Articles by Wuerth and from Vanderbilt Journal of Transnational Law cited in Fourth Circuit Court decision in Samantar

Nov 14, 2012

An article dealing with foreign state immunity published in the Vanderbilt Journal of Transnational Law and an article by Ingrid Wuerth, who directs Vanderbilt’s International Legal Studies Program, published in the Virginia Journal of International Law were both cited in the U.S. Court of Appeals for the Fourth Circuit decision in Yousuf v. Samantar, handed down November 2.

The decision addressed the question of whether Mohamed Ali Samantar, a former prime minister of Somalia, is immune from civil actions brought in U.S. courts under the Torture Victim Protection Act of 1991 and the Alien Tort Statute.

“Although other courts have deferred to the State Department’s immunity determinations, I’ve argued in my scholarship that those determinations are not binding on the courts,” Wuerth said. “The Fourth Circuit partially accepted that position in this case. In addition, the court denied immunity to Mr. Samantar because the complaint alleged that he engaged in torture and summary executions, which violate peremptory norms of international law. This basis for denying immunity is inconsistent with some other court decisions from around the world and arguably conflicts with the international law of immunity. In this case, however, I believe the court reached the right result, because Somalia has no recognized government, and only governments—not individuals—may invoke the kind of immunity to which Mr. Samantar was arguably entitled.”

The opinion cited Lewis S. Yelin’s article, “Head of State Immunity as Sole Executive Lawmaking” (44 Vanderbilt Journal of Transnational Law 911, 2011), in a discussion of the relationship between sovereign immunity and head-of-state immunity. Yelin, an attorney at the U.S. State Department, originally presented his paper at a February 2011 symposium, Foreign State Immunity at Home and Abroad, organized and hosted by the Journal of Transnational Law. The conference featured a keynote address by Harold Hongju Koh, legal advisor of the U.S. State Department, and a panel discussion of Samantar‘s impact on immunity cases during which former U.S. State Department legal advisor John Bellinger III presented a paper.

Wuerth’s article, “Foreign Official Immunity Determination in U.S. Courts: The Case Against the State Department” (51 Virginia Journal of International Law 915, 2011) was cited in a discussion of how U.S. courts had applied foreign sovereign immunity throughout the country’s history.

Samantar served as Somalia’s minister of defense as well as its prime minister during the military regime of General Mohamed Barre. After the Barre regime collapsed in 1991, Samantar fled Somalia for the United States, where he is now a legal resident.

The plaintiffs, also Somali natives, brought a civil action against Samantar in the U.S. District Court for the Eastern District of Virginia, alleging that they or members of their families were subjected to “torture, arbitrary detention and extrajudicial killing” by agents acting under Samantar’s command and control. Two of the plaintiffs also live in the U.S. as naturalized citizens.

The plaintiffs sued Samantar under both the Torture Victim Protection Act and the Alien Tort statute. Samantar claimed that he was immune from suit under the Foreign Sovereign Immunities Act (FSIA), and the district court dismissed the case. The plaintiffs appealed to the Fourth Circuit Court, which reversed the district court’s decision, concluding that the FSIA applies to sovereign states, but not to individual agents of foreign governments.

However, the Fourth Circuit remanded the case to the district court to consider whether Samantar could “successfully invoke an immunity doctrine arising under pre-FSIA common law.”

Samantar appealed to the Supreme Court, which affirmed the Fourth Circuit’s decision that the FSIA, based on its text, purpose and history, governs only foreign state immunity and not the immunity of individual officials.

When the case was remanded to the district court, Samantar renewed his motion to dismiss the claims against him based on two common-law immunity doctrines. First, he claimed he was entitled to head-of-state immunity because some of the alleged wrongdoing occurred while he was prime minister. Second, he sought foreign official immunity on the basis that any actions for which the plaintiffs sought to hold him responsible were taken in the course of scope of his official duties.

The district court requested that the State Department respond to Samantar’s immunity claims. The opinion noted that the State Department “had remained silent” during Samantar’s original appeal, but on the second appeal, took a position “expressly opposing immunity for Samantar” based on two factors. First, Samantar’s claim for immunity was undermined by the fact that he was a former official of a state with no currently recognized government to request immunity on his behalf or to take a position as to whether the acts in question were taken in an official capacity. Second, as a permanent legal resident of the U.S., Samantar not only enjoys the protection of U.S. law but should also be subject to the jurisdiction of its courts, particularly when sued by other U.S. residents.

In its November 2 decision, the Fourth Circuit Court affirmed the district court’s denial of head-of-state and foreign immunity to Samantar.

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