Could diplomatic immunity protect a murderer?
Published Tuesday, October 9, 2018 9:12PM EDT
Allegations that Saudi Arabia may have used its consulate in Istanbul to kill a Saudi journalist have some observers asking whether diplomatic immunity or special protections could allow state-sanctioned murderers to walk free. The answer is, theoretically, yes.
There have been many high-profile cases of diplomats invoking their immunity against the enforcement of local laws in order to avoid prosecution for serious crimes. Famously in Canada, a Russian diplomat accused of killing an Ottawa woman while drunk driving flew back to Moscow without facing prosecution in 2001.
A Saudi Arabian diplomat in Ottawa also avoided impaired driving charges in 2014; Ottawa Police simply drove him back to the Saudi embassy.
State-sanctioned murder -- as is alleged in the disappearance of Washington Post contributor Jamal Khashoggi -- seems to present an extraordinary case. (No one in particular has been accused in this case, and Riyadh calls the allegations made by an unnamed source in the Washington Post “baseless.”)
John Packer, a former United Nations diplomat who teaches law at the University of Ottawa, says there are multiple ways that such a scenario could play out if anyone is eventually accused.
For diplomatic immunity to apply to any Saudi nationals, they would have needed to identify themselves as Saudi Arabian officials when they entered into the country, Packer says. In other words, Saudi Arabia would have needed to send a letter beforehand and likely would have gone through the line reserved for diplomats at the airport. Packer thinks that’s unlikely to have happened.
There is, however, a rarely used right to invoke what’s called “diplomatic protection” for any other citizen after the fact. This type of protection is so rarely used that Canada would not invoke it in the case of Egyptian-Canadian journalist Mohamed Fahmy, who was sent to prison in Egypt on false charges in 2014.
If Saudi Arabia took the unusual step of invoking it for a suspected murderer, Turkey wouldn’t be able to hold them.
“Normally, Turkey would respect that sovereign invocation and would say, in that case, we either want you to waive that immunity and allow us to try them ... or you take them and try them yourself,” he explains.
If Saudi Arabia was unwilling to do either of those things, Turkey could try to settle their dispute bilaterally or appeal to the International Court of Justice, and international law would allow Turkey to retaliate and do something that would “otherwise be illegal but would have to be similar and proportional,” Packer says.
“Obviously not killing a Saudi,” Packer says, but perhaps “disrupting a trade agreement.”
But Turkey would likely have to send them back. Packer says countries will also sometimes delay sending citizens back “pending clarification.”
Turkey could, of course, simply choose to disregard diplomatic immunity or diplomatic protection altogether, but that would risk creating “total diplomatic rupture,” according to Packer.
“The very powerful aspect of this is reciprocity,” he says. “Everyone wants their immunities respected so they are quite scrupulous in respecting the immunities of others. Do we want a world where Turkey starts sending its agents to kill people in Saudi Arabia?”
Packer suggests there are already reasons to believe Turkey might back down. For example, Yasin Aktay, an adviser to the Turkish president, Recep Tayyip Erdogan, claimed publicly Tuesday that “the Saudi state is not blamed here,” according to The Guardian.
Either way, if Saudi Arabia did what is alleged, Packer says it would be yet another example of countries rejecting the global “rules-based order,” whether it’s Russia poisoning its citizens in Britain or China detaining the president of Interpol, as it did last week.
“To me, there’s a clear correlation between these kinds of activities,” Packer says. “They seem to be unashamed, emboldened uses of force and violence and breaches of really basic tenets.”