US Supreme Court to Rule on Sovereign Immunity
by Paul Wolf, World War 4 Report
In March, the Supreme Court is to begin hearing oral arguments in a case that may breathe new life into the field of human rights law in the United States, by exposing foreign government officials to civil liability for war crimes and other violations of international law—even when the crimes occurred in their own country, and no US citizen’s rights are involved.
In Samantar v. Yousef, a panel of the 4th Circuit Court of Appeals in Richmond, Va., unanimously held last January that the protection of the Foreign Sovereign Immunities Act (FSIA) of 1976, which shields foreign governments from suit in US courts, does not extend to individuals. This would include both political and military leaders of foreign states, and more generally, every war criminal hiding anywhere in the world.
Of course, a court would still need personal jurisdiction over the defendant, which means either travel to the US to be served a summons and complaint, ongoing business activities in the United States, or some connection between the specific incident and the United States. At a minimum, though, the threat of being sued could keep accused human rights violators from traveling here, for fear of being ‘tagged’ with a complaint, at least for the ten year statute of limitations for war crimes they have committed.
The defendant in the case, Mohamed Ali Samantar, is a former official of the Somali regime of Maj. Gen. Mohamed Siad Barre. Samantar, now a resident of Virginia, was sued for acts of torture, rape, and extrajudicial killing committed under his oversight. Samantar was sued personally, rather than the state of Somalia, which has not had a functioning central government since 1991, when the Barre regime collapsed.
Gen. Barre came to power in a coup in 1969. To squelch any opposition to the seizure of power, the new government outlawed political parties, and any other any organization not sanctioned by the government, “systematically favored its own clans and oppressed other clans”—including the generally prosperous and well-educated Isaaq clan, who were viewed as a threat.
Beginning in the late 1970s, opposition to the Barre government took root, particularly among the disfavored clans, following Somalia’s unsuccessful war against Ethiopia over the Ogaden territory. According to the plaintiffs, the Somali government cracked down on its opponents in order to “terrorize the civilian population and to deter it from supporting the growing opposition movements.” The crackdown included “the widespread and systematic use of torture, arbitrary detention and extrajudicial killing against the civilian population of Somalia.”
Plaintiff Bashe Abdi Yousuf claims that Somali agents, suspecting him of anti-government activities, abducted and tortured him using electric shocks and “the Mig,” a technique in which his hands and feet were tied together in the air behind his back, so that his body was pulled into a U-shape with his limbs in the air. The torturers then placed a heavy rock onto his back, causing the ropes to cut deeply into Yousuf’s arms and legs. Yousef also spent six years of his life in solitary confinement in near total darkness.
Plaintiff Jane Doe says she was abducted from her family home by government agents, repeatedly raped, beaten to the point that she could not walk, and then placed in solitary confinement for three and a half years. Plaintiff John Doe II, a non-commissioned officer in the Somali National Army, alleges that he was arrested in 1988 then shot during a mass execution. He survived his non-fatal wound by hiding under a pile of bodies. Four other cases alleging summary executions were also brought by family members of the victims.
Samantar was sued under the Alien Tort Claims and Torture Victim Protection Acts, which provide causes of action for non-US residents to sue in US courts for violations of the “law of nations,” now called international law. Although the precise contours of what constitutes a violation of international law may be controversial, there is little argument that summary executions are prohibited. And while there may be some debate on what constitutes torture, acts such as rape and attempted execution would clearly come under the terms of the Torture Victim Protection Act.
The Court’s analysis was based on a relatively straightforward reading of the text of the FSIA statute, and of the Congressional Record related to its passing. The text of the statute makes no mention of immunity as to individual officers or agents, and only grants immunity to a “foreign state,” defined as “includ[ing] a political subdivision of a foreign state or an agency or instrumentality of a foreign state.
The court also reviewed the legislative history of the FSIA, and found that Congress must have intended the Act to apply only to states. “If Congress meant to include individuals acting in [their] official capacity in the scope of the FSIA, it would have done so in clear and unmistakable terms,” the court held. To make this determination, the court looked at the precise terminology used, such as the term “separate legal person,” which Congress “intended to include a corporation, association, foundation, or any other entity which, under the law of the foreign state where it was created, can sue or be sued in its own name, contract in its own name or hold property in its own name.” In other words, sovereign immunity may extend to foreign organizations in some circumstances, but not to human beings.
The Samantar case solidifies a split in opinion among various courts of appeals. Now the Fourth and Seventh Circuits have held that sovereign immunity does not extend to government officials, while the Second, Fifth, Sixth, Ninth, and D.C. Circuits have held that it does. It is not a simple matter of voting, though, with two courts against five. The Samantar decision is the clearest and most soundly-based decision to date. Courts holding that sovereign immunity extends to government officials have relied either on common law interpretations of sovereign immunity, or what appears logical to them, that suing a government officer for acts done in his official capacity is equivalent to suing the state itself. The 4th Circuit’s statutory construction is a more rigorous, and more legalistic interpretation of the law, devoid of policy and prudential arguments expressing fear of intruding onto diplomatic turf.
Samantar has filed a Writ of Certiorari with the US Supreme Court. It’s not clear that this is best case to use to set a Supreme Court precedent, though, because of its unusual facts. Somalia has not had a functioning government since 1991, when the Barre government collapsed and Samantar fled the country. He is a former official of a now-failed state, which complicates a determination of the limits of sovereign immunity.
On the other hand, the gauntlet has been thrown down. At this point in time, war criminals can be sued in some US courts, but not in others. While the majority of Circuits have gone the other way, the 4th Circuit may have just solved the problem once and for all, should the Supreme Court bless its reasoning.
In a case of strange political bedfellows, the Zionist Organization of America, Anti-Defamation League and the American Jewish Congress, along with several other pro-Israel organizations, have filed three separate amicus curiae briefs on Samantar’s behalf in the case.
According to the American Jewish Congress, “Our interest is, of course, Israel, which finds itself engaged in law-fare as well as warfare, courts around the world being another battlefield on which Israel finds itself engaged.” This is undoubtedly in reference to the efforts of activists in the United Kingdom to hold Israeli officials, such as Tzipi Livni, Ehud Barak, Doron Almog and Moshe Ya’alon accountable for war crimes committed in Gaza. The UK is one of several countries allowing criminal complaints to be brought by war crimes victims under the theory of “universal jurisdiction.” It’s not clear whether any of these officials would have been able to assert a defense of sovereign immunity in the British courts, since all four were tipped off in advance and cancelled their trips.
In the meantime, the ambiguity created by Samantar provides an opportunity for legal activists to bring strong human rights cases in plaintiff-friendly jurisdictions, such as the 4th and 7th Circuits. The United States should never be a haven for war criminals. Our efforts to hold them accountable should begin here at home, in our own courts, and there is no conceivable benefit to extending sovereign immunity to them.
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