Dr. Stanton debates former State Dept. Legal Advisor John Bellinger on immunity of Saudi Prince MBS for murder and torture of Jamal Kashoggi credit: PBSNewshour
Full transcript of PBS Newshour debate between John Bellinger and Gregory Stanton regarding State Department opinion that Mohammed Bin Salman has immunity from civil suits in US
by PBS Newhour
The State Department issued a legal opinion that said Saudi Arabia’s Crown Prince Mohammed bin Salman has immunity from U.S. Courts. The prince has been sued by the fiancée of journalist Jamal Khashoggi, who was murdered and dismembered in Saudi Arabia’s Istanbul consulate. John Bellinger and Gregory Stanton joined Amna Nawaz to discuss the opinion.
The State Department issued a legal opinion yesterday that said Saudi Arabia's crown prince and prime minister, Mohammed bin Salman, known as MBS, has immunity from U.S. courts.
The crown prince has been sued in the U.S. by the fiance of journalist Jamal Khashoggi. He was murdered in Saudi's Istanbul consulate in 2018. And U.S. intelligence believes MBS ordered the killing.
Meantime, for months, the Biden administration has been pushing Saudi Arabia to increase oil production amid high gas prices. So, should the U.S. have been tougher with Saudi Arabia?
For that, we get two views. John Bellinger was the legal adviser to the State Department during the George W. Bush administration. And Gregory Stanton is a former State Department lawyer and founder and president of Genocide Watch, a nonprofit that seeks to stop genocide and its perpetrators. 4 Welcome to you both. Thank you for being here.
Gregory Stanton, Genocide Watch:
Let's jump right in.
Greg, what do you make of this call by the U.S.? Was this the right decision?
I think the State Department got this wrong.
The fact is that the law here is the Foreign Sovereign Immunities Act of the United States. And in the opinion they gave, they only cited customary international law. In fact, the Foreign Sovereign Immunities Act has a number of exceptions that have been actually passed by Congress and signed into law.
The 2008 Defense Act was accompanied with an exception to allow people to sue certain governments that were declared to be terrorist states. But then, in 2016, there was another act passed, the Justice for Victims of Terrorists Act, that specifically takes away the need for the State Department to designate a country as a terrorist country.
And it makes it possible to actually sue anybody involved in murder, in torture, in hijacking, and in hostage-taking.
You think this should have fit under that exception?
I think that it's very clear that MBS was responsible for the murder and for the terror — the torture of Jamal Khashoggi.
Let me bring in John on that point, then.
I mean, President Biden has said — and he did agree with the CIA assessment that MBS did order the operation that led to Khashoggi's killing. So why issue immunity in a murder case?
John Bellinger III, Former Legal Adviser of the Department of State:
Well, I think, for the reasons you just mentioned, this was a very uncomfortable, if not unpalatable decision for the Biden administration to have to make, given the really awful circumstances of the killing of — for Jamal Khashoggi.
But the administration was simply complying with its obligations under international law. International law recognizes that heads of state in government, like now Prime Minister bin Salman, enjoy immunity from civil suits or, in fact, from criminal prosecutions in the courts of other countries.
So, under international law, he had immunity here. And, for that reason, going back decades, every administration has asserted immunity on behalf of any foreign head of state who was sued here in the United States, often for really horrific actions.
When I was legal adviser at the State Department, I had to sign an immunity determination for Pope Benedict, who was sued with respect to the clergy scandal. So this was not a favor to Saudi Arabia. This was simply compelled by international law.
Greg, what do you say to that, decades of precedent here?
I think the reason that that doesn't hold here is that MBS is not the head of state in Saudi Arabia.
He is prime minister, right?
Well, they just made him prime minister. So he might be able to argue this point.
But the fact is, the head of state in Saudi Arabia is the king. This is just a prince. So, the only one who would have this right under the international law would be the king.
What would be the U.S. options in this case? What would you have liked to see happen?
What I would have liked to see is that he could be sued, and that is specifically allowed under the Foreign Sovereign Immunities Act and its exceptions.
He's not being tried criminally here. This is a lawsuit to get compensation for the murder of a man, a very great man, in fact. So, for me, this is not a case where it was governed by international law at all. It was governed by the Foreign Sovereign Immunities Act.
