The long and thoughtful opinion rejects absolute deference to the executive branch in determining immunity for “official acts.” Even more powerfully, the opinion holds that egregious human rights abuses cannot be considered “official acts” shielded by immunity: “Under international and domestic law, officials from other countries are not entitled to foreign official immunity for jus cogens violations, even if the acts were performed in the defendant’s official capacity.”
In other words, immunity for “official acts” cannot extend to torture, extrajudicial killing, or any other universally recognized human rights violation because no foreign official has the authority to commit these international crimes.
The Fourth Circuit’s decision marks a crucial step forward in the fight against impunity. On August 28, 2012, U.S. District Court Judge Leonie Brinkema awarded $21 million in compensatory and punitive damages against former Somali General Mohamed Ali Samantar. In a hearing before Judge Brinkema on February 23, 2012, General Samantar had accepted liability and responsibility for damages for torture, extrajudicial killing, war crimes and other human rights abuses committed against the civilian population of Somalia during the brutal Siad Barre regime, the military dictatorship that ruled that country from 1969 to 1991.
This judgment marks the first time that anyone has been held to account anywhere in the world for atrocities committed by General Samantar and the military dictatorship that ruled Somalia for over 20 years. BACKGROUND During the 1980s, General Samantar presided over an increasingly repressive military that committed horrific atrocities with particular harshness in the northern part of Somalia, and particularly against people who were of Isaaq heritage. In response to this brutality, a pro-democracy resistance movement emerged, calling itself the Somali National Movement, or the SNM. The SNM drew its strength from the Issaq. Though the SNM also committed human rights violations, the overwhelming number of atrocities were committed by Somali government soldiers. As the SNM’s strength grew, the Somalia Armed Forces retaliated with increasing brutality against unarmed civilians.
The Somali Armed Forces killed and looted livestock, blew up water reservoirs, destroyed homes, and tortured, imprisoned and summarily executed civilians accused of supporting the SNM, including businessmen, teachers, high school students and nomads simply tending their herds
During this time, defendant Mohamed Ali Samantar served
as Vice President and Minister of Defense (1980-1986) and Prime Minister of
Somalia (1987-1990). In June 1988, the Somali government's brutal
counterinsurgency war against the SNM culminated in an indiscriminate aerial
and ground assault on Hargeisa, the nation's second largest city. The attack struck civilian neighborhoods the
hardest and leveled most of the city; over 5,000 residents were killed. In an interview with the BBC in 1989,
Samantar admitted to giving the final order approving these operations. Listen to that interview here or read the
transcript here.
The plaintiffs are survivors of these widespread human
rights violations:
In the early 1980s,
Bashe Abdi Yousuf was a young businessman in the northern Somali city of
Hargeisa. He volunteered his time and
donated money to improve education and health care. In November 1981, he was abducted by
government agents, accused of being part of a subversive organization, taken to
a detention center, and tortured repeatedly over a period of several
months. Among other things, Yousuf was
subjected to electroshock treatment and a stress-position torture called “the
MIG,” in which Yousuf ’s hands and feet were tightly bound together behind his
back so that his body was pulled into a U-shape with his limbs high in the
air. The torturers then placed a heavy
rock onto his back, producing excruciating pain and causing the ropes to cut
deeply into Yousuf’s arms and legs.
Yousuf was interrogated about his friends, alleged to be the members of
his “organization” and told that the torture would end if he falsely confessed
to anti-government crimes. Over the
course of several months, Yousuf was interrogated numerous times and subjected
to torture including water-boarding.
Eventually convicted of membership in an illegal organization in a trial
that lacked basic due process, Yousuf spent the next six years of his life in
prison, almost entirely in solitary confinement. Fleeing Somalia after his release, Yousuf
arrived in the United States in 1991, and later became a naturalized United
States citizen.
In 1984, Buralle Salah Mahamoud and his brothers were
arbitrarily detained by Somali government forces and convicted without due
process of collaborating with the Somaliland National Movement. Sentenced to death, he managed to escape with
his life, but his brothers were killed in a mass execution with approximately
40 other Isaaq men.
