As each day brings new developments in the murder of Jamal Khashoggi, one of the questions I’ve been wondering about is what role, if any, U.S. courts might play in helping to provide accountability for his killing. I’m not holding my breath that this Justice Department would be in a hurry to see if any extraterritorial federal criminal statutes might apply, but the specter of civil relief is, at least at first, more promising. At a minimum, it might put a real crimp on the U.S. travels of Saudi Crown Prince Mohammed bin Salman and other potential defendants.
Perhaps the most intriguing potential remedy is the one provided by the Torture Victim Protection Act of 1991. In addition to providing a remedy for torture, the statute also provides an express civil remedy against anyone “who, under actual or apparent authority, or color of law, of any foreign nation … subjects an individual to extrajudicial killing,” which the statute defines as “a deliberated killing not authorized by a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” And although the Supreme Court in recent years has dramatically limited the scope of comparable remedies under the comparable Alien Tort Statute, the TVPA has fared somewhat better. Thus, whereas the court’s 2012 decision in Mohamad v. Palestinian Authority held that the TVPA can be used only to sue natural persons as defendants (and not foreign sovereigns or organizations), its ruling two years earlier in Samantar v. Yousuf held that the common law, rather than the Foreign Sovereign Immunities Act of 1976, governs the immunity of individual foreign officials who are sued for their official acts. And on remand in Samantar, the 4th U.S. Circuit Court of Appeals held that “under international and domestic law, officials from other countries are not entitled to foreign official immunity for jus cogens violations, even if the acts were performed in the defendant’s official capacity.”
What this all means is that, if, contra President Donald Trump, there is plausible evidence that MBS and/or other senior Saudi officials were responsible for Khashoggi’s murder, Khashoggi’s heirs could likely bring suit against them under the TVPA and could just as likely overcome any asserted immunity defenses. The harder issue, as it turns out, would be effecting service of process and establishing personal jurisdiction over the defendants. Because the defendants are individuals, and not organizations, plaintiffs would likely have to serve them personally within the United States. For lower-level defendants, that possibility could be avoided simply by not traveling to the U.S. But MBS is different, since he routinely travels to the U.S. (and not just to the United Nations, where he’d be immune from being served). The specter of being served with a TVPA claim while on U.S. soil may well be reason enough for MBS to end such trips, at least until, 10 years from now, when the TVPA’s statute of limitations expires.
That result may well come as small comfort to Khashoggi’s friends and family, but it’s an important reminder of the significant role that human rights litigation in U.S. courts can play in shaping the conduct of foreign transgressors, whether directly through litigation or indirectly through the pressure to avoid it.