• by Loris Schumann (new york)
• Monday, February 15, 2010
• Inter Press Service

Bashe Abdi Yousuf, a U.S. citizen, was a young businessman in Somalia when he was detained, tortured, and kept in solitary confinement for over six years. Aziz Mohamed Deria, also a U.S. citizen, lost his father and brother when they were abducted and killed by officials and never seen again.

The crimes occurred in the early 1980s during the dictatorship of President Siad Barre, at a time when the Somali military made use of torture, rape, and summary execution to eliminate members of disfavoured ethnic groups and political opponents.

Mohamed Ali Samantar, a former defence minister of Somalia and prime minister at the time, now lives comfortably in Fairfax, Virginia, since fleeing Somalia when the government collapsed in 1991.

In a case headed to the U.S. Supreme Court, the right of foreign government officials accused of war crimes to find haven in the U.S. could be decided.

The case at issue, Samantar v. Yousuf, was filed by Somali and naturalised U.S. citizens who claim they were tortured and their relatives extra-judicially executed by Somali soldiers under Mohamed Ali Samantar's command.

Samantar claims immunity from a lawsuit for damages by the Somali victims, citing the Foreign Sovereign Immunities Act (FSIA), which provides a foreign state with immunity from lawsuits in the U.S.

The victims, for their part, have raised the Torture Victim Protection Act (TVPA), under which alleged torturers can be held accountable under U.S. civil law if the subject has chosen to live in the United States and an effective judicial system is unavailable in the country where the crime has been committed.

Attorneys with the Centre for Justice and Accountability (CJA), a non-profit organisation in San Francisco, California, further maintain that the Alien Tort Statute applies in this case. This statute allows non-citizens to bring suits in U.S. courts for violations of international law.

The CJA is representing five victims — the two U.S. citizens and John Doe I, whose brothers were summarily executed by soldiers; Jane Doe, a university student who was detained by officials, raped 15 times, and put in solitary confinement for over three years; and John Doe II, who was imprisoned for his clan affiliation and shot by a firing squad, but who miraculously survived by hiding under other dead bodies.

'In this case, the Court will determine whether or not former foreign government officials who come to America and enjoy the benefits of being and living in America are above the law in a way that nobody else is in this democratic country,' wrote Pamela Merchant, CJA's executive director, on the group's website.

They are representing the plaintiffs pro-bono.

The suit has drawn interest from a wide range of groups, including four Jewish organisations — The Zionist Organisation of America, the Union of Orthodox Jewish Congregations of America, Agudath Israel of America and the American Association of Jewish Lawyers Jurists - who are named in a friend of the court brief.

'There will be a rash of lawsuits of this kind against Israel' if the court rules for the plaintiffs, warned Alyza Lewin, an attorney with the firm of Lewin & Lewin, which has filed the friend-of-the-court brief in favour of Samantar and against making foreign officials vulnerable to civil lawsuits.

'It would be very difficult, if not impossible, for an American court to evaluate what happened in a foreign country,' said Susan Tuchman, legal director of ZOA, the Zionist Organisation of America, a joint signatory of the brief.

The Saudi government has also filed a petition on behalf of Samantar.

On the other side of the issue, attorneys for Notre Dame Law School's Centre for Civil and Human Rights (CCHR) have submitted an amicus curiae (friend of the court) brief on behalf of 26 former U.S. diplomats and State Department officials. The brief argues that former foreign officials sued for torture and extrajudicial executions in U.S. courts are not entitled to sovereign immunity from suit.

'Our collective experience teaches that amicable international relations do not require that foreign former officials be given blanket immunity from suit in our courts for alleged torture and extrajudicial executions,' the former diplomats wrote.

On Jan. 27, Senators Arlen Specter, Russ Feingold and Congresswoman Sheila Jackson Lee filed a brief supporting the fourth circuit's original decision that allows the plaintiffs to sue Samantar. Sen. Specter helped author the TVPA in 1991.

The case is scheduled for oral argument beginning Mar. 3.

© Inter Press Service (2010) — All Rights Reserved. Original source: Inter Press Service

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