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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. 

During the 1990s, several complaints of unlawful physical interrogation methods by the General Security Service reached the Israeli Supreme Court. In 1999, it assessed the essential question posed in most of these complaints: was the GSS even allowed to conduct interrogations and if so, did their interrogation methods fall within the scope of torture as prohibited by Israeli and international law. The Court answered the first question in the affirmative and deduced from a general provision in Israeli law the GSS’ authority to interrogate. However, the Court also stated that the GSS was not authorised to use most of the interrogation methods presented to the Court. These included long sleep deprivation, shaking suspects, covering suspects’ heads, and having them crouch on their toes for five minutes intervals. The GSS had argued that the ‘necessity’ defense provided sufficient authorisation to use these interrogations, as information obtained from interrogation might prevent terrorist attacks. The Court did not agree, stating that while the necessity defense might be used by an individual investigator during criminal proceedings, it cannot provide authorisation prior to using the prohibited interrogation methods.    

We often associate genocide with the act of killing members of a specific group, of which there have been many devastating examples throughout history. However, according to the Genocide Convention, other acts can also be regarded as genocide, if they are committed with the intent to destroy, in whole or in part, specific groups. In this case, the plaintiff held that building a bridge to Hindmarsh in South Australia would impede on the culture and way-of-life of the Ngarrindjeri in such a dramatic way that it would lead to the destruction of this group. However, at that point, genocide was not a crime under Australian national law. The plaintiff therefore invoked legislation from the UK, arguing that application of this legislation was possible because of the fact that the UK preceded the current Commonwealth of Australia in governing the Australian continent and its adjacent islands. The judge did not accept this argument and reiterated that even when international law prohibits genocide, someone can only be found guilty of genocide if national legislation explicitly prohibits genocide. The claim was denied.

In 2002, with the adoption of the International Criminal Court Act 2002, genocide became a crime under Australian law.

In this case, the plaintiff held that building a bridge to Hindmarsh in South Australia would impede on the culture and way-of-life of the Ngarrindjeri in such a dramatic way that it would lead to the destruction of this group. However, at that point, genocide was not a crime under Australian national law. The plaintiff therefore invoked legislation from the UK, arguing that application of this legislation was possible because of the fact that the UK preceded the current Commonwealth of Australia in governing the Australian continent and its adjacent islands. The judge did not accept this argument and reiterated that even when international law prohibits genocide, someone can only be found guilty of genocide if national legislation explicitly prohibits genocide. The claim was denied. Sumner was unsuccessful in appealing to this judgment. The full chamber of South Australia’s Supreme Court reiterated that the interlocutory appeal to prevent the start of constructing the bridge should be denied, as there was no serious case to be tried. It did so, most importantly, because the ‘underpinning’ of the case, the allegation that building the bridge was in essence a genocidal act, was not substantiated with referral to domestic law.

We often associate genocide with the act of killing members of a specific group, of which there have been many devastating examples throughout history. However, according to the Genocide Convention, other acts can also be regarded as genocide, if they are committed with the intent to destroy, in whole or in part, specific groups. In this case, the plaintiff had already sought (and failed to find) two interlocutory injunctions to prevent a bridge from being built to Hindmarsh in South Australia. It was held that this construction would impede on the culture and way-of-life of the Ngarrindjeri in such a dramatic way that it would lead to the destruction of this group. The judge did not agree that the construction would amount to genocide and reiterated earlier judgments that genocide was not a criminal act under Australian law. Treaties are not a direct source of law in Australia, and neither is customary international law.

In 2002, with the International Criminal Court Act 2002, genocide became a crime under Australian law.