The Khashoggi affair and consular law
Updated on 07 August 2022
Some points of law concerning this sickening and profoundly worrying case need clearing up. I am not a diplomatic lawyer and I have no knowledge of any relevant recent case law but I have had occasion in the past to brood on the Vienna Convention on Diplomatic Relations (1961) and its sister the Vienna Convention on Consular Relations (1963). In light of my knowledge of these treaties and the thinking that went into them by the jurists on the International Law Commission, I offer the following thoughts:
1. The Saudi Consulate-General in Istanbul, like all other consular and diplomatic missions, is not ‘sovereign territory’, although this is being constantly repeated. This is a complete myth. The inviolability of such premises is not justified in international law on these grounds but on the argument that without inviolability – especially in unfriendly states – diplomats and consuls could not fearlessly discharge their proper functions: ‘the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of functions by consular posts on behalf of their respective States’ (VCCR (1963), preamble).
2. ‘Consular functions’ (see Berridge and Lloyd, The Palgrave Macmillan Dictionary of Diplomacy, 3rd ed., pp. 76-7 – unfortunately not available in Arabic) are not generally supposed to include the seizure, torture, killing, dismemberment and secret disposal of the body parts of a citizen. Put another way, a chief consular function is to assist nationals in distress, not cause it in the most grotesque manner imaginable.
3. Compared to diplomatic premises, the inviolability of consular premises (irrespective of the status of the mission), is qualified in a very significant respect: they may be entered by the authorities of the receiving state without the express consent of the head of the mission ‘in case of fire or other disaster requiring prompt protective action’ (my emphasis added, VCCR (1963), art. 31(2)). The wording I have italicised here is interesting. I would have thought that a strong legal case could be made that Jamal Khashoggi’s fate in the Saudi Consulate-General was a ‘disaster’ because it threatened first himself, his family and friends, second journalistic freedom, and third, the minor matter of the international order – as subsequently remarked by the UN Secretary-General. Therefore, having come to the notice of the Turkish authorities, they would have been legally entitled as well as morally obliged to force their way into the consulate and arrest everyone inside, even if they were too late to save Khashoggi.
4. The private residence of the head of a consular mission – in contrast to the head of a diplomatic mission – has no inviolability whatsoever, since it is not included in the definition of ‘consular premises’ contained in the VCCR (1963); compare art. 1.1(j) here with art. 1(i) of the VCDR (1961). So with even stronger legal justification, the Turkish authorities could have seized it immediately.
5. In matters not connected with the exercise of their functions, consular officers, in further contrast to diplomats, might be called on to give evidence at judicial or administrative proceedings (VCCR (1963), art. 44).
6. In the case of a ‘grave crime’, and in yet further contrast with a diplomat, a consular officer might be liable to arrest or detention pending trial; required to appear in court in person, if facing a criminal charge; and be imprisoned in execution of a final judgement (VCCR, art. 41).
In light of points 5 and 6 above, it is not surprising that the Saudi Consul-General did a runner. The Turks would, of course, be entitled to seek his extradition, if only to give evidence; according to one report I have read, he was himself threatened with death if he did not ‘shut up’.
This blog appeared first on the personal blog of Prof G R Berridge and is republished here with permission.