Yaşar Yakış
Oct 27 2018

What Turkey did and didn’t do about the Khashoggi murder

In the events surrounding the murder of the Saudi journalist Jamal Khashoggi, Turkey has behaved in quite a cautious and discreet manner. No inconclusive evidence has been released. The security authorities have not stated any more than was required. The crime scene investigation teams have performed their duties professionally.

One must congratulate the Turkish security authorities and the forensic team for their performance.

The Turkish President Recep Tayyip Erdogan has said neither more nor less than was necessary. Some critics have claimed that Erdogan may have access to more information, which he has held back. This may be true. However, one should not expect a president to share all of the information at their his disposal with the public.

With this said, and in order to really grasp the big picture, two further issues must be underlined. The first regards the manner in which the Turkish security authorities have handled the incident. The second regards the way in which the immunity of the consulate has been assessed.

When he instructed his fiancée Hatice Cengiz to inform two of his Turkish friends if he had not left the consulate within two hours, Jamal Khashoggi must have suspected what might happen to him. Cengiz followed these instructions and contacted the names provided to her, who then informed the Turkish authorities. According to Erdogan, the Turkish authorities learned about the incident at 17:50.

We do not know what kind of assessment the security authorities made. However, had any quick decision-making mechanism been available at 17.50, or 18.00 at the latest, it would have been possible to surround both the Consulate General's building and the Consul General's residence and prevent anyone from coming in or out.  

It would have been possible to use the cameras on streets of Istanbul to monitor all cars entering and exiting the consulate, and stop them if necessary. These actions may have been performed: this will become clear over time.

Similarly, it would have been appropriate for the Saudi teams which departed Turkey at 18.20 and 22.50 to be prevented from leaving the country and then detained. These passengers cannot benefit from diplomatic immunity, even if they hold diplomatic passports.

In this way, their suspension at passport control and their detention in Turkey until the incident had been fully apprehended would have facilitated the emergence of a number of facts. It is possible that, at that time, the Turkish security authorities did not see quite how important the matter would become.

Although it did not form part of Erdogan's speech, it is understood that at one point, the plane carrying a part of the Saudi team was stopped in the skies above Nallihan (a rural district in the Ankara Province) and ordered into a holding pattern, before being allowed to continue its way. If the plane had been forced to land, and its passengers put under questioning, a great deal of now unknown information would have been obtained.

The second issue concerns the Vienna Convention on Consular Relations of 1963. Some matters should be clarified regarding the immunity of the consular building and the consular staff.

On a careful reading of some of the articles of the agreement Convention, it can be seen that the Turkish government did not use the full authority available to them. First and foremost, the point to keep in mind is this: the philosophical justification of the immunity provided to consuls is to prevent the host country from unnecessarily obstructing them in performing their duties.  

This immunity cannot be used as a means to carry out illegal acts. Any such behaviour goes against the spirit of immunity.

In the Khashoggi affair, the Turkish security authorities, from the moment they learned of the possibility of a murder, had the ability to enter the Consulate-General without seeking permission from the Saudi authorities.

Article 31/2 of the Vienna Convention on Consular Relations states:

“The authorities of the receiving State shall not enter that part of the consular premises which is used exclusively for the purpose of the work of the consular post except with the consent of the head of the consular post or of his designee or of the head of the diplomatic mission of the sending State.”

As you can see from this statement, the security authorities do not need permission to enter the Consulate-General building upon learning of the possibility of a murder. They may enter the building. However, once inside that building, they cannot enter areas ‘used exclusively for the purpose of the work of the consular post’, for example the consular

archives or any areas used for secret correspondence. They should be able to conduct their search and investigation in the any other areas.

Article 42 of the same agreement Convention states that a consular officer may be arrested without permission from the Consul General or the sending state. The article states:

“In the event of the arrest or detention, pending trial, of a member of the consular staff, or of criminal proceedings being instituted against him, the receiving State shall promptly notify the head of the consular post. Should the latter be himself the object of any such measure, the receiving State shall notify the sending State through the diplomatic channel.”

As can be seen from this article, the obligation of what the Turkish authorities had to do is was to enter the Consulate General and, upon making arrests, to inform the Saudi Embassy in Ankara as soon as possible.

Article 43/1 of the agreement Convention further clarifies this issue somewhat. The article states the following:

“Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions.”

As can be understood from the above, consular staff only benefit from immunity from prosecution ‘in respect of acts performed in the exercise of consular functions’. The Turkish security authorities possessed the authority to arrest the Consulate General's personnel without permission from the Saudi authorities, given the fact that murder cannot be considered an official duty. 

Not only for Turkey, but for the whole international community, this has been a painful matter from which many lessons will be learned.