Patrick Karegeya and International Law: Unlike Turkey in Khashoggi’s murder; South Africa is reclaiming its glory

Didas Gasana

By Didas Gasana

On September 9, 2013, Patrick Karegeya and I had a conversation that ended with a bet. A year before, he had done something to me so selfless that I have bequeathed my progeny to retaliate in kind to his grand progeny, but I promised my part anyway. And he promised me we shall toast to it on the new year 2015- a year and three months later, at hotel Meridien in Kigali. Such was him- an optimistic, down to earth fella who always found a way to cheer you up with a combination of rare intellect and extreme bravery I have not been able to see in any one.

That was never meant to be. And it haunts me daily. Patrick was found dead, strangled, in room 905 at Michelangelo hotel on January 1, 2014. With him went hopes, aspirations of many, including me. Fingers, not a finger, pointed at Rwanda’s supreme Ayatollah Paul Kagame. South Africa, convinced that Rwanda had a hand in a murder of its resident, sent a number of Rwanda’s diplomatic staff packing. Since then, investigations into his gruesome murder have been stalled.

Today, January 16, 2019, an inquest into Col Patrick Karegeya’s grisly murder starts in Randburg high court in South Africa. Such a development is certainly good to his family, friends and rights campaigners world over, but it is of more significance to South Africa as a state.

Enter Khashoggi

My friend Michella Wrong penned down an award-winning piece in the Guardian yesterday, in which she drew comparison to Patrick Karegeya and Jamal Khashoggi. No doubt, Khashoggi’s horrible murder shuddered the entire fabric of International Human Rights Law and Public International Law as did Col Patrick Karegeya’s. Kashoggi, a prominent Saudi Arabian journalist and a Washington Post columnist who was very critical of Saudi Arabia and Crown Prince Mohammed bin Salman’s policies, was allegedly killed and dismembered October 2, 2018, in the Saudi consulate in Istanbul by men with close ties to the highest levels of the Saudi government and the Crown Prince Muhammed Bin Salman. After more than two weeks of denials, insisting that the journalist left the consulate few minutes after his arrival, Saudi Arabia eventually admitted that he had been killed within the consulate in what officials called a “rogue operation” and has vowed to punish “those responsible”.

Like Patrick Karegeya was to Kagame’s regime, Khashoggi was as well once close and an adviser to the royal family, who had fallen sharply out of favor with the Saudi government and went into exile in the USA in 2017, like Patrick fled to South Africa.

After his disappearance, the Turkish authorities reported that he had been murdered and said they had evidence, including gruesome audio recordings, to back this up. The authorities said the journalist was dismembered inside the consulate and his body parts transported to the consular’s residence by a team of a 15-men hit squad from Saudi Arabia with complicity of three consular staff- all who later left for Turkey. But unlike Rwanda’s Paul Kagame and then defense minister James Kabarebe whose reactions was positive to Karegeya’s demise, the Saudi Arabian government denied any involvement; insisted Khashoggi left the consulate soon after he arrived and promised to bring the culprits to book. But amid global outcry and pressure over the case, the authorities on 19 October 2008 said for the first time that he had been killed in a fight inside the consulate. Later, Saudi Arabian authorities admitted that the murder was ordered by their intelligence officer but maintained that the Crown Prince had no hand in it. The Saudi Arabia prosecutor later indicted 11 suspects and the trial begun January 3, 2019, in which the prosecutor is seeking death sentence for five of the suspects.

Issues at Public International Law

South African authorities, by expelling some of Rwanda’s diplomatic staff, made a legal statement, despite Rwanda’s denials of having a hand in Patrick Karegeya’s murder. Similarly, the Saudi authorities say the murder was ordered by an intelligence officer but deny that it was state sanctioned.

In any case, assuming South Africa and Turkey are right, by killing Patrick Karegeya and Jamal Khashoggi, Rwanda and Saudi Arabia respectively violated two fundamental rules of international law. The first is the ban on extraterritorial enforcement of a state’s laws or policies. The second (in Khasoggi’s case) is the requirements for lawful uses of diplomatic missions. These important laws, developed to protect states from another state’s transgressions, are central to the stability of international order. The first rule is customary law and prohibits states from sending their agents to the territory of another state to execute their own laws or policies. This ban emanates from international law’s basic rules on jurisdiction. While states enjoy jurisdiction to prescribe laws governing some conduct beyond their borders- for example, by their own nationals- and states can use their courts to adjudicate matters taking place abroad, enforcement of a state’s laws or policies on another state’s territory without the permission of the other state is unlawful. Killing a dissident abroad clearly violates this rule.

