Who were the culprits?
By Dr Hussein NurCrimes against humanity are deliberate acts taken as part of a systematic campaign that accuses human suffering or death on a large scale. Crimes against humanity are any specific acts deliberately committed as part of a widespread or systematic attack directed against any civilian or against an identifiable part of a civilian population.
For the first time between 20 November 1945 and 1 October 1946 the Nuremberg trials were held for prosecutions of war criminals (the prosecutions of prominent Nazi Germany politicians, political, judicial and economic leadership). However, recently the International Court of Justice (ICJ) made prosecutions through the International Criminal Tribunal and International Court of Justice for the former Yugoslavia.
The law of crimes against humanity has primarily developed through the evolution of customary international law. Unlike war crimes and genocide, crimes against humanity are not codified in an international convention as yet. But there is currently an on-going international effort to establish a treaty. This is led by an initiative on crimes against humanity. The crimes against humanity include torture, extermination, prosecution, ethnic cleansing against identified groups on political, racial, ethnic, national grounds etc.
In the 1980s crimes against humanity acts were committed in a widespread manner and systematic attacks against the civilian population in Somaliland. The acts took place before and during the eruption of the war in the North (Somaliland). As many as 50,000 (though other estimates show that about 200,000 civilians – men, women, elderly and children) were killed indiscriminately. “Almost everybody is missing a relative”, as remarked by the Chairman of the Somaliland Investigation of War Crimes Commission (WCIC), Kadar Ahmed ‘Like’.
The conflict in the North formally ended when Somaliland withdrew from its union with Somalia. But the perpetrators and culprits (war criminals) who committed the heinous crimes against humanity are still at large at the present. Though many of the officers of previous dictatorial regime were killed in fighting in the North, others are alive either in exile as refugees like the brutal Colonel Awes Geddow (who shelled Hargeisa mercilessly) ‘the destroyer of Hargeisa’ and General Mohamed Said Hersi ‘Morgan’, ‘the butcher of Hargeisa,. General Mohamed Ali Samatar, the ‘architect and destructor’ of the North, passed away recently in the USA (buried in Mogadishu’s Defence Headquarters). Colonel Mohamed Ali Barre ‘Canjeex’, the executioner of more than 50 young professionals and students at the Gezira beach (previous part), is still changing domiciliary homes and residential countries in the diaspora (Kenya, Syria, lately Saudi Arabia etc.). Colonel Yusuf Ali ‘Tuke’, ‘the butcher of Gabiley and Arabsiyo’ in the 1980s, resides in the USA and waiting for prosecution the same pattern as General Samatar.
Many others are known to have been involved in massacres and directing genocidal acts of civilians well before and during the conflict in the north. They are now being haunted by the nightmares of their past inhumane crimes and genocidal histories.
General Mohamed Ali Samatar was finally brought to justice solely with the sheer determinations, commitments, efforts and hard work of individuals of Somaliland origin who filed a lawsuit against him. As a matter of fact, the General was the major perpetrator of crimes against Somaliland people. Since the collapse of the Somali government until after his conviction and death, the General was living at Fairfax, State of Virginia, United States. The process of the court proceedings and the outcome of the case are recorded (in author’s forthcoming book ‘the Rebirth of Somaliland’). The case sets a precedent for catching up with all other criminals against humanity in Somaliland.
General Mohamed Ali Samatar, a long time fugitive war-criminal, was identified by US citizens, the plaintiffs, of Somaliland origin who managed to bring him to the law and successfully prosecuted him in the US court of Justice, the case of (Yousuf v Samatar) which had a long-term history in the US courts having went through battles in all the courts of the US, i.e., District Court, the court of Appeals and finally through to the Supreme Court.
The case was initiated in 2010, in accordance with the Federal Law. The Court of Justice informed the defendant that he could only appeal to the General Defence Law of the country. After fighting the case for a considerable length of time, Samatar finally buckled and gave up accepting liability before Judge Leonie Brinkema, a US Federal Judge, for torture, extra-judicial killing, war crimes, and other human rights abuses committed against the civilian population during the regime of Siad Barre. The lawsuit was finally concluded in the US Courts.
