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(Source picture: Horseed Media)

(Source picture: Horseed Media)

Bashe Abdi Yousuf et al. v. Mohamed Ali Samantar

Court District Court for the Eastern District of Virginia (Alexandria Division), United States
Case number 1:04cv1360 (LMB/JFA)
Decision title Memorandum Opinion
Decision date 28 August 2012
Parties
  • Bashe Adbi Yousuf
  • Buralle Salah Mohamoud
  • Ahmed Jama Gulaid
  • Aziz Mohamed Deria
  • Mohamed Ali Samantar
Categories Torture, War crimes
Keywords immunity, killing, Murder, Non-international armed conflict, rape, torture, war crimes
Links
Other countries involved
  • Somalia
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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.

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.

After a line of litigation spanning 3 years and culminating in a Supreme Court decision in 2010, proceedings against Samantar were allowed to continue as he did not enjoy immunity.

Samantar accepted responsibility in February 2012; the present decision by the District Court for the Eastern District of Virginia held Samantar liable as a superior for the crimes perpetrated by his subordinates in the Somali Armed Forces and the affiliated national intelligence services against the plaintiffs who were awarded $21 million in damages. 

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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). 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).

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Related developments

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

Throughout the 1980s and 1990s, the authoritarian regime of General Mohamed Barre was in power in Somalia. The government targeted certain Somali clans, particularly the Isaaq clan, to which all of the plaintiffs belong.

The Barre regime maintained its control over the population through its security and intelligence forces, including the Somali Armed Forces. Samantar served as Minister of Defence and later as Prime Minister during the relevant time period and was responsible for the Somali Armed Forces (p. 7).

The plaintiffs suffered ill-treatment at the hands of the Barre regime, either personally or through their relatives who are now deceased. Their complaints include rape, torture (p. 16), arbitrary arrest and detention (pp. 15, 18-19, 21, 24) and extra judicial killing (pp. 20, 22-23).

The Barre regime was overthrown in January 1991, at which time Samantar fled Somalia for Italy and then eventually, the United States (p. 8).

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Core legal questions

  • What are the elements of command responsibility?

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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 evidence supports imposing secondary liability on Samantar. He was the leader of the Somali Armed Forces from 1980 to 1986; as Prime Minister, he was in command during the commission of the major crimes against the civilian population in 1988 (p. 28).

He therefore satisfies the three elements of the command responsibility test: (1) a superior/subordinate relationship, (2) superior’s knowledge of the subordinate’s abuses and (3) failure by the superior to take reasonable measures. Samantar’s subordinates in the Somali Armed Forces and affiliated intelligence and security agencies were committing human rights abuses; Samantar knew about this conduct and failed to take necessary and reasonable measures to prevent it; he further ordered and affirmatively permitted such violations (pp. 31-32).

The Court awarded the plaintiffs $21 million in damages (p. 38).

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Instruments cited

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Related cases

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Additional materials

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