Yousuf v. SamantarThe first human rights case to address atrocities in Somalia under the Siad Barre regime.
IN BRIEF | BACKGROUND | LEGAL PROCEEDINGS
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, who has lived in Virginia since 1997. In a hearing before Judge Brinkema on February 23, 2012, General 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 during the brutal Siad Barre regime, the military dictatorship that ruled that country from 1969 to 1991.
In addition to being the first case ever to hold a Somali official accountable for human rights crimes committed under the Siad Barre regime, this case established two crucial precedents with respect to foreign sovereign immunity. First, in 2010, the Supreme Court ruled that the Foreign Sovereign Immunities Act does not shield the conduct of individual officials. Second, in 2012, the Fourth Circuit held that human rights crimes such as torture and crimes against humanity cannot be considered “official acts” shielded by immunity under the common law, stating that “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 violations because no foreign official has the authority to commit international crimes.
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 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 population. 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 Somali 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 seven 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 he 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 SNM. 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 were going to kill their detainees. After the three men's disappearance at the hands of government forces, Mr. Deria and his family never saw them again. Mr. Deria later heard from released detainees that his father, brother, and cousin 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.
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 with the summons and complaint at his home. Brought under the Alien Tort Statute (ATS) and the Torture Victim Protection Act (TVPA), the complaint alleged 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 head-of-state 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
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
Case Dismissed on Statutory Immunity Grounds
After receiving no Statement of Interest from
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; and
- furthermore, at the time of the filing, there was no longer 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 assemblage 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
Fourth Circuit Overturns the Dismissal
On January 8, 2009, the Fourth Circuit reinstated the case against Samantar. The Fourth Circuit panel held that (i) the FSIA does not confer jurisdictional immunity on individual foreign government officials and (ii) 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 were (i) whether the immunity from civil suits applicable to foreign states extends to individual foreign officials and (ii) 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 as the petitioner. 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 the 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
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 that official's state, Samantar would no longer be shielded since he, as a former official of a defunct political entity, was no longer "
And crucially, we argued that 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
In a 9-0 decision, the U.S. Supreme Court affirmed the Fourth Circuit's decision that Samantar was not shielded from suit by the FSIA, on the grounds that the FSIA does not immunize individual officials from suit. The Supreme Court did note that common law immunities may still apply, and it remanded the case for proceedings in the U.S. District Court for the Eastern District of Virginia.
CJA and our clients would like to extend a warm thanks to the many people and organizations who helped make this victory a reality. In particular, we thank our Supreme Court counsel Patricia Millett of Akin Gump Strauss Hauer & Feld LLP and our pro bono co-counsel Cooley 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 applicable statute of limitations, and insufficient fact pleading by the plaintiffs. We opposed the motion to dismiss, and then Samantar filed a reply. The court initially set a hearing date of January 14, 2011.
On January 6, 2011, the U.S. government, on behalf of
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 indicated that counsel for the plaintiffs would be able to take Samantar's deposition and ask him directly why he ordered a systematic attack on unarmed Somali civilians, including the torture, rape, and mass execution 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 claim. 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.
Samantar filed a motion for summary judgment on November 21, 2011, which the court denied in December.
Trial was scheduled to begin on February 21, 2012. After filing and losing two more motions to stay the proceedings (one at the trial court level and one at the appellate level), 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; they secured 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, handed down on August 28, 2012, here.
Fourth Circuit Denies Common Law ImmunityOn November 2, 2012, the U.S. Court of Appeals for the Fourth Circuit once again sided with our clients against Samantar. In this landmark victory, CJA litigated the first case to consider the “common law immunity” of foreign officials in 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.