Senator Patrick Leahy, the lead Democratic sponsor of the Torture Victims Protection Act (TVPA) spoke in support of upholding the importance of the human rights law and, therefore, to bring any other suspect with regards to this issue to court. Apart from Bashe Abdi Yusuf (Bashe Abdi yare) and his colleagues, there still are other surviving culprits of the widespread and systematic campaign of human rights violations carried out under the General’s tenure in office.
As mentioned before, the success of the case owed much to the plaintiffs’ efforts to amass and bringing essential information and corroborating a huge amount of evidence which included the General’s previous confession in a BBC interview in London in 1988 in which he clearly admitted that, since he was the highest commander, it was himself who gave the orders to his commanders to launch the bombardment and shelling of Hargeisa and, hence, by implication the execution of its civilian population. Interestingly, though the defendant ignored that he admitted that in the BBC interview the journalist provided the tape and confirmed, by image photography, that it was him (Samatar) who gave that interview.
Historically, the lower court of the US refused the General twice before to deliberate the case against his requests. After appeals the US District Court Judge, Leonie Brinkema ruled in favour of the Centre for Justice and Accountability (CJA’s) clients as the Attorneys from CJA and Pro Bono Co-Counsel Akim Gumb Strauss Hauer & Feld LLP convinced the higher court about the grievous injuries and the malicious intent with which Samatar committed the crimes. At the time Samatar continued to assert immunity and for a third time petitioned the US Supreme Court to hear the case as the last resort. He claimed immunity in his official capacity. The case was then brought to the US High Court after he (Samatar) made an appeal which was heard. Finally, the Supreme Court let the previous court rulings and convicted the defendant. The court awarded the Centre for Justice and Accountability (CJA) clients of Somaliland origin namely Bashe Abdi Yussuf ; Abdulaziz Deria; Buraleh Mohamoud and Ahmed Guleid US $21 million as compensation and punitive damages for torture, war crimes against humanity and human rights abuses committed by the former Somali Prime Minister and Minister of Defence, General Mohamed Ali Samatar.
The US Supreme court’s decision sends a strong message for all perpetrators of atrocities carried out crimes against humanity in foreign countries. Some of those who committed the heinous crimes of atrocities against humanity in the North today live in North America, Europe, Middle East and Africa. So they should not be cloaked with immunity against their crimes.
Unfortunately there are many other Somali war criminals out there and on the run living freely in exile or otherwise in the diaspora and in Somalia today. But nonetheless, at least in the USA the successful bringing of the case and subsequent success in the case of one of the major culprits, General Samatar’s case opens a ‘Pandora box’ for other cases with same trends to follow suit in the future. It is an encouragement to face the prosecution of other potential candidates of war crimes and brutality against humanity in the future in courts.
The CJA’s case marks the first one of a Somali government official to be accountable for atrocities and crimes against humanity. This is a welcoming decision for lawyers, human rights groups and the all those who suffered violation and abuses of the civil and human rights. One member of member of the group, Abdulaziz Mohamed Deria Ali or Eid, who lodged the case, expressed jubilantly his feeling in elation after the court decision. The details provided by one of the victims, Bashe Abdi Yusuf, send gruesome pictures and personal ordeals and historical background of the case who was interviewed by the media (HCTV, Kalsan TV and others and elaborated in the forthcoming book ‘The Rebirth of Somaliland).
There are other cases in the US courts whose legal courses are still looming in courts. They were dependent on the determination of Samatar’s case. CJA’s other cases include the CJA filed on 10th November 2004 on behalf of Farhan Mohamoud Tani (Warfaa) against a high ranking ex-Somali military commander, Colonel Yusuf Abdi Ali (Tuke) for torture, extra-judicial killing, war crimes, and crimes against humanity at a US District Court, the Eastern District of Virginia. Warfaa, the plaintiff was 17 years old when he was accused of being a member of the SNM and was subjected to brutal torture. He abused by Ali and his subordinates. Warfaa informs that, under the command of the Colonel, he had five close shots by Ali (Tuke) himself.
