Rogin: Avenues exist to bring Saudis to justice

Saudi Crown Prince Mohammed bin Salman and his henchmen might believe that they are outside the reach of international justice following the killing of journalist Jamal Khashoggi. But they shouldn’t be so sure. There are a range of ways that the Saudi leader and the other perpetrators could be punished for their alleged crimes, in both civil and criminal courts all over the world.

“If the reports are accurate, the acts against Mr. Khashoggi are serious violations of international human rights law, including the law to protect the individual from torture and forced disappearance,” said Stephen Rapp, the former U.S. State Department ambassador-at-large for war crimes issues.

Seeking justice and accountability for Khashoggi’s killing will not be easy, but several mechanisms do exist to go after MBS, as the crown prince is known, and the Saudis who reportedly carried out the murder, Rapp said. Khashoggi’s family has the right to pursue justice in civil courts, and prosecutors in several countries could also bring criminal charges, based on international law and precedent.

Criminal prosecutions of MBS and other Saudi officials could be brought under the United Nations Convention against Torture, to which Saudi Arabia is a signatory. Through the principle of universal jurisdiction, any country that is a party to the convention, including the United States, could refer a case to the International Court of Justice and seek an order for Saudi Arabia to prosecute or extradite MBS and the other suspects.

A recent example is when Belgium brought a case against Senegal seeking the extradition and prosecution of Hissene Habre, the former president of Chad, for crimes against humanity.

Under international and U.S. law, even if MBS can’t be proven to have known about Khashoggi’s killing in advance, he would still be culpable because he had command responsibility over the killers. For example, U.S. federal courts in 1995 ruled that Guatemalan Defense Minister Hector Gramajo was responsible for the rape and torture of Sister Dianna Ortiz by forces under his control.

“Liability under the principle of ‘command responsibility’ requires showing of effective control, reason to know of conduct and failure to prevent the acts or punish those directly responsible,” Rapp said. “Scapegoating would not count as punishment and would make it worse for MBS.”

Serving a U.S. arrest warrant or lawsuit on MBS or any of the other perpetrators might be impossible if they don’t actually enter the United States. But if any of the suspects ever sets foot on U.S. soil again, that person could be arrested and charged according to U.S. law. MBS, as a high-ranking diplomatic official, might claim immunity, but that would be for the courts to sort out.

MBS and the other suspects are also personally vulnerable to various types of civil litigation. Khashoggi’s family members could sue in U.S. courts under the Torture Victim Protection Act of 1991, which gives U.S. courts jurisdiction over torture committed by anyone, anywhere.

Khashoggi’s family could also sue under the Alien Tort Claims Act of 1789. That law has been used to sue human rights violators, including Sudanese President Omar Hassan al-Bashir. “If I was the family, I would be looking at that option,” Rapp said.

Congress could also pass a law allowing Khashoggi’s family to sue the Saudi state, as it did for the victims of the 9/11 attacks, over the objection of the Obama administration.

All of these paths toward justice and accountability for Khashoggi’s killing require those who care about rule of law, international justice and human rights to fight to enforce them. MBS may believe he has enough power, influence and invincibility to escape real justice — and he may be proven right.

But he can never be sure. And for the rest of his life, MBS will enjoy the pariah status afforded to other international human rights violators. Whenever he or his accomplices travel to a country where human rights are enforced, they will have to worry about whether they would be held accountable for Khashoggi’s killing and various other crimes.

Josh Rogin is a Washington Post columnist. Reach him at josh.rogin@washpost.com.