In June 1988, during the Somali Armed Forces’ attack on
the city of Hargeisa, a group of government soldiers entered Aziz Mohamed
Deria’s childhood home and abducted his father, brother, and cousin at
gunpoint. The soldiers threatened that
they going to kill their detainees.
After their disappearance at the hands of government forces, Mr. Deria
and his family never saw them again. Mr.
Deria later heard from released detainees that the three men were executed.
In June 1988, Ahmed Jama Gulaid, then a non-commissioned officer in the Somali
National Army, was arrested along with
other Isaaq soldiers and transported to an execution site. John Doe II was shot by a firing squad in a
mass execution and dumped in a mass grave.
His wounds were not fatal, and he managed to crawl out from beneath a
pile of bodies and escape to safety.
LEGAL PROCEEDINGS
Complaint
CJA filed the complaint with the U.S. District Court for
the Eastern District of Virginia on November 10, 2004. Samantar—who now lives in Fairfax,
Virginia—was served at his home. Brought
under the ATS and the TVPA, the suit alleges that Samantar had command
responsibility for extrajudicial killing; arbitrary detention; torture and
cruel, inhuman or degrading treatment; crimes against humanity and war crimes
carried out by his subordinates during this period. In response, Samantar claimed head-of-state
immunity.
Solicitation of the State Department’s Opinion
In January 2005 the court stayed the proceedings in order
to give the State Department an opportunity to weigh in on the question of
immunity. The court requested that
Samantar provide regular updates on the State Department’s position. For two years, Samantar reported each month
that the request was “under consideration.”
State Department Refuses to Comply with Subpoena
Despite the stay, District Court Judge Leonie Brinkema
allowed the plaintiffs to subpoena documents from the U.S. Government. CJA
served a subpoena on the State Department that requested documents relating to
human rights and military issues in Somalia.
The Bush administration objected to all attempts to enforce the
subpoena, arguing that the government is not bound by Federal Rule of Civil
Procedure 45, which governs the enforcement of subpoenas, because it is not a
"person" under the rule. CJA
filed a motion to compel the State Department to comply with the subpoena, but
the District Court for the District of Columbia agreed with the U.S. government
position, holding that the subpoena was invalid.
Appeal of Lower Court’s Subpoena Ruling
On appeal, the U.S. Court of Appeals for the D.C. Circuit
overturned the District Court’s decision on June 15, 2006. The appeals Court
held that the U.S. Government is required to comply with subpoenas for
documents in private lawsuits, even when the Government is not directly
involved in the case. The appeals Court
sent the case back to the District Court to enforce the subpoena against the
State Department.
Case Dismissed on Statutory Immunity Grounds
After receiving no Statement of Interest from the State
Department, the Court reinstated the case on January 22, 2007. Shortly
thereafter, Samantar filed another motion to dismiss, arguing that he was
shielded from civil liability by the
Foreign Sovereign Immunities Act (FSIA). On April 27, 2007, the District Court
granted Samantar’s motion. The Court
held that the FSIA provides immunity from civil lawsuits to foreign states and
to their agencies and instrumentalities.
Judge Brinkema wrote that, although the FSIA makes no direct mention of
individual officials, individuals acting in an official capacity should be
treated as an agency or instrumentality and should likewise benefit from
immunity. Thus, the plaintiffs were
barred from bringing suit against Samantar.
Appeal to the Fourth Circuit
The plaintiffs appealed the District Court’s ruling to
the Fourth Circuit Court of Appeals, arguing that:
- the FSIA does not apply to individual officials, only to foreign states or their agencies or instrumentalities;
- even if the FSIA did apply to individuals, such persons would only be immune if they were agents or officials at the time of the filing of the suit;
- in any case, FSIA immunity cannot possibly attach to illegal acts such as torture, which are outside the scope of authority of foreign officials;
- furthermore, at the time of the filing, there no longer was a “state of Somalia” that could qualify as a foreign state under the FSIA.
