Sovereign Immunity: Samantar v. Yousuf

Human rights violations, war crimes, and international humanitarian law in the context of “Failed States” and “Civil Wars” are permeating into global discourse at a steady pace.  While a few celebrated cases have dominated international attention, the “rules of accountability” are an organic process with growing pains.  One of the main issues that hinder “accountability” is the doctrine of sovereignty.  It has been the accepted international norm that “sovereignty” supersedes all individual matters and provides “immunity” to agents of state on internal matters.  In a fast globalizing world, where geographical borders are being blurred and the concept of global community is being forced, the idea of “sovereignty” is slowly but steadily becoming an anachronism, especially for small, underdeveloped, international pariahs.  It is in this context that the United States Supreme Court Case (No. 08-1555) Mohamed Ali Samantar, Petitioner v. Bashe Abdi Yousuf, et al., Respondents, heard on March 3^rd, 2010 should be reviewed as it addresses the “doctrine of sovereignty” and the “individual accountability” in cases related to war crimes and human rights violations.

Samntar v. Yousuf refers to war crimes of the former Democratic Republic of Somalia during 1980s.  Samantar was a prominent military and political figure of the Siad Barre regime.  Major General Mohamed Siad Barre came into power after staging a military coup and Samantar served as the first vice president and the minister of defense, as well as the prime minster of Somalia where he commanded the National Security Service, the Red Berets (Presidential Guard) and the military police (Hangash).  Collectively, these security services were responsible for widespread human rights violations in Somalia.

The Somali human rights abuses with increasing global concern on “accountability” gave birth to the “Torture Victim Protection Act of 1991” that became US law in 1992 (TVPA).  Congress intended that the TVPA would provide a Federal cause of action against any individual who, under actual or apparent authority, or color of law, of any foreign nation, subjects any individual to torture of extrajudicial killing. Congress drafted the TVPA to apply to individuals, not states, in order to avoid the assertion that claims based on torture and extrajudicial killing are barred by the “Foreign Sovereignty Immunities Act (FSIA) of 1976.”

In a brief presented by Senator Arlen Specter (Pennsylvania), Senator Russel Feingold (Wisconsin) and Representative Sheila Jackson Lee (Texas) in support of the respondents (amici curiae) states that in enacting the TVPA, Congress made a calibrated decision to enforce the law of nations while balancing foreign policy, national security, and domestic interests, including ensuring that those who avail themselves of the protections and privileges of residency in the United States also bear responsibility for their actions, especially actions as significant as torture.  To construe the FSIA as a jurisdictional bar to the application of the TVPA to individuals is contrary to Congress’s intent to provide redress for egregious acts that infringe human rights and is an affront to human dignity.  Indeed, extending FSIA immunity to foreign government officials responsible for torture would effectively nullify the TVPA.

The Congressional brief further states that the text, structure and legislative history of the FSIA establish that sovereigns, not individuals, are entitled to its limited immunity.  If congress had intended the FSIA to apply to individuals, it would have said so explicitly.  Instead, the FSIA grants immunity to “a foreign state,” including “an agency or instrumentality of a foreign state.”  This in essence is the case in front of the US Supreme Court to render a verdict on priority of FSIA v. TVPA.

The Federal Government, represented by Mr. Edwin S. Kneedler, Deputy Solicitor General argues that it is up to the executive branch, not the judicial, to decide when foreign officials deserve immunity from charges of human rights abuses filed in the U.S. courts.  Accordingly, this is the preserve of the US State Department thus making Samantar v. Yousuf irrelevant.

Shay Dvoretzky, the counsel for Samantar, states that the case carries great policy implications for the United States and its relations with other countries, and should stand for the principle that “one nation’s courts cannot sit in judgment of another nation’s acts.”  In other words, Dvoretzky challenges the jurisdiction of the court in international law.

The legal counsel for the respondents, Patricia Millet, contends that the Congress intended to differentiate between protecting foreign governments from suit and individuals who now seek refuge in the U.S.  She further states that “individuals who are accused of war crimes, consistent with international law, whatever else, individuals who engage in torture and extrajudicial killing are held personally liable in Congress’s views and in the views of international law and the FSIA doesn’t stop that.” (sic)

The transcript of the Samantar v. Yousuf reflects the incredulity of the Supreme Court justices at the cross purposes of the FSIA and TVPA.  The Chief Justice John G. Roberts, Jr. comments that “we are talking about insulating state acts – The only way a state can act is through people.”

The Supreme Court’s ruling, which is expected in June 2010, will set an important legal precedent and will likely determine if alleged war criminals can use the United States as a safe haven.

(The above article is based on the US Supreme Court transcript of Smantar v. Yosuf (case no: 08-1555), Policy Brief of Senator Arlene Specter et al. in support of the respondents and news articles reporting the March 3^rd 2010 case.)

© 2010, Eduard Guell. All rights reserved.

This entry was posted on Saturday, May 1st, 2010 at 7:27 PM and is filed under 2010, 3rd Article, Development, Security, WPHR Students. You can follow any responses to this entry through the RSS 2.0 feed.