In Defense of MbS: The Need for a New Law of War
The road to the Saudi consulate in Istanbul runs from Riyadh, but the path didn’t start there. The path starts from England, from Washington, from Santiago, from Moscow, from Tel Aviv and from Pyongyang.
Those who would accuse Mohammed bin Salman may do so out of sincere beliefs, but any fair legal analysis must begin with first principles: nullum crimen sine lege, or, “no punishment without law.” A discussion of the killing of Jamal Khashoggi must first address, what law was broken? And whose law? The United States may complain bitterly about the death of the Washington Post columnist, but the increasing frequency of targeted, extrajudicial killings shows that the current global legal environment is inadequate to address the problem.
All countries prohibit murder and all allow the killing of a human being. Some kinds of killing are authorized under local or national laws, while others are not. Individuals or the state may kill. Laws addressing the subject of individual killing are well-established. Exceptions are few. Laws addressing the subject of state killing are necessarily weaker because states write their own laws. One form of state killing is war, and war is the term usually used when a state kills on the territory of another state. Discussions of this subject often focus on the slippery notion of “territory”: e.g., Alberta is a province of Canada, but what about lands under the jurisdiction of ISIS? What about Gaza and other areas under military occupation?
Such discussions then quickly degenerate into a more general political discussion — “ISIS had no right to establish itself,” “Israel has no right to occupy Gaza,” — “but wait a minute, but they’re not really occupying it, they’ve merely set up a blockade; Egypt is assisting in that blockade so you can’t entirely blame Israel,” etc. The original question is quickly lost under the quicksand.
There is no general agreement as to whether and under what circumstances a state may kill its own citizens. Many states prohibit capital punishment for murder. Other states embrace executions. In an anomalous situation, at least one country has no uniform rule on the matter, with the result that some States are allowed to kill while others are not.
Should a person who is under a sentence of death be allowed to escape punishment for the simple reason that he has traveled to another jurisdiction? Most would say, “no.” Some states would say that the solution is extradition to the punishing state for the implementation of the sentence. But states that prohibit the death penalty will not want to return a criminal to a jurisdiction where he will be executed. Sometimes conditions are placed on an extradition in advance to remove the possibility of the imposition of the death penalty. But there is no way to enforce these conditions. Once returned, the sending state is reduced to filing a diplomatic note of protest which, presumably, will be ignored.
The water becomes murkier if we add political crimes to the mix. These are other than malum in se crimes, but they are just as deserving of extreme punishment as is judicial murder. The courts of many countries have no problem ordering the execution of enemies of the state. In other countries, also for claimed security reasons, the decision as to who is an enemy of the state and the appropriate action to be taken is made not at the judicial, but at the executive level, and often in secret. Thus, the United States targeted and killed Osama bin Laden in Pakistan. There was no trial. But let’s not pick on the United States, for the targeted killing of perceived political enemies has become common.
The 2006 killing of Alexander Litvinenko in London from a radioactive poison leads directly to Moscow. This should not be surprising, as the Russian Federation enacted a law regularizing political assassination. For Russia, this was nothing new. In 1940 Stalin ordered the extrajudicial, extraterritorial assassination of his political foe, Leon Trotsky. The fact that Trotsky was in Mexio was irrelevant. The assassin was caught but Mexico decided to treat the killing not as an act of war, but as a violation of Mexico’s criminal code.
In 2017, North Korean assassins organized an elaborate scheme in order to kill Kim Jong-nam, Kim Jong Un’s brother. This extrajudicial, extraterritorial killing took place at the airport in Kuala Lumpur. The assassins were recruited and believed they were acting in a reality television show. But the prank they signed up for was deadly; they wiped Jong-nam’s face with poison and he died soon after. But let us not claim that Kim Jong Un’s view of his brother is anomalous. The Ottoman Empire was still in existence at the beginning of the 20th century and under that regime, the new leader customarily murdered all his brothers, as each represented a possible threat to the throne.
