Biden Should Not Fall for MBS's Attempt to Dodge Accountability for Khashoggi Murder

Last week Crown Prince Mohamed bin Salman, or MBS, made a desperate, eleventh-hour ploy to escape accountability in the civil lawsuit pending against him in the United States for the 2o18 abduction, torture, murder, and dismemberment of Washington Post columnist Jamal Khashoggi by arranging a royal decree anointing him "prime minister."

It's bad enough that President Biden has broken his promises to hold Saudi Arabia accountable for the murder of Khashoggi; it would be quite head-spinningly awful if he ensures MBS's total impunity for it.

The quest to gain "head of government" status to evade justice based on this phony title would be a terrible move. It would not only frustrate meritorious efforts to hold him civilly liable, at the very least, for his many crimes, but also set a dangerous precedent for powerful criminals to evade legal accountability for the worst abuses with copycat title-washing maneuvers.

There's not an inkling of doubt that MBS's prime ministerial designation, an aberration of Saudi law or custom, is for the sole and exclusive purpose of securing immunity from the lawsuit and two other civil actions pending against him for serious crimes. Indeed, the ink had hardly dried on the "royal decree" exceptionally designating MBS as prime minister before his lawyers moved just a few days later, on October 3, to ask the court in the Khashoggi lawsuit to recognize his immunity. (Full disclosure: My organization DAWN is a co-plaintiff in the civil suit, along with Khashoggi's fiancee, Hatice Cengiz, filed in U.S. District Court in D.C., in 2020).

Under Saudi law, the title of prime minister--a meaningless honorific in the absolute monarchy even in normal times--is held by the King. The decree appointing MBS as prime minister stated that it was a conditional and temporary exception to the law, effective only when the King himself is not in attendance at cabinet meetings and only so long as MBS is crown prince. The decree makes no effort to change Saudi law to vest formal new powers in any crown prince, and it's virtually unthinkable that MBS, once he becomes King, would tolerate anyone else as head of government, which is why it's a dispensation for him alone.

Why Saudi Arabia waited two years after the filing of the Khashoggi lawsuit before resorting to this maneuver is linked in no small part to its endlessly hostile relations with the Biden administration. MBS pushed the Trump administration, and then the Biden administration, to suggest immunity for him in the various lawsuits he faced, but the State Department under both administrations stood firmly against. On the merits, there would have been no grounds to argue that MBS as crown prince should be entitled to head of state immunity. But MBS persisted in his demands, elevating the blackmail by reportedly refusing to take a call from Biden and agree to increase oil output unless Biden granted him immunity (as well as a formal security guarantee from the U.S.).

When U.S. federal District Court Judge John Bates, who is hearing the Khashoggi lawsuit, asked the State Department July 1--on the eve of Biden's fist-bump rapprochement with MBS in Riyadh--to weigh in on the matter, the best the State Department could do was punt and ask for a delay to respond, from the August 1 deadline to October 3. As the new deadline approached, the Saudis resorted to issuing the royal decree appointing MBS as prime minister. And just a few days later, on October 5, Saudi Arabia announced it aimed to cut OPEC Plus oil output by two million barrels per day--a pretty clear slap at Biden, who had thus far offered neither immunity nor the desired security guarantees. White House talking points described the Saudi move as a "total disaster" and, remarkably, a "hostile act."

The long-standing precedent in U.S. law, based on customary international law, is to recognize the "troika" of the head of state, head of government, and foreign minister of a country as immune from prosecution or lawsuit. The justification for this immunity is to ensure that foreign countries can maintain functioning relationships and that heads of state can carry out their duties without fear of being sued civilly or prosecuted criminally. There have been growing challenges to such absolute immunity, however, when the crimes committed are particularly egregious, and international tribunals regularly reject any status-based immunity.

The International Criminal Court and other international tribunals, for example, specifically permit prosecutions of current and former heads of state. Extensive U.S. legislation also subjects heads of state to sanctions and other punishments, rejecting immunity when they violate international norms on corruption or human rights. Ultimately, "head of state immunity for purposes of the immunity determination attaches only to those individuals whom the U.S. executive branch recognizes as legitimately holding that status." (Emphasis added.)

MBS's fraudulent ploy to evade the jurisdiction of U.S. courts in the three civil lawsuits against him for truly heinous crimes should be much easier to dismiss from any immunity claim. While a prime minister in a state like the United Kingdom is clearly the head of government, that is not the case in Saudi Arabia, an absolute monarchy, where King Salman controls all levers of power, and MBS is his subordinate.

It should not be too much of a stretch to reject bogus titles doled out for the sole and exclusive purpose of avoiding lawsuits. And a civil lawsuit such as the ones faced by MBS does nothing to interfere with his ability to carry out his responsibilities whether in his capacity as crown prince or even as "prime minister." A civil lawsuit carries no risk of arrest; it is, in the end, a claim for financial penalties that a defendant can, for example, choose to settle if the burden of defense is too great.

More significantly, recognizing immunity based on artificial titles assigned solely to dodge a lawsuit would open the floodgates to similarly positioned tinpot warlords, mafiosos, or even drug kingpins to assign themselves or buy presidential or ministerial titles. Indeed, why stop at one? It's not hard to imagine the title doled out to even a dozen simultaneous presidents and prime ministers for life with the argument that they're sharing the job as head of government. Legitimizing fake immunity ploys would very quickly eviscerate universal jurisdiction laws all around the world, including the U.S. Alien Tort Claims Act and Torture Victims Protection Act that are both designed to allow U.S. plaintiffs to sue foreign officials who have carried out gross abuses.

The best thing the Biden administration can do is to reject the immunity MBS has so petulantly demanded for two years now, or, at a minimum, simply stay out of the case entirely.

It's bad enough that President Biden has broken his promises to hold Saudi Arabia accountable for the murder of Khashoggi; it would be quite head-spinningly awful if he ensures MBS's total impunity for it, thus undermining both American and international laws that provide the only means for punishing the worst human rights abusers on our planet.