Samantar v. Yousuf: A False Summit in American Human Rights Civil Litigation
Samantar v. Yousuf: A False Summit in American Human Rights Civil Litigation
Timothy E. Donahue 0 1
0 Timothy E. Donahue, Samantar v. Yousuf: A False Summit in American Human Rights Civil Litigation, 34 B.C. Int'l & Comp. L. Rev. E. Supp. 29, 2011
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Introduction
On June 1, 2010, the U.S. Supreme Court issued a decision praised
by human rights groups worldwide.1 In Samantar v. Yousuf, the Court
held that the Foreign Sovereign Immunities Act (FSIA) did not apply to
individual foreign officials but only to foreign states.2 The doctrine of
sovereign immunity is a long-held common law principle that waives
U.S. jurisdiction over the activities of foreign states, “extending virtually
absolute immunity to foreign sovereigns as ‘a matter of grace and
comity.’”3 In 1976 Congress passed the FSIA with the intent of codifying the
* Timothy E. Donahue is a Staff Writer for the Boston College International &
Comparative Law Review.
1 See US Supreme Court Allows Suit to Proceed Against Former Somali Minister of Defense, Human
Rights Watch ( June 1, 2010),
http://www.hrw.org/en/news/2010/06/01/us-supreme-courtallows-suit-proceed-against-former-somali-minister-defense.
2 See Samantar v. Yousuf, 130 S. Ct. 2278, 2292 (2010).
3 Id. at 2284. (quoting Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 486
(1983)).
complicated application of common law sovereign immunity.4 Before
Samantar, federal courts were split over the extent of immunity offered
under the FSIA, most notably whether the Act covered the actions of
foreign officials acting within their official capacity.5 By stripping
foreign officials of FSIA immunity, it appeared that the Supreme Court
had taken a major step towards ensuring that legal recourse would be
available to those harmed by foreign government officials.6 Human
rights advocates worldwide lauded the decision as a landmark
opportunity to bring justice to those who had suffered torture, persecution and
other abuses at the hands of foreign officers.7
Although Samantar clarified the various district courts’
interpretations of the FSIA, given the various other means of immunity still
available to foreign officials the decision will likely have less of an impact
than some have anticipated.8 There are two obstacles that will prevent
Samantar from significantly influencing suits against foreign officials.9
First, the district courts will likely find that the common law extends
immunity to foreign officials for acts performed within their official
capacity.10 Second, because the State Department has the power to
make immunity determinations when the FSIA does not apply, only
individuals of no strategic importance will be found liable under the
Samantar ruling.11
Part I of this Comment examines the factual and procedural
background of the Samantar case. Part II discusses the legal framework of
sovereign immunity and the Supreme Court’s opinion. Finally, Part III
examines the potential impact of Samantar on sovereign immunity and
human rights abuse litigation in America, paying particular attention to
the remaining avenues of immunity available to government officials.
In October 1969, Major General Mohamed Siad Barre and the
Supreme Revolutionary Council (SRC) assumed power in Somalia
following a socialist coup.12 Following the rise of Barre’s dictatorship,
Mohamed Ali Samantar served as Somalia’s First Vice President and
Minister of Defense from 1980–1986, and then as Prime Minister from 1987–
1990.13 During the 1970s and early 1980s, the SRC government began
to discriminate and marginalize members of the Issaq clan, restricting
their access to land, jobs and business opportunities.14 In response, the
Issaq launched a campaign of violent government resistance known as
the Somali Nationalist Movement (SNM).15 Clashes between the Barre
regime and the SNM resulted in the Somali military, under Samantar’s
leadership, targeting Issaq civilians and subjecting them to various
human rights abuses—including the massacre of tens of thousands of
Issaq clan members, many of who were civilians.16 The Barre regime
collapsed in 1991 after the withdrawal of U.S. and international support,
and Samantar eventually settled into civilian life in Virginia.17
The plaintiffs originally brought suit in November 2004 in the
Eastern District of Virginia under the Torture Victim Protection Act
and Alien Tort Statute.18 In this civil action, they alleged that while
serving as the Somali Minister of Defense, Samantar had commanded and
controlled military forces that tortured, killed, or arbitrarily detained
them or their family m (...truncated)