(Editor’s Note: This article also appears in Transnational Litigation Blog.)
In 2018, Saudi security agents brutally murdered journalist Jamal Khashoggi at Saudi Arabia’s consulate in Istanbul, Turkey. U.S. intelligence agencies concluded that Crown Prince Muhammad bin Salman (MBS) approved the operation. In 2020, Khashoggi’s widow and a non-profit organization that he helped found sued MBS and 28 other Saudi defendants in federal court in the District of Columbia, asserting (among others) claims under the Torture Victim Protection Act (TVPA) and the Alien Tort Statute (ATS).
MBS moved to dismiss on various grounds, including head of state immunity, the act of state doctrine, and failure to join Saudi Arabia as an indispensable party. On July 1, 2022, U.S. District Judge John Bates invited the U.S. government to submit a statement of interest, particularly with respect to those three issues. The U.S. response is due October 3. I argue that MBS is not entitled to head of state immunity, that the act of state doctrine does not bar the claims, and that Saudi Arabia is not an indispensable party. MBS has stronger arguments on personal jurisdiction and failure to state a claim, although I do not analyze them fully.
The court’s invitation presents a test for the State Department at a time when the United States seeks to improve relations with Saudi Arabia. If the State Department does decide to address the question, it should maintain its traditional position that head of state immunity is limited to heads of state, heads of government, and foreign ministers. To expand this immunity to cover crown princes—even powerful ones like MBS—will invite claims by others, diplomatic pressure, and inevitable backlash when some claims are denied.
According to the complaint, Khashoggi was a Saudi journalist who moved to the United States after he was prohibited from speaking and writing in Saudi Arabia. In the United States, Khashoggi helped found the organization Democracy for the Arab World Now (DAWN). He also developed a relationship with plaintiff Hatice Cengiz, a Turkish citizen whom he married in an Islamic ceremony in Istanbul. To confirm the marriage civilly in Turkey, Khashoggi needed a certificate from Saudi Arabia, which he tried unsuccessfully to get from the Saudi embassy in Washington, D.C. MBS allegedly instructed embassy employees there, including his brother the ambassador, to entrap Khashoggi by representing that he could obtain the required certificate only in Istanbul and by assuring him that it would be safe to do so. Khashoggi went to the Istanbul consulate to obtain the certificate and was murdered by Saudi security agents, allegedly upon the orders of MBS.
MBS moved to dismiss the complaint, arguing that the court lacks personal jurisdiction; that the claims are barred by head of state immunity, the act of state doctrine, and the failure to join an indispensable party; that Cengiz cannot bring a TVPA claim; and that the complaint fails to state any other valid claim. Two other defendants also appeared and moved to dismiss, largely repeating the same arguments save for head of state immunity. (Saud Al-Qahtani is a close advisor to MBS, and Ahmed al-Assiri was a deputy director of intelligence who allegedly organized the team sent to kill Khashoggi.) Plaintiffs filed an opposition to the motion to dismiss, and both MBS and the two other defendants filed replies. Judge Bates invited the United States to express its views, particularly on head of state immunity, the act of state doctrine, and whether Saudi Arabia is an indispensable party.
The invitation comes at a delicate time in U.S.-Saudi relations. Initially, the Biden administration distanced itself from MBS, emphasizing that “[t]he President’s counterpart is King Salman” not MBS. But with oil prices skyrocketing after Russia’s invasion of Ukraine, the administration sought better relations, and President Biden controversially met with MBS on a visit to Saudi Arabia in July.
Head of State Immunity
The U.S. Supreme Court has held that the immunity of foreign government officials is governed by federal common law. As TLB’s Primer on Foreign Official Immunity explains, head of state immunity is an absolute, status-based immunity that typically extends to sitting heads of state, heads of government, and foreign ministers (often called “the troika”). Other officials may claim only conduct-based immunity from suit based on their official acts. MBS does not assert conduct-based immunity. Instead, he argues that he is entitled to head of state immunity based on his immediate family relationship to his father the King and his own high-ranking position.
The United States routinely files suggestions of immunity for sitting heads of state, heads of government, and foreign ministers when they are sued in U.S. courts. As Chimène Keitner and I have explained, U.S. courts treat these suggestions as binding because the president has constitutional authority to decide whom to recognize as holding these offices. The president does not have the constitutional authority to decide who is entitled to immunity, but for members of the troika, the immunity follows under both domestic and international law from the president’s recognition. Although MBS is Deputy Prime Minister and Defense Minister of Saudi Arabia, among other positions, he is not one of the troika.