This rule is closely connected to two other primary international laws. First, a state breaching this rule violates international law’s ban on intervention in the internal affairs of other states. Second, the ban on extraterritorial enforcement is related to international law’s most important rule, the ban on the use of force in article 2(4) of the U.N. Charter. As a matter of fact, when a state crosses the line from law enforcement to killing someone abroad, the consequences can be far terrible.

Many Patrick Karegeyas; different reactions

For example, When the Mossad killed a waiter in Lillehammer, Norway, in 1973 after mistaking him for one of the plotters of the Munich Olympic massacre, the agency’s operations in Europe came under intense scrutiny, and Israel eventually paid compensation to the waiter’s family two decades later. When Chile’s generals organized the assassination of the country’s former ambassador Orlando Letelier at Sheridan Circle in Washington in 1976, the murder outraged the U.S. government and the US did not relent until the officials who ordered the hit were prosecuted in U.S. courts. Iranian agents have also been prosecuted for extraterritorial murders, including France’s prosecution of one of the killers of Shapour Bakhtiar, the Shah’s last prime minister, who was murdered outside Paris in 1991. Similarly, the British fury at the assassination of Alexander Litvinenko in 2006 damaged relations between Russia and the U.K., and the Kremlin’s attempted assassination of Sergei Skripal and his daughter in the UK on March 4, 2018, resulting into the death of a British woman who chanced upon the poison, brought the diplomatic relationship with Russia at its lowest point, with more than 20 countries expelling more than 100 Russian diplomats and a dozen Russian consulates closed down, in a show of solidarity that represented the biggest concerted blow to Russian intelligence networks in the west since the cold war.

Here is where Karegeya differs from Khashoggi in Public International Law. Khashoggi’s mmurder also violated a second core rule of international law: diplomatic and consular missions must be used for specific official purposes, in exchange for which states hosting embassies and consulates must accord the buildings and staff diplomatic or consular immunity. This rule appears in both the 1961 Vienna Convention on Diplomatic Relations (VCDR) and the 1963 Vienna Convention on Consular Relations (VCCR). Under the consular convention, the first listed function of a consulate is “protecting in the receiving State the interests of the sending State and of its nationals, both individuals and bodies corporate, within the limits permitted by international law.” Another article states that consular officials must “respect the laws and regulations” of the host state. Certainly, murdering your citizen in a consulate violates this rule. This international law principle doesn’t apply to Patrick Karegeya.

Issues at International Human Rights Law

Both Karegeya and Khashoggi’s gruesome murders involve distinct kinds of gross violations of human rights, ranging from extrajudicial killing, torture and a forced disappearance- three of the worst human rights violations imaginable- as well as a violation of free expression. Rwanda and Saudi Arabia is a party to the UN Convention Against Torture; the other two acts are clearly violations of customary international human rights law, although Rwanda is not a state party to the UN Convention on enforced disappearances. More than that, Saudi Arabia is a member of the UN Human Rights Council.

To begin with, it is a violation of humanity’s basic human right- the right to life, enshrined in article 6 (1) of the International Covenant on Civil and Political Rights (ICCPR), which states: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” Furthermore, Karegeya and Khashoggi’s ’s deprivation of liberty at Michelangelo hotel and the Saudi Arabian Consulate in Istanbul is a clear violation of article 9 (1), ICCPR, which states that “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.” Thirdly, like the European parliament, Human Rights watch, Amnesty International and the G7 stressed, Jamal Khashoggi’s murder is closely linked to his criticism of Saudi arabia’s government the same way Col Patrick Karegeya’s murder, by any means, is a product of his criticism of his government he helped so much to bring into power. Thus, both murder violate article 19 (1, 2) of the ICCPR, which states that: “19 (1). Everyone shall have the right to hold opinions without interference. 19 (2). Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

Unlike Karegeya, Khashoggi’s murder also violates the International Convention for the Protection of All Persons from Enforced Disappearance, which states in article 1, paragraphs 1 and 2, as such: “1. No one shall be subjected to enforced disappearance. 2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for enforced disappearance.”

Both murders, preceded by torture and eventual dismemberment (dismemberment in Khashoggi’s case) violate as well Article 2 of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, to which Rwanda, South Africa, Turkey and Saudi Arabia are state parties. Article 2 requires state parties to take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction as well non-invocation of a superior order to justify torture or any other inhuman or degrading treatment.

Similarly, though not legally binding among states, the Universal declaration of Human Rights set the standards of International Human Rights Law; and both murders violate some of its provisions, especially articles 3 (Everyone has the right to life, liberty and security of person), article 5 (No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment), and article 19 (Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers).

