President Donald Trump has weighed in several times in recent days on the disappearance of Jamal Khashoggi in ways that seem intended to minimize Saudi Arabia’s responsibility, or even stack the decks in its favor. In an interview Tuesday with the Associated Press, he lamented, “Here we go again with `You’re guilty until proven innocent.’” And to reporters at the White House after a 20-minute telephone call with Saudi King Salman, Trump suggested the kingdom wasn’t responsible because Khashoggi might have been the victim of “rogue killers.”
Trump gets the law wrong on both fronts. In cases of “enforced disappearance” — the legal term for this alleged incident — a state may indeed bear the burden of explaining what happened to a person, especially when that person was last seen alive entering a government facility. And a state bears responsibility under international law for the actions of its agents or officials, even if they acted without explicit authorization or exceeded their instructions.
Burden of Proof in Disappearance Cases
First, the claim of “guilty until proven innocent”. That would be right if we were talking about a criminal trial of an individual for the murder of Khashoggi. And the situation might get to that point, given how rapidly details are emerging, such as the identities of the individuals who flew from Saudi Arabia to Turkey on the day of Khashoggi’s disappearance and reports that there are tapes of what happened inside the consulate. If it does, the accused will be entitled to the presumption of innocence.
But on the issue of the responsibility of a state, different legal principles apply. And in cases involving the responsibility of a state for an enforced disappearance, the burden of proof operates in specific ways.
In general, even when dealing with state responsibility where there is no formal “presumption of innocence,” the burden of proving that a state committed an act does fall on the person making the claim. But human rights law recognizes that certain violations pose challenges for victims and others in providing proof. Sometimes, the state will be the only one with meaningful access to information or evidence of what happened. In such cases, the burden of providing a convincing explanation for the events and the fate of the individual does lie on the state. Two of the most common scenarios where this principle is applied are disappearances and deaths in state custody, precisely the scenarios that are in play with the Khashoggi matter.
This principle has a long pedigree and has been applied consistently across a range of scenarios. It originated in the Inter-American Court of Human Rights in the late 1980s, with the landmark decision in Velasquez-Rodriguez. Both the Inter-American Court and the related Inter-American Commission on Human Rights have applied it regularly to enforced disappearance cases throughout South and Central America. The United Nations Human Rights Committee, the panel of independent experts that monitor implementation of the International Covenant on Civil and Political Rights, has relied on this principle to deal with enforced disappearances in situations such as Algeria and Libya. And the European Court of Human Rights has applied it regularly to find the Russian government responsible for disappearances and deaths in Chechnya, in which individuals disappear after being last seen in the hands of state agents and the state conducts no effective investigation and provides no plausible explanation for the person’s fate (such cases make up around 60 percent of the violations in Chechnya). Indeed, the Turkish government is well familiar with this principle and why it is necessary: the European Court has found Turkey responsible for disappearances in Cyprus and in its conflict with the Kurdistan Workers Party (PKK) on the same basis.
This does not mean that the state bears the burden of explaining what happened to every missing person. There must be some evidence linking the state to the disappearance. In the early Inter-American Court cases, such evidence often came in the form of a pattern or practice of disappearances with state involvement or tolerance, and the individual disappeared in circumstances that fit that pattern.
More commonly, however, the state is required to provide an explanation and evidence for what happened to a person who was under the control of the state when they were last seen alive – if, for example, they were taken away by government agents, or they were last seen entering a government facility. That, of course, is what happened here. So it is entirely proper to require the Saudi government to provide an explanation of what happened to Jamal Khashoggi.
And not just any explanation will do. The explanation must be detailed and must be substantiated based on an independent and effective investigation. There are principles and guidelines for conducting investigations into potential extrajudicial killings, which are almost tailor-made for this situation, and they emphasize the need for independent and thorough investigations to be conducted promptly and in a transparent manner. Pinning the blame on low-level operatives (as reports have suggested) is also not adequate – the investigation must address the intellectual as well as the material perpetrators (as the Inter-American Commission on Human Rights regularly emphasizes), i.e. those who planned, ordered, or approved the operation.
If Saudi authorities fail to provide a credible explanation for what happened to Jamal Khashoggi, based on an investigation that meets these requirements, then the state should be held responsible for his disappearance and death, irrespective of whether outsiders can access the evidence needed to prove exactly what happened. In other words, the burden is now on Saudi Arabia, and if it fails to meet that burden the Saudi government should be considered responsible.
What If the Agents Really Were “Unauthorized” or “Rogue Killers”?
What’s more, earlier in the week there were suggestions that Saudi Arabia intended to claim that Khashoggi’s death was the result of an arrest and interrogation that were either unauthorized or went beyond what was authorized. These notions, together with Trump’s speculation of “rogue killers,” appeared aimed at deflecting responsibility.
Without getting into who this is intended to insulate from responsibility or the plausibility of the explanation, the legal effect of such excuses for Saudi Arabia is limited. A state remains legally responsible for the acts of its agents even if they exceed their authority or contravene their instructions, provided that they are acting in an official capacity (U.N. International Law Commission, Articles on the Responsibility of States for Internationally Wrongful Acts, Art. 7).
There can be little doubt that state agents were acting in an official capacity here, especially as the events in question happened (or were at least initiated) in the Saudi consulate. If it can be demonstrated that the agents involved acted without instructions, or went beyond the scope of their instructions, that might insulate certain individuals (such as Crown Prince Mohammed bin Salman) or soften the political fallout. But it does not alter the responsibility of the Saudi state for these actions.
The disappearance and presumed death of Jamal Khashoggi, and the questions of Saudi Arabia’s responsibility for it, demonstrate exactly why the law has established these principles: to ensure that states cannot avoid responsibility for their acts by simply denying any knowledge of the whereabouts of those they disappeared, or by stonewalling investigations, hiding or destroying evidence that only they possess, or blaming violations on rogue or overzealous foot soldiers.