Mike Eisner is the General Counsel and Chief Operating Officer of DAWN (Democracy for the Arab World Now). Jack Steele is a research assistant at DAWN.
Originally published in Aljazeera, March 3, 2023
On Friday, February 26, the Biden Administration released an unclassified version of the report prepared by the Office of the Director of National Intelligence (ODNI), revealing the worst-kept secret in US intelligence: Saudi Crown Prince Mohammed bin Salman (MBS) ordered the operation that killed Jamal Khashoggi.
Despite the findings in the ODNI report, the Biden Administration chose to impose no sanction on him. Fortunately, another mechanism exists to achieve personal accountability against the crown prince: the courts.
Efforts to bring justice for Khashoggi's murder extend across the branches of government. As Congress pressured the administration to release the ODNI report, they will try to force Biden to hold MBS accountable.
Representative Tom Malinowski introduced legislation on March 1 to impose a visa ban on MBS. A day later, Representative Ilhan Omar introduced legislation to impose sanctions on MBS for his role in the murder. It remains to be seen if Congress can muster the bipartisan support to pass either of these bills as a direct and early challenge to President Biden.
Regardless, given its refusal to sanction MBS after the release of the report, the Biden administration will likely adopt the same posture as the Trump administration towards Congressional efforts to hold MBS accountable and veto legislation that imposes any penalty on MBS for the murder.
The good news is that the US judiciary remains independent of both political branches and is not subject to a presidential veto; it might well provide the means to achieve justice for MBS's crimes.
Three cases have been brought against the crown prince in US federal courts, one for the murder of Khashoggi; the second for the attempted murder of the exiled former senior intelligence official Saad Aljabri; the third for the hacking, harassment and defamation of Al Jazeera anchor Ghada Oueiss.
Recent developments bode well for the plaintiffs in all three cases.
The Biden administration has indicated that it considers MBS as Saudi defence minister to be on the same level as the US secretary of defence, a designation that will almost certainly deny him head of state immunity from these lawsuits.
The ODNI report also confirms the core underlying factual claim made by plaintiffs in the Khashoggi case: MBS was responsible for Khashoggi's murder. If the court in the Khashoggi case defers, as it should, to the ODNI report's finding of MBS's culpability, it will hold MBS liable for the murder, and might well impose substantial damages, making MBS "pay the price" that President Biden promised but did not deliver.
Though it seems MBS has escaped Magnitsky sanctions, for now, he will have a much harder time evading the judgment of a federal court. US courts are not the only venue in which MBS may face judicial sanction. This week, Reporters Without Borders (RSF) filed a 500-page criminal complaint against MBS in a German court, alleging that the crown prince committed crimes against humanity in his crusade against journalists, including the murder of Khashoggi.
RSF relies on Germany's universal jurisdiction laws that allow a German court to try MBS for crimes committed elsewhere. The principle of universal jurisdiction was invoked just last week as Germany sentenced former Syrian intelligence officer Eyad al-Gharib to four and a half years in jail for crimes he committed during the Syrian civil war.
The laws of universal jurisdiction, prevalent in many European countries and in the US in the form of the Alien Tort Statute, are based on the notion that perpetrators of certain egregious offences, such as genocide, torture or extrajudicial killings, are "hostes humani generis", meaning "enemies of all mankind".
Mohammed bin Salman's extrajudicial killing of Jamal Khashoggi falls squarely within this category. As a result, it seems likely that courts on both sides of the Atlantic will force MBS to account for his role in the killing of Khashoggi. As these court cases gain media attention, more plaintiffs and prosecutors might well be encouraged to launch new cases against MBS for similar crimes.
These cases are exactly why MBS has not dared to set foot in the US or Europe since he murdered Khashoggi. By imposing a significant penalty on MBS for his campaign of harassment, detention, and murder, the courts might accomplish what governments have been unable or refused to do, providing a good reason for MBS to moderate his behaviour.
We've seen just this week, with targeted harassment and threats of Saudi trolls against our staff and organisation, Democracy for the Arab World Now (DAWN), that MBS is not ready to give up his bullying tactics. The Biden administration's inaction certainly did not create incentives for MBS to temper his abuses. Whether or not they can influence MBS's behaviour, courts right now provide the best chance of achieving a small measure of justice for Jamal Khashoggi and other victims of MBS's human rights abuses.
The views expressed in this article are the authors' own and do not necessarily reflect Al Jazeera's editorial stance.