Saudi Arabia has formally asked the Itamaraty to guarantee absolute immunity from the head of state to the country’s crown prince, Mohammed bin Salman, during a possible trip to Brazil.
Diplomatic practice provides for this feature so that leaders are not prosecuted or affected by any police or judicial action in the countries that receive them. The case of the Saudi prince, however, collides with the fact that he is not a head of state – his official position is that of defense minister.
The request made by the Saudi monarchy is part of the negotiations between the two countries to allow a visit by Salman – known as MbS – to Brasilia, a wish of Jair Bolsonaro (PL), who said he had “a certain affinity” with the prince during a visit to the Saudi Arabia in 2019.
MbS is accused of having ordered the murder of journalist Jamal Khashoggi, a contributor to The Washington Post. Khashoggi was killed and dismembered in 2018 inside the Saudi consulate in Istanbul, Turkey. He denies involvement in the case.
“[A imunidade] it is the non-subjugation of a foreign protected entity to local authorities. The entity will not be subject to Brazilian laws and courts”, explains Carmen Tiburcio, professor of private international law at Uerj.
Salman’s case has components that raise doubts — and that may have motivated the Saudis’ request for guarantees. Although he practically exercises the functions of ruler, the head of state is his father, King Salman bin Abdulaziz al-Saud, who is 86 years old.
Furthermore, the crime for which MbS is accused can be framed as a violation of human rights. Some courts, including the Federal Supreme Court (STF), consider that this category is not covered by immunity rules.
“There is no doubt that there is immunity [no caso de Salman]”, analyzes Tiburcio. “The question is its extent and whether, precisely, the serious violation of human rights is an exception to this protection. These are points that no one knows how to answer.”
Sought after, the Itamaraty did not respond to questions made by the Sheet. The Saudi embassy in Brasilia did not respond either.
MbS’s visit to Brazil was initially scheduled for March 14, but was suspended by decision of the monarchy. Further preparations were made for May 9, but the trip was also cancelled. In both cases, according to diplomats heard by the Sheetthe cancellation took place at the request of the prince’s team, who claimed schedule incompatibility.
Now, the government expects to receive the controversial Saudi and other leaders of the Arab world by the end of the year. “We are working to welcome the Crown Prince of Saudi Arabia, the Emir of Qatar, the King of Bahrain and the new president of the United Arab Emirates to Brasília later this year,” Bolsonaro said during an Arab Brazilian Chamber event this month.
In the consultation made with Itamaraty, Saudi Arabia did not detail the reasons for the request for absolute immunity, but this is not the first occasion that the crown prince has requested this type of protection from a foreign country.
The organization Dawn (Democracy for the Arab World Now) and Khashoggi’s widow, Hatice Cengiz, are the authors of a lawsuit in the US that blames the prince for the journalist’s murder. According to the group, Salman is also the target of a lawsuit brought by a dissident who accuses him of sending a team of assassins to Canada to try to kill him.
In both cases, according to Dawn, the prince requested immunity from the head of state, which would shield him from prosecution. “In both actions, MbS seeks to hide behind the legal doctrine of immunity for heads of state to escape accountability for his role as executor,” says the organization.
In the US, the granting of immunity is reported to the Justice Department by the Department of State. In Brazil, it would be up to the Itamaraty to define what type of protection applies to the specific case of the prince, due to the particularities of the case, says Evandro Carvalho, professor of international law at FGV-Rio. “The consultation carried out by Saudi Arabia seems excessive caution, but necessary in the face of doubts about the royal status of the prince.”
According to Uerj’s Tiburcio, it is also unclear whether an eventual guarantee of immunity made by the Itamaraty would necessarily need to be respected by the Judiciary in the event of a warrant issued by another country, for example.
The negotiations between Saudi Arabia and the Bolsonaro government are confidential. One interlocutor said with reservation that, in his understanding, Salman enjoys the immunities of a head of state. In this sense, it is extremely unlikely that the prince, on an eventual visit to Brazil, will face any legal problems over the accusations of orchestrating the murder of Khashoggi.
