Getting Away With Murder
Why the campaign to hold Saudi Arabia accountable for Jamal Khashoggi’s killing is losing steam.
The suspected killing of the Washington Post columnist Jamal Khashoggi by Saudi government agents last October set off calls around the world for a U.N.-led investigation. But more than three months later, neither the U.N. leadership nor key member states appear ready to conduct such a probe.
The U.N. Security Council, which has the power to establish an investigation, has not held a single meeting on the topic. U.N. Secretary-General António Guterres has dodged appeals for a probe, citing the need for a formal request by key member states, including Turkey. But while Ankara has repeatedly called for an international investigation, it has never formally requested one from the United Nations.
In Washington, meanwhile, congressional pressure to hold suspected perpetrators accountable, including Saudi Crown Prince Mohammed bin Salman, has been overtaken for the time being by other issues, including the U.S. government shutdown, according to one congressional aide.
“The challenge for Congress is that if the U.S. wants the U.N. to do something, this administration would have to ask,” the aide said. “But this administration is disturbingly allergic to holding the Saudis accountable for anything.”
The reluctance to investigate the slaying underscores the broad influence and audacity of Saudi Arabia, which once threatened to lead a walkout of Arab governments from the U.N. after being accused of killing large numbers of children in Yemen. (The United Nations responded by removing the Saudi-led coalition from a blacklist of child-killing entities.) It also reflects the unwillingness of key powers, including the United States, to challenge Saudi Arabia and hold it accountable for human rights violations.
Contributing to all that is a general decline in respect for human rights among countries and a growing aversion to investigations into atrocities and assassinations—which are often costly and politically complex. In the Khashoggi case, the White House has underscored the importance of maintaining strong ties with the Saudi crown prince.
At the end of the Cold War, the United States and its allies championed the establishment of war crimes courts to prosecute perpetrators of genocide in Bosnia and Rwanda.
The U.N. has previously opened investigations into the assassinations of high-ranking politicians such as Rafik Hariri in Lebanon and Benazir Bhutto in Pakistan. But those inquiries are viewed as cautionary tales of judicial excess.
“I’ve been very disappointed in the fact that states have not been joining calls for independent investigations,” said David Kaye, the U.N. special rapporteur on the promotion and protection of the right to freedom of opinion and expression.
In November, Kaye and two other human rights rapporteurs, Agnes Callamard and Bernard Duhaime, issued an appeal to the U.N. to investigate Khashoggi’s death. “I find it demoralizing that this is the most brazen attack on a journalist by a state in memory and there is no action,” he told Foreign Policy.
Both Democratic and Republican lawmakers have supported an independent U.N. investigation but have been stymied by the White House.
“The White House is infatuated with the crown prince, and it appears the Saudis do not intend to do anything,” Democratic Sen. Patrick Leahy said. “That leaves few options.”
Leahy said Senate and House committees should examine the killing and call the secretary of state to testify to Congress “and explain why this administration is yielding to the cover-up of this murder and continuing to sell weapons to the Saudis.”
In the end, Leahy said, “an investigation by the United Nations may offer the best hope for justice. Such a horrendous crime, orchestrated and covered up by top officials of an ally of the United States, must not be tolerated.”
Democratic Sen. Ed Markey is considering drafting a letter calling on the U.N. secretary-general to conduct an investigation.
House leaders, including Eliot Engel, the incoming chair of the Foreign Affairs Committee, have expressed a commitment to conduct a “top-to-bottom” review of U.S. relations with Saudi Arabia.
“We’re likely to see legislation of some form that at least expresses the sense of Congress that there should be an international investigation into Khashoggi by the U.N. or something else,” said one Democratic congressional aide in the House.
For now, the members of the U.N. Security Council, including the United States, have shown little interest in investigating the killing.
But human rights advocates say they intend to keep pressing.
“This has fallen off the front pages of the newspapers and news websites, but we are not going to let it go,” said Louis Charbonneau, the U.N. director at Human Rights Watch. “And member states should not let this go.”
Charbonneau said one option would be for the Geneva-based U.N. Human Rights Council, which will resume its work in March, to open an investigation. The U.N. high commissioner for human rights, former Chilean President Michelle Bachelet, has voiced support for an international investigation. However, there is no guarantee that the council’s member states would agree to one.
The best option, Charbonneau said, would be for the U.N. secretary-general to take the initiative on his own and open an investigation.
But Guterres has declined.
Guterres’s chief spokesman, Stéphane Dujarric, said the U.N. secretary-general would need a request from a U.N. member state, plus a mandate from an international legislative body, such as the U.N. Security Council or the U.N. General Assembly. “We do need a legal mandate from a legislative body and, of course, also a request from a member state,” Dujarric told reporters last year.
But human rights advocates and former U.N. lawyers say that is not the case.
The U.N. chief possesses broad authority to launch fact-finding missions into matters of international peace and security, including the killing of Khashoggi, according to former U.N. lawyers and human rights groups.
Guterres’s power is derived from Article 99 of the Charter of the United Nations, which grants U.N. leaders sweeping, though undefined, power to raise any matter before the U.N. membership. Previous secretaries-general have used the power to trigger investigations into Israel’s shelling of a U.N. peacekeeping compound in Lebanon, Bhutto’s assassination, and the mass slaughter of civilians in Sri Lanka.
Previous U.N. chiefs have set up commissions of inquiry into events in Togo, East Timor, Georgia, and Guinea on their personal authority.
But U.N. lawyers, while recognizing the U.N. chief’s power to undertake investigations, have counseled that such powers be exercised sparingly.
In the Bhutto case, U.N. lawyers told former Secretary-General Ban Ki-moon that it would be too politically risky to stand up an investigation. “My recollection is that we took the position that he had the legal authority but advised against it because it was not advisable to stick his neck out and do it on his own,” said Larry Johnson, a retired top U.N. lawyer involved in the discussions. But he said there is no question that Guterres has the authority under the U.N. Charter to investigate.
Guterres has proved reluctant to exercise that power throughout his tenure, dismissing calls to order independent investigations into atrocities in Cameroon and the killings of two U.N. workers in the Democratic Republic of the Congo.
For the U.N., an investigation into Khashoggi’s death carries high risk and low prospects for success. The Saudis might decide not to cooperate and could retaliate by cutting off hundreds of millions of dollars in support for U.N. humanitarian and counterterrorism programs. Other countries, including Turkey, might also have their own reservations about the precedent set by the U.N. investigating the slaying of a journalist.
“I think states feel threatened about the U.N. investigating the killing of journalists,” said Steven Ratner, a professor at the University of Michigan Law School. But that doesn’t mean the U.N. chief shouldn’t do it.
“[Guterres] could be quite courageous and do this under his own authority,” said Ratner, who led the U.N. investigation into atrocities in Sri Lanka. “Morally, it’s the right course of action, but politically it’s difficult for him.”