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Published On: Sat, Aug 27th, 2016

Somaliland:Gen. Mohamed Ali Samantar; Hero or War Criminal

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Mohamed-Ali-Samatar-Priminister-Somalia-2010Under 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.

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Procedural history

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.

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Related developments

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.

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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).

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Core legal questions

  • Is the Foreign Sovereign Immunities Act (FSIA) applicable to the immunity claims of foreign officials?

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Specific legal rules and provisions

  • Paragraph 1350 of the Alien Tort Statute.
  • Paragraph 1602 of the Foreign Sovereign Immunities Act.
  • Torture Victim Protection Act.

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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).

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Further analysis

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Instruments cited

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Related cases

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Additional materials

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Social media links


Source: internationalcrimesdatabase.org

Displaying 3 Comments
Have Your Say
  1. Yassin says:

    He has to take personal responsibiity for his commission and omission. Claiming that he enjoys diplomatic or other immunity is no excuse. Somalia is a no-state so he can no longer claim to be a sitting government official.

    No matter how long it takes, the law will eventually catch up with them. They are slowly being exposed one by one. You can run but you can’t hide. Your bloody past will cause you endless nightmares.

    I hope this will serve as a personal lesson to the vestiges of the dictatorial regime of Siad Barre. All these “gacaan kudegleys” need to be put behind bars for life.

  2. M. Kkalid says:

    Prior to Siyad Bare,s invation of Ethiopia in 1978, a conference to mediate between Bare and Mengistu Haile Maryam was in held in Aden. Bare was warned not attack a brotherly communist country otherwise the whole socialist block will deem him a pariah. He refused the mediation. At one of the side meetings with Cuba’s former president Fedal Castro, he was asked about his defence minister and if he (the latter) knows his agenda. He said that his defence minister is a weak yes man who hails from a kind of an untouchable tribe.

    • Yassin says:

      Kkkkkkk. Khalid, they are no longer untouchable now. Instead they are being exposed one by one. I find it ironical that they are now in hiding as “refugees” and vulnerable people.

      FYI, when Siyaad Barre ran away from Mogadishu, he first sought refuge in Nairobi, Kenya. He was quickly exposed by the diaspora Issaqs living there. They lobbied the Kenya government to get rid of him ASAP. He tried to resist. Ultimately, he had to ran away to Nigeria, where a sympathetic dictator was willing to host him. He still faced a lot of difficulties from the “rer magaal” Nigerians there. Reports of robbery in his place were common in the press.

      In short, the past has a very strange way of catching up with you. You can hide but ultimately the truth comes out. The world is moving at a rapid pace and these former “strongmen” (or “weakmen” as you say above) are quickly becominh irrelevant and very vulnerable. There is no one to defend them now. The same way the warlords quickly vanished from the scene is the same way these guys “disappeared”. But we live in a hi-tech world. Its easy to track them now. The long arm of International Law is quickly catching up with them. One by one …..

      I laugh at their flimsy excuses of “diplomatic immunity” or the use of obsolete pieces of legislation to try to “wriggle” their way out of the hole they dug for themselves earlier. Sadly, its too late. Just a matter of time before they are served justice.

      Al Jazeera runs some very good investigative journalism on past injustices. Assange’s Wikileaks is also another interesting place to find some highly classified stories. The internet has made it impossible for former dictatorial regimes to try to manipulate its citizens.

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