MBS’s father the King is the Saudi head of state, and MBS argues that that head of state immunity additionally protects the King’s immediate family. He cites two cases from the 1980s in which the executive branch suggested head of state immunity for wives of foreign heads of state and U.S. courts deferred to those suggestions. But as Keitner explained in a recent podcast, the executive branch has not suggested head of state immunity for the adult children of a head of state. When Prince Charles was sued in Kilroy v. Windsor (excerpted in the 1978 Digest of U.S. Practice in International Law 641), the State Department suggested not head of state immunity but rather “special mission” immunity, since the prince was on an official visit to the United States. More recently, in Hassen v. Nahyan, the United States suggested immunity for the United Arab Emirates’ head of state but not for his son, and the court denied immunity to the son because he was not one of the troika.
MBS also argues that his position as Crown Prince is sufficiently high-ranking to entitled him to head of state immunity under customary international law. The International Court of Justice’s reference in the Arrest Warrant Case to “holders of high-ranking office in a State, such as the Head of State, Head of Government, and Minister of Foreign Affairs” (emphasis added) lends some support to the argument that other high-ranking officials might enjoy head of state immunity. The problem, as Keitner and I have noted, is that customary international law depends on a general and consistent practice of states, and there is no general and consistent practice of extending head of state immunity to officials beyond these three. The International Law Commission reached the same conclusion, with article 3 of its Draft Articles on the Immunity of State Officials from Foreign Criminal Jurisdiction limiting status-based immunity to heads of state, heads of government, and foreign ministers.
It is true that foreign officials other than the troika may need to travel in order to conduct foreign relations, which is the modern justification for head of state immunity. But as Keitner noted in the recent podcast, “special mission” immunity can fill this gap. If MBS wishes to visit the United States on official business, the U.S. government may immunize him during his trip.
If the United States were to break with past practice and suggest status-based immunity for an official other than a head of state, head of government, or foreign minister, it would be starting down a slippery slope. Many foreign officials consider themselves important and would seek the absolute immunity from suit that head of state immunity brings. One can imagine other princes asserting similar immunity claims. Unless the State Department wants to be in the position of explaining to a future prince why he is obviously important, just not as important as MBS, it should hold to its traditional position.
Act of State Doctrine
MBS also argues that the suit must be dismissed under the act of state doctrine, which provides that U.S. courts will not question the validity of an official act of a foreign government fully performed within its own territory. His motion to dismiss acknowledges that “the murder of Jamal Khashoggi in Istanbul was no act of state.” But it notes that plaintiffs’ theory of personal jurisdiction relies on allegations that MBS directed employees of the Saudi embassy in Washington, D.C., including his brother the ambassador, to lure Khashoggi to a different consulate by denying him the certificate he sought and assuring him of his personal safety in Istanbul. The motion argues that the act of state doctrine precludes the court from “rul[ing] that the official statements and conduct of Saudi Arabia’s Ambassador and Embassy personnel were a ‘ruse’” and part of an unlawful conspiracy, which (according to the motion) is what plaintiffs are asking the court to do.
There are so many problems with this argument that it is difficult to know where to begin. First, as the plaintiffs’ opposition points out, an act of state must have some level of formality to come within the doctrine. Under the Supreme Court’s decision in Dunhill, it is doubtful that directing embassy employees to steer Khashoggi to Istanbul in order to murder him—something admittedly illegal under Saudi law—could qualify as an act of state.
Second, even if MBS’s directions to embassy employees were considered an act of state, it was not fully performed within Saudi territory. Although MBS remained in Saudi Arabia, he communicated with embassy employees in the United States who then took actions in the United States. The act of state doctrine does not shield acts performed outside of an official’s own state.
Third, the act of state doctrine bars only claims that challenge an act of state’s validity. In Kirkpatrick, the Supreme Court held that “[t]he act of state doctrine does not establish an exception for cases and controversies that may embarrass foreign governments, but merely requires that, in the process of deciding, the acts of foreign sovereigns taken within their own jurisdictions shall be deemed valid.” Nothing in plaintiffs’ claims challenges the validity of MBS’s instructions to embassy employees. And, even if plaintiffs’ claims do allege that these instructions were part of an unlawful conspiracy, challenging the legality of a foreign act of state is not the same as challenging its validity. As I noted recently, the Supreme Court has made clear that the act of state doctrine does not preclude courts from considering foreign acts of state as part of an unlawful conspiracy.
MBS also argues that Saudi Arabia is a required party under Federal Rule of Civil Procedure 19 and that the case must be dismissed since Saudi Arabia itself is immune from suit under the Foreign Sovereign Immunities Act (FSIA). His motion to dismiss relies on the Supreme Court’s decision in Pimentel, which held that an interpleader action to determine ownership of assets stolen by Philippines president Ferdinand Marcos could not proceed without joinder of the Philippines, which also had a claim to the assets and which was immune from being joined involuntarily under the FSIA.
