Lockerbie cited in proposal for international court in Khashoggi case

[The following are excerpts from an article by Geoffrey Robertson QC headlined Only an international court can bring Khashoggi’s killers to justice published in today's edition of The Guardian:]

The slaying of the journalist Jamal Khashoggi was a barbaric act, ordered and carried out by barbarians. It cried out for justice – which means, inevitably, a trial. Yet all the British government is demanding is an “investigation” – by the same Saudi state that spent 17 days lying about its responsibility and is still offering unbelievable excuses for the murder. Any Saudi investigation would, at most, offer up a few scapegoats who would be subjected to a secretive procedure and in reality punished for their incompetence rather than their guilt.

But this was an international crime that took place in breach of United Nations conventions in the precincts of a consulate enjoying inviolability under international law. It involved the silencing of a US-based journalist for exercising the right of freedom of speech – a right also belonging to all his potential readers, and guaranteed under every international human rights convention. It was an action by a UN member state that threatens peace and security and it should be taken up by the UN security council, which has acted before to set up tribunals to deal with similar atrocities – the assassination of the Lebanese prime minister Rafik Hariri, for example, and the Lockerbie bombing. (...)

[RB: The Lockerbie court was a Scottish, not an international, court; nor was it "set up" by the UN Security Council, though that body instructed all UN members to cooperate with it.  The court was set up by a treaty between the United Kingdom and the Netherlands.]

There are enough precedents for the security council, under its chapter VII power, to act so as to avoid international conflict, to set up a court to research and punish the carefully planned assassination of a journalist in a member state by agents of another member state. There are plenty of experienced judges available who have dealt with atrocities in the Balkans, Rwanda and Sierra Leone, and prosecutors well qualified for mounting cases of international crimes. The Turkish authorities have ample evidence against the immediate perpetrators and western and Israeli intelligence agencies can undoubtedly supplement what is already known about the Saudi chain of command. 

[RB: I am highly sceptical about the legality of resorting to Chapter VII of the Charter of the United Nations (Action with Respect to Threats to the Peace, Breaches of the Peace and Acts of Aggression) to deal with criminal acts committed by states against individuals. If Libya's World Court actions against the UK and the USA had not been abandoned after the Lockerbie trial, this issue might have been ventilated under the powers of judicial review of the legality of Security Council acts that the World Court looked likely to assume.]

Continuing pressure from the security council and orders by the court, backed by sanctions against powerful Saudis (preventing them from travelling to Europe or using schools and health services), trade boycotts and sanctions, and threats of diplomatic isolation, could force the Saudi crown prince, Mohammed bin Salman, to send suspects to The Hague, as it forced Gaddafi to cooperate over Lockerbie, and to disclose evidence that, when analysed together with other evidence, might lead a chief prosecutor to include him in the charge sheet – at least as an “unindicted co-conspirator”. Only an international legal process can establish with any credibility whether Bin Salman actually gave the lethal order, or perhaps said in the manner of King Henry II: “Will no one rid me of this troublesome priest?”