Mohamed Soltan, a U.S. citizen, is attempting to sue a former Prime Minister of Egypt for alleged acts of torture and attempted extrajudicial killing in the wake of a 2013 coup. But the State Department may have effectively ended the suit with its recent statement affirming that the defendant is entitled to a form of diplomatic immunity. The United States has argued that it is applying straightforward doctrines of immunity which it is empowered to uphold and to which the court must defer, while Soltan claims that the decision represents a political calculus to placate the Egyptian government. Whatever the outcome, the State Department’s intervention has set the tone not only for its management of its relationship with Egypt but also for its approach to future immunity issues, potentially including those raised in a high-profile suit against the Crown Prince of Saudi Arabia.
Background to the Litigation
In July 2013, a military-backed government seized power in Egypt and named Hazem Abdel Aziz El Beblawi as Prime Minister. To protest the coup, tens of thousands of civilians participated in a sit-in in Cairo’s Rab’a Square. The government’s increasingly violent efforts to quell the protest culminated in the infamous Rab’a Square massacre, in which security forces fired live rounds into the crowd, killing hundreds. Amidst the carnage, snipers allegedly targeted members of the media to thwart efforts to document the violence (Complaint ¶ 40).
Soltan, who grew up in the United States and graduated from Ohio State University in 2012, had moved to Egypt in March 2013 and joined the Rab’a Square protest as a de facto civilian journalist. There, he played a prominent role facilitating access to interpreters for a number of Western media outlets (Complaint ¶ 32). He also used social media to directly broadcast evidence of human rights abuses. On the day of the Rab’a Square massacre, snipers fired multiple shots at Soltan, with one bullet narrowly missing his head and another striking him in the arm (Complaint ¶ 43).
After surviving the massacre, Soltan was arrested by government security forces. He spent the next 21 months in detention, during which time prison authorities subjected him to physical and psychological torture and nearly killed him. Soltan ultimately received a life sentence in a perfunctory mass trial. As his heinous mistreatment had attracted worldwide attention, the Obama administration condemned the sentence and ultimately negotiated for his release in May 2015.
Beblawi, meanwhile, resigned from his Prime Minister post in 2014 and moved to Washington, D.C. to serve as an Executive Director of the International Monetary Fund (IMF), a position he held until October 2020. It was as a result of this move that Soltan was able to serve Beblawi with process in D.C. District Court on June 3, 2020. Soltan also names several “Un-sued Defendants” in the complaint who cannot presently be sued due to immunity and jurisdictional issues, including current Egyptian President Abdel Fattah al-Sisi (¶¶ 15-18). The Egyptian government has sought to quash the litigation and has harassed and detained members of Soltan’s family in retaliation for his bringing the suit.
Soltan is suing Beblawi under the Torture Victims Protection Act (TVPA) for attempted extrajudicial killing and torture. The suit alleges that Beblawi, as Prime Minister, directed the security forces’ operations during the Rab’a massacre, including authorizing or having knowledge of the snipers’ targeting of the plaintiff and other media members (¶¶ 157-164). Additionally, it is alleged that Beblawi was responsible for overseeing the regime of torture “carried out or ordered by Defendants and those acting in concert with them” (¶¶ 145-156). As the majority of the harm suffered by the plaintiff was inflicted by subordinate government personnel, the complaint seeks to attach liability to Beblawi on the grounds that he exercised command responsibility over, conspired with, or aided and abetted these subordinates in his capacity as Prime Minister.
The defense pushed back on these theories of responsibility in a motion to dismiss filed on July 1, 2020, arguing that the complaint pleads insufficient facts as to Beblawi’s precise role overseeing the Rab’a massacre and ensuing torture program and instead relies on conclusory allegations of responsibility associated with his position as Prime Minister (MTD p. 7). Beblawi’s team also argued that attempted extrajudicial killing claims and claims premised on secondary liability are not cognizable under the TVPA (in spite of the plaintiff’s invocation of formidable case law and legislative history to the contrary, see Opposition to MTD p. 18-23). Additionally, Beblawi raised separation of powers and international comity concerns associated with the adjudication of the acts of a former head of state (MTD p. 27, 29).
