The path to impunity for the Khashoggi murder must not be taken

“They dared to commit a murder on Turkish soil. They thought that if it came out, they could buy their way out of it.”

Those are the words of Yasin Aktay, a top aide to President Erdogan and deputy chair of the ruling AKP party, in his 2020 speech on the second anniversary of the murder of the Saudi dissident journalist Jamal Khashoggi.

Aktay went on to lambast the Saudi judicial system, saying that it could not be trusted to provide justice for Jamal, and he commended the Turkish courts for pursuing the case. President Erdogan should be praised, he said, for not allowing Khashoggi’s murder to be a “political bargaining chip” and for focusing “only on the pursuit of justice”.

Last week, following a decision of the court prosecuting the case to ask his opinion whether to halt the trial, Bekir Bozdag, Turkey’s justice minister, responded that the Turkish government will recommend that the trial-in-abstentia of the 26 Saudi nationals charged with the murder of journalist Jamal Khashoggi be halted, and the case be transferred to Saudi Arabia. A Turkish court looks likely to rubber stamp this decision tomorrow.

As acknowledged by the minister’s own government, transferring the case of Jamal Khashoggi’s murder to Saudi Arabia is knowingly and willingly deciding to allow the Saudi authorities to cover it up. Afterall, the Saudi system has repeatedly failed to cooperate with the Turkish prosecutor. It is clear that justice cannot and will not be delivered by a Saudi court.

So what might be behind this volte face?

As the former United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions, I investigated this case from the start. From the moment Jamal Khashoggi stepped into the Saudi consulate in Istanbul in 2018, his treatment, his brutal murder, the whereabouts of his remains and the subsequent search for justice, truth and reconciliation have been shaped, distorted and defined by realpolitik and political interests.

In 2019, at the sham trial in Saudi Arabia, the accused did not deny that they killed Jamal Khashoggi and the hitmen – whose identities were not revealed at the trial – were found guilty. In 2020, a Saudi court then overturned the death sentences, commuting them to 20-year sentences, and sentencing three others to between seven and 10 years.

And yet, the individuals who abused or failed to fulfil the responsibilities of their positions of authority have not even been identified. This was a state sponsored extrajudicial killing, but those at the highest level of the State responsible for ordering it and ensuring its cover up have not been held to account.

The Saudi authorities claim it was “a rogue operation”. However, under international law a rogue operation is narrowly identified and the murder of Jamal Kashoggi does not meet that definition. Instead, every single aspect of this crime involves the responsibility of the Saudi state. The people on the kill-team were Saudi state officials. The team was dispatched as an official mission to Turkey. Those who executed the killing relied on Saudi state resources: they entered Turkey on a jet that had diplomatic clearance; two members of the team had Saudi diplomatic passports. The perpetrated the killing inside the Saudi consulate. A follow-up team of 17 Saudi state officials were dispatched to Turkey to clean up the crime scene.

This was not the action of a few “rogue” individuals. All elements of the operation demonstrate the responsibility of the state of Saudi Arabia.

As the search for justice began, it was clear, including to the Turkish authorities, that there was little hope of justice being served in a Saudi courtroom. So, a trial in-abstentia (a trial that takes place in the absence of the accused) was begun Turkey. Trials in absentia should always be subject to the proviso that a new trial before a new court must be granted after an accused convicted in absentia is subsequently arrested.

But two years later, the Turkish prosecutor’s request to halt the trial and the rapidity of the government’s decision to transfer the case to Saudi Arabia, [and the speed of the response from the Ministry of Justice when asked by the court,] suggests high-level political dynamics are in play.

If the case is indeed transferred to Saudi Arabia, it will be a dark day for those who loved Jamal. It will be a sad day for those who have spent more than three years campaigning for justice for his murder. It would be shameful day for Turkey, being a reversal of the Erdogan government’s public commitment to ensure justice for Jamal Khashoggi’s gruesome murder would prevail. All those who have been waiting for the whole truth to come out before a duly convened, impartial and independent court of law will now rightly ask what has changed since those lofty undertakings of Yasin Aktay, a little over two years ago, that only the search for justice would motivate the actions of his government.

By deciding to transfer the case of the killing of Jamal Khashoggi to Saudi Arabia, Turkey is deciding to hand it back to those responsible for it. It is a sure and certain guarantee that only injustice and impunity will prevail.

Indeed, in the words of a Turkish proverb, “Kurda kuzu emanet edilmez” – never trust the wolf to guard the lamb.