The Vienna treaties and the Khashoggi investigation

Published 28.11.2018 00:43
Updated 28.11.2018 00:49
A Turkish forensic officer walks in front of the pictures of Saudi Crown Prince Mohammed Bin Salman (L) and Saudi King Salman (R) during an investigation at a villa in Yalova city, Turkey, Nov. 26.
A Turkish forensic officer walks in front of the pictures of Saudi Crown Prince Mohammed Bin Salman (L) and Saudi King Salman (R) during an investigation at a villa in Yalova city, Turkey, Nov. 26.

Intervention in the Khashoggi investigation by Saudi Arabia and the states that back it confirms that the Vienna treaties are still open to violation and makes the need for a reformation process for the convention inevitable

The controversies surrounding the Jamal Khashoggi killing have given way to some debates about the credibility and functionality of the Vienna Convention on the Law of Treaties, an international legal agreement drafted by the United Nations many years ago to regulate the diplomatic affairs of world states. As required by the convention, the crime scene of the brutal homicide, the Saudi Consulate in Istanbul, was not to be investigated for the first few days after the slaying of Khashoggi. President Recep Tayyip Erdoğan also joined the critics and stressed that "the convention should and is likely to be revised and reviewed soon" as it prevented the investigation from moving quickly thanks to the convention "providing diplomatic immunity to the consulate."

Criticism of the Vienna Convention was first uttered by Michelle Bachelet, the incumbent U.N. high commissioner for human rights. "Given the information suggesting that high-level officials in Saudi Arabia were apparently involved, and it took place in the consulate of Saudi Arabia, the bar must be set very high to ensure meaningful accountability and justice for such a shockingly brazen crime against a journalist and government critic," Bachelet said.

In the meantime, Federica Mogherini, the high representative of the EU for foreign affairs and security policy, stressed that "the emerging circumstances of Jamal Khashoggi's death are deeply troubling, including the shocking violation of the 1963 Vienna Convention on Consular Relations." She reminded that the case is "in violation of article 55 of the Vienna Convention, which is about the respect for the laws and regulations of the receiving state."

When it comes to such diplomatic immunity issues, the Vienna Convention, the sole related international document, is always cited. However, contrary to popular belief, there are two Vienna conventions at present. The first one is the convention ratified in 1961, relating to diplomatic relations that regulate the duties of ambassadors and embassies and the issues of embassy buildings and ambassadors' residences. The second is the 1963 convention on consular relations and optional protocols, which contains legal regulations on the officers and buildings of consulates. In other words, the two agreements differ between embassies and consulates, and there are stark differences in many cases.

In the Khashoggi case, the 1963 Vienna convention has emerged as the binding code since the Saudi dissident was killed in a consulate building. According to the convention's 31st article, "The authorities of the receiving state shall not enter that part of the consular premises which is used exclusively for the purpose of the work of the consular post except with the consent of the head of the consular post or of his designee or of the head of the diplomatic mission of the sending state," and the article continues as follows: "The consent of the head of the consular post may, however, be assumed in case of fire or other disaster requiring prompt protective action."

Nevertheless, the same agreement contains the 41st article saying, "Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority." Therefore, consular officers can never be detained for their official work, such as visa procedures, yet it is required that they naturally should be held accountable for their criminal activities. In addition, ambassadors cannot be detained nor can their residences be investigated as regulated in the 29th article of the 1961 Vienna Convention on Diplomatic Relations: "The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving state shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity."

In a nutshell, Saudi Arabia's attempts to prevent Turkish police from investigating the consulate building moments after the killing were a direct violation of the principles of international law, according to the convention; thus, it restarted the debates about the Vienna Convention. Therefore, Erdoğan and others are right to demand a review of the related articles and their effectiveness.

The brief details

The 1963 Vienna Convention that consists of 79 articles regulating diplomatic relations within the framework of the U.N. were approved and signed by some 179 states. It is the most comprehensive authority on diplomatic affairs and related cases. When evaluated in relation to the Khashoggi case, the 55th article of the treaty, "Respect for the Laws and Regulations of the Receiving State," is significant in practice, as it says, "Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving state."In the same article, it is also written that no one can interfere in the internal affairs of the state; however, since the Khashoggi murder is a grave crime, the article should have been superseded, as the treaty entails. The Saudis' blocking of the investigative process and other countries' – often deliberate – ignorance, like of the U.S. did not allow the case to be easily solved. Their political intervention also complicated the situation and led to the story becoming a tool for political purposes and scenarios.The explicit provision was used as an excuse by the Saudis, who were backed by some other countries as well. Now here we are, still searching for the body. Heaven knows why the same countries do not show the same sensitivity while intervening in the domestic issues of other countries.

The famous joke, "Why don't any coups happen in the U.S.? Because there are no U.S. Embassies there," sums up the U.S. stance in diplomatic and other states' internal dynamics. Though the U.S. has largely refrained from getting involved in the Khashoggi investigation and has pointedly not targeted the murder's first suspected abettor, Saudi Crown Prince Mohammed bin Salman, the de facto ruler of the kingdom, Washington didn't have a problem intervening in the coup attempt in Turkey in July 2016, offering support to its perpetrators and affiliates. The U.S. also dipped its hand into all previous coups and memorandums in Turkey; it even encouraged military members and linked politicians to shape the country. Hence, the article regulating the states' attitude toward the internal issues of others is not an innocent legal code nor is it innocently used.

To get back to the subject, all of the 179 parties of the two Vienna treaties know very well that it is not so easy to review and renew such a comprehensive international document that effects each of them. However, none of them dare to withdraw, fearing both trouble with diplomatic protection and immunity. No matter what, it is high time for all parties to take a mutual initiative to put the treaties on the table and start discussing their future to prevent the problems seen in the Khashoggi investigation from reoccurring. Maybe reformation of the conventions may also even prevent or at least lessen the number of such murders in the future.

* Istanbul-based attorney, Ph.D. student in constitutional law at Istanbul Şehir University

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