While the above arguments remain unresolved, another issue – Beblawi’s claim to immunity – has assumed center stage in the litigation. In its motion to dismiss, Beblawi’s team advanced multiple theories of immunity. First, they noted that the Egyptian government had communicated to the State Department a request for a Suggestion of Immunity which would resolve the case upon issuance (MTD p. 16). Even without such an intervention, the defense argued Beblawi is entitled to immunity on account of his diplomatic visa, asserting generally that he is a diplomatic representative of Egypt (MTD p. 17). Finally, the defense argued that common law theories of official immunity incorporated into the TVPA bar the suit because the acts in question were carried out in an official capacity on behalf of a sovereign government.
State Department Involvement and PRR Immunity
The case took an unexpected turn when the State Department provided certification that Beblawi enjoys immunity on a rationale not clearly articulated in the defendant’s motion – a conclusion that raised questions of first impression for the court and further complicated the litigation.
On July 17, 2020, the defense submitted a certification from the State Department which found immunity for Beblawi on the basis of his status as a “Principal Resident Representative of the Arab Republic of Egypt to the International Monetary Fund, effective November 2, 2014.” (Broas Decl. ¶ 4). The State Department cited to Article V Section 15(4) of the U.N. Headquarters Agreement, which grants diplomatic immunity to principal resident representatives (PRRs) of Member States of a specialized agency. In other words, the State Department found Beblawi is entitled to immunity from this suit under the U.N. Headquarters Agreement because, at the time of filing, he was a PRR of Egypt in his capacity as Executive Director to the IMF, which is registered to the U.N. as a “specialized agency” for purposes of Section 15(4). This move was questioned by some Democratic lawmakers who felt, regardless of the certification’s legal basis, that the United States should do more to push back against Egypt’s extralegal tactics to thwart the suit, including the kidnapping of Soltan’s relatives.
As the State Department had lobbed an unanticipated justification of immunity into the suit, Soltan filed a motion for administrative stay for the court to assess the requirements of the U.N. Headquarters Agreement. Soltan’s team contended that Section 15(4) of the treaty requires a tripartite agreement between “the principal executive officer of the specialized agency, the Government of the United States, and the Government of the Member concerned” as to the Defendant’s PPR status – meaning in this case that any immunity would be contingent on documented agreement by the United States, Egypt, and IMF leadership that Beblawi was serving as a PRR (Plaintiff’s Administrative Stay Memorandum 1). The text of the treaty is ambiguous as to whether this requirement applies to principal resident representatives themselves or just members of the staffs of representatives.
In December 2020, the court concluded that it would be the first to interpret whether claiming immunity as a PRR under Section 15(4) requires consent from the specialized agency, in this case the IMF, and requested responses from the State Department to three questions:
- Did the State Department’s certification of immunity rely on an agreement with the IMF as to Beblawi’s PRR status? If so, would the State Department provide proof of this agreement?
- If the State Department’s position was not based on documentation of IMF agreement, would the State Department consult with the IMF and obtain such documentation? Or,
- If it is the State Department’s position that Section 15(4) does not require IMF agreement to establish that Beblawi is a principal resident representative, what is the legal justification for that position?
In April 2021, the State Department responded to the court’s request with a Statement of Interest ostensibly resolving the issue which, from Soltan’s perspective, only muddled matters further. The United States asserted that its July 7, 2020 certification of Beblawi’s diplomatic status was conclusive; once the United States determined Beblawi enjoyed immunity as a PRR of the IMF, the court “must defer completely” to this determination rather than “look behind the certification to perform [its] own analysis” of the determination’s basis (Statement of Interest p. 6). The message was clear: individual immunity assessments are the business of the executive branch, not the judiciary.
Less clear, Soltan contends, were the government’s answers to the court’s three questions. The statement notes “solely for the Court’s cognizance” that in this case all three parties – the IMF, Egypt, and the United States – happened to agree as to Beblawi’s status. Nonetheless, the United States maintained “no tripartite agreement is required” for PPR immunity, explaining in a footnote that it read the text of Section 15(4) to only require tripartite agreement for “resident members of the staffs of representatives,” not for the principals themselves (Statement p. 8). The United States also attached a declaration from a State Department official averring that there is record of an agreement as to Beblawi’s status as a PRR during his time at the IMF, and that he was accorded immunity from November 2014 to October 2020 (Beblawi left his post and the United States at the end of October after the suit had been filed – the relevant question is whether he held immunity at the time of filing).