Mentioning Israel in this context would serve only to inflame emotions and cloud reasoning. Suffice it to say that extrajudicial, extraterritorial killing has been a hallmark of Israeli foreign policy for years. The killing of Ali Hassan Salameh in Beirut in 1979 by an Israeli assassination team led by Michael Harari is but one example. The killing of Sheikh Ahmed Yassin in 2004 is another.
The Sandinista leadership had no problem ordering the assassination of Nicaragua’s previous leader, Anastasio Somoza while he was in exile. The extrajudicial, extraterritorial killing took place in Asuncion, Paraguay in 1980.
General Pinochet perceived General Carlos Prats as a threat and ordered his execution. The assassination team killed General Prats in Buenos Aires. Prats’ death wasn’t the only Chilean extraterritorial, extrajudicial killing: the Chilean intelligence service blew up an automobile in Washington D.C. carrying former ambassador Orlando Letelier and his aide, Ronnie Moffit.
Whether American drone strikes fall under this category is subject to debate — at least in the United States. A fair argument is that these strikes are in aid of American wars against Iraq, against the Taliban, against ISIS. On the other hand, the killings are ordered by the American executive without any due process. The killing of Osama bin Laden in Pakistan is an example. That killing falls into a different category because unlike all these others, it was accomplished with the cooperation of local authorities, Pakistan’s ISI.
While these American killings may not be analogous, President Kennedy’s order to kill Fidel Castro, had it been successful, would have been an extrajudicial, extraterritorial killing and undoubtedly an act of war. Neither Johnson nor Nixon countermanded the kill order. The CIA kept trying, albeit unsuccessfully, and even enlisted organized crime in its unsuccessful efforts.
Extrajudicial killings did not begin int the 20th century. Perhaps the first instance of an official, extrajudicial, though not extraterritorial killing, was that of Thomas Becket, killed on ordersof King Henry II almost one thousand years ago. Henry II had famously asked, “who will rid me of this troublesome priest?” There was no direct order, or at least, no record of such has survived. After proper prostration and penance, King Henry did not lose his throne.
This is how the game of international politics has always been played. On what basis can MbS be singled out? The rule of law is a mask worn by the exercise of power.
MbS is a lawyer, and good lawyers necessarily are students of history. It would be naïve to assume that he is unaware of this extensive history. That Kashoggi’s murder took place inside a Saudi consulate was no accident. Under international law, the consulate was Saudi territory in which Saudi law applied. It is not clear, given Saudi Arabia’s Basic Law, whether Kashoggi’s killing was extrajudicial, but it certainly was not extraterritorial. Nor did Turkey treat the killing as an act of war. This is a key point, because the taking of life by one country on the soil of another is usually treated as an act of war. The killing of Khashoggi — or the other examples cited here — were not an act against the country where the killings took place. The place of the killing was coincidental. Stalin may have had ideas for Mexico — after all, wasn’t the Mexican Revolution of 1917 referred to in the same breath as the Russian Revolution that same year? — but he had no interest in declaring war against Mexico. Nor was Saudi Arabia interested in pursuing hostilities against Turkey. Or Chile against the United States. Or Israel against Argentina when it kidnapped Adolf Eichmann and took him to Israel to be killed.
In 1929 the nations of Europe tried to write rules of war. The Geneva and Hague conventions law down, in a broad sense, the rules of law. The Nuremberg trials stand for the proposition that national laws may violate universal norms. Kashoggi’s killing, as abhorrent as it is, is no more abhorrent than any of these others. But it is definitely not a crime against humanity; it is only the killing of a single person; the silencing of one man.
One might look at all of these murders and sense that things are getting out of control. In modern times, no country’s leader sees a border as any kind of a real obstacle. Classifying these killings as acts of war is an inadequate response since in modern times countries avoid even declarations of war, never mind the mobilization of an entire nation against another.
The solution, therefore, is a new Geneva Convention on political murder, spelling out the parameters of the crime and providing punishment for violators. But until the enactment of such a treaty, MbS should not and cannot be held to a non-existent standard.