Two amicus briefs were filed in support of the
plaintiffs' appeal. One brief was
prepared by the International Human Rights Clinic at Harvard Law School and
submitted on behalf of Dolly Filártiga, Sister Dianna Ortiz, and a diverse
group of religious groups, human rights organizations, and non-profits
providing health and social services to torture survivors. A second brief, focusing on congressional
intent, was prepared by the Human rights Clinic at the University of Virginia
School of Law and was signed by UVA professors and Congresswoman Sheila Jackson
Lee.
Fourth Circuit Overturns the Dismissal
On January 8, 2009, the Fourth Circuit reinstated the
case against Samantar. The Fourth Circuit panel held that (1) the FSIA does not
confer jurisdictional immunity on individual foreign government officials and
(2) even if the FSIA did apply to individuals, it would only apply if they were
officials at the time of the filing of the suit. The Fourth Circuit remanded
the case to the District Court for further proceedings. Samantar petitioned for
rehearing en banc by the entire Fourth Circuit Court of Appeals. However, on
February 2, 2009, the Fourth Circuit denied Samantar's petition.
Supreme Court Grants Cert Petition
In June 2009, Samantar filed a petition for writ of certiorari
asking the United States Supreme Court to review the Fourth Circuit's decision
rejecting his claim of immunity under the FSIA.
On September 30, 2009, the U.S. Supreme Court agreed to review the
Fourth Circuit's decision. The key issues under review will be (1) whether the
immunity from civil suits applicable to foreign states extends to individual
foreign officials and (2) if so, whether this immunity extends to former
officials, like Samantar, who no longer hold office at the time of suit.
Briefing and Oral Arguments
On November 39, 2009, Samantar filed his merits
brief. On January 20, CJA filed a brief
for the Respondents. On January 27, 2010 a broad array of supporters filed
amicus curiae briefs in support of respondents, including the U.S. government,
Members of Congress, former U.S. diplomats, former U.S. military professionals,
Holocaust survivors and groups doing anti-genocide work, human rights and
religious organizations, experts on Somali history, the Foreign Minister of
Somaliland, and highly respected law professors.
Oral argument was
heard on March 3, 2010, with U.S. based clients, Aziz Deria and Bashe Yousuf,
in attendance.
Samantar chiefly contended that because a state acts
through its individual officials, those officials should enjoy the same
immunity that the FSIA provides for the state itself. A suit against an
official, he contended, is merely a suit against the state under a different
label.
In response, CJA and Supreme Court counsel Patricia
Millet argued that the Fourth Circuit correctly interpreted the FSIA to apply
only to states and their agencies and instrumentalities--legal categories
which, under standard rules of construction, do not include individual
officials. Any possible immunities for individual officials would be governed
by common law principles, which were not superseded by the FSIA. Moreover, even
if Samantar were correct that a suit against the official is a suit against
state, Samantar would no longer be shielded since he, as a former official of a
defunct political entity, is no longer ‘the state.'
And crucially, immunity cannot shield those responsible
for torture and extrajudicial killing, because under international law, no
official has the lawful authority to violate these universal human rights norms.
Torture and crimes against humanity are not privileged official acts, meriting
the protection of the courts.
Supreme Court Rules Unanimously Against Immunity for
Samantar
By a 9-0 decision, the U.S. Supreme Court affirmed the
Fourth Circuit Court of Appeal's decision that Samantar is not shielded from
suit by the FSIA, holding that the FSIA does not immunize individual officials.
The Court did note that common law immunities may still apply and remanded the
case for proceedings in the U.S. District Court for the Eastern District of
Virginia.
CJA and our clients would like to thank the many people
and organizations who helped make this victory a reality. In particular, we would also like to thank
our Supreme Court counsel Patricia Millett of Akin Gump Strauss Hauer &
Feld, LLP and co-counsel Cooley Godward & Kronish, LLP.
