Human Rights Watch has accused Saudi Arabia of killing hundreds of Ethiopian migrants crossing the  Saudi Arabia-Yemen border. Survivors of the attacks claimed that security force units “…used mortars, small-arms fire and close-range executions” to target the migrants once they crossed into Saudi territory. In nine reported incidents an estimated 1,300 migrants were killed in early 2023, a substantial increase from the estimated 795 migrants previously killed in 2022. This marks an escalation from “an apparent practice of occasional shootings and mass detentions to widespread and systematic killings” which may hint at the possibility of crimes against humanity. This allegation, however,  does not guarantee that Saudi Arabia will be held liable for their actions.

The International Criminal Court

Crimes against humanity are generally adjudicated through the International Criminal Court (ICC), a body established under the Rome Statute of the International Criminal Court. The ICC has jurisdiction when: (1) the petitioner accuses a national of a state party of a crime; (2) the crime occurred within the borders of a state party; (3) a non-party consents to jurisdiction; or (4) the Security Council refers a matter to the ICC’s Office of the Prosecutor. 

The first two jurisdictional hooks are unavailable to the Ethiopian migrants. Neither Saudi Arabia nor Yemen is a party to the Rome Statute. Even if Yemen was a party to the Rome Statute, the location of the crimes–Saudi Arabia–prevents a possible plaintiff from using that jurisdictional hook. The second two jurisdictional hooks are unlikely to apply based on ICC precedent and previous actions by the Saudi government. States have been hesitant to accept ICC jurisdiction as a non-party member of the Rome Statute. Ukraine has been one of the only states to accept ICC jurisdiction for the purpose of investigating potential crimes committed against Ukraine by Russia during the current conflict. Ukraine accepted jurisdiction when it was favorable to them, not when doing so might subject it to the ICC’s discipline. The Security Council appears to be the last resort to trigger the ICC jurisdiction, however, it is unlikely to refer the matter to the Office of the Special Prosecutor. To date, it has only done so twice before–for the genocide in Darfur and the civil war in Libya. However, these two situations involved crimes against humanity committed at a larger scale that received significant media attention and widespread condemnation from world leaders. World leaders have so far stayed silent on the events in Saudi Arabia, deferring to diplomats to express any concerns to Saudi Arabia. significantly more public attention than the current situation in Saudi Arabia. Lawyers have tried creative methods to fulfill jurisdictional requirements over Saudi Arabia for other violations such as accusing Saudi partners of committing crimes against humanity in the Yemen-Saudi Arabia war, but so far they have been unsuccessful in subjecting Saudi Arabia to ICC jurisdiction. 

Even if the ICC had jurisdiction to adjudicate allegations against Saudi Arabia, there would be the issue of determining which individuals to hold liable as the ICC  only investigates, prosecutes and tries individuals, not states. Human Rights Watch is unsure who in Saudi Arabia is targeting the migrants and under whose authority the violence is happening. Fingers have been pointed at both the General Directorate of the Border Guard (GDBG) and the al-Afwaj Regiment. The al-Afwaj Regiment was first deployed to the border region in 2019 and has been tied to the further militarization of the border. Both the al-Afwaj Regiment and the GDBG sit within the Ministry of Interior. Consequently, if the crimes were to be prosecuted at the ICC, potential defendants could include officials within the Ministry who can be tied to either or both accused groups.

Convention Against Torture

Human Rights Watch also identified Saudi Arabia’s violation of the Convention Against Torture as another avenue to use international law to hold Saudi Arabia liable for the orchestrated attacks on migrants. Saudi Arabia is a party to the Convention  and can be held liable for its violations. Again, action against Saudi Arabia is not guaranteed. The UN Special Rapporteur previously accused Saudi Arabia of violating the Convention in October 2018 through the killing of journalist Jamal Khashoggi. The response by the international community was piecemeal and included condemnation, sanctions, and travel bans for those accused of being involved in the killing. 

In the present case, the international community may decide to respond in a similar manner by imposing sanctions targeting  officials in the Ministry of Interior. However, unified action from the Security Council is unlikely. Saudi Arabia acted strategically in signing the Convention Against Torture by issuing reservations against two key articles—Articles 20 and 30.1— which are crucial  components for enforcing the Convention. For instance, by issuing reservations on Article 20, Saudi Arabia prohibits other parties from investigating possible treaty violations in Saudi Arabia. Article 30.1, in turn,  enables Saudi Arabia to use its own separate arbitration mechanism to adjudicate alleged violations outside of the typical bodies. In other words, there can be no guaranteed investigation or trial. 

Alternative Methods for Accountability

International human rights law may be ineffective in this situation due to the difficulties outlined above. Instead, Human rights advocates may look to other solutions outside of treaties and judicial bodies. Alternatively, individual states can act on their own to implement sanctions outside of this context. For instance, states can place high ranking officials in the Ministry of Interior, GDBG, or al-Afwaj Regiment on the United States’s Specially Designated Nationals and Blocked Persons List (SDN List). Placement on the SDN List results in the freezing of an individual’s assets and prohibits U.S. citizens and companies from doing business with that individual. This placement is thought of as “…akin to ejecting a designated entity from the basic financial plumbing of the global economy,” which can in consequence be viewed as a “highly escalatory act of coercive economic statecraft.” 

Saudi Arabian nationals have been placed on the SDN List before, including seventeen individuals tied to the murder of Mr. Khashoggi under the authority of E.O. 13818, “Blocking the Property of Persons Involved in Serious Human Rights Abuse or Corruption.” To fall under this sanctions program there must be “gross violations of internationally recognized human rights.” These violations can include extrajudicial killings like those on the border.  

If sanctions are ineffective or undesirable, another possible avenue would be to target the Saudi regime where it hurts the most, its reputation. Saudi Arabia’s continued perception as a flagrant violator of human rights jeopardizes its ability to become a “middle power” in the international arena. Instead of penalizing Saudi Arabia for its actions, the international community could incentivize the regime to take accountability for its actions in order to gain a better standing on the international stage.