How the U.S. could prosecute Jamal Khashoggi’s killers

Principles of international law caution against one country asserting jurisdiction to prosecute crimes committed in other countries, but U.S. courts and international law recognize that extraterritorial jurisdiction — regarding crimes occurring outside the United States — can be warranted in certain circumstances.

Extraterritorial jurisdiction may be appropriate, for instance, where a crime offends the vital interests of the prosecuting state. The murder of a prominent journalist writing for a U.S. newspaper is a prime example of the sort of “censorship abroad” that, in today’s increasingly and inherently globalized discourse, undermines freedom of speech and the press here in the United States. Courts have also found extraterritorial jurisdiction for an offense that occurs in one country where the effect is felt in another (one example being shooting someone on the other side of an international border). And extraterritorial jurisdiction is considered appropriate for crimes such as piracy, terrorism and torture that are universally condemned by the international community — which the Saudis’ offense unquestionably was.

Consider the case for a torture prosecution. The relevant federal statute criminalizes any act committed by a person acting “under color of law” — the legal term for when someone has the appearance of legal authority, even if they don’t have it — intended to inflict severe physical or mental pain or suffering. And the statute applies only to “acts of torture committed outside the United States.” Torture inside a foreign consulate is certainly sufficient basis for the FBI to investigate.