Somaliland:Gen. Mohamed Ali Samantar; Hero or War Criminal
Under the authoritarian regime of Major General Barre in Somalia, the Somali Armed Forces perpetrated a number of human rights abuses against the Somali civilian population, in particular against members of the Isaaq clan.
The petitioners, all members of the Isaaq clan, allege that in the 1980s and 1990s they suffered ill-treatment at the hands of the Somali military including acts of rape, torture, arbitrary arrest and detention. They instituted a civil complaint against Mohamed Ali Samantar, the-then Minister of Defence and later Prime Minister of Somalia on the basis of the Torture Victims Protection Act.
The District Court for the Eastern District of Virginia dismissed the claim for lack of subject matter jurisdiction on the grounds that Samantar enjoys immunity from proceedings before courts of the United States by virtue of his function as a State official at the relevant time under the Foreign Sovereign Immunities Act (FSIA). The Court of Appeals for the Fourth Circuit reversed this decision, arguing that the FSIA is not applicable to individuals, and even if it were, the individual in question would have to be a government official at the time of proceedings commencing against him.
By the present decision, the Supreme Court upheld the decision of the Court of Appeals: the FSIA is not applicable to individuals so Samantar does not enjoy immunity from the present proceedings by virtue of it. Consequently, proceedings against him can continue.
On 10 November 2004, the plaintiffs filed a complaint before the District Court for the Eastern District of Virginian seeking damages for their treatment by members of the Somali Armed Forces in the 1980s and 1990s alleging a number of abuses including arbitrary arrest and detention, torture and rape.
On 1 December 2004, the defendant filed a motion to dismiss the complaint on the grounds that he was entitled to immunity as the former Prime Minister of Somalia. Due to the issues raised by the motion to dismiss, the Court stayed the proceedings until such time as the State Department provided a Statement of Interest regarding Samanter’s claim of immunity. After two years without a response from the State Department, the Court teinstated the case to the active docket by an order of 22 January 2007.
On 9 March 2007, the Court granted the plaintiffs’ motion for leave to file a Second Amended Complaint, which would alter the composition of the plaintiffs and add a new cause of action, that of joint criminal enterprise liability.
On 29 March 2007, in response, the defendant filed a second motion to dismiss on the same grounds as previously. In addition, he challenged the validity of joint criminal enterprise liability.
By a decision of 1 August 2007, the District Court held that Samantar was entitled to immunity from proceedings on the basis of the Foreign Sovereign Immunities Act (FSIA). By a decision of 8 January 2009, however, the Court of Appeals for the Fourth Circuit reversed the decision of the District Court. The FSIA did not apply to individuals and therefore Samantar did not benefit from immunity as a result of it.
On 30 September 2009, the Supreme Court agreed to review the decision of the Court of Appeals. A number of amicus curiae briefs were filed in support of the respondents, and oral arguments were heard on 3 March 2010.
On 15 February 2011, the District Court ruled that Samantar’s claim that he was entitled to common law immunity, rather than immunity under the FSIA, was not viable. The trial against Samantar was to proceed.
On the first day of the trial before the District Court on 23 February 2012, Samantar accepted liability and responsibility for damages for torture, extrajudicial killing, war crimes and other human rights abuses committed against the civilian population of Somalia (transcript available here). On 28 August 2012, the District Court awarded the plaintiffs $21 million in compensation against Samantar. On 2 November 2012, the Court of Appeals for the Fourth Circuit denied Samantar common law immunity for acts of torture.
Legally relevant facts
During the 1980s and 1990s, an authoritarian miltary regime under General Mohamed Barre was in power in Somalia. In order to combat opposition to the regime, the national intelligence services and the military perpetarted a number of crimes and human rights abuses against members of the Somali civilian population, particuarly against members of the Isaaq clan.
The Respondents were all members of the Isaaq clan and allege that they all suffered ill-treatment at the hands of the military forces who tortured, killed or arbitrarily detained them or members of their families.
The Petitioner, Samantar, was during the relevant time, the Minister of Defence and later the Prime Minister of Somalia responsible for the armed forces (pp. 1-2).
Core legal questions
- Is the Foreign Sovereign Immunities Act (FSIA) applicable to the immunity claims of foreign officials?
Specific legal rules and provisions
- Paragraph 1350 of the Alien Tort Statute.
- Paragraph 1602 of the Foreign Sovereign Immunities Act.
- Torture Victim Protection Act.
Court’s holding and analysis
The Foreign Sovereign Immunities Act (FSIA) provides that foreign states are immune from proceedings before the courts of the United States. The FSIA is applicable to the immunity claims of individuals to the extent that “foreign State” can be interpreted to include individuals (p. 7). The Court concludes that the FSIA is not applicable to the claims of individuals. First, the text of the Act does not allow for such an interpretation: an individual is neither an “entity” nor an “organ” nor “a separate legal person” of a State, the only permissible definitions of foreign State provided for in the FSIA (pp. 7-13). Second, neither the drafting history nor the purpose of the FSIA allow for such an interpretation (pp. 13-17).
The FSIA not being applicable to individuals, Samantar cannot rely on it as a legal basis for invoking immunity. Instead, the common law of immunity is better suited (p. 19).
The judgment of the Court of Appeals is affirmed and the case is remanded for further proceedings (p. 20).
