The Biden administration has told a US court that Mohammed bin Salman should be granted sovereign immunity in a civil case involving the murder of journalist Jamal Khashoggi, effectively ending a last-ditch effort to hold the Saudi crown prince legally accountable for the murder in 2018.
In a document released late Thursday night, the Biden administration said the crown prince’s recent promotion to the role of prime minister meant he was “the incumbent head of government and consequently immune” to the lawsuit.
“The United States government has expressed its grave concern about the horrific murder of Jamal Khashoggi and has raised these concerns publicly and at the highest levels of the Saudi government,” the Justice Department said in its filing, adding that the US also imposed financial sanctions. and visa restrictions related to the murder.
“However, the doctrine of the immunity of heads of state is well-established in customary international law and consistently recognized in the long-standing practice of the executive branch as a status-based provision that does not reflect judgment on the underlying conduct at issue in the trial ,” it said.
The government’s application included an attached letter from Richard Visek, acting legal adviser to the US State Department, instructing the Justice Department to submit a “suggestion of immunity” to the court.
Legal experts say the US government’s position, filed in a US district court, is likely to lead Judge John Bates to dismiss a civil case against Prince Mohammed and his alleged accomplices by Hatice Cengiz, Khashoggi’s outspoken fiancé.
Dawn, a pro-democracy advocacy group founded by the slain Washington Post columnist, was a co-plaintiff in the case, which alleged that Prince Mohammed and other Saudi officials acted in a “conspiracy and premeditation” when Saudi agents kidnapped , Khashoggi was tied up, drugged, tortured and killed in the Saudi consulate in Istanbul in 2018.
Sarah Leah Whitson, Dawn’s executive director, issued a scathing rebuke to the government following its decision, calling it an “unnecessary, elective action that will only serve to undermine the main action for accountability for Khashoggi’s heinous murder.”
“It is more than ironic that President Biden single-handedly assured [Mohammed bin Salman] can escape accountability when it was President Biden who promised the American people that he would do everything in his power to hold him accountable. Not even the Trump administration has done this,” she said.
In June, Bates invited the Biden administration to weigh in on whether it believed Prince Mohammed should be granted sovereign immunity in the case, and agreed to grant the US government two delays before requiring it to state its views before filed Nov. 17.
A legal observer close to the case said it has always been clear that while the U.S. government is not a party to the civil claim, its views would prevail and that the judge in the case would most likely proceed with the case or dismiss, depending on the position of the US government.
The Biden administration’s decision — which will effectively destroy Cengiz’s last hope for justice — is likely to draw fierce criticism from Democratic lawmakers on Capitol Hill, who have urged the administration to take a tougher stance on its partner in the Middle East. A lawyer close to the case said the decision was “disastrous for accountability, for human rights and for impunity”.
The legal decision also makes it clear that US President Joe Biden has completely reneged on a campaign promise to hold Prince Mohammed responsible for Khashoggi’s murder.
It raises questions about Biden’s public remarks last month, in which he said Saudi Arabia would face “consequences” if it led an Opec+ decision to cut oil production, a move seen by the US government as taking sides for Russia over the interests of American allies. .
People familiar with the matter said the decision was made after a “great debate” at the highest levels of the White House, with some senior US officials claiming it would be difficult to defend the Biden administration’s claim that human rights be central to the matter. its foreign policy while at the same time “MBS”, as the crown prince is called, can evade responsibility for his alleged role in the assassination.
Cengiz’s lawyers have argued that she turned to the US courts for help because no other forum — including her native Turkey — had a sufficiently independent judiciary to fairly review her complaint. Prince Mohammed has denied that he was personally involved in Khashoggi’s murder.
It has been clear since June that the future of the matter hinged on whether Prince Mohammed — widely viewed as the de facto ruler of Saudi Arabia — was viewed as a sovereign in the eyes of the US government, such as a president or a king, since in most cases sovereigns are considered immune from US lawsuits.
When Biden first entered the White House, he refused to have direct contact with Prince Mohammed. His press secretary at the time repeatedly argued that the prince — while seen as the de facto leader of Saudi Arabia — was not Biden’s counterpart.
At the same time, US intelligence agencies released an unclassified report stating that Prince Mohammed likely ordered Khashoggi’s assassination. The president’s stance changed last summer, when he visited Jeddah and met the crown prince, punching the heir to the throne.
The question of whether the prince was indeed a sovereign became more complicated in September when King Salman declared that Prince Mohammed would be elevated to prime minister. The decision, made public just days before the US government was due to rule on the Cengiz case, was seen by human rights defenders as a ploy to evade accountability for Khashoggi’s murder.
If the civil case goes ahead – which is unlikely – Cengiz and Dawn could depose the crown prince. If Prince Mohammed loses the case, he could be held liable for compensation.
“It would mean that every time he comes to the US – if he were found guilty – they could issue a notice and impose a fine. It would be humiliating and would effectively prevent him from traveling to the US again,” said Bruce Riedel, a former CIA analyst and fellow at Brookings.
It is unlikely that all this will happen now.
“The pariah is now above the law,” Riedel said.