Amici Curiae Brief for Samantar v. Yousuf

Dr. j. Peter Pham

Former Somali General Mohamed Ali Samantar was defense minister and vice president (1980-1986) and, once the post was revived, prime minister (1987-1990) under Somalia's late despot. Among Samantar's other crimes, he personally oversaw the aerial and land attacks on Hargeisa, the capital of Somaliland, in May and June 1988, and had command of the forces which carried out indiscriminate attacks on the civilian population. During this operation the air forces under Samantar perpetrated one of the most bizarre war crimes in the annals of armed conflict: taking off from the Hargeisa airport, the planes bombed some 80 percent of that very same city, including its air terminal. The U.S. State Department later concluded that at least 5,000 civilians were killed in the assault. The total toll across Somaliland was much higher, as confirmed by forensic assessments by Physicians for Human Rights, working under the auspices of the Office of the United Nations High Commissioner for Human Rights in the late 1990s, when flooding unearthed mass graves near the former headquarters of the 26th division of Siad Barre's army.

Since 1997, Samantar has been living in Fairfax, Virginia, where he was served with a law suit by several of the victims of the repression he oversaw. The plaintiffs, who were assisted by the Center for Justice and Accountability, sought damages under the Torture Victim Protection Act (TVPA), passed by Congress and signed by President George H.W. Bush in 1991, which gives U.S. courts jurisdiction in cases where alleged torturers choose to live within the United States and an effective judicial system does not exist in the country where the abuse took place. Given that this war criminal lives in a Washington, D.C., suburb and Somalia does not have a government by any common-sense definition, much less a functional judiciary, it would seem like an obvious TVPA case.

However, Samantar responded to the complaint by arguing that he is protected under the Foreign Sovereign Immunities Act (FSIA), which provides a foreign state with immunity from lawsuits in the United States. The Supreme Court will decide whether Samantar-a former official of a state that no longer exists and who was sued in his personal capacity-is entitled to claim sovereign immunity from civil suit. Relying in part on misrepresentations by the current “Transitional Federal Government” (TFG) of Somalia, the district court concluded that FSIA conferred immunity upon Samantar. The Fourth Circuit Court of Appeals reversed that decision, holding that the law did not immunize Samantar, who then appealed to the Supreme Court. Last September, the Supreme Court agreed to take up the case, granting writ of certiorari.

The amici who filed this brief with me-Dr. Lee Cassanelli, associate professor of African history at the University of Pennsylvania and author of Shaping Somali Society and other works; Dr. Ioan M. Lewis, professor emeritus of anthropology at the London School of Economics, author of Modern History of Somalia and dozens of other works, and veritable dean of Somali studies; Dr. Gérard Prunier, professor emeritus at the University of Paris and author of multiple works, including Somalia: Civil War, Intervention, and Withdrawal; and Dr. Hussein Bulhan, president of the University of Hargeisa-contend that: (1) the human rights abuses that Samantar is accused of cannot be within the legal scope of governmental authority since the regime he served was essentially lawless; and (2) the TFG is not a functioning government and, in point of fact, is not legally recognized as the sovereign by the United States-hence even more suspect than other regimes when its purports to lend its mantle to cover the former official's illegitimate acts. We also associate ourselves with the merits in the brief filed with the Supreme Court by counsel for the five victims.

Significantly, in its own amicus curiæ brief in support of affirmance filed by Solicitor General Elena Kagan, the Government of United States agreed with our second assertion, stating that since the fall of the Siad Barre regime, “the United States has not recognized any entity as the government of Somalia.”

Eight other amicus briefs were also filed in support of the respondents who sued Samantar, including ones by members of Congress, retired general officers, former senior diplomats (including former USAID administrator J. Brian Atwood and Ambassadors Morton Abramowitz, James Bishop, William Harrop, Princeton Lyman, Thomas Pickering, and David Scheffer), Somaliland Foreign Minister Abdillahi Mohamed Duale, a coalition of human rights and religious groups, and an alliance of Darfur activists.

Oral arguments will be heard in the case on March 3, with a decision expected by the summer. The decision in this case will have not only profound impact on the lives of the five individuals who brought the suit against Samantar, but also significant implications both for Somali society, which has not yet fully grappled with what happened under Siad Barre especially during the persecution of the northern clans, and for broader U.S. policy in the Horn of Africa.

Read the brief here.