Bashe Abdi Yousuf et al. v. Mohamed Ali Samantar

Court	Court of Appeals for the Fourth Circuit, United States
Case number	11-1479
Decision title	Memorandum Opinion
Decision date	2 November 2012
Parties	Bashe Adbi Yousuf John Doe 1 John Doe 2 Aziz Mohamed Deria Mohamed Ali Samantar United States of America
Categories	War crimes
Keywords	Murder, Non-international armed conflict, rape, torture
Links	Memorandum Opinion
Other countries involved	Somalia

Summary

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.

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.

After a line of litigation spanning 3 years and including a Supreme Court decision, Samantar accepted liability as a superior for the crimes perpetrated by his subordinates in the Somali Armed Forces and the affiliated national intelligence services. The District Court for the Eastern District of Virginia awarded $21 million in damages.

The present decision by the Court of Appeals for the Fourth Circuit is the result of Samantar’s appeal against the District Court’s dismissal of his claims for immunity from proceedings. The Court of Appeals dismissed the appeal finding that Samantar enjoys no immunity for acts of torture, summary execution and arbitrary detention even if they were performed by him in his official capacity as such conduct is universally prohibited.

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). However, by a decision of 8 January 2009, the Court of Appeals for the Fourth Circuit reversed the decision of the District Court. It held that the FSIA did not apply to individuals and therefore Samantar did not benefit from immunity as a result of it. This decision was affirmed by the Supreme Court of the United States on 1 June 2010; it remanded the case to the District Court for further proceedings.

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).

By a decision of 28 August 2012, the District Court held Samantar liable as a superior and awarded the plaintiffs $21 million.

Samantar appealed to the Court of Appeals on the grounds that the District Court’s rejection of his claims for immunity was incorrect in law.

Legally relevant facts

Samantar was a high ranking government official (Minister of Defense and later Prime Minister) in Somalia under the military regime of President Barre who ruled the country from 1969 until a coup d’état overthrew him in 1991.

The plaintiffs are natives of Somalia and members of the Isaaq clan, which was viewed by the Barre regime as a threat. The plaintiffs allege that they, or members of their families, were subjected to torture, arbitrary detention and extrajudicial killing by government agents under the command and control of Samantar.

Following the fall of the Barre regime, Samantar fled Somalia for the United States and is currently a resident of Virginia (pp. 3-4).

Core legal questions

Does Samantar benefit from Head of State immunity under the common law for the period during which he was Prime Minister of Somalia?
Does Samantar benefit from official acts immunity under the common law in respect of acts performed by him whilst in office?
In the affirmative, does his immunity stand in light of the allegations of torture against him?

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

Head of State immunity is a doctrine of customary international law according to which an incumbent head of State is immune from the jurisdiction of a foreign state’s courts (p. 7).

Official acts immunity provides that public ministers, officials or agents of the state enjoy immunity from proceedings in respect of acts performed by them in their official capacity (p. 8). This immunity does not extend to private acts where the official purports to act as an individual (p. 18).

In the present case, Samantar is alleged to have committed acts of torture, summary execution and prolonged arbitrary imprisonment, acts which are in violation of universally agreed upon norms, or norms of jus cogens. Whilst jus cogens violations may be committed under the guise of the law and in that sense constitute acts performed in the course of the official’s duties, both international and domestic law recognises that such violations are acts not officially recognised by the Sovereign of the state. American courts have generally followed the trend of international law to abrogate foreign official immunity for individuals who commit violations of jus cogens norms. This does not affect head of state immunity which is of an absolute nature and applies even against jus cogens claims (pp. 19-21).

The Court concluded that Samantar is not entitled to immunity for official acts in light of the violations of jus cogens he is alleged to have committed, even if the acts were performed in his official capacity. This is supported by the Torture Victims Protection Act which created an express private right of action for victims of torture and extrajudicial killing against perpetrators
(p. 22).