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Head of State: An Opportunistic Promotion?

by Senior Analyst Talal Kapoor

Saudi law designates the king as prime minister, but on September 27 Salman declared a temporary exception to the rule and named his son and next-in-line Muhammad (known as MbS) as prime minister, formally ceding the joint title of king and prime minister he has personally held until now. However, the timing of the decision was immediately suspect. A civil lawsuit in the United States over his role in the murder of Saudi journalist Jamal Khashoggi was looming, but with the formal, governmental role the principle of sovereign immunity could now be invoked, preventing the lawsuit from moving forward. In light of the promotion, the crown prince might be breathing sigh of relief, feeling more comfortable now traveling to the US and Europe, amidst talk of further possible legal action over rights abuses.

The lawsuit, filed in a US district court by Khashoggi's Turkish fiancee, Hatice Cengiz, along with DAWN, a Washington-based human rights group (co-founded by the murdered journalist) alleged that MbS and other Saudi officials acted in a "conspiracy and with premeditation" when Saudi agents kidnapped, tortured and killed Khashoggi in 2018 at the Saudi consulate in Istanbul. (A US intelligence assessment, released in 2021, held that MbS was, with a moderate to high degree of certainty, personally involved in the affair. Riyadh has always insisted that "rogue agents" were responsible; several operatives were indeed charged and found guilty, but they seem not to have faced any actual consequences in what were widely regarded as sham proceedings.) The judge hearing the case asked the Biden administration to advise him whether MbS should be granted sovereign immunity (which under international law is normally extended to a president, king or head of government), originally giving the government until August 1 to "declare its interests in the civil case or give the court notice that it has no view on the matter".

In fact, lawyers for MbS had started seeking immunity in US federal courts as early as August 2020, after Sa'd al-Jabri, a former top Saudi intelligence official, sued the crown prince in Washington, alleging that MbS had tried to have him killed in Canada in 2018 with his "Tiger Squad" of hitmen. In that case, the Trump administration declined to grant MbS immunity (in spite of the generally more favorable relations enjoyed between the two countries then). However, the case was ultimately thrown out for want of jurisdiction.

After being asked to give an opinion on the applicability of the head of state immunity in this case, the judge was asked for an extension until October. Possibly, the administration was hoping to leverage the question of immunity for MbS while they negotiated with the Saudis over oil production quotas during the summer, and avoid controversy in the runup to midterm Congressional elections. In the event, Biden's pleas were rebuffed, even after a poorly-received visit to the Kingdom in July, and the Saudis cut the supply to market drastically, humiliating the president in the process. By November, however, a determination was issued by the State Department, finding that MbS, "as a sitting head of government... was immune while in office from the jurisdiction of the...District Court".

While it is still up to a judge to formally decide whether MbS has immunity, the news provoked a firestorm of criticism, putting Biden on the back foot. His press team emphasized that this was purely a "legal determination", that multiple areas of the administration had been consulted, including the White House, and that this was not without precedent. However, the impression that he was dealing more leniently with MbS (equally maligned in Washington on both sides of the aisle) than even his predecessor was hard to overcome, even if legal analysts pointed out that denying immunity to a head of state but finding him guilty would have resulted in an equally bad outcome as granting it.

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