From immunity to impunity: the lawsuit against Crown Prince Mohammed bin Salman

Nov 21, 2022
Saudi Crown Prince Mohammed bin Salman receiving US President Joe Biden, at al-Salman Palace in the Red Sea coastal city of Jeddah on Friday, July 15, 2022. Image: UPI/Alamy Live News

For a country that has made human rights the glossy cover of its foreign policy rhetoric, this was not a good look. The Biden administration’s decision to grant Saudi Arabia’s Crown Prince Mohammed bin Salman immunity from a civil lawsuit filed by the fiancé of murdered Saudi journalist and a human rights organisation simply stank.

The smelliness of it all is evident by a number of events: the alleged decision by the Crown Prince to order the execution of the dissident journalist in October 2018 by a bone-sawing hit squad in the grounds of the Saudi consulate in Istanbul; the persistent refusal to accept responsibility for the action by those in Riyadh, notably the Crown Prince; the trial of some of those who participated in the murder for reasons that they had gone rogue.

The link between the Crown Prince and the death of Khashoggi was also confirmed by Turkish intelligence and the US Central Intelligence Agency. A declassified US intelligence report submitted to Congress by the Director of National Intelligence Avril Haines found “that Saudi Arabia’s Crown Prince Muhammed bin Salman approved an operation in Istanbul, Turkey to capture or kill Saudi journalist Jamal Khashoggi.”

This conclusion was based on the following: the role of Prince Mohammed in “the decision making in the Kingdom”, the participation “of a key adviser” along with members of bin Salman’s protective detail, and his “support for using violent measures to silence dissidents abroad, including Khashoggi.” It was “highly unlikely that Saudi officials would have carried out an operation of this nature without the Crown Prince’s authorisation.”

In June 2019, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, Agnès Callamard, published a report concluding that the murder “was the result of elaborate planning involving extensive coordination and significant human and financial resources. It was overseen, planned and endorsed by high-level officials. It was premeditated.”

The lawsuit, filed by Hatice Cengiz and the human rights group Democracy for the Arab World Now (DAWN), alleged that Prince Mohammed and Saudi officials “acting in a conspiracy and with premeditation, kidnapped, bound, drugged and tortured, and assassinated U.S.-resident journalist and democracy advocate Jamal Khashoggi inside the Saudi Consulate in Istanbul, Turkey”.

The plaintiffs are seeking relief under the Alien Tort Claims Act and the Torture Victim Protection Act for the severe pain and suffering caused to Cengiz as a result of Khashoggi’s torture and killing. Further relief is sought for alleged tortious interference with Khashoggi’s contract with DAWN, of which he was the first Executive Director.

Earlier last year, the plaintiffs convinced Judge John Bates to favour an alternative service process, using a number of forms: WhatsApp messaging, express mail to the Saudi General Prison Directorate, publication in media outlets such as the New York Times International Edition and Al-Quds Al-Araby, and notice to the Crown Prince’s own lawyers of record for two other lawsuits he is facing in the United States.

The response was always going to be a challenge, needing to negotiate that stumbling block of head of state immunity. But the litigants had a good argument: with the King of Saudi Arabia deemed absolute ruler, the usurping Crown Prince, despite exercising de facto control over the government, would surely not be deemed immune from any suit.

The legal eagles of the Saudi court got to work. In late September, Prince Mohammed was appointed prime minister by royal decree. While the royal decree made no mention of the reasons behind the formalisation, the drafters had created an exemption to Article 56 of the Basic Law of Governance making the King serve as prime minister.

The wheels of bureaucracy turned with dreary predictability, with the US State Department eventually filing a document in the US District Court for the District of Columbia recognising and allowing “the immunity of Prime Minister Mohammed bin Salman as a sitting head of a foreign state.” The document, authored by acting legal adviser Richard C. Visek, confirmed that the prince would remain immune “while in office from the jurisdiction of the United States District Court in this suit.” The immunity determination was not made regarding the merits of the case, with the State Department reiterating “its unequivocal condemnation of the heinous murder of Jamal Khashoggi.”

Officials in the administration were careful to cite those canons of international law that suddenly become convenient in the name of self-interest. “This is a legal determination made by the State Department under longstanding and well-established principles of international law,” came the bland wording in a statement from a spokesman from the White House National Security Council. “It has nothing to do with the merits of the case.”

In an interview with the Middle East Eye, Cengiz spoke of the implications of the decision. “It will set a very bad example not only for Jamal but for all justice seekers. If even the United States will not serve to bring criminals to justice, who will? Biden betrayed his own word.”

And what a mighty betrayal it was, from an individual who fetishizes democracy and the threats supposedly railed against it, who garnishes his speeches with regular references to human rights abuses committed by other regimes.

Specifically regarding Khashoggi, and Saudi Arabia’s human rights record, Biden was supposedly intending to drive a hard bargain. The killing of the journalist had, he previously stated, been “vitally important to me and the United States”. But such a view was always suspect, as Secretary of State Antony Blinken’s response to the CIA report inadvertently revealed. The issue for Washington was not to “rupture” but “recalibrate” relations with Riyadh. “The [US] relationship with Saudi Arabia is bigger than any one individual.”

In March, Prince Mohammed also showed he was ready to drive his own bargain. He flatly refused to meet Biden and accede to requests from the president that Saudi Arabia increase its oil output. Some concession might be made if he was granted immunity from any lawsuits.

Biden’s stance started to look woefully diminished, notably in a meeting with the crown prince in July which featured that most distasteful of greetings: a fist bump. “With respect to the murder of Khashoggi, I raised it at the top of the meeting, making it clear what I thought of it at the time and what I think of it now,” he told a subsequent press briefing. “I said very straightforwardly, ‘for an American president to be silent on an issue of human rights is inconsistent with who we are and who I am. I’ll always stand up for my values’.”

Things got even more unprincipled. Extensions were asked of the court regarding the administration’s submission of a statement of interest and whether it would permit the Crown Prince to face the legal music. Then came the snootily dismissive decision of the Saudi government on October 5 to dramatically reduce oil output at the meeting of OPEC member states. A capitulation from Washington seemed imminent.

It is precisely such pantomime and hypocrisy that makes Washington’s stance on human rights a laughable matter. Occasionally, the mask is ripped off, notably by such a figure as President Donald Trump, who cared little about the murder of the Saudi dissident and preferred to focus on military contracts with the Kingdom. As Trump stated in a cool response: “The United States intends to remain a steadfast partner of Saudi Arabia to ensure the interests of our country, Israel and all other partners in the region.” Ghastly, yet in its own way refreshing.

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