The aftermath: How did countries respond to this human rights violation and why

To begin with Turkey; soon after Jamal’s murder, the Turkish authorities requested the Saudi Arabian government access to the consulate. The Crown Prince later accepted the request but added “The premises are sovereign territory.” To date, Turkey’s request for extradition of 18 suspects has remained unanswered. But contrary to the Crown Prince’s assertion that the consulate is a sovereign territory, foreign embassies and consulates are subject to the jurisdiction and laws of their host country. This makes Turkey primarily responsible for investigating Khashoggi’s murder and pursuing any prosecution in line with its domestic laws and procedures. As mentioned earlier, international law (VCDR and VCCR), provides certain foreign government officials and facilities with privileges and immunities that make it difficult, if not impossible, to investigate and prosecute them. VCCR, pursuant to its article 31 (2), provides limited immunity for consular agents and premises. Thus, Under the VCCR, only consular premises are inviolable, meaning they cannot be entered or searched without permission from the Saudi government, but not the private residences of consular officials where the dismembered body of Jamal Khashoggi was believed to be after his murder. Thus, even if the Turkish government conducted some investigations at the consulate after consent by Saudi Arabia and asked for extradition of the suspects, it did not do all within its power as a sovereign to search the consular’s residence which it said housed the dismembered body of the murdered journalist.

Furthermore, Both the VCCR and VCDR anticipate the possibility that a foreign state will use the privileges and immunities they provide for illegitimate purposes. Thus, both treaties oblige the holders of those legal protections to respect the laws of their host country (article 55 of the VCCR).

Failure to conform to this requirement gives a right to the host country to pursue diplomatic measures intended to punish the non-complying parties. Some of these measures are to declare those officials as persona non grata or unacceptable persons (see art 23, VCCR) and expel them from the country. In Jamal’s case, Turkey could have applied this right and expel the Saudi consul general and other consular personnel who are either believed to be complicit or refused to cooperate with the investigation.

Turkey could also decide to close Saudi Arabia’s consulate in Istanbul altogether. Consulates and embassies only function with the host country’s consent (see art 4, VCCR). Such a remedy could have sent a strong message to human rights violators worldwide that such a gruesome human rights violation is unacceptable in the world and carries strong repercussions. Furthermore, Turkey could as well formally write to the UN Secretary General requesting the UN to launch an investigation into Jamal Khashoggi’s murder.

However, Turkey feared to take any of the above measures largely because of fear that Saudi Arabia would almost certainly respond in equal terms. Moreover, the Crown Prince is well known for his heavy-handedness in how he drives Saudi Arabia’s foreign policy. In August 2018 for example, the Crown Prince expelled the Canadian ambassador, withdrew Saudi Arabia’s own and cut off all new bilateral trade and other forms of economic exchange with Canada in response to a pair of tweets from Canada’s foreign minister about Saudi Arabia’s arrest of a human rights activist. This threat of economic repercussions became a concern for Turkey as they could damage Turkey’s already feeble economy. While Turkey could react in identical measure, Saudi Arabia’s gigantic wealth gives it a significant advantage. Consequently, for Turkey, the risks of openly confronting Saudi Arabia seemed to outweigh the possible benefits.

South Africa, on the other hand, pulled the bull by its horns, by expelling Rwandan diplomats, thus invoking Persona Non Grata clause. There is no doubt that South Africa will do more should need be.

The European Union and some member states have taken different measures in response to the Khashoggi’s murder. The EU imposed a travel ban on all the 18 suspects. In addition to the ban, Germany halted arms sales to Saudi Arabia over the murder. Denmark, too, slapped an arms embargo against Saudi Arabia for the murder. However, countries like the UK and France have all insisted that their substantial arms sales to Riyadh will not be affected by the murder, undermining the impact of individual sanctions.

Is there any other African country, or any country outside Africa that considered cutting ties with Rwanda over such a heinous crime? Not to the best of my knowledge.

The European Union Parliament passed a motion for a resolution, and later a resolution, strongly condemning the extra-judicial killing of Jamal Khashoggi by Saudi officials in the Saudi consulate in Istanbul; calling for a prompt, thorough, transparent, independent and impartial international investigation into the circumstances of Mr Khashoggi’s death. On November 15 2018, the US, whose intelligence agencies had concluded that the Crown Prince ordered the assassination of Jamal Khashoggi, slapped economic sanctions against 17 suspects in his murder but fall short of an arms embargo because, according to Trump, arms sales total to 110BN USD and create between 450.000 and 600.000 jobs annually.