Rule 19 provides, among other things, that a person must be joined as a party if “that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may … as a practical matter impair or impede the person’s ability to protect the interest.” In Pimentel, the Philippines claimed a proprietary interest in the assets whose ownership was being disputed. Saudi Arabia’s asserted interest is different. It argues that the suit is a “direct” attack on the actions of the Saudi government and threatens its “sovereign interest” in using its own courts to address the situation.
Although Pimentel referred to a foreign state’s interest in “us[ing] its own courts for a dispute if it has a right to do so,” it did so in a context where litigation of the assets’ ownership in a U.S. court would have effectively precluded the Philippines from addressing the same question in its own courts. In Pimentel the assets were present in the United States, and a determination that they belonged to one set of claimants would have foreclosed others from claiming them. In this case, plaintiffs argue, “[n]othing in this suit is stopping Saudi Arabia from prosecuting any Saudi national in Saudi courts.” In fact, MBS points out that Saudi Arabia has already carried out several prosecutions of Saudi nationals.
Moreover, even when a foreign state is a required party that cannot be joined, Rule 19(b) still allows an action to proceed if the foreign state’s interests can be protected by other parties. In a recent case, the D.C. Circuit held that a claim under the FSIA for property expropriated by Hungary could go forward, despite Hungary’s immunity, because an instrumentality of the Hungarian government that was not immune from suit would adequately represent Hungary’s interests. Here, plaintiffs argue that “MBS is a sophisticated litigant with near unlimited resources who is represented by skilled counsel” who is fully able to protect Saudi Arabia’s interests.
Before leaving this issue, it is important to pause on the full implications of MBS’s argument. If human rights claims against foreign officials always implicate the interests of a foreign state to such an extent that the state is an indispensable party, then human rights claims against foreign officials must generally be dismissed under Rule 19 because the state itself will generally be immune under the FSIA. In Samantar, the Supreme Court held that claims against foreign officials in their personal capacity are not claims against the foreign state itself and are subject to different rules of immunity. MBS’s argument would bring foreign state immunity in through the back door and preclude suits against foreign officials under the cover of Rule 19.
As one can see from the analysis above, the three arguments on which Judge Bates has invited the views of the U.S. government are not particularly strong ones for MBS. Much stronger are his arguments that the district court lacks personal jurisdiction over the defendants and that Cengiz is not the proper party to bring these claims.
Plaintiffs’ personal jurisdiction arguments, distilled in their opposition, are (1) that MBS instructed his brother the Saudi ambassador to assure Khashoggi in the United States that it was safe to go to Istanbul and (2) that his actions “were aimed at stopping Khashoggi’s advocacy in the United States.” MBS disputes the allegations that he instructed anyone to lure Khashoggi to Istanbul. He also argues that under Walden injuring someone outside the forum is not sufficient to confer jurisdiction even if the plaintiff is a resident of the forum. There are good responses on both points, which I will not repeat here. But personal jurisdiction is clearly a closer question than head of state immunity, the act of state doctrine, or whether Saudi Arabia is an indispensable party.
MBS also argues that Khashoggi’s widow cannot bring a TVPA claim because the two were not legally married. For extrajudicial killing, the TVPA gives a cause of action “to the individual’s legal representative, or to any person who may be a claimant in an action for wrongful death.” Although Khashoggi and Cengiz were married in a religious ceremony, Turkish law requires civil recognition for a marriage to be valid—indeed, Khashoggi made his fatal visit to the Saudi consulate to obtain the certificate needed for a civil marriage. Khashoggi’s legal representative is his son, who administers his estate. Whether Cengiz qualifies as someone who can bring a wrongful death action may depend on the applicable law. Cengiz argues that Turkish law applies and gives her a right of action. MBS argues that D.C. law, Virginia law, or Saudi law governs and that Cengiz has no wrongful death claim under any of these. I will not express a view on this question except to say that, again, it is a closer question than the ones discussed above.
In the days before passage of the FSIA in 1976, as Keitner and I have recounted, the State Department generally refused to decide immunity claims before a court had resolved all jurisdictional defenses. The U.S. government could take the same position here, given that MBS’s arguments on personal jurisdiction are stronger than his claim to head of state immunity.
If the State Department does address head of state immunity, however, it should adhere to its past position that such immunity applies only to heads of state, heads of government, and foreign ministers. To expand head of state immunity to cover officials like MBS who hold none of those positions would simply invite future claims by other high-ranking officials, accompanied by diplomatic pressure and backlash if immunity is not granted. In the long run, the foreign relations interests of the United States are best served by respecting the traditional limits on head of state immunity.