As speculation grew about the fate of the Saudi journalist Jamal Khashoggi, who vanished after entering his nation’s consulate in Istanbul on Oct. 2, the Saudi crown prince Mohammed bin Salman was quick to dispel rumors he had been murdered.
“We have nothing to hide,” the de-facto Saudi leader, known by his initials MBS, said three days later. “The premises are sovereign territory, but we will allow [Turkish authorities] to enter.”
On one thing at least, the Crown Prince was mistaken — consulates and embassies are not, in fact, sovereign territory under international law.
“He is incorrect,” says Dapo Akande, a professor of public international law at the University of Oxford. “As a matter of international law that’s absolutely clear, the consulate is not within the sovereignty of Saudi Arabia.”
Whatever happened to Khashoggi, he says, “is an event that happened within Turkish territory to which Turkish law applies.”
Part of the confusion stems from the fact that the 1961 Vienna Convention, which sets out the rules governing consulates and embassies, guarantees the “inviolability” of diplomatic premises.
“That means the host state can’t just go in without the consent of the state whose consulate it is,” says Akande. That’s why Turkish authorities had to wait for Saudi permission to enter. (In the end, they were finally allowed in on Monday, ten days after MBS’s guarantee.)
Yet while the principle of inviolability guarantees some measure of protection to consulates, it does not mean that events that take place there are not subject to the host country’s own laws.
“If Khashoggi was killed in the consulate in Istanbul, then that’s murder under the laws of Turkey,” says Akande. “Anybody can in principle be prosecuted for that murder. Unless that individual also has immunity.”
Diplomatic immunity is a form of legal protection given to diplomats serving in foreign countries, ensuring they cannot be prosecuted under their host country’s laws. But diplomatic personnel are individually granted immunity under agreement by both Turkey and Saudi Arabia.
If, as reports suggest, Khashoggi was murdered by Saudi operatives flown in specifically for the act, they would not enjoy the same immunities as consular staff might. “Those people were like a death squad who just turned up on private jets,” says Professor Madawi Al-Rasheed, the editor of Salman’s Legacy: The Dilemmas of a New Era in Saudi Arabia. “That’s not somebody with diplomatic immunity.”
In theory, this means that Khashoggi’s alleged killers could be prosecuted in Turkey. “Turkey could seek an international arrest warrant for them,” Akande says. “If they’re Saudi, Saudi Arabia won’t turn them over. But they probably won’t be able to go anywhere else.”
But even if they did have diplomatic immunity, it doesn’t shield perpetrators of major crimes. The Vienna Convention says immunity can be annulled in the case of a “grave crime” pending the decision of a “competent judicial authority.”
That might be the next step for the international community. Rights groups including Amnesty International and Human Rights Watch called on the U.N. on Thursday to open an independent investigation into Khashoggi’s disappearance.
“My own view is that the issue is beyond any debate or discussion as to whether international law is on MBS’s side,” says professor Nader Hashemi, director of the Center for Middle East Studies at the University of Denver. “It’s pretty clear the circumstantial evidence points to the murder of Jamal Khashoggi, and now Saudi Arabia has to account for the crime.”
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