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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
Decision title Memorandum Opinion
Decision date 1 August 2007
Parties
  • Bashe Adbi Yousuf
  • 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
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.

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. This decision is the first in a line of proceedings that culminated in November 2012 by which the plaintiffs, victims of the regime, sought damages for the harm they suffered. 

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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.

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Related developments

The plaintiffs appealed to the Court of Appeals for the Forth Circuit.

By a decision of 8 January 2009, the Court of Appeals reinstated the case against Samantar on the grounds that he does not enjoy immunity under the Foreign Sovereign Immunities Act.

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. 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. A transcript is available here.

On 28 August 2012, the District Court awarded the plaintiffs $21 million in compensation against Samantar. And 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

In October 1969, a coup led by Major General Mohamed Siad Barre led to the establishment of a new authoritarian socialist government in Somalia with power being assumed by the Supreme Revolutionary Council (SRC) composed of Army officers who had supported the coup, including Samantar.

The SRC’s first steps in power included the abolition of the existing Constitution, the closure of the National Assembly, the abolition of the Supreme Court and the declaration of all groups not sponsored by the government to be illegal (para. II.2).

From the early 1980s onwards, the military committed numerous atrocities against ordinary citizens in an effort to deter the growing opposition movements. In particular, members of the Isaaq clan were targeted because they were amongst the best educated and most prosperous Somalis.

In response to the military attacks carried out against the Isaaq clan, some of its members forced the Somali National Movement (SNM) in 1981 and commenced a campaign of violent resistance. It is alleged that in response to the SNM attacks, the Somali military forces perpetrated a number of human rights abuses and war crimes, attacking ciivlians, killing and looting livestock, blowing up water reservoirs, destroying homes, torturing and detaining alleged SNM supporters.

These confrontations continued until January 1991 when the Barre regime was overthrown (para. II.3). Samanter was the head of the Somali Armed Forces in the 1980s and 1990s (para. I). He fled to Italy in 1991 and then to the United States in 1997 (para. II.3).

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Core legal questions

  • Is Samantar, as the Prime Minister of Somalia at the relevant time, entitled to immunity under the Foreign Sovereign Immunities Act with the consequence that the District Court lacks subject matter jurisdiction and must dismiss the claims against him?
  • More precisely, is State immunity under the FSIA to be interpreted as including individual officials of the State provided that they were acting in their official capacity?
  • Does the nature of the complaints alleged against Samantar, that is, war crimes and torture, necessarily render his acts beyond the scope of his official capacity so that he would not be entitled to immunity?

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Specific legal rules and provisions

  • Paragraph 1602 of the Foreign Sovereign Immunities Act.
  • Torture Victim Protection Act.
  • Rule 12(b)(1) of the Federal Rule of Civil Procedure.

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Court's holding and analysis

Pursuant to 28 USC § 1604, a foreign State is immune from the jurisdiction of the Courts of the United States with certain exceptions, none of which are invoked by either of the parties (para. III.11).

Absent case-law from a superior court, the District Court looked to the case law of other District Courts, particularly in the cases of Belhas v. Ya’Alon and Matar v. Dichter. It concluded that the Foreign Sovereign Immunities Act applied to individuals of the State who acted in their official capacity. The defendant was the Minister of Defense and then the Prime Minister of Somalia during the relevant time. On this basis, the defendant is entitled to immunity from proceedings (paras III.12-14).

The plaintiff’s argument that the Torture Victims Protection Act bars immunity from proceedings where the individual in question is charged with torture is dismissed. Neither the legislative history of the Act (para. III.14-15), nor the status of the prohibition of torture as a norm of jus cogens (para. III.16) can be relied upon as a basis for waiver of sovereign immunity.

The Court, composed of Justice Brinkema, held that Samantar was entitled to sovereign immunity under the FSIA for the acts he undertook on behalf of the Somali government. The Court does not therefore have subject matter jurisdiction of the plaintiff’s claims.

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Further analysis

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Instruments cited

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Related cases

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Additional materials

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