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Interview with Toby Cadman on Jamal Khashoggi’s case: Cooperating or clashing over his killing?”

On 23 October 2018, Head of Guernica 37 International Justice Chambers, Toby Cadman, was interviewed in the Aljazeera programme “Inside Story” about the abduction and killing of Saudi journalist Jamal Khashoggi, which was carried out inside the Consulate of the Kingdom of Saudi Arabia in Istanbul.

The programme followed a strong speech delivered by the President of Turkey, Recep Tayyip Erdoğan, giving more details about the killing of Jamal Khashoggi. The President confirmed that Khashoggi was murdered brutally as a consequence of a premeditated plan. In his speech, Erdoğan highlighted that many questions remained unanswered, including who ordered his death and where is the journalist’s body. “It is very important that such a critical investigation is carried out by a truly unbiased and fair delegation with no doubt about their connections”—said Erdogan, who also promised a “naked truth” and follow investigations “until the end”, calling for the trial of suspects before Turkish national courts. President Erdoğan did not reveal any new details about Khashoggi's death, but his speech was the first public declaration by the Turkish head of state on the circumstances surrounding the death.

Toby Cadman conducted an insightful and thought-provoking analysis of the case from an International Law perspective. He set out some of the main legal questions on jurisdiction and procedure that a crime carried out in a consulate of a third country could raise, such as whether a consulate mission has the same status as a full diplomatic mission or an embassy, or the reach of sovereignty.

He concluded that Turkey is “entirely within its right to investigate and prosecute this before their domestic courts”, and consequently, Turkish authorities are entirely entitled to seek the extradition of not only the individuals arrested, but potentially of the Crown Prince, Mohammad bin Salman as well, even if there is a question of whether he would be covered by any form of diplomatic immunity to stand trial.

He also referred to international avenues to prosecute this case. If Saudi authorities refuse to cooperate in any form, either the U.S. or Turkey could bring this issue before the International Court of Justice, and seek a declaration confirming that Saudi authorities “should prosecute or extradite” the individuals responsible for the crime, based on the Belgium v. Senegal precedent.

Toby Cadman shared the panel with Galip Dalay, Research Director of Al Sharq Forum and Fellow with the Brookings Institute; and Steven Rogers, member of the Trump for President Advisory Board and former FBI agent.

Galip Dalay highlighted three aspects of Erdoğan’s speech. First, that it gave formality to the information already leaked by Army officials; second, that Erdoğan made a distinction between different actors involved in the execution; and finally, that Turkey is trying to get international political support for the investigation of this crime, specifically, to clarify who gave the order.

Subsequently Steven Rogers praised the approach by U.S. President Donald Trump regarding this issue as “very prudent”. Rogers noted that the Trump Administration has consistently required “irrefutable evidence” of the planned nature of the execution. From his point of view, although the U.S. President would want to see justice served —particularly because Jamal Khashoggi was a U.S. resident and a journalist in The Washington Post—, he is also concerned about “the impact that this could have in the relationship with Saudi Arabia” in terms of national security and the economic effect of a fall in armed sales. Rogers criticised the conflicting versions and narratives given by Saudi authorities —“they cannot expect people to believe several stories”—, but also showed some reluctance regarding U.S. involvement in the clarification of this case, noting that the U.S. is not the Police of the World —“Trump is not the President of the World, he is the President of the United States”.

Toby Cadman responded that even though the presumption of innocence must be upheld and any evidence challenged in a court of law, President Trump’s initial characterization of the Saudi position as “credible” —“without looking into it further”— was deeply regrettable, inappropriate and subject to legitimate criticism, particularly because such a position was found to be baseless and factually incorrect. Nevertheless, Cadman opined that Trump’s Administration should not be exclusively judged for what the U.S. President has said in the past, but for “what he does” from this moment on, mentioning that other countries have strongly criticised and reassessed their relationships with Saudi authorities, as Khashoggi’s crime is not the only problem they are facing: “their record of human rights is appalling”.

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