Legal petition urges ICC to investigate MBS over Khashoggi murder

A law firm has filed a petition at the International Criminal Court (ICC) to have Saudi Crown Prince Mohammed bin Salman (MBS) investigated for alleged “crimes against humanity”, including the murder of Saudi journalist Jamal Khashoggi.

Khashoggi, 59, was killed a year ago by a team of Saudi agents in the kingdom’s consulate in Istanbul and his dismembered body has not been found.

Saudi Arabia has consistently denied that MBS ordered the killing, but a UN investigator has said there was “credible evidence” of the crown prince’s liability that warrants further investigation while the CIA has reportedly concluded that the killing was probably ordered by the prince.

In a petition filed to the ICC’s chief prosecutor in July and made public on Wednesday, the anniversary of Khashoggi’s killing, the US-based law firm Fein & Delvalle requested that the prosecutor petition the UN Security Council to refer the crown prince’s alleged crimes to the ICC.

“Mohammed Bin Salman, through command or superior responsibility, is guilty of murder, torture, rape, extortion, illegal detentions, wrongful prosecution and the death penalty, i.e., crimes against humanity as defined in Article 7 of the Rome Statute,” the filing argues.

“The victims have been selected because of their opposition to the Crown Prince’s merciless tyranny,” it adds.

The petition was filed on behalf of an anonymous human rights organisation, whose identity has been redacted in the filing.

It was not clear whether the Hague-based court would respond to the petition, as it only has jurisdiction over crimes committed on the territory of its member states. Neither Saudi Arabia nor Turkey is a member of the court.

Khashoggi was an established and respected journalist who at the time of his murder was a resident of the United States and a columnist for the Washington Post newspaper. In a number of his columns for the Post, he was critical of MBS’s domestic and international policies, including the Saudi-led coalition’s war in Yemen.

In the weeks after his murder, the Saudi government denied that he had been killed in the consulate, insisting he had left soon after he arrived. But after Turkish officials shared information about the murder with domestic and international news media, Riyadh changed its narrative, saying that he was killed by a team of “rogue” Saudi agents.

Under international pressure, the Saudi prosecutor opened an investigation into the murder and 11 suspects have been put on trial in the kingdom, with the attorney general seeking the death penalty for five of the accused.

‘International crime’

The UN’s expert on extrajudicial executions, Agnes Callamard, who led an independent investigation into the murder, said in June: “The killing of Mr Khashoggi constitutes an international crime falling within the parameters of universal jurisdiction.”

The investigation concluded that the events leading up to Khashoggi’s murder constituted kidnapping, torture and enforced disappearance, all which are violations of international law.

Callamard concluded that there was “credible evidence, warranting further investigation of high-level Saudi officials’ individual liability, including the crown prince.”

In an interview with the CBS show 60 Minutes broadcast on Sunday, MBS denied that he personally ordered the killing of Khashoggi, but acknowledged full responsibility for it as the country’s leader.

“This was a heinous crime but I take full responsibility as a leader in Saudi Arabia,” he said.

Lawyer Bruce Fein, whose firm filed the petition with the ICC, told Al Jazeera that under the standards of international criminal law as enshrined in the Rome Statute, MBS was culpable for the crime because of his immense power inside the kingdom.

As someone who knows everything of significance in Saudi Arabia, MBS should have known about the planned murder even if he was not supervising his thugs

by Lawyer Bruce Fein

“Even if he said he did not order the assassination of Mr Khashoggi, the law makes him culpable for it,” he said. “As someone who knows everything of significance in Saudi Arabia, MBS should have known about the planned murder even if he was not supervising his thugs.”

MBS was also culpable for “failing to take aggressive measures to punish and sanction those who were implicated it in it,” according to Fein.

Ali al-Ahmad, a long-time Saudi affairs analyst and a critic of the country’s royal family, said a potential court case could damage MBS’s international and domestic credibility. 

“Once bin Salman feels he is shunned by the international community it will weaken him inside the kingdom, especially among the contenders for the throne from the royal family or among powerful military leaders,” he told Al Jazeera.

While the petition acknowledges that the ICC does not have territorial jurisdiction over Saudi Arabia, which has not signed the Rome Statute, it recommends two bases from which the court could take up the case.

Firstly, it cites the UN Security Council referrals in 2005 regarding Darfur in Sudan and in 2011 regarding Libya, at which time neither were parties to the Rome Statute.

The filing also cites the case of Faisal al-Jarba, a Saudi national who was reportedly detained by Jordan intelligence officers in Jordan and forcibly turned over to Saudi agents in 2018.

Since Jordan is a member of the ICC, the court can exercise jurisdiction over crimes that take place in its territory. The filing argues that al Jarba’s reported kidnapping qualifies as a crime against humanity.

A Jordanian government spokeswoman did not respond to a request for comment. 

‘Investigation unlikely’

Kevin Jon Heller, an international law professor at the University of Amsterdam, said the filing was unlikely to lead to an ICC investigation of MBS or anyone in the Saudi government, noting that the US would probably use its veto at the UN Security Council to prevent any referral of a key ally in the Middle East to the ICC.

Any attempt to refer Khashoggi’s murder to the Court, however, would almost certainly be vetoed by the United States.

by Kevin Jon Heller, professor of international law

“There is no legal reason why the Security Council could not refer Khashoggi’s murder to the Court, although in the past it has referred situations as a whole to the Court (Libya and Darfur), not individual crimes,” he said

“Any attempt to refer Khashoggi’s murder to the Court, however, would almost certainly be vetoed by the United States,” he added.

Heller said the filing of the petition could, however, lead to renewed international focus on the allegations surrounding MBS.

“That attention may well deter him from committing other crimes, which would be a positive result even if he never stands trial for Khashoggi’s murder itself,” he said.

While Fein acknowledged that the case faced several significant political and legal obstacles, he said those circumstances could change in the future.

“Even if the case looks remote now, MBS might not be in power in a year or two from now,” he said.

“Combined with the Callamard conclusion, all sorts of things could happen that could make things that look stalled now look prominent in the future,” he added.

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