Welcome to the Roundtable, a forum for incisive commentary and analysis
on cases and developments in law and the legal system.
on cases and developments in law and the legal system.
By Natasha Kang
Natasha Kang is a senior at the University of California, Davis.
Few issues can be considered black-and-white with a clear, absolute answer – except violations of human rights, right? Even the overriding international norms of jus cogens do not allow for human rights abuses such as torture and arbitrary imprisonment.  However, this is not simple in practice, as seen in the recent history of the case against Mohamed Ali Samantar, a government official under the brutal regime of the late dictator of Somalia, Mohammed Siad Barre.  Serving as Defense Minister and later as Prime Minister during the regime, Samantar oversaw armed forces that engaged in acts of torture, rape, abduction, extrajudicial killings, and groundless imprisonment. After moving to the US in 1997, Samantar recently filed his third petition for writ of certiorari in a long battle against the members of the Isaaq clan, victims of Samantar’s actions while he was working under the regime. 
In 2004, the Center for Justice & Accountability (CJA) filed a complaint with the U.S. District Court for the Eastern District of Virginia.  Samantar was charged for the “extrajudicial killing; arbitrary detention; torture and cruel, inhuman, or degrading treatment; crimes against humanity; and war crimes” committed by the armed forces he oversaw.  After a struggle to enforce a subpoena in order to obtain documents concerning human rights and military issues in Somalia, Samantar’s motion to dismiss was granted based on statutory immunity grounds. This meant that under the Foreign Sovereign Immunities Act (FSIA) , Samantar possessed “immunity from civil lawsuits to foreign states and to their agencies and instrumentalities” because officials acting on orders should be treated as an agency or instrumentality. 
An appeal to the Fourth Circuit Court of Appeals overturned this dismissal on the grounds that the FSIA language does not apply to government officials. Later, although holding that their decision was specific to this case, the Supreme Court confirmed the Fourth Circuit’s ruling that the FSIA did not immunize individual officials in a unanimous 9-0 decision. 
However, this case was far from over. In their decision, the Supreme Court both upheld the decision of the Fourth Circuit and remanded the case for proceedings to the U.S. District Court for the Eastern District of Virginia.  Once again, Samantar filed a motion to dismiss the complaint against him with the argument that he was entitled to “common law immunity” and “head-of-state immunity,” among other reasons.  The former allows officials of the state to have immunity in regard to their actions as official, while the latter is a doctrine in international law that allows a head of state to be immune from the jurisdiction of a foreign state’s courts. 
In a highly unusual move, the US government intervened in this case with a Statement of Interest stating that Samantar did not have a claim to common law immunity because: (1) the U.S. government did not currently recognize a government of Somalia and (2) permanent residents of the US, including Samantar, were subject to the jurisdiction of U.S. courts.  Following this intervention, the court denied the motion to dismiss. After a series of back-and-forth moves between Samantar and the plaintiffs, Samantar accepted liability for $21 million in damages to the plaintiffs.  However, the political context of this case was changed when the U.S. government officially recognized the Somali government in January 2013. With this change invalidating an important part of the government’s Statement of Interest, Samantar filed his second petition to the Supreme Court with renewed hope, backed by a coalition including three former U.S. Attorneys General which argued that this exception to jus cogens risked exposing U.S. officials to lawsuits in foreign countries.  The CJA filed in opposition, and the Solicitor General filed a brief urging the court to grant the petition and ultimately remand the case for a new ruling on the common law immunity issue due to changed circumstances. The Supreme Court denied certiorari, leaving the Fourth Circuit decision unaltered.
After the Supreme Court’s denial of this petition and the Fourth Circuit’s denial of Samantar’s second appeal, he filed a third petition to be heard by the Supreme Court. This third petition for a writ of certiorari asks again if a foreign official’s common law immunity for “acts performed on behalf of a foreign state” are revoked by the plaintiffs’ claims that those official affects violate jus cogens norms.  It will be the final judgment for Samantar—if this petition is denied by the Supreme Court for review, the $21 million judgment will be absolute, and it will remain to be seen whether or not the political aftermath feared by Samantar’s supporters will come to fruition.
 Jus Cogens, Cornell University Law School Legal Information Institute, https://www.law.cornell.edu/wex/jus_cogens.
 Daniel Schulman, “The War Criminal Next Door,” Mother Jones, February 28, 2010, http://www.motherjones.com/politics/2010/02/war-criminal-next-door.
 Yousuf v. Samantar, Center for Justice & Accountability, http://www.cja.org/section.php?id=85.
 Yousuf v. Samantar, Center for Justice & Accountability
 Foreign Sovereign Immunities Act, U.S. Department of State – Bureau of Consular Affairs, http://travel.state.gov/content/travel/english/legal-considerations/judicial/service-of-process/foreign-sovereign-immunities-act.html.
 Sovereign Immunity, Cornell University Law School Legal Information Institute, https://www.law.cornell.edu/wex/sovereign_immunity.
 Bashe Abdi Yousuf et al. v. Mohamed Ali Samantar, International Crimes Database, 2013, http://www.internationalcrimesdatabase.org/Case/797.
 U.S Statement of Interest, U.S. Department of State, http://www.cja.org/downloads/Samantar_Stmt_of_Interest.pdf.
 Yousuf v. Samantar, Center for Justice & Accountability.
 Petition regarding Samantar v. Yousuf et. al., http://sblog.s3.amazonaws.com/wp-content/uploads/2014/06/Samantar-v-Yousuf-Cert-Petition-FINAL.pdf.
Photo credit: Flickr user Africa Renewal
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