Action against prince faces hurdles
Lawsuit claims monarch sent hit squad to Toronto to kill intelligence officer
A former Saudi intelligence official who contends in a lawsuit that the kingdom’s crown prince sent a hit squad to Toronto in a bid to kill him faces a daunting legal road.
Experts say while there is international precedent for the strategy being employed by Saad Aljabri, he will need to overcome some potentially significant hurdles — including the likely possibility the defendants will assert immunity and the mechanics of serving a lawsuit to a sitting crown prince.
While it’s not the first time a lawsuit has been filed in the U.S. accusing a foreign government official of carrying out or attempting to carry out an extrajudicial killing, the high profile of Crown Prince Mohammed bin Salman — he is considered de-facto ruler of the Saudi kingdom and is son of the king — and the fact he is a sitting official makes this case stand out.
“It is outrageous for any country to authorize an extrajudicial killing, particularly in another country,” says William Aceves, a law professor at the California Western School of Law. “At the same time, I believe this lawsuit faces significant legal challenges.”
“Foreign government officials are typically immune from civil liability in U.S. courts. As a result, the defendants will argue they are subject to immunity in U.S. courts.”
Aljabri, who is said to have developed a close relationship with U.S. intelligence officials on counterterrorism files, fled to Canada in 2017 around the time that bin Salman carried out a bloodless palace coup. He had maintained a relatively low profile in Toronto until last week, when he filed a lawsuit in U.S. District Court in Washington, D.C., accusing bin Salman of sending a group of hit men to Toronto to kill him in the fall of 2018, just a couple of weeks after the high-profile death of Saudi dissident Jamal Khashoggi inside the Saudi consulate in Turkey.
The alleged plot was foiled when the team failed to get past border officers at Pearson airport, according to the lawsuit.
The lawsuit, which names bin Salman and several associates as defendants, goes on to say that two of Aljabri’s children, Sarah and Omar, who were reportedly detained in Saudi Arabia earlier this year, are now being used as “human bait” to lure him out of hiding.
“Sarah and Omar have done nothing wrong, nor have they been accused of wrongdoing,” Khalid Aljabri, one of Aljabri’s other children, wrote on Twitter on Tuesday.
“If they are alive, they are being held hostage in an illegal and immoral Saudi govt effort to force their father to return to Saudi Arabia, where he and they cannot expect justice.”
The defendants have not filed a response to the lawsuit. Once served, they have 21 days to respond. Saudi embassy officials in Ottawa and Washington,
D.C., have not responded to repeated requests for comment from the Star.
Immunity
If bin Salman argues that he is entitled to some form of headof-state immunity, there’s no guarantee he will receive such protection, said Beth Van Schaack, a visiting professor in human rights at the Stanford University law school.
Typically, such immunity applies narrowly to heads of state, heads of government (such as prime ministers) and foreign ministers, Van Schaack said. Since bin Salman is none of those — technically, his father is head of state, for instance — he may be out of luck.
Bin Salman could also assert that he is entitled to something called functional immunity and argue that state officials are protected from any repercussions for acts carried out in their official duties. This, too, could be a tough sell. The U.S. Court of Appeals in the Fourth Circuit has previously determined in one case that “under international and domestic law, officials from other countries are not entitled to foreign official immunity” for jus cogens violations, such as crimes against humanity, “even if the acts were performed in the defendant’s official capacity.”
There are occasions when the U.S. State Department is invited or chooses to weigh in with its view on whether a defendant is entitled to immunity, experts said.
U.S. a prime place for a lawsuit
Experts agree that the U.S. is probably one of the best places to file a lawsuit like this. Unlike most countries, the U.S. has adopted laws that allow victims of human rights violations to bring lawsuits in federal court against perpetrators, even when the harms occurred abroad.
Asked this week why the lawsuit was filed in the U.S. as opposed to Canada, a source connected to Aljabri confirmed it was because the U.S. has a “more favourable legislative regime for suing global bad actors.”
That said, Aljabri is still exploring legal action in Canada and Europe, the source said.
According to the U.S. lawsuit, Aljabri is alleging the defendants’ attempted to carry out an extrajudicial killing — a killing not authorized by a court — in violation of the U.S. Torture Victim Protection Act, as well as international law under the U.S. Alien Tort Statute.
Proving these allegations won’t be a cakewalk, experts said.
In 2013, the U.S. Supreme Court ruled that the Alien Tort Statute does not apply to human rights violations committed in other countries, unless there is a strong connection to the United States.
Much of the misconduct Aljabri has alleged happened in Saudi Arabia and Canada. But Van Schaack says Aljabri will likely argue there is still a sufficient nexus to the U.S. According to the lawsuit, bin Salman had previously deployed a “network of covert agents” in the U.S. to try to track down Aljabri’s whereabouts.
How do you ‘serve’ a crown prince?
Experts say the lawsuit could also get mired in procedural questions, including the manner in which the plaintiffs served the defendants with the lawsuit, said Beth Stephens, a Rutgers University law professor.
U.S. federal rules outline a number of methods for serving foreign individuals with a lawsuit. It is unclear how Aljabri’s lawyers plan to serve the crown prince, whether it’s through the Saudi embassy or some other way. However he’s served, it is unlikely that bin Salman will ignore the lawsuit given that he likely has assets in the U.S. and likely wants to be able to continue to travel to the U.S., experts say.
Plus, bin Salman has resources to hire good lawyers.
There is precedent
While many cases filed in the U.S. against foreign actors have been dismissed due to immunity, there have been some successes, including lawsuits filed on behalf of thousands of Filipinos against Ferdinand Marcos, the former president of the Philippines, for human rights abuses that took place under his watch. (He was overthrown in 1986 and fled to Hawaii).
Just this month, the U.S. Court of Appeals for the Eleventh Circuit released a judgment favourable to plaintiffs who invoked the Torture Victim Protection Act to sue Bolivia’s former president, Gonzalo Sánchez de Lozada, and former defence minister, José Carlos Sánchez Berzaín, over the deaths of scores of civilians during a crackdown on protesters in 2003.
Ajury had previously awarded the plaintiffs $10 million in damages in 2018 but the trial court set aside the jury verdict and found the defendants not liable. The Court of Appeals has sent the case back to the district court to consider further arguments.
Stephens said the fact the defendants reside in the U.S. and the fact the Bolivian government waived immunity for them helped move their case along. ‘It’s a dance’ Experts say even if Aljabri is not able to get any damages out of the lawsuit, the serving of the lawsuit could put public pressure on the Saudi regime to ease off on its intimidation tactics against dissidents and former insiders around the world.
“Maybe this will cause the regime to think twice if these individuals start to fight back in their places of refuge. There may be a deterrent impact there,” Van Schaack said.
“It’s a dance. The music is starting to play. Everyone is getting their dance shoes on. It’ll be interesting to see how this unfolds.”
“It’ll be interesting to see how this unfolds.”
BETH VAN SCHAACK PROFESSOR, STANFORD UNIVERSITY LAW SCHOOL