Further Proceedings in the U.S. District Court for the
Eastern District of Virginia
With the case remanded to the District Court, Samantar
filed a motion to dismiss the complaint in November 2010, arguing that he was
entitled to common law immunity and head of state immunity. He also argued that the case was barred by
the political question doctrine, the statute of limitations and that the
plaintiffs had not stated enough facts in the complaint to support the claims
against him. We opposed the motion to
dismiss and the Samantar filed a reply.
The court initially set a hearing date of January 14, 2011.
On January 6, 2011, the U.S., on behalf of the State
Department, filed a Notice of Potential Participation stating that it was
considering the immunity issue and asking the court to give it until January 31
to render a decision. The court agreed
to continue the case to give the government time to state its position. On February 14, 2011, the U.S. filed a
Statement of Interest stating that Samantar was not entitled to immunity in the
case. The filing is significant because
the U.S. rarely intervenes in litigation where it is not a party, and it is
extremely uncommon for the government to intervene to state that a defendant is
not entitled to immunity. Based on the
State Department’s filing, the very next day, the court ruled that the
Defendant’s common law immunity claim is not viable.
Following oral argument on the remaining issues in the
motion to dismiss on April 1, 2011, the Court denied Samantar's motion to
dismiss without prejudice and ordered full discovery. Significantly, this means that Plaintiffs
will be able to take Samantar's deposition and ask him why he directed a
systematic attack on unarmed Somali civilians, including torture, rape and mass
executions of countless victims. The
Court also denied Samantar's motion for reconsideration of his common law
immunity claim. On April 29, 2011,
Samantar filed a notice of interlocutory appeal to the Fourth Circuit of his
claim of common law immunity. Judge
Brinkema issued a scheduling order on May 3 and denied Samantar's motion to
stay the scheduling order on May 18, certifying his interlocutory appeal to the
Fourth Circuit as frivolous.
Defendant filed a motion for summary judgment on November
21, 2011 which the court denied in December.
Trial was scheduled to begin February 21, 2012. After filing and losing two more motions to
stay the proceedings (one at the trial court level and one at the 4th Circuit),
on the evening of February 19, Samantar filed for bankruptcy, which by
operation of statute deprived the trial court of jurisdiction and imposed an
immediate stay of the proceedings.
Attorneys from CJA and Akin Gump flew into action, filing and winning an
emergency motion to lift that stay on February 21, and securing a new trial
date of February 23.
On the morning of February 23, Samantar personally
appeared in court to enter his default, conceding both liability and
damages. Significantly, Judge Brinkema
questioned Samantar directly regarding his entry of default on all of the
claims against him. Read the transcript
here. After finding Samantar liable for
the plaintiffs’ injuries, Judge Brinkema proceeded with a hearing on damages.
CJA and Akin Gump attorneys presented the testimony of all our plaintiffs and
several other key witnesses, as well as documentary evidence in support of
compensatory and punitive damages. Read
transcripts of the damages trial here [vol. 1] and here [vol. 2]. Read the Court's judgment and $21 million
damages award here.
Fourth Circuit
Denies Immunity Again
After losing his bid for immunity under the Foreign Sovereign
Immunities Act at the U.S. Supreme Court, Samantar had filed and lost another
motion to dismiss the case, arguing that he was entitled to common law and head
of state immunity. Samantar appealed
this decision to the Fourth Circuit, but after the U.S. Department of State yet
again weighed in on the Plaintiffs’ side, the trial court certified the appeal
as frivolous, allowing the case to move forward to trial in February 2012. Oral argument before the Fourth Circuit was
heard May 16, 2012.
On November 2, 2012, the U.S. Court of Appeals for the
Fourth Circuit once again sided with our clients against former Somali General
Mohamed Ali Samantar. In this landmark
victory, CJA litigated the first case to consider the “common law immunity” of
foreign officials to a decision that both denies absolute deference to the
executive branch and denies immunity for human rights abuses like torture and
extrajudicial killing. The Fourth Circuit’s decision marks a crucial step
forward in the fight against impunity.
