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Premise:

The fiancee of Jamal Khashoggi has said the world has failed to hold Saudi Arabia to account

There are quite a lot of cases when agents of a state can kill (with or without sanction) an individual: a spy, an "undesirable" person, a terrorist in a third country.

Using this case as an example, can SA be held accountable for killing the journalist (in 'having a tribunal' sense)?

Can a state be prosecuted for killing a foreign spy? What if a country sends a task force to eliminate a terrorist in a 3rd country?

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    What makes you think she means accountable in the narrow definition of tried and found guilty in a trial?
    – Damila
    Feb 4 '20 at 18:04
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    Khashoggi murder happened in Saudi Arabia embassy and not in a 3rd country. Only SA law apply for the case, that's what souvereignity is for.
    – fraxinus
    Feb 4 '20 at 18:05
  • @Damila I don't know what she means exactly, it's just an example and a premise. Feb 4 '20 at 18:09
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    @fraxinus Embassies are not the sovereign territory of the sending state; this is a widely held misconception. Turkish law is completely applicable in the embassy. It's just that the embassy is inviolable. But if a Turkish prosecutor could obtain custody of a suspect (and develop enough evidence against that person), even without the cooperation of the Saudi government, it would be possible to prosecute. Prosecuting the state itself, if course, is a different matter.
    – phoog
    Feb 5 '20 at 3:10
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    @Trish no, they are not. They are inviolable.
    – phoog
    Oct 18 at 18:45
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There is no possibility of legally holding a country "to account" for an action. An individual could be legally tried for a crime (murder), and a country could via a political process be made to suffer the consequences if a leader performs some act (it need not be illegal). Germany, Iran and Russia have historically suffered certain consequences of actions held to be "officially sanctioned", and individuals such as Adolf Eichmann have been specifically punished; Fahad Shabib Albalawi and 4 others were sentanced to death for involvement in Khashoggi's murder. Punitive recourse against a country is always via political / military action.

Khashoggi, specifically, was apparently a lawful permanent resident of the US, which is probably sufficient connection to the US for a suit based in the Alien Tort Statute. There have been various suits filed against individuals under this act, some of which succeeded, for example Filártiga v. Peña-Irala, 630 F.2d 876. An individual could be sued under the Alien Tort Statute, but a foreign government enjoys sovereign immunity (the US government has limited its liability on that grounds, but Saudi Arabia has not). His fiance might then sue some individual, but Saudi Arabia itself could not be "held to account".

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    This is a good answer for criminal liability, but in theory one can sue one country in another (at least in the US) and if there are assets in the country you sue in, can try to collect. Here is an example of a suit against Iran in the US. npr.org/2016/10/08/497164736/…
    – Damila
    Feb 4 '20 at 19:07
  • The question specifically asked about the fiancee of Jamal Khashoggi. This answer seems to lack specificity. While I don't disagree with these statements, they seem too general to deserve credit as an answer. I think the question deserves more attention. Oct 17 at 11:47
  • Khashoggi was a lawful permanent resident of the US. That seems to be sufficient connection under Filártiga v. Peña-Irala.
    – phoog
    Oct 18 at 22:04
  • I agree. Well said. There are narrow exceptions to sovereign immunity as @Damila notes, in civil actions, but certainly not that would apply to conduct that could be fairly characterized as murder authorized by a state, as opposed, e.g., to an accidental death from commercial activity by a state.
    – ohwilleke
    Oct 18 at 23:51
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+25

A state generally cannot be tried in court because of sovereign immunity and state immunity. The first prevents citizens from suing their own states (or state's agents) over state actions within the scope of the state's functions. The second prevents states (and their agents) from being sued in foreign courts for the reason that it would infringe on the sovereignty of the state being sued. There are courts which have international jurisdiction, but I'm not aware of any that would be able to claim jurisdiction over the Khashoggi murder. Additionally, to the best of my knowledge you can't actually prosecute a state as a whole for crimes; you have to prosecute individuals, though I can't tell you why that is, specifically. However, the United States has previously indicted agents of foreign governments who acted in a way which was harmful to the united states, as well as indicting people for crimes which had no direct relation to government interests. By extension, the US could, hypothetically, indict anyone who they believed was responsible for the murder of Khashoggi because he was a US resident and has american children. However, it may be impossible for them to indict crown prince Mohammed bin Salman due to his specific position. There is also the problem of putting the accused on trial. The agents who were involved in the murder of Khashoggi, to my knowledge were all Saudis, and Saudi Arabia does not have any extradition treaties, so it would be difficult to bring them to the US to be prosecuted, though in theory it's possible, for example that they could be arrested if they travelled to a country with which the US has an extradition treaty and the US requested their arrest by that country.

In terms of court action by Khasgoggi's wife, there isn't all that much that she could do. She wouldn't be able to sue the US for not acting because one generally cannot compel the government to do anything that it is not required to do by law, and chasing after the foreign murderers of peoples family members is not one of those things. She could try to sue the perpetrators in civil court, but that would require her to find a court that could claim jurisdiction over the matter, which would likely be difficult if not impossible, and even if she succeeded in that, and won her case, she would likely be unable to enforce any judgement that was handed down. Alternatively, she could perhaps try to sue from within Saudi Arabia, perhaps as a wrongful death lawsuit, but I am not familliar with Saudi law so it's possible she wouldn't even have the ability to bring a suit there. Outside of the legal system, though, if she was able to gather enough public support she could probably pressure politicians to take some kind of action under threat of not being reelected, or she could go to the UN and ask for support of somekind, though that would not be likely to get her very far. She would not be able to sue in the International Court of Justice because she is an individual and not a state.

There is one viable option that the US government could take, and that would be to issue sanctions against Saudi Arabia which would be lifted when a certain condition was met; for example, if certain people involved in the plot were convicted and punished within Saudi Arabia, or extradited to the US to be tried. This would put economic pressure on the Saudi Government to take action on the issue, though it relies on the US being able to do sufficient economic damage through the sanctions.

As for your points about spies and terrorists: it depends. In wartime it is generally permitted to execute enemy spies, but in peacetime it would vary by jurisdiction. For terrorists in foreign countries that are not warzones, the government of the country that authorized the assassination would shield their operatives from liability within the country, but the country where the assassination took place would likely attempt to prosecute the assassins, assuming they were caught and barring some kind of agreement to the contrary.

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