Mohammed bin Salman Immune from Suit Over Khashoggi Murder

SAUDI-RUSSIA-DIPLOMACY

Saudi Arabia’s Crown Prince Mohammed bin Salman speaks to Russian President during the talks in Riyadh, Saudi Arabia, on Oct. 14, 2019. (Photo by ALEXANDER ZEMLIANICHENKO/POOL/AFP via Getty Images)

Deferring to the U.S. government’s findings that the Saudi Crown Prince is immune, a federal judge agreed to dismiss a lawsuit seeking to hold Mohammed bin Salman liable for journalist Jamal Khashoggi’s murder.

The Tuesday afternoon ruling dismissed claims Khashoggi’s fiancée Hatice Cengize leveled against the Saudi leader and two others allegedly involved in what the lawsuit describes as Khashoggi’s “ruthless torture and murder.”

“The United States has reached the same conclusion: that the ‘horrific’ killing was approved by bin Salman himself,” U.S. District Judge John Bates noted in his 25-page opinion, citing a declassified intelligence report. “Even defendants acknowledge that Khashoggi was murdered in the Saudi Consulate, and that the murder was carried out by Saudi nationals.”

Despite finding a “strong argument” the claims may be “meritorious,” Bates found that the separation of powers compelled him to accept the Biden administration’s determination that bin Salman’s recent appointment as the country’s prime minister gave him immunity.

The judge also found he lacked jurisdiction over high-ranking Saudi officials Saud al-Qahtani and Ahmed al-Assiri, both sued in connection with Khashoggi’s murder.

Six days before the government’s deadline to chime in on the question of immunity for bin Salman, the crown prince’s father King Salman bin Abdulaziz Al Saud unilatrally appointed his son as prime minister. Cengiz and her attorneys called the development gamesmanship, but the Biden administration argued that the development tied their hands by transforming him into a head of government.

Noting the “suspicious timing,” Bates seemed to agree the appointment was a gambit to “shield him from potential liability in this case.”

Still, the judge said, it is “no small ask” to have him disregard customary international law in having a court recognize head of state immunity.

“Plaintiffs are unable to cite any instance, foreign or domestic, where a court declined to grant head-of-state immunity to a defendant based on the circumstances of their appointment—or based on anything other than a finding that the defendant was not in fact the head of state,” a footnote of the ruling reads.

Bates made clear that this conclusion gave him pause.

“Despite the Court’s uneasiness, then, with both the circumstances of bin Salman’s appointment and the credible allegations of his involvement in Khashoggi’s murder, the United States has informed the Court that he is immune, and bin Salman is therefore ‘entitled to head of state immunity . . . while he remains in office,”” the ruling states. “Accordingly, the claims against bin Salman will be dismissed based on head-of-state immunity.”

The U.S. government appeared to bemoan that conclusion as well in reaching it.

“The United States Government has expressed grave concerns regarding Jamal Khashoggi’s horrific killing and has raised these concerns publicly and with the most senior levels of the Saudi government,” the DOJ’s Civil Division wrote in a filing last month. “It has also imposed financial sanctions and visa restrictions as a result of, and related to, Mr. Khashoggi’s killing, and has sought to promote transparency through the release of the intelligence community assessment of the Saudi government’s role in the incident. However, the doctrine of head of state immunity is well-established in customary international law and has been consistently recognized in longstanding Executive Branch practice as a status-based determination that does not reflect a judgment on the underlying conduct at issue in the litigation.”

The executive director for Democracy for the Arab World Now (DAWN), one of the key organizations involved with the lawsuit, expressed disappointment with the result.

“Sad news for accountability,” DAWN’s leader Sarah Leah Whitson tweeted.

Read the opinion here.

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