The diplomatic context of the case shifted, however. In January 2013, the U.S. government recognized the government of Somalia for the first time since 1991. Two months later, the Prime Minister of the newly recognized state issued a letter to the U.S. State Department, requesting that Samantar be granted immunity. On March 3, 2013, Samantar filed his second petition for certiorari with the U.S. Supreme Court, this time appealing the Fourth Circuit’s denial of common law immunity. Samantar’s petition argued that the Fourth Circuit erred in recognizing an exception for jus cogens norms (or “peremptory,” non-derogable norms) in the context of common law immunity, and that the Fourth Circuit’s decision in that regard conflicted with domestic jurisprudence and international law. Samantar also argued that the Fourth Circuit’s ruling on common law immunity would have an adverse impact on U.S. foreign relations. Several amici curiae filed briefs in support of Samantar’s petition, including the Kingdom of Saudi Arabia and the Democratic Socialist Republic of Sri Lanka, as well as three former U.S. Attorneys General, who argued in particular that the jus cogens exception risked exposing U.S. officials to lawsuits in foreign countries.
CJA filed its opposition to Samantar’s petition on May 24, 2013. Later that year, on December 20, the Solicitor General (SG) filed a brief urging the court to issue a “GVR”: an order granting the petition, vacating the Fourth Circuit decision, and remanding the case to the district court for a new determination on the common law immunity issue. The SG argued that changed circumstances justified the GVR and remand to the district court. In other words, the U.S. government’s recognition of the Somali government, and the ensuing (and contradictory) diplomatic communications from the Somali government (requesting, then waiving, then purporting to reinstate the immunity request on Samantar’s behalf) constituted changed circumstances. However, on January 13, 2014, the U.S. Supreme Court handed down another important victory for our plaintiff clients. The Court denied Samantar’s petition, leaving the Fourth Circuit’s decision intact.
Final Petition to the U.S. Supreme Court
In addition to the interlocutory appeal on the immunity issue, Samantar submitted a second appeal to the Fourth Circuit on December 10, 2012, arguing that the district court was temporarily divested of jurisdiction over the case pending a determination on Samantar’s appeal of the immunity determination. On February 3, 2014, the Fourth Circuit dismissed Samantar’s final appeal as moot in line with its previous reasoning on the immunity issues in play. On May 5, 2014, Samantar filed his third and final petition for certiorari to the U.S. Supreme Court. The final petition renewed and reiterated his arguments. CJA filed a brief in opposition on July 14, 2014, and Samantar filed a reply on July 29. The petition was under consideration in a Supreme Court conference that began on September 29, 2014.
On March 9, 2015, the Supreme Court declined certiorari over this second petition, at last making the $21 million judgment against Samantar final.
In March 2015, CJA traveled
to Somaliland and presented the final judgment in the Samantar case to
witnesses, clients, civil society partners, and Somaliland government
officials, including the President of Somaliland.
U.S. Bankruptcy Proceedings
Samantar’s bankruptcy action continues despite the district court’s February 2012 judgment and August 2012 damages award. CJA continues to be involved in the bankruptcy action on behalf of the Yousuf v. Samantar plaintiffs in their capacity as creditors, given the $21 million damages award against Samantar. The judge dismissed CJA’s initial motion to dismiss these proceedings in their entirety. The judge stated that the Yousuf v. Samantar plaintiffs had a strong case for non-dischargeability – meaning that because of the gravity of Samantar’s human rights crimes, bankruptcy relief may not be available for him. In bankruptcy proceedings generally, there are certain types of personal injury and tort claims – including fraud, breach of fiduciary duty, and willful or malicious conduct – that are not subject to bankrupty relief and are therefore “non-dischargeable.”
In August 2012, CJA filed an adversary complaint seeking a denial of the discharge of the $21 million damages award in favor of the Yousuf v. Samantar plaintiffs. Around the same time, the U.S. Trustee filed a complaint seeking a denial of discharge of all of Samantar’s debts based on its conclusion that Samantar made false statements on his bankruptcy petition. The Trustee’s complaint charges Samantar with making false oaths, concealing his assets, and improperly transferring his assets in connection with his bankruptcy filing.
The judge will rule on our adversary complaint pending the determination of Samantar’s final petition for certiorari before the U.S. Supreme Court.
In an important victory, on September 22, 2015, the U.S. Bankruptcy Court in the Eastern District of Virginia ruled that Samantar must still pay $21 million in damages, despite Samantar's insistence that he should be forgiven his debt through bankruptcy.