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Consular immunity or impunity? Jamal Khashoggi's murder puts diplomatic privileges in doubt

If evidence of the journalist's killing was cleared out before Turkish police could conduct a search, then the 'sacrosanct' nature of the consular building effectively obstructed justice

Saudi journalist and government critic Jamal Khashoggi vanished on 2 October after visiting the Saudi consulate in Istanbul to obtain documents for his forthcoming marriage. 

While Turkish authorities have been investigating Khashoggi's disappearance and allegations that he was murdered, Riyadh has strongly denied responsibility, saying it was keen to uncover "the whole truth" of what happened. The kingdom, however, has not presented any evidence to corroborate its claim that Khashoggi left the consulate soon after arriving.

At the same time, Turkish authorities reportedly said they had obtained audio and video recordings proving that Khashoggi was killed after entering the embassy and his body dismembered. The conflicting narratives have increased global scrutiny on the case.

Suspicions raised

Despite claiming to support an investigation, Saudi authorities did not allow Turkish police to search the consulate until Monday, two weeks after Khashoggi's disappearance. Further suspicions were raised by photos showing professional cleaners entering the consulate prior to the police search.

The case has raised serious concerns among international law experts, with UN Secretary-General Antonio Guterres expressing concerns that the disappearance of dissidents was becoming a "new normal". Galip Dalay, a visiting scholar at the University of Oxford, tweeted that the Khashoggi case presents "a major challenge to the rule-based international order".

Michelle Bachelet, the United Nations human rights chief, also called for immunity to be lifted for officials who might be involved in Khashoggi's disappearance. Due to the seriousness of the case, the immunity generally accorded to diplomats "should be waived immediately," Bachelet said.

Although the global outcry over Khashoggi's disappearance is a positive sign, there must be a broader conversation about the international legal ramifications

Putting aside the case's significance in the context of international politics, it also bears great importance with regards to international law. If Saudi consular officials acted unlawfully and misused their consular immunity, then this would infringe on Turkey's sovereign rights. One of the consequences could be a rethink of diplomatic and consular immunities.

Under the current international diplomatic law regime, states want to facilitate ongoing and free communication with other countries in an effort to avoid conflicts. To ensure free channels of communication, diplomats must not feel they are being pressured or coerced by their host states.

Abuses of immunity

The Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular Relations are the twin bases of modern international diplomatic law. But the freedoms afforded to diplomats can be costly, such as when immunity is used to commit, or to cover up, unlawful actions. The more often diplomatic or consular immunity is abused, the more it comes under scrutiny.

There have been various instances in the past in which diplomatic immunity has been abused for crimes such as drug smuggling and human trafficking. While there are mechanisms in place to deal with this, such as persona non grata procedures and waivers of immunity, states often face a dilemma between protecting the main principles of international diplomatic law - under which consular buildings are essentially sacrosanct - and advocating for human rights and public security. 

Diplomatic and consular immunities are seen as essential for the sustainability and efficiency of the international diplomatic regime. But what would happen if the misuse of these powers grows to such an extent that human rights and respect for other states' sovereignty are jeopardised?

The Khashoggi case offers an opportune time to discuss this. If he was indeed killed inside the Saudi consulate, and evidence was cleared out in the two weeks prior to the Turkish police search, then the "sacrosanct" nature of the consular building would have effectively obstructed justice.

Time for scrutiny

On the other hand, if the Khashoggi case does not bring any serious scrutiny of how consular immunities might have served to facilitate a crime and obstruct justice, this could encourage rogue regimes around the world to engage in similarly reckless actions. Although the global outcry over Khashoggi's disappearance is a positive sign, there must be a broader conversation about the international legal ramifications. 

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This is where the Vienna Conventions could come in. Their vague and shallow language concerning abuses of diplomatic and consular immunities effectively curbs the chances of challenging the sacrosanctity of these entities. 

Even though the Conventions clearly state that it is the duty of all persons enjoying diplomatic or consular immunities to respect the laws and regulations of the receiving State and the diplomatic or consular premises shall not be used in any manner incompatible with the exercise of diplomatic functions, the relevant provisions do not contain any clear sanction for  misuse of diplomatic or consular buildings.

I believe that it is crucial for the parties of Vienna Conventions to update and elaborate these provisions and impose clear sanctions, such as the temporary removal of the immunity of diplomatic or consular buildings and bags, if there is reasonable doubt that a grave crime is committed in those buildings and there is a risk of spoliation of evidence.

Whether Khashoggi's case leads to substantive change in this area remains to be seen, but the international scrutiny on his case has opened a door to contemplate possible solutions for abuses of diplomatic immunity.

- Deniz Baran is a research Assistant at Al Sharq Forum and a research and teaching assistant at the International Law Research Center (UHAM), affiliated with Fatih Sultan Mehmet University.

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Eye.

Photo: CCTV footage shows Khashoggi arriving at the Saudi consulate in Istanbul on 2 October 2018 (AFP)