Why Biden has given MBS immunity over the Khashoggi killing

For US President Joe Biden, Saudi Arabia is the problem that never goes away. First came his decision to refrain from slapping penalties on Saudi Crown Prince Mohammed Bin Salman (MBS) following the kidnapping and murder of Washington Post columnist Jamal Khashoggi, a former Saudi royal insider who became increasingly critical of the ruling family (the Biden administration did place travel restrictions on 76 other Saudi officials and sanctioned the elite Saudi intelligence force that carried out the operation).

Then, in November last year, the White House notified Congress of its first arms deal with the kingdom, a $650 million sale of missiles that caused heartburn in some corners of the president’s own party. Then came Biden’s highly controversial visit to the kingdom this summer, made worse after Riyadh pressured OPEC+ less than three months later to cut oil production by 2 million barrels per day.    

Now comes another development, yet again related to the Khashoggi case. More than two years after the journalist’s fiancé, Hatice Cengiz, sued the Saudi crown prince in US district court for unspecified damages, the US has killed her case. Due to the principles of head-of-state immunity, the State Department told the court, MBS is entitled to protections against the suit. While it’s true MBS is not yet king, he is nevertheless running the Saudi government under the tutelage of his father, King Salman Bin Abdulaziz, who promoted him to prime minister in September. There’s a strong possibility the aging monarch did this precisely to protect his favourite son from possible repercussions over the Khashoggi case.  

While the judge has the final say on whether to indeed grant the immunity request, the judicial branch is extremely deferential to the executive on matters of foreign policy and national security. Indeed, this isn’t the first time US district court judges have been asked to rule on an immunity request for a foreign head of state or government. When Joseph Kabila, the president of the Democratic Republic of the Congo, was sued for the beating of a group of activists in front of a Washington, DC hotel during a state trip, another US district court judge threw out the case, citing the State Department’s argument that Kabila was entitled to diplomatic protection. The official ruling hasn’t been made on MBS, but it stands to reason that, like Kabila, the crown prince won’t have anything to worry about.

As you might expect, the State Department’s claim of immunity has generated intense blowback, if not disgust, in the journalism and human rights communities. David Ignatius, a columnist at the Washington Post and a colleague of the late Khashoggi, wrote that despite pledging he would treat Saudi Arabia as a pariah state, ‘Biden has sadly capitulated to what he viewed as a need to mend relations with the man [MBS] who might be Saudi Arabia’s king for decades.’ Agnès Callamard, who investigated the Khashoggi case during her tenure as the UN special rapporteur on extrajudicial executions, was more colourful in her response: ‘Hear ye, hear ye, government officials with blood on your hands, generals commanding war crimes, ministers ordering abduction and torture, corrupt executives, let it be known, to put yourself above the law just declare yourself head of state.’

The feelings are more than understandable. There’s something dirty and soulless about a theory that affords presidents, prime ministers and kings more legal protection than the rest of us. Even so, this same theory is universally accepted for the simple reason that countries don’t want to see their leaders hauled into foreign courts and asked to answer for alleged crimes executed on their behalf. States are fearful, with good reason, that allowing such suits against foreign leaders would create a dangerous precedent, exposing their own officials to similar cases regardless of the merits. 

A US State Department spokesperson was at pains to explain that cloaking MBS with an immunity blanket shouldn’t be read as a reflection of innocence on the part of the crown prince. ‘This Suggestion of Immunity… speaks to nothing on broader policy or the state of relations,’ the spokesperson said.   

This is the epitome of a gross understatement. The state of US-Saudi relations lies somewhere between poor and contemptible. Fist-bump aside, Biden and MBS have no personal relationship and exhibit a similar degree of loathing for each other. The Saudis consider the Americans sanctimonious blowhards, not to mention impatient amateurs who don’t comprehend the oil market. The Americans view the Saudis as unapologetic, entitled opportunists who assume that, when push comes to shove, the US defence establishment will always be at their beck and call. Washington and Riyadh have reached a point in their seven-decade long partnership where the core arrangement holding everything together (security for the kingdom; reliable oil supplies for the world market) is now being weathered down by a series of structural geopolitical factors and divergent interests.  

If the kingdom decides to stick with its current oil production targets during next month’s OPEC+ meeting, the partnership will sink to even lower depths.