Antoine Bernard on Jamal Khashoggi case in Germany

Some may call us naïve, but I believe that only those who do not try are naïve

Antoine Bernard is Reporters sans Frontières Strategic Litigation Director. He speaks about about RSF’s complaint in Germany against Saudi Arabia's authorities allegedly involved in the killing of Jamal Khashoggi.

Interview conducted by Eren Kurklu (promo 2021)


1. Could you talk about the process and initiation of this file? On RSF’s website, it is said that a CIA declassified report confirmed RSF’s own conclusions about the matter. Were there any cooperations with other organizations or persons in order to complete this 500- page file?

The process comes from the very crime itself, or rather the crimes themselves. RSF was and has been involved for a long time in trying to seek justice for journalists in arbitrary detention in Saudi Arabia. In that context, this terrible crime, moreover a crime committed in a consulate, was the beginning of a new page, we thought necessary to write. The traditional ways of trying to challenge crimes against journalists seemed no longer proportionate to the new gravity that these crimes had gained in nature and in their impact.

We have led our efforts in two directions. On the one hand, our efforts were to try to convince the Saudi highest authorities in the aftermath of Jamal Khashoggi’s murder that they had the most interest in releasing arbitrarily detained journalists – because of the legitimate scale of the international scandal around this case. We tried to enter into a dialogue at the highest level – in April 2019, RSF took an unprecedented mission to Saudi Arabia to advocate for the release of journalists, and we had indeed successfully entered into a high-level dialogue. However, at the time, after a few months, there was no improvement of the situation except for one case, and no release. This is why we decided to make our efforts public; we felt it essential and necessary. Some may call us naïve, but I believe that only those who do not try are naïve.

On the other hand, our second path is the incriminatory approach on the situation. The latter was to consider the murder, which is also torture, enforced disappearance, and other multiple crimes, some of which have extraterritorial jurisdiction. We are also talking about an ongoing crime that is suffered by at least 35 arbitrarily detained journalists. This is why, after months long of analysis, we came to the following two conclusions:

- The 35 cases qualified, in our view, as crimes against humanity.

- The highest authorities including the Crown Prince were involved in ordering and

implementing such crimes.

The release of the CIA report came two days before RSF decided to make public the findings

of its criminal complaint. Even if the CIA report would have not been published, the RSF one would have still been published. Our contents however, of course, converged with their own findings.

We first and foremost cooperated with ourselves. I am talking about a joint and integrated RSF team, involving colleagues from many different places. The main chapters of the team were based in Paris and Berlin, where we indeed have a strong RSF section. Otherwise, there was no formal cooperation with any other organization. Since RSF used its own legal capacity to build the complaint, no law firm was involved in the initiative.

2. Has there been any response or initiative to communicate by the Saudi Arabian crown or officials? Do you expect any in the future, especially considering that they previously claimed to have done a trial behind closed doors?

Like I mentioned previously, in the course of our first path, in which we entered into contact with Saudi Arabian authorities, there was a high-level dialogue with Saudi Arabia, which lasted throughout a long period of time, it lasted for many months. We now do anticipate that this non-governmental diplomatic effort behind closed doors, may continue – especially considering our second path mentioned previously, knowing that there is now a criminal complaint filed.

3. What do you think are the weaknesses and strengths of German courts popularity for international complaints in regard to its Universal Jurisdiction? When I mean weaknesses, for example, I am referring to translation problems, recording issues, and language barriers that were seen with the Koblenz Trial, a first to try Syrian government officials?

In case the complaint is accepted, does RSF have plans to overcome these difficulties?

Firstly, I want to highlight the important renewal of universal jurisdiction (UJ) in our times. Its obvious expansion is the product of a certain number of factors, including the semi-failure of the International Criminal Court (ICC) to deliver not only final convictions in due time over the past years, but also the coordination or impartiality of the complementarity system – through which domestic courts today are the first-degree ICC courts. However, I call it a ‘semifailure’ because contrary to a lot of what has been said, besides the acquittals in a large number of cases, it is not only a failure of the ICC. It is an extremely difficult time to build and develop such an institution with such a system. And in that sense, domestic courts resorting more into UJ may also be interpreted as a success of the Rome Statute, if not literally, in spirit.

The interpretation of UJ in domestic courts may not have been possible or at least not have been encourage by the ICC, sure, but the latter strongly encouraged the domestication of the Rome Statute. In that sense, UJ developments are part of a system and a quite logical development from the ‘semi-failure’, or difficulties faced in the ICC. This means that litigators such as myself, have an updated, case-based litigation strategy when looking for the appropriate judicial body, the appropriate forum, etc. But this is part of the same overall reading of the map.

Indeed, there are obstacle, because each legal system is the product of its own society. And each society has its own representation of the legitimacy of justice, and this is quite understandable.

In the early 1990s, the first moments of UJ renewal, or you can even call it the practical birth

of UJ, the question of “But why?” rose – Why would our domestic courts consider cases with no nationals of ours involved? Why should taxpayers have to pay for that justice to happen –

and when you look back at these questions, they are normal. Looking back, the question of legality is surely important, but the question of legitimacy is also important – how it is going to be seen, how it is going to be understood, and then accordingly backed up, etc. So, surely, there are many obstacles, depending on each society’s history and understanding of this justice.

However, if you carefully pay attention to the recent developments, the general trend has been in overcoming such obstacles even more. There has been an important number of new laws, new proceedings, and more importantly specialized prosecutors and investigators created. And now, we speak of thousands of UJ cases created – it is completely different, and it is a strengthening process.

Quickly about the Koblenz Trial, the translation problems and language barriers, these obstacles were overcome legally. Maybe not practically, but this is not up to the German law. Now, there are surely still some problems, one can mention for example the prosecutorial discretion – which is a problem but also turns to be an advantage. The most important thing is to be aware of a virtuous process happening. And the future will be in enhancing and improving the complementarities, not only the vertical ones emanating from the Rome Statute, but also the horizontal ones, such as the interaction between the different investigations.

4. It is said that there is a chance the complaint might get rejected, due to the absence of nexus criteria of reattachment between Germany and the defendants (although legally, obvious connections to the country are not necessary). What are your thoughts about the future of this process, considering, for example, the EU’s failure to take any action; or German law denying trial in absentia?

What was the exact message RSF wanted to send with this complaint?

Formally, there is no nexus requirement with Germany. The formulation of the German Code of Crimes Against International Law (Völkerstrafgesetzbuch – VStGB) is a negative formulation. Which means that the absence of a presence can be a reason to reject the complaint, but it does not mean that the absence is an issue per se. Surely, it also does not mean that the absence will not be an issue, but you can still attempt for a complaint.

Also, another very important aspect for why the complaint had to be tempted was the legal qualification as a crime against humanity of the prosecution; not based on the nationality of the group defined, or its ethnic origin, or other things, but defined by the common use by its members of universally guaranteed freedoms, such as the freedom of expression, being the primary reason for this group to be targeted. If you read the Rome Statute and the German Code, this legal qualification is key. And in a country where an important number of journalists have been victimized for the very reason that they practiced journalism, this commonality is striking. They additionally have been targeted by a part of a state policy, systematic, and indeed generalized. This is another important challenge that we expect the prosecutor will agree to follow.

It may not happen, but at least we can say that the RSF worked, and it did hard and long work for 8 months to say the least.