Bashe Abdi Yousuf et al. v. Mohamed Ali Samantar

Court	Court of Appeals for the Fourth Circuit, United States
Case number	07-1893
Decision title	Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria
Decision date	8 January 2009
Parties	Bashe Abdi Yousuf Officer John Doe 1 Jane Doe 1 John Doe 2 John Doe 3 John Doe 4 Aziz Deria Mohamed Ali Samantar
Categories	War crimes
Keywords	Murder, Non-international armed conflict, rape, torture
Links	Appeal from the United States District Court for the Eastern District of Virginia
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.

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).

By the present decision, the Court of Appeals for the Fourth Circuit reversed the 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.

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.

The plaintiffs appealed.

Related developments

On 18 June 2009, Samantar filed a petition for writ of certiorari to be granted leave to appeal his case before the Supreme Court of the United States. 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. Oral arguments were heard on 3 March 2010.

By a unanimous decision of 1 June 2010, the Supreme Court ruled that Samantar does not enjoy immunity. It remanded the case for proceedings in the District Court for the Eastern District of Virginia. Consequently, 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

Following a coup in 1969, General Mohamed Barre assumed power in Somalia. Due to his involvement, Samantar became a high ranking government official occupying the post of Minister of Defence and later Prime Minister during the 1980s and the 1990s (p. 4).

During this period, the Barre regime specifically targeted members of the Somali civilian population, particularly members of the Isaaq clan. Three of the plaintiffs allege that they were personally subjected to brutality at the hands of the government intelligence agencies anf the military police, in particular, acts of torture, abduction, rape, physical mal-treatment and execution. The remaining plaintiffs are representatives of family members allegedly killed by government agents (p. 5).

The Barre regime collapsed in January 1991. Samantar fled to the United States (p. 6).

Core legal questions

Is the Foreign Sovereign Immunities Act applicable to individuals?
In the affirmative, does the FSIA provide immunity for former 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), 28 USC § 1604, provides that a foreign State is immune from the jurisdiction of the courts of the United States, with a few exceptions (p. 11). The Appeals Court decided that the FSIA is not applicable to individuals (p. 18). First, Congress did not explicitly mention individuals or natural persons; its limited definition of “foreign State” included only agents or instrumentalities (p. 12). Second, Circuit court decisions have not conclusively determined whether individuals fall within the scope of the FSIA (pp. 13-15). Third, such a conclusion is supported by the overall purpose and structure of the FSIA (pp. 15-18).

Even if the FSIA were to apply to individual defendants, it was not the intention of Congress to shield former government agents from suit. This temporal limitation on the immunity guaranteed by the FSIA is the result of the plain text of 28 USC § 1603(b), which uses the present tense when defining the conditions for agency and instrumentality (pp. 18-19). Thus, Samantar, a former government official at the time of the action brought by the plaintiffs, would therefore not be covered by the FSIA (p. 21).

The decision of the District Court is reversed and the case is remanded for further proceedings (p. 22).

Further analysis

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.

Instruments cited

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.

Related cases

Supreme Court of the United States, Mohamed Ali Samantar v. Bashe Abdi Yousuf et al. Case No. 08–1555, Certiorari to the United States Court of Appeals for the Fourth Circuit, 1 June 2010.
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.