Colonel Ali (Tuke) was first exposed by the fifth Estate in 1992 in the US with allegations that he executed, tortured and maimed countless number of people in the North (Somaliland) before the collapse of the Barre regime in Somalia. However, as Tuke found himself in a major landmark and human rights lawsuit, he sneaked secretly to Canada. After working several years in Toronto, Canada as a security officer, Ali was exposed by the CBC and deported back to the US, his original port of entry country, for the above mentioned allegations of crimes committed in Gabiley region where he was a military commander during the brutal strife as a henchman for the late dictator, Siad Barre against the people of Somaliland. The case was re-opened in October 2011 but stayed twice pending the Supreme Court’s decision of Samatar’s case. The case was specifically brought by Farhan Warfaa with allegations from brutal interrogation by Ali himself in December 1987.
“During his torture, Ali himself was directly questioning him”, Tara Lee, Watfaa’s legal representative, argued and added, ”At the conclusion of the torture and beating [Ali] shot Warfaa five times at point blanc range while the victim was still chained”. Ali was reported by eye witnesses that he conducted gruesome tortures and killings in Gabiley region. Ali used to tie victims to trees and burn them alive himself by dosing petrol on them. He also used to tie and drag victims behind a military vehicle until their bodies shred into pieces and used to order the remains to remain in the streets for days.
The civil action was brought under the Alien Tort Statute (ATS) and the Torture Victim Protection Act (TVPA). The case was filed jointly CJA Attorneys and pro bono Partner Cooley LLP, working on pro bono basis. The case was referred by the District Judge to the US State Department with regards to their input to which extent the foreign officials are entitled to immunity acts. Therefore, the case was stalled. The Court administratively closed in 2007 pending determination of Yusuf V Samatar case. Attorneys from CJA and pro bono Partner Akin Strauss Hauer and Feld LLP successfully moved to re-open the case in October 2011. However, the case was delayed again in April 2012, this time pending of another Supreme Court case, Kiobel V Royal Dutch Petroleum Co., regarding the extra-territorial reach of the ATS.
In April 2013, the case made to stay after the Supreme Court issued its opinion in Kiobel case holding that the ATS is subject to a presumption against extra-territoriality. On 28 July 2013, the Court solicited the US State Department’s opinion regarding the adverse impact on US Foreign Relations. The State Department gave the court a “functional green” light to proceed. Again, the Court stayed the case for some time in anticipation of whether the Supreme Court would grant ‘certiorari’ to hear the Yousuf V Samatar case which was pending at the time on ruling on the immunity issue. The case is still going despite a series of legal circuits. The fate of this case is expected to follow similar pattern as the Yousuf V Samatar case which is now closed. The case is now with the 4th Circuit Court of Appeals in Virginia and a decision is expected.
On 2 June 2016, the CNN provided a report on Ali for his atrocities in the North in the 1980s. After his deportation from Canada despite his known accusations, Ali was then found working as a security officer at Dulles Airport, Washington D.C. Surprisingly Ali escaped vetting by the Master Security employer which had contract from the Metropolitan Airports Authority (MAA). Interestingly, Ali passed a full federally mandating process too. That again included FBI background check and a TSA assessment in the US. Subsequent to his exposure and based on the seriousness of the nature of the allegations, Master Security immediately put Ali on first on administrative leave withdrawing Ali’s airport access and later sacked him.
Ali is now being sued in the US Civil Court, a lawsuit earlier filed by the CTJ, a human rights group in 2006 before he sneaked into Canada. According to Kathy Roberts, an Attorney at CTJ, Ali oversaw the most incredible violent crimes that one can imagine. Ali is well by the local people in Gabiley and Arabsiyo. In Arabsiyo, a group of Peruvian anthropologists dug shallow bits and found battered bones, remains of civilians slaughtered upon Ali’s supervision and orders as the local people (relatives of the victims) confirm that. Ali was well known as a terrorizer and torturer and for his brutal methods of killing such tying victims behind trucks and burring live people.