- C.I. Keitner, ‘Foreign Official Immunity After Samantar‘, Vanderbilt Journal of Transnational Law, 2011, Vol. 44, pp. 837-852;
- J.B. Bellinger III, ‘The Dog that Caught the Car: Observations on the Past, Present, and Future Approaches of the Office of the Legal Adviser to Official Acts Immunities‘, Vanderbilt Journal of Transnational Law, 2011, Vol. 44, pp. 819-835;
- H.H. Koh, ‘Foreign Official Immunity After Samantar: A United States Government Perspective‘, Vanderbilt Journal of Transnational Law, 2011, Vol. 44, pp. 1142-1160;
- B. Stephens, ‘Abusing the Authority of the State: Denying Foreign Official Immunity for Egregious Human Rights Abuses‘, Vanderbilt Journal of Transnational Law, 2011, Vol. 44, pp. 1163-1183;
- P.B. Rutledge, Samantar, ‘Official Immunity and Federal Common Law‘, Lewis & Clark Law Review, 2011, Vol. 15, pp. 589-604;
- D.P. Stewart, ‘Samantar and the Future of Foreign Official Immunity‘, Lewis & Clark Law Review, 2011, Vol. 15, pp. 633-663;
- I.B. Wuerth, ‘Foreign Official Immunity Determination in US Courts: The Case against the State Department‘, Virginia Journal of International Law, 2011, Vol. 51, pp. 11-24;
- C. Morley, ‘Immunities for Ex-Foreign Officials Accused of International Crimes‘, 2010;
- C.D. Totten, ‘Head of State and Foreign Official Immunity in the United States After Samantar: A Suggested Approach‘, Fordham International Law Journal, 2010, Vol. 34, pp. 322 et seq.;
- C.A. Bradley, ‘Foreign Sovereign Immunity, Individual Officials, and Human Rights Litigation‘, Harvard Public Law Working Paper No. 10-05, 2009;
- J.K. Elsea, ‘Samantar v. Yousef: The Foreign Sovereign Immunities Act and Foreign Officials‘, 2011.
- US Alien Tort Claims Act, Paragraph 1350 of Title 28 of the Code of Laws of the United States of America (United States Code), Office of the Law Revision Counsel of the U.S. House of Representatives, 1983.
- US Foreign Sovereign Immunities Act, 1967, Paragraph 1602 et seq. of Title 28 of the Code of Laws of the United States of America (United States Code), Office of the Law Revision Counsel of the U.S. House of Representatives, 1983.
- US Torture Victim Protection Act, 1991.
- US District Court for the Eastern District of Virginia, Bashe Abdi Yousuf et al. v. Mohamed Ali Samantar, Case No. 1:04cv1360 (LMB/JFA), Memorandum Opinion, 28 August 2012.
- US Court of Appeals for the Fourth Circuit, Bashe Abdi Yousuf et al. v. Mohamed Ali Samantar, Case No. 11-14792, Appeal from the United States District Court for the Eastern District of Virginia, 2 November 2012.
- Center for Justice & Accountability, Yousuf v. Samantar
- P. Merchant, ‘It’s Official: The US Is Not a Safe Haven for Human Rights Abusers‘, The Huffington Post, 18 June 2010;
- W. Fisher, ‘Somali Torture Survivors Get Green Light to Sue in US‘, Inter Press Service News Agency, 2 June 2010;
- BBC News, ‘US Court Rules ex-Somali PM Can be Sued Over Torture‘, 2 June 2010;
- R. Barnes, ‘Ex-Somali official Mohamed Ali Samantar may be sued in US, Supreme Court rules‘, The Washington Post, 2 June 2010;
- J. Vicini, ‘Supreme Court: No Immunity for Ex-Somali Official‘, Reuters, 1 June 2010;
- A. Liptak, ‘Mere Silence Doesn’t Invoke Miranda, Justices Say‘, The New York Times, 1 June 2010.
Social media links
- D. Hollis, ‘ATS vs. FSIA, ATS wins?’, Opinio Juris, 1 June 2010;
- C. Bradley, ‘Samantar Insta-Symposium: Samantar and Foreign Official Immunity‘, Opinio Juris, 2 June 2010;
- C. Bradley, ‘Foreign Officials Immunity: A Response to Wuerth‘, Opinio Juris, 7 July 2011;
- I. Wuerth, ‘Foreign Officials Immunity Determinations in U.S. Courts: The Case Against the State Department‘, Opinio Juris, 6 July 2011;
- P. Rutledge, ‘Thoughts on Samantar‘, Opinio Juris, 4 June 2010;
- B. Stevens, ‘Samantar Insta-Symposium: The View From the Counsel’s Table‘, Opinio Juris, 3 June 2010;
- W.S. Dodge, ‘Samantar Insta-Symposium: What Samantar Doesn’t Decide‘, Opinio Juris, 2 June 2010;
- C. Keitner, ‘Samantar Insta-Symposium: Recognizing Personal Responsibility‘, Opinio Juris, 2 June 2010;
- D.P. Stewart, ‘Samantar v. Yousuf: Foreign official Immunity Under Common Law‘, ACIL, 14 June 2010;
- A. Sherwood, ‘Human Rights Claims Clear Immunity Hurdle‘, IntLawGrrls, 7 June 2010;
- L. Denniston, ‘An Elusive Immunity Issue‘, SCOTUSBlog, 1 June 2010.