Can Saudi Arabia get away with murder?

The disappearance of Saudi journalist Jamal Khashoggi, a prominent critic of Riyadh, raises complicated questions about what legal avenues can be pursued if the Saudis are indeed implicated in the murder of Khashoggi. 

Turkey has indicated that Ankara has audio and video recordings which definitely prove the killing. 

“We usually describe this kind of situation with a legal concept called ‘forced disappearance',” said Nihat Bulut, a law professor at Istanbul Sehir University. 

“Whether it’s legal or illegal, if someone who has been taken into custody by a state loses contact with the outside world, then, a case of forced disappearance emerges,” according to legal theory, Bulut said. 

“The acts of forced disappearance is a violation of the right to life and maltreatment,” Bulut says, and states responsible for the crimes are eligible to pay compensation to relatives of the victim, if they are found guilty. 

According to the Declaration on the Protection of All Persons from Enforced Disappearance enacted by the UN Assembly in 1992, acts of enforced disappearance also violate international law. 

The perpetrators of a forced disappearance could be pursued by the host country’s law enforcement agencies across territories where it has sovereignty, Bulut indicated. 

In the Khashoggi case, according to Turkey, the murder has been committed in Istanbul, which is located in Turkish territory. 

As a result, because the host country is Turkey, it has responsibility to conduct a judicial investigation against the accused. Ankara has already indicated its intention to pursue the case and the alleged perpetrators. 

If the perpetrators are out of the host country's territory, the host country can ask for extradition from the state where the fugitive is located, Bulut said. The extradition request is based on something called the ‘principle of territoriality.’ 

But if a crime has been committed by those with diplomatic immunity and/or has been committed in a location which has diplomatic immunity (like an embassy or consulate), things become much more complicated for the host country in terms of pursuing the perpetrators. 

Turkey would have to deal with the hurdles and complications of diplomatic immunity to pursue the case if it turns out that Khashoggi is dead and the Saudis are suspected of the crime. 

Ankara says that the alleged crime has been committed by a 15-man Saudi 'hit squad', whose members apparently have diplomatic immunity. The crime is alleged to have been committed inside the boundaries of the Saudi Consulate in Istanbul. 

According to the Vienna Convention of 1963, which Turkey is a signatory to, without permission from Saudi consulate officials or from the country’s foreign ministry, Turkey can not raid or search the consulate territory, Mahmut Koca, the dean of the Law School at Istanbul Sehir University told TRT World. 

Turkey has put in a request to the Saudis to search the property of the consulate. Riyadh has also made its notification to Ankara that it will permit Turkish law enforcement to search the consulate if it requires. 

Because of the clauses of the Vienna Convention on consular immunity, it will be very difficult for Turkey to charge the alleged perpetrators who have diplomatic immunity. 

“But those perpetrators could be declared as persona non grata,” said Koca. 

In international law, persona non grata refers to people who are prohibited by a particular state to enter its territory or to stay there. 

"That's a pretty drastic step, but this is also a pretty drastic case," said Ben Saul, a professor on international law at the University of Sydney, referring to a possible persona non grata decision by Turkey. 

Last March, Britain expelled more than 20 Russian diplomats whom London has described as intelligence officers after an ex-Russian intelligence agent, Sergei V. Skripal, and his daughter were allegedly poisoned by Russian operators in London according to British authorities. 

The convention still allows states to capture, detain and arrest alleged perpetrators if they have a serious and rational suspicion that the perpetrators have committed a felony against an individual or individuals in its territory according to Ersan Sen, a prominent Turkish law professor, who specializes in criminal law. 

Because of the nature of the alleged crime against Khashoggi, Turkey can “detain” consulate officials “including the head consulate,” Sen observed. 

But Ankara should be careful before taking that kind of grave action, he added. 

The British action against Moscow’s alleged poisoning of Skripal has created a perfect political storm, triggering many European countries and the US to take similar action against Russia. 

At least, 150 Russian diplomats have been expelled since then. 

Russia has additionally taken drastic steps against London, expelling more than 70 British diplomats. Moscow also strongly denied any explanation to London about the incident, dismissing any chance of reconciliation with the British government until now. 

In the Khashoggi case, the situation appears more different than the Skripal case. Both Riyadh and Ankara have expressed their willingness to work together to unravel what happened to the Saudi journalist. 

But the disappearance of Khashoggi has raised eyebrows around the world about the direction of the oil-rich country under the inexperienced Crown Prince Mohammed Bin Salman. 

In Washington, a bipartisan group of US senators demanded that US President Donald Trump evoke the Global Magnitsky Act (GMA) enacted by the US Congress in 2012 against the Saudi government.

The Magnitsky Act equips the president to act against foreign perpetrators of a particular crime which involves extrajudicial killing, torture and other drastic violations of universally recognised human rights.