Over the years the case had numerous twists and turns. However, on February 2016, the US Fourth Court of Appeals ruled that part of the case can be moved forward – the lawsuit claiming that Ali tortured and attempted to murder Farhan, the plaintiff. The other part will be dealt by the war crimes courts. The lawsuit is now headed to the US Supreme Court and CTJ expects it is potential to be a landmark precedent for other cases that foreign criminals in the US where thousands of suspected perpetrators are known to be residing such as the murders in El-Salvador, Tortures in Chile, ethnic cleansing in Somalia in the 1980s.
In line with a former decision of a case (Yusuf VS Samatar as above) by the Fourth Court of Appeals, final ruling by the Supreme Court in Virginia opened a path for an individual lawsuit for torture and attempted murder against Ali committed when he was the head of the Fifth Brigade of the Somali National Army in the north in the 1980s.
The Centre for Justice and Accountability (CJA) confirms that this is a landmark decision to pursue justice for this case. Without doubt the credit is to the Media, the Fifth Estate Press that exposed and stripped Ali naked from hiding as a war criminal. The case involving Ali is currently with the 4th Circuit Court of Appeals in Virginia, USA and a decision is expected in the near future.
This is a clear indication of crimes against humanity, violation of human rights and civil liberty. Though the administrators claimed to be Muslims, such an inhumane act which was commonly practised attracted condemnation for being unethical and un-Islamic (Quran 85:4-7).
Ahmed V Magan:
This case was lodged by a former constitutional Law professor, Somali National University, Abukar Ahmed who resides at Colombus, Ohio, USA against Colonel Abdi Aden Magan, who was the Chief investigator of the notorious National Security Services (NSS) during Barre’s regime in Somalia. The plaintiff is a CJA client who filed the case on 21 April 2010. On 20 November 2012, the US District Court of Ohio found the Colonel guilty but held the case waiting for the determination of General Samatar’s lawsuit. The following case is similarly identical to above case cases in terms of circumstantial evidences and probably more likely to end up in similar verdict as Samatar’s case.
In Somaliland the War Crimes Investigation Commission (WCIC) directed by Khadar Abdi Mohamed ‘Like’ collaborates with the Peruvian team gathering evidence and necessary testimonies. As a result of a grisly crackdown on SNM rebels between 50,000 and 60,000 civilian people were killed. By 2012, according to WCIC there a total of 226 mass graves (Berber 12, Buroa 8, Sheikh 1, Erigavo 2, Gabiley 2 and Arabsiyo 1) are thus far known. “Everybody is missing a relative. Fathers, mothers, brothers, cousins” says Khadar Like, the Director of WCIC. The commission has a list of 33 suspects as perpetrators of those killings. Many of them are living in exile in North America, Europe, and Africa and Somalia including the butcher of Hargeisa, Mohamed said Morgan.
A Peruvian group is currently working on behalf of the Somaliland Crimes against Humanity and Genocide Commission. They have dug two mass graves so far in the vicinity of the towns of Gabiley and Arabsiyo. On March 1988 it was Colonel Ali who led the massacre of 18 civilians near Gabiley at Lag Barako hill. The victims were tied in pairs and later buried in a makeshift mass grave that has recently been discovered. In all mass graves the bones and remains of partly worn clothes (shirts, pants etc.) with colours were found still distinguishable, small possessions, ropes and other distinctive marks (golden teeth) were found as being crucial for identification and confirmation by the relatives of the people massacred victims.
Most of the war criminals who committed such heinous crimes against humanity during the conflict in the Northern regions of Somali Republic (now Somaliland) are at large and on the loose living abroad (North America, Europe, Africa, Middle East etc.). Among those presently identified in Canada include Abdi Ali Nur Mohamed, a former Judge at Hargeisa in the 1980s and Mohamed Hassan Ismail Farah, a former Police Lieutenant in Hargeisa too. The victims reside in the same parts of Canada. The cases are not filed yet for one reason or other.
There are other alleged war criminals of cases of crimes against humanity against perpetrators are at large and on the run living in Canada, Somalia, Kenya, Syria, USA etc. A case against a former judge, Mohamed Ali Nur and a former Police lieutenant in Hargeisa are not active yet.