Saudi Probe Is Not a Job For the U.N.

By David B. Rivkin Jr. and Lee A. Casey

October 24, 2018, in the Wall Street Journal

The murder of Jamal Khashoggi has justly triggered international outrage. Yet calls for a United Nations-led investigation are neither justified nor prudent.

Those urging the U.N. to investigate argue that with so much at stake, no sovereign state can be trusted to conduct a full and fair probe. And there is a potential for bias—by the Saudis, whose officials are implicated; by Turkey, a rival of Riyadh; and by the U.S., the Saudis’ longstanding strategic partner. The same is true of many other states, including Britain, France and Germany, all of which have economic and strategic interests in the region.

But this objection proves too much. There are numerous instances in which countries have been accused of terrible crimes, including torture and extrajudicial killings. The list includes the U.S. and every other permanent member of the Security Council. This standard would disqualify virtually every U.N. member.

The general rule is that sovereign states both have the authority and the obligation to put their own houses in order by investigating and prosecuting alleged offenses. Only in the most extreme circumstances can an international inquiry be justified—such as when the state concerned is incapable of undertaking the investigation, or when the alleged offenses rise to the level of widespread international crimes, for which international law prescribes individual criminal responsibility.

The classic examples are war crimes and crimes against humanity, neither at issue here. The murder of a specific person has very rarely been the subject of an international investigation, as in the case of former Lebanese Prime Minister Rafik Hariri’s 2005 assassination. Syrian and Hezbollah involvement was suspected, and the Lebanese government was unable to conduct an investigation free of interference. Beirut thus agreed to the Security Council resolution establishing an independent investigative commission. Yet that probe was shunned by most intelligence services and failed to bring to justice any high-level culprits.

In this instance, Saudi Arabia is fully capable of investigating Khashoggi’s death and has the greatest interest in the matter. Khashoggi was a Saudi national; so, it appears, are his killers. There is obvious concern about the fairness of a Saudi investigation because of the potential involvement of high-level officials close to the royal family, and the conflicting Saudi explanations have been justifiably criticized. Yet the kingdom has been a respected member of the international community and surely understands a whitewash would severely damage its standing.

Turkey, too, has legitimate interests here. If Riyadh officially sanctioned Khashoggi’s killing in its Istanbul consulate, it would be an abuse of the diplomatic rights Turkey affords another sovereign under treaty. The U.S. and other Western powers can and should support and assist both Riyadh’s and Ankara’s investigations.

The U.S. has a strong interest in preserving international legal norms, grounded in the 1648 Treaty of Westphalia, which recognize the nation-state as the highest authority and establish rules that apply equally to all states. There is a determined movement to undermine this traditional system in favor of a supranational authority. These efforts have frequently targeted America, including its operations in Afghanistan and Iraq, renditions, interrogations and drone strikes. These matters have elicited condemnations at the U.N. and demands for international investigations. The U.S. has properly opposed such demands because it can and does investigate the allegations itself.

This leaves us with only one solution, as Secretary of State Mike Pompeo put it a few days ago: “We’re going to give them”—the Saudis and the Turks—“the space to complete their investigations of this incident, and when they issue their reports, we’ll form our judgment about the thoroughness, depth and the decisions they make about accountability connected to that.”

Messrs. Rivkin and Casey practice appellate and constitutional law and have argued before international legal bodies, including the International Criminal Tribunal for the Former Yugoslavia and the International Court of Justice.

Source: https://www.wsj.com/articles/saudi-probe-is-not-a-job-for-the-u-n-1540335772

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