UN Chair-Rapporteur of the Working Group on Enforced or Involuntary Disappearances, Bernard Duhaime, UN Special Rapporteur on freedom of expression, David Kaye, and the UN Special Rapporteur on summary executions, Agnes Callamard, released a joint statement October 9, 2018 calling for an independent investigation into Jamal Khashoggi’s murder. Linking his murder to Jamal’s criticism of Saudi Arabian government, the statement said: “An independent international investigation must immediately be launched into the events. Those responsible – perpetrators and masterminds – should be identified and brought to justice”. UN Secretary General, Antonio Gutteres, in a statement released by his spokesperson Stephane Dujarri October 19, 2018, stressed the need for a prompt, thorough and transparent investigation into the circumstances of Khashoggi’s death and full accountability for those responsible. The UN High Commissioner for Human Rights Michelle Bachelet, on October 16 2018, released a statement on the murder, urging both Turkey and Saudi arabia “to ensure that no further obstacles are placed in the way of a prompt, thorough, effective, impartial and transparent investigation.” Furthermore, the G7 Foreign Ministers, of Canada, France, Germany, Italy, Japan, the United Kingdom, the United States of America, and the High Representative of the European Union, released a statement October 17, 2018, in which they affirmed their commitment to defending freedom of expression and protection of a free press as well as calling for accountability.

Where do we find Patrick Karegeya in the preceding paragraphs? What is so special in Khashoggi that the world woke up to, and which appears missing in Karegeya’s case?

Prominent international human rights organisations Amnesty International and Human Rights Watch (HRW) as well international press freedom watchdogs the Committee to Protect Journalists (CPJ) and Reporters Without Borders (RSF), in joint statement released October 18, 2018, urged the UN Secretary General to launch an investigation into Jamal’s murder. “A UN investigation into the Khashoggi case should start promptly and be thorough, impartial, and independent.” The four human rights groups noted in the statement that “there is ample precedent for such an international investigation. In 2008, Pakistan asked Guterres’s predecessor, Ban Ki-moon, to investigate the assassination of former prime minister Benazir Bhutto.”

Examining this practical reality from a theoretical perspective

The fact that Rwanda Saudi Arabia (should it be confirmed) can commit such a terrible human rights violation, reflects what Armaline et al argued in their book “The Human Rights Enterprise: Political Sociology, State Power, and Social Movements (2015)” that powerful states fail to fulfil their obligations relating to human rights because they choose to ignore them as well as the fact that there are no defined consequences for states that do not respect the international standards (Armaline et al., 2015, p. 35, 52-53). Well, Saudi Arabia is a wealthy and strong country, but human rights violations are the norm- from suppressing women’s rights to suffocating freedom of expression. But Rwanda isn’t. There is no comparative advantage Rwanda has over South Africa.

Failure by strong European powers, like the UK and France, as well as the US to slap an arms embargo on Saudi Arabia is because of economic considerations emanating from the fact that Saudi Arabia is their prime supplier of oil; taken in combination with billions of foreign exchanges they get from arms trade and Saudi investments. This is precisely Armaline et al’s argument that powerful states prioritize personal and multinational corporations’ interests at the sacrifice of human rights protection (Armaline et al., p. 53). Because of economic globalisation, states fail to fulfil their international human rights obligations because of conflicting economic interests (Armaline et al., p. 87). Thus, states are far more constrained by the wishes of capitalists and the shifting structural necessities of the capitalist system than strict adherence to human rights obligations (Armaline et al, p. 29). Still, such a scenario is absent in Patrick Karegeya’s grisly murder.

The dismal way most strong global powers reacted to Karegeya and Khashoggi;s murders (condemning Saudi Arabia, travel and economic sanctions against the suspects) instead of harsher remedies like expelling her diplomats as in UK-Russia’s case or slap an arms embargo against her justifies Douzina’s negative attitude and his outright distaste for the efforts of governments (Costas Douzinas, The End of Human Rights: Critical Legal Thoughts at the end of the century, p. 356.). However, contrary to Douzinas criticism and distaste (p. 356), international human rights organisations have been vigorous in pressing the international community and the UN to make sure that those who committed the murder are held responsible.

Furthermore, “for states like the US, “national interest,” typically referring to the interests of the business community and state elites, often takes precedence over concerns with international law and standards and given the lack of effective sanctions for powerful states, watchdog efforts by UN bodies and partnered NGOs are limited in their ability to intervene when state policies or practices violate human rights.”

Patrick Karegeya and Jamal Khashoggi’s cases are so significant because they violate both Public International Law (the UN Charter and the VCCR) and International Human Rights Law. However, mostly significant is that the cases elicited international outcry and condemnation not because it is a systematic violation of International Human Rights Law but rather because it violated Public International Law, like Sergei Skripal’s case. Massive human rights violations, in Rwanda, Saudi Arabia and Turkey, should elicit greater condemnation than the death of one Colonel or one journalist but it is usually when a state breaks the rules meant to protect other states- not those meant to protect people- that the international community wakes up and notices. For Karegeya and Khashoggi to get justice and for human rights to thrive world over, strong powers like the US, UK, France must forego their economic interests and hold the abusers accountable. South Africa has taken the lead. May the rest follow and may Karegeya and Khashoggi rest in peace. To them, we owe justice.

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