magnitsky Act, which requires the president to determine "whether a foreign person is responsible for a gross human rights violation." Such investigations, which are generally carried out by the State Department, can be used by the Treasury Department to impose sanctions on anyone "deemed responsible for a serious rights violation such as torture, prolonged detention without trial, or extrajudicial killing of someone exercising freedom of expression."

Given the gravity of the Khashoggi killing and the demand for action, CPJ is calling on the State Department to complete a preliminary investigation within 45 days, by November 16. At that point, the Senate Foreign Relations Committee should hold a hearing on Saudi Arabia to consider evidence of official involvement in the Khashoggi murder, the systematic persecution of journalists in the kingdom, and possible responses, including sanctions, travel bans, prohibitions on arms sales, and other punitive measures. Given his business dealings with Saudi Arabia, President Trump is personally conflicted. Thus far, he has failed to articulate a coherent response to the Khashoggi murder. That's why the foreign policy debate must take place in public rather than behind closed doors. The Senate is the best venue.

The Justice Department also has a role. Because Khashoggi was not a citizen but a permanent resident, and because his murder is alleged to have been carried out by a government rather than a terrorist group, there are significant obstacles to a criminal investigation. But given the heinous nature of the crime and Khashoggi's connection to The Washington Post, the FBI should explore possibilities, including securing a request for cooperation from Turkish officials. It's worth noting that CIA Director Gina Haspel is currently in Turkey.

Finally, Khashoggi's children, some of whom are U.S. citizens, and his employer, The Washington Post, may be able to bring civil claims in the United States. As Post opinion writer Josh Rogin outlined in a recent column, the Torture Victim Protection Act of 1991, which gives U.S. courts jurisdiction over torture committed anywhere in the world, and the Alien Tort Claims Act, which has been used to sue to human rights abusers, are two possible avenues.

In order to be successful, any legal effort requires some level of cooperation from Saudi officials, which is why U.S. businesses must use whatever influence they have. The refusal by many to participate in the Saudi Future Investment Initiative is a good first step. U.S. lobbying firms should decline to take on a Saudi account until a credible and independent investigation is underway. The vast constellation of public relations firms, think tanks, and other interests who deal with the kingdom must not simply return to business as usual, no matter how much money is at stake.

There is no single path to justice in the Jamal Khashoggi murder. Precisely because of Saudi influence, there needs to be multiple efforts on different fronts. No one should be naive about the possibility of success. At the same time, everyone should recognize the consequences of failure. The brutality of Khashoggi's killing has captured the world's attention, and it demands an extraordinary response. Already, 28 journalists have been murdered around the world in 2018, a dramatic increase from the past two years. If the Saudis can get away with the monstrous conspiracy to murder Jamal Khashoggi, then no journalist anywhere is safe.