John, what about the concerns that there could be political considerations here? We know about the tensions. We know about the Biden administration asking them to increase oil production.
Could that have influenced the decision?
John Bellinger III:
Candidly, I think the political considerations would have gone the other way.
I think the Biden administration was probably so angry with Saudi Arabia right now and really upset about this particular killing that their policy view would have been not to find immunity.
But international law provides that a head of government like this, as well as a head of state, as well as foreign ministers, enjoy immunity. And, unfortunately, with respect to what Mr. Stanton said, the Foreign Sovereign Immunities Act does not apply in circumstances like this. The Supreme Court held a few years ago that the immunity of heads of state or government is governed by international law.
So, I think the Biden administration here, perhaps, in fact, looking back at things that happened during the Trump administration, said, we want to comply with international law, do what the United States regularly does, even though it's unpalatable in these circumstances.
Could the U.S. have not done anything? Could they have not given their opinion to the Justice Department?
There is no requirement, under the Foreign Sovereign Immunities Act, that the State Department has to give an opinion to the Justice Department.
And that would mean that he could then still be sued; is that correct?
That's correct. He could be. It's really up to the judge.
In other words, this is a judicial decision. It didn't have to be an opinion from the State Department. And I, as I have already said, think the State Department got this wrong. And not only that. There was a Supreme Court case in 2010 in which Justice Stevens held and the court decided unanimously that foreign officials do not qualify for sovereign immunity.
And that is why this is, I think, a misapplication of law.
John, at the end of the day, what does this mean, then? If he is now shielded from any kind of suit, what does this mean for any accountability for the murder of Jamal Khashoggi?
John Bellinger III:
Well, this is really the concern. When someone can't be sued, then the argument is, the person has impunity or there's not accountability.
It doesn't mean that at all. And, in fact, the Biden administration went to great pains to state in their legal brief that we condemn the killing, it was wrong, it was heinous, but simply observing international law here, Mohammed bin Salman had immunity in these courts, but there would be other ways to hold him accountable, just not in the courts of the United States, if the U.S. is going to comply with our longstanding obligations under international law, and act the way we always have, which is to recognize the immunity of foreign heads of state, as we expect, candidly, other states to treat our head of state in their courts.
It's certainly another layer on a very complicated relationship between the U.S. and Saudi Arabia.
Gregory Stanton, John Bellinger, thank you both so much for being here.
John Bellinger III:
Nice to be with you.
POST DEBATE COMMENT BY DR. STANTON:
I relished a debate with John Bellinger, the former State Department Legal Advisor.
Mr. Bellinger is currently a partner and head of international law practice at Arnold and Porter, one of Washington, DC's leading law firms, which represents many large oil companies. He is also head of the international law section at the Council on Foreign Relations. He is a worthy adversary who always faithfully defends State Department legal opinions.
The PBS NewsHour segment ended without any opportunity for me to respond to Mr. Bellinger's simplistic portrayal of "international law."
Mr. Bellinger asserted that the State Department position was required by "international law." He ignored the fact that international law doesn't only consist of unwritten "customary international law". It also includes treaties and international conventions, decisions of the ICJ, and decisions of the UN Security Council.
Among those conventions are the Genocide Convention and the Convention Against Torture. Both conventions prohibit immunity for anyone who commits those crimes, including heads of state.
Our Torture Victims Protection Act, the law applied in the case the State Dept. gave its opinion about, specifically gives jurisdiction to US courts for civil claims against torturers or those who ordered the torture of anyone anywhere in the world.
That’s called “universal jurisdiction.” The US, most of Western Europe, Australia, New Zealand, Senegal, and Argentina are states that have universal jurisdiction for crimes of genocide and for torture. That means anyone who sets foot in the US can be criminally prosecuted for genocide or torture, no matter where that person committed the crime.
Neither the Genocide Convention nor the Torture Convention allow immunity for anybody, including heads of state, heads of government, prime ministers, or foreign ministers.
MBS directed the genocide by bombing and starvation of hundreds of thousands of civilians in Yemen. The murder and torture he ordered of Jamal Kashoggi isn’t his most serious crime.
MBS should be indicted, arrested, and tried for both torture and genocide the next time he sets foot in the United States or in any other country with universal jurisdiction.
I will write an Op-ed to make that point. But it will be read by only a few readers compared to the audience for PBS NewsHour.