Thus, for those keeping score, the State Department has answered the court’s inquiries with the following:
- The certificate of immunity did not rely on a formal agreement from the IMF, though there happened to be such an understanding in this case. The United States attached testimony as to the existence of this agreement in lieu of documentary evidence.
- The State Department does not need to consult with the IMF to reach this conclusion.
- The United States has concluded Section 15(4) does not require IMF agreement based on the text of the UN Headquarters Agreement, and, regardless of the court’s interpretation, the executive branch’s decision is to be accorded complete deference.
Effect of the Statement
The decision to uphold immunity for Beblawi reflects the latest in a growing portfolio of efforts by the Biden administration to balance the demands of accountability and diplomacy. Soltan publicly criticized the Biden administration for the State Department’s position and filed a response in court on April 19. Therein, he accuses the government of deflecting responsibility for the immunity decision by invoking the PRR theory (which, Soltan argues, presents the immunity determination as something required by treaty) instead of owning up to the decision by issuing an independent Suggestion of Immunity (a discretionary exercise of the President’s Reception Clause powers to determine the status of diplomats).
Having drawn this distinction, Soltan then contests the government’s claim for complete deference, arguing that whether or not the IMF’s agreement is a required condition of PRR status entails an inquiry into the meaning of the U.N. Headquarters Agreement, not a second-guessing of the executive branch’s constitutional authority. Thus, Soltan claims that the question of Beblawi’s immunity is one of treaty interpretation lying squarely within the judiciary’s authority as seen in cases like Medellín v. Texas, where the Court applied tools of statutory interpretation to the U.N. Charter and Vienna Convention on Consular Relations Optional Protocol to determine the enforceability of an International Court of Justice judgment (Response p. 4).
It remains to be seen whether the District Court will find Soltan’s claimed distinction between the government’s Statement of Interest and a formal Suggestion of Immunity compelling or merely semantic. The government’s approach does give the outward impression that it is not exercising much discretion, instead appearing to merely state its legitimate interest in giving effect to Beblawi’s treaty-sourced immunity. But its submission to the court invokes the Reception Clause to state that the certification is conclusive and notes that the certification is “consistent with Article V, Section 15(4)” of the U.N. Headquarters Agreement rather than being compelled by the treaty (Statement p. 8). Such phrasing acknowledges the broad discretion that the executive branch enjoys and suggests that the decision to certify immunity was not simply a question of treaty interpretation after all, or at least not one which the court is entitled to review. The court is left with two options: defer to the State Department and bring the saga to a close or carve out a greater role for judicial review over individual immunity claims rooted in treaty interpretations – and tee up a possible constitutional clash between the judiciary and the executive in the process.
On the campaign trail, Joe Biden tweeted that there would be “[n]o more blank checks for Trump’s ‘favorite dictator’ [Egyptian President Abdel Fattah al-Sisi]” in direct reference to the plight of Soltan and his family. Many called attention to these words in February when criticizing the Biden administration for approving a $197 million arms sale to Egypt within days of the Egyptian government detaining Soltan’s relatives. Still, in March, the United States co-sponsored a rare statement from the U.N. Human Rights Council condemning the Egyptian government’s suppression of freedom of expression. April’s immunity statement reflects another step in this delicate dance. By citing Section 15(4) as a source of lawful immunity rather than granting immunity on some independent discretionary basis from the start, the State Department has signaled that its hands were tied, perhaps seeking to avoid escalating tensions with Congress over Egypt’s human rights record. At the same time, upholding Beblawi’s immunity claim has evidently helped preserve friendly relations with President al-Sisi, who figured prominently in negotiating the recent Gaza ceasefire. And, to be sure, the State Department has a vital interest in ensuring that the laws of immunity are properly effectuated.
Questions of individual and sovereign immunity are likely to persist for the Biden administration – from the ongoing suits against the Saudi crown prince to a recent Supreme Court decision limiting the application of certain exceptions to the Foreign Sovereign Immunities Act. One only hopes in cases raising difficult immunity questions that the interests of victims of human rights violations are not lost in the diplomatic shuffle, particularly where, as here, the government seeking immunity has ratcheted up its harassment of plaintiffs and their families in an effort to quash the litigation.