Biden has to decide if Bin Salman should be granted immunity in Khashoggi case

US President Joe Biden on 30th June 2022

Originally posted to the Middle East Monitor website, 4 July 2022

The administration of US President Joe Biden has less than a month to decide whether or not it thinks that Saudi Arabia’s Crown Prince Mohammed Bin Salman should be granted sovereign immunity in a civil case brought against him in America by the fiancée of murdered Washington Post journalist Jamal Khashoggi. Hatice Cengiz and an advocacy group founded by Khashoggi, Democracy for the Arab World Now (DAWN), successfully filed a lawsuit against Bin Salman in the District of Columbia Federal District Court on 20 October 2020.

The lawsuit alleges that the prince and several other Saudi officials, “acting in a conspiracy and with premeditation, kidnapped, bound, drugged and tortured, and assassinated US-resident journalist and democracy advocate Jamal Khashoggi inside the Saudi Consulate in Istanbul, Turkey” in October 2018, and that the murder caused the plaintiffs grievous injury and harm. Bin Salman and two of the co-defendants have filed motions to dismiss Cengiz’s lawsuit, contending that the court lacks jurisdiction. He has previously denied ordering Khashoggi’s killing; Saudi officials have blamed “rogue agents” for the journalist’s murder.

In a surprise twist, though, Biden has been asked to get involved. US District Court Judge John Bates gave the US government until 1 August to declare its interests in the civil case or give the court notice that it has no view on the matter. Essentially, Biden is being asked to decide if the de facto ruler of Saudi Arabia should be granted sovereign immunity, a privilege enjoyed by all heads of state.

Lawyers acting on behalf of the crown prince have argued that in the US, the 36-year-old enjoys sovereign immunity in civil claims. His father, King Salman, is Saudi Arabia’s sovereign, although the son is regarded widely as the Kingdom’s day-to-day ruler.

“It would be a mistake as both a matter of law and policy for the court to grant Bin Salman immunity, effectively guaranteeing impunity for this grotesque crime,” Sarah Leah Whitson, the executive director of DAWN, said in a text message reported by the Washington Post. Whitson’s opposition to granting sovereign immunity was echoed by Agnès Callamard, the head of Amnesty International, who investigated Khashoggi’s murder in her previous role as UN special rapporteur on extrajudicial killings. It was “laughable” to think that Bin Salman, whom she called “an almost-sovereign”, could benefit from head of state immunity after the US itself had concluded publicly that he most likely approved the operation to kill Khashoggi, Callamard is reported saying by the Guardian.

The former UN rapporteur was referring to a US intelligence report which determining that Bin Salman had directly authorised the assassination of Khashoggi in the Saudi consulate in Istanbul. Biden himself appeared to have been persuaded by the conclusion and signalled a major shift in US-Saudi relations. During his presidential campaign, he pledged to make Saudi Arabia “pay the price and make them, in fact, the pariah that they are” for Khashoggi’s murder.

Since taking office, however, the US president has been singing a different tune. There has been a retraction of not only that “pariah” statement, but the Biden administration’s stated commitment of “putting human rights at the centre of US foreign policy,” has been pushed back so much that, later this month, the president will travel to Riyadh where he is scheduled to meet Bin Salman.

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