No Immunity for Somali Leader Who Tortured

By LORRAINE BAILEY

There is no possibility of immunity for the former Somali prime minister who conceded liability over the mass killing and torture of his people, the 4th Circuit ruled.

     Mohamed Ali Samantar, who now lives in Fairfax, Va., served as defense minister and prime minister after a military coup overthrew Somalia's elected government in 1969. He was the top military leader in Somalia until Major General Mohamed Siad Barre was ousted in 1991.

     In a federal complaint, four native Somalis accused Samantar of supervising the military that tortured, killed or imprisoned them or their relatives in the 1980s.

     In a motion to dismiss, Samantar claimed the Foreign Sovereign Immunities Act shielded him from liability. But the Supreme Court unanimously ruled in 2010 that the act applied only to foreign states, not to individual foreign officials.

     Samantar then moved to dismiss on the basis of common-law immunity, but a federal judge in Alexandria denied this maneuver and proceeded with a trial while Samantar's appeal was still pending.

     In February 2012, Samantar personally appeared in court and conceded liability. The court ordered him in August to pay the plaintiff victims $21 million.

     On Friday, the 4th Circuit rejected Samantar's attempt at claiming common-law immunity, finding that acts such as torture, genocide, executions and arbitrary imprisonment violate a jus cogens, or norm of international law.

     "Unlike private acts that do not come within the scope of foreign official immunity, jus cogens violations may well be committed under color of law and, in that sense, constitute acts performed in the course of the foreign official's employment by the sovereign," Chief Judge William Traxler wrote for the three-judge panel. "However, as a matter of international and domestic law, jus cogens violations are, by definition, acts that are not officially authorized by the sovereign."

     The decision notes that British courts denied immunity to Augusto Pinochet, the former head of Chile accused of directing widespread torture.

     "We conclude 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," Traxler wrote.

     The court insisted that the State Department's opinion on the matter did not decide the matter for the court.

     "We give absolute deference to the State Department's position on status-based immunity doctrines such as head-of-state immunity," Traxler wrote. "The State Department's determination regarding conduct-based immunity, by contrast, is not controlling, but it carries substantial weight in our analysis of the issue."

Source: Courthouse News Service