Wednesday
Mar032010
Somali Torture Victims Try To Overcome Prime Minister's Immunity Claim
Bashe Abdi Yousuf and four other former Somalis claim they were tortured or had family members murdered by the Somali government in the 1980s. They sued Mohamed Ali Samatar, a former Somali Prime Minister, in US federal court after discovering that Samatar was living in Virginia. In the Supreme Court today, Samatar's lawyers argued that his actions were taken while he was a government official, and thus Samatar should have immunity under the 1976 Foreign Sovereign Immunities Act (FSIA).
The FSIA says that foreign governments cannot be sued in US courts (with the exception of countries listed by the State Department as state sponsors of terrorism), and Samatar's argument is that, while the statute's terms don't protect government officials from suit, the law would be ineffective if a plaintiff could sue the top officials in that government. The rationale behind the immunity is that US courts should not pass judgment on foreign governments, but that immunity would be worthless if foreign government officials could be threatened with lawsuits over official acts they carried out in their home country.
Justice Stephen Breyer seemed the most receptive to this argument in court today, at one point telling Yousuf's lawyer that if the law doesn't protect officials, "this act is only good as against the bad lawyer." Any clever lawyer, Breyer said, would just sue the officials directly.
The lawyers for the Somalis argued that there were still teeth in FSIA, even if it does not protect officials individually, since any suit that asked for a change in government policy, return of land, or other remedies against a foreign government would be thrown out under FSIA. Further, some actions taken by government officials would still be protected under common-law immunity principles.
The argument that seemed to gain the most support, though, was based on the Torture Victim Protection Act (TVPA), passed by Congress in 1991. If government officials have immunity, and the TVPA did not change that, then the TVPA served no purpose, several Justices suggested. Lawyers for the Somalis replied that, in some cases, governments waive immunity protection for their officials, so torture prosecutions can proceed.
Overall, the stance of the Justices was unclear, since they were faced with seemingly contradictory statutory language. The case, Samantar v. Yousuf, will be decided by this summer.
The FSIA says that foreign governments cannot be sued in US courts (with the exception of countries listed by the State Department as state sponsors of terrorism), and Samatar's argument is that, while the statute's terms don't protect government officials from suit, the law would be ineffective if a plaintiff could sue the top officials in that government. The rationale behind the immunity is that US courts should not pass judgment on foreign governments, but that immunity would be worthless if foreign government officials could be threatened with lawsuits over official acts they carried out in their home country.
Justice Stephen Breyer seemed the most receptive to this argument in court today, at one point telling Yousuf's lawyer that if the law doesn't protect officials, "this act is only good as against the bad lawyer." Any clever lawyer, Breyer said, would just sue the officials directly.
The lawyers for the Somalis argued that there were still teeth in FSIA, even if it does not protect officials individually, since any suit that asked for a change in government policy, return of land, or other remedies against a foreign government would be thrown out under FSIA. Further, some actions taken by government officials would still be protected under common-law immunity principles.
The argument that seemed to gain the most support, though, was based on the Torture Victim Protection Act (TVPA), passed by Congress in 1991. If government officials have immunity, and the TVPA did not change that, then the TVPA served no purpose, several Justices suggested. Lawyers for the Somalis replied that, in some cases, governments waive immunity protection for their officials, so torture prosecutions can proceed.
Overall, the stance of the Justices was unclear, since they were faced with seemingly contradictory statutory language. The case, Samantar v. Yousuf, will be decided by this summer.
tagged 
Somalia, Supreme Court, immunity, torture in News/Commentary, Supreme Court
Somalia, Supreme Court, immunity, torture in News/Commentary, Supreme Court
Reader Comments (4)
This guy should thank God that he is in a country where he can get a fair trail, under his watch, his government summerily excuted innocent civilians because of their clan affiliaton. He was the defence minister and vice president of one of the most prutal regimes in Africa. He should answer to his role in the murder and torture of thousands of people. Under his orders, fighter jets were taking off Hargeisa airport and carpet bombed the city, how that can be justified as defending the country is beyond me and an insult to our inteligence. Let him look his victims in the eye and tell them how his actions were justified.
Torture Victim Protection Act of 1991
Clearly states that any individual or person who subjects an individual to torture shall, in a civil action, be liable for damages to that individual. Whether this individual is a government official or not courts should allow hearing both arguments and then decide if there is any merit to these individuals’ claims.
Mr. Samatar was vice-president and secretary of defense, and it was his job to defend the county-. He was fighting against SNM-Somali National Movement –mainly Clan. Same group are hunting Mr. Samatar because comes from Minority Clan that has less supporters. If this group is searching for high officers who may commit crime against their people, then they should start with Mr. Riyale, President of So-Called Somaliland.
replying to Ali Elmi,
Whatever Mr Samatar's position was, he was clearly criminal who was not definitely defending his country, but murdered almost half million of Somalilanders who had not done anything wrong, but belonged the wrong clan at the time(Isaac clan). i do not know how does he sleep at night when he committed such crimes against humanity and so are you? when you are justifying his actions. he is lucky and he is not standing where his poor victims were standing in that time. he can get justice and fair trail, but those civilians could not even mention their innocence.