State Department Recognizes Head-of-State Immunity for MBS
November 17, 2022
Earlier today, the U.S. State Department recognized that Crown Prince Muhammad bin Salman (MBS) is entitled to head-of-state immunity as Prime Minister of Saudi Arabia in a case brought by Democracy in the Arab World Now (DAWN) and the widow of journalist Jamal Khashoggi, who was brutally murdered by Saudi security agents at the Saudi embassy in Istanbul.
Background
Khashoggi’s widow, Hatice Cengiz, and DAWN, a U.S. organization that he helped found, sued MBS and 28 other defendants in federal court in the District of Columbia. Khashoggi married Cengiz in a religious ceremony in Istanbul. To confirm the marriage civilly, he needed a certificate from Saudi Arabia, which he tried and failed to obtain from the Saudi embassy in Washington, D.C. The complaint alleges that MBS instructed embassy employees to entrap Khashoggi by representing that he could obtain the required certificate only in Istanbul and that it would be safe to do so. Khashoggi went to the Istanbul consulate to obtain the certificate and was killed, allegedly on the orders of MBS.
Head-of-State Immunity
Head-of-state immunity is a form of foreign official immunity based on the status of certain foreign officials. It grants absolute immunity from suit to foreign heads of state, heads of government, and foreign ministers during their terms in office. It is distinct from conduct-based immunity, applicable to lower-level officials and to former officials, which grants immunity only with respect to acts taken in an official capacity. Head-of-state immunity is required by customary international law, and has long been recognized in federal common law.
Initially, MBS claimed head-of-state immunity as a member of King Salman’s family and based on his own high-ranking position in the Saudi government. (He did not claim conduct-based immunity, presumably because he could not argue that Khashoggi’s murder was an official act.) As I noted in August, U.S. practice and international law have consistently limited head-of-state immunity to heads of state, heads of government, and foreign ministers. MBS held none of these positions. It would have been a remarkable break from practice for the United States to have suggested immunity for MBS under those circumstances.
All this changed on September 27, when King Salman named MBS Prime Minister of Saudi Arabia, just days before the United States was due to express its views on MBS’s claim to immunity. The United States sought and was granted an extension of the time to express its views until November 17, but the answer was in little doubt. As I wrote then, MBS’s status as Prime Minister entitles him to head-of-state immunity as Saudi Arabia’s head of government.
The State Department’s Determination
That is precisely what the State Department decided today. In a letter to the Justice Department, Acting State Department Legal Adviser Richard Visek wrote that “[t]he State Department recognizes and allows the immunity of Prime Minister Mohammed bin Salman as a sitting head of government of a foreign state.” The letter follows the State Department’s standard form, relying on “common law principles of immunity articulated by the Executive Branch in the exercise of its Constitutional authority over foreign affairs and informed by customary international law.” (Chimène Keitner and I have criticized the executive’s claim of constitutional authority to make federal common law rules governing immunity, as has Ingrid (Wuerth) Brunk.) The letter also reiterated the State Department’s “unequivocal condemnation of the heinous murder of Jamal Khashoggi.”
This letter was accompanied by a statement of interest filed by the Justice Department. This statement also follows the standard format for such filings. It asserts the President’s broad authority “to represent the nation in the conduct of foreign relations.” It notes that “[t]he doctrine of head of state immunity is well established in customary international law.” And it notes that “[c]ourts routinely defer to the Executive Branch’s immunity determinations concerning sitting heads of state and heads of government.”
Assessment
After the filing, DAWN released a statement quoting its executive director as saying: “It’s impossible to read the Biden administration’s move today as anything more than a capitulation to Saudi pressure tactics, including slashing oil output to twist our arms to recognize MBS’s fake immunity ploy.”
Although I agree that MBS’s appointment as Prime Minister was likely made to guaranty him head-of-state immunity, I disagree that the State Department’s filing constitutes a capitulation to Saudi pressure tactics. As Saudi Arabia’s head of government, MBS is entitled to head-of-state immunity as a matter of international law. Longstanding and consistent U.S. practice also supports the grant of immunity in this case. It would have been just as remarkable for the United States to deny MBS’s head-of-state immunity after his appointment as Prime Minister as it would have been for the United States to recognize MBS’s head-of-state immunity before his appointment.
What makes this case shocking is the brutality of the crime that immunity shields from suit. But head-of-state immunity is an absolute immunity with no exceptions for egregious violations of human rights. As a legal matter, there is nothing shocking about the State Department’s conclusion.
The State Department’s determination should end the suit against MBS. The executive’s recognition of an official as head of government is not subject to review by a court, and head-of-state immunity follows as a matter of course from that status under customary international law and federal common law.
There are, however, 28 other defendants in the suit brought by DAWN and Khashoggi’s widow, none of whom is entitled to immunity. Two of them have appeared and moved to dismiss on various grounds, including the act of state doctrine and failure to join Saudi Arabia as an indispensable party. As I explained in an earlier post, these defenses are extremely weak, and the U.S. statement of interest expresses no view on them. If claims are dismissed against some or all of the other defendants, it will likely be for lack of personal jurisdiction.
Conclusion
The murder of Jamal Khashoggi was a heinous crime, and there is little doubt in the eyes of the world that MBS bears direct responsibility. The claims against other defendants, not entitled to immunity, may result in further discovery that sheds more light on MBS’s involvement. But MBS’s appointment as Prime Minister effectively shields him from suit in U.S. courts as a matter of international law. This is not a result to celebrate. But it is the law, nonetheless.