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How the Saudi crown prince could face justice

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Saudi Crown Prince Mohammed bin Salman and his henchmen may believe they are outside the reach of international justice after the killing of journalist Jamal Khashoggi, but they should not be so sure.

There are a range of ways the Saudi leader and the other perpetrators could be punished for their alleged crimes, in both civil and criminal courts all over the world.

“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, the former US State Department ambassador-at-large for war crimes issues.

Seeking justice and accountability for Khashoggi's killing will not be easy, but several mechanisms do exist to go after MBS, as the crown prince is known, and the Saudis who reportedly carried out the murder, Rapp said. Khashoggi's family have the right to pursue justice in civil courts, and prosecutors in several countries could also bring criminal charges, based on international law and precedent.

“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 said. “Stronger than that, are the possibilities that the torture and forced disappearance of Mr Khashoggi, and the murder being the worst of it, would open the way for prosecution in third countries of those involved in these acts.”

Criminal prosecutions of MBS and other Saudi officials could be brought under the United Nations Convention against Torture, to which Saudi Arabia is a signatory.

The convention prohibits acts that inflict “severe pain or suffering ... 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”.

Through the principle of universal jurisdiction, any country that is a party to the convention, including the United States, could refer a case to the International Court of Justice and seek an order for Saudi Arabia to prosecute or extradite MBS and the other suspects.

A recent example is when Belgium brought a case against Senegal seeking the extradition and prosecution of Hissene Habre, the former President of Chad, for crimes against humanity.

The United States and the Trump Administration have resisted the principle of universal jurisdiction, for fear American officials could face charges.

But other countries, such as Germany, have been more aggressive in prosecuting crimes such as torture and forced disappearance no matter where they occurred.

In June, Germany's chief prosecutor issued an international arrest warrant for the head of the Syrian Air Force's Intelligence Directorate on the charge of war crimes.

“You could argue the Saudi approach to their enemies is a widespread and systematic attack against a civilian population, in which case murder, torture and forced disappearance would be a crime against humanity, which would be prosecutable by an international tribunal,” Rapp said.

As of Monday morning, the Saudi Government was still characterising the killing of Khashoggi, a Washington Post contributing columnist, as a “rogue operation” and claiming the crown prince was not aware or involved.

Donald Trump, despite saying Saudi official stories have included “deception” and “lies”, still refuses to say that MBS himself is responsible.

But under international and US law, even if MBS can't be proven to have known about Khashoggi's killing in advance, he would still be culpable because he had command responsibility over the killers. For example, US federal courts in 1995 ruled that Guatemalan defence minister Hector Gramajo was responsible for the rape and torture of Sister Dianna Ortiz by forces under his control.

“Liability under the principle of ‘command responsibility' requires showing of effective control, reason to know of conduct and failure to prevent the acts or punish those directly responsible,” Rapp said. “Scapegoating would not count as punishment and would make it worse for MBS.”

Serving a US arrest warrant or lawsuit on MBS or any of the other perpetrators might be impossible if they don't actually enter the United States.

But if any of the suspects ever sets foot on US soil again, that person could be arrested and charged according to US law. MBS, as a high-ranking diplomatic official, might claim immunity, but that would be for the courts to sort out.

MBS and the other suspects are also personally vulnerable to various types of civil litigation.

Khashoggi's family members could sue in US courts under the Torture Victim Protection Act of 1991, which gives US courts jurisdiction over torture committed by anyone, anywhere.

Khashoggi's family could also sue under the Alien Tort Claims Act of 1789.

That law has been used to sue human rights violators, including Sudanese president Omar Hassan al-Bashir. “If I was the family, I would be looking at that option,” Rapp said.

Congress could also pass a law allowing Khashoggi's family to sue the Saudi state, as it did for the victims of the 9/11 attacks, over the objection of the Obama Administration.

All of these paths towards justice and accountability for Khashoggi's killing require those who care about rule of law, international justice and human rights to fight to enforce them. MBS may believe he has enough power, influence and invincibility to escape real justice — and he may be proven right.

But he can never be sure. And for the rest of his life, MBS will enjoy the pariah status afforded to other international human rights violators.

Whenever he or his accomplices travel to a country where human rights are enforced, they will have to worry if they would be held accountable for Khashoggi's killing and various other crimes.

Josh Rogin is a columnist for The Washington Post. He writes about foreign policy and national security. Rogin is also a political analyst for CNN. He previously worked for Bloomberg View, the Daily Beast, Foreign Policy, Congressional Quarterly, Federal Computer Week and Japan's Asahi Shimbun newspaper

Under investigation: a guard exits the Saudi consulate in Istanbul, Turkey yesterday. President Recep Tayyip Erdogan contradicted Saudi Arabia's explanation that Saudi writer Jamal Khashoggi was accidentally killed. He demanded that the kingdom reveal the identities of all involved, regardless of rank (Photograph by Lefteris Pitarakis/AP)
Josh Rogin is a columnist for the Global Opinions section of The Washington Post. He writes about foreign policy and national security. Rogin is also a political analyst for CNN

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Published October 24, 2018 at 9:00 am (Updated October 24, 2018 at 9:58 am)

How the Saudi crown prince could face justice

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