Yousuf v. Samantar, Case No: 11-1479
Decided: November 2, 2012
The Fourth Circuit Court of Appeals held that Mohamed Ali Samantar is not entitled to head-of-state or foreign official immunity under the common law. Samantar is a former high-ranking government official in Somalia during the military regime of General Mohamed Barre. Plaintiffs are natives of Somalia, and claim that they, or members of their families, were subjected to torture, extrajudicial killing, and arbitrary detention. They brought suit against Samantar, who is now a permanent legal resident in Virginia, under the Torture Victim Protection Act (“TVPA”) and the Alien Tort Statute (“ATS”). This case was previously appealed to the Fourth Circuit and the Supreme Court on the issue of whether Samantar could claim immunity under the Foreign Sovereign Immunities Act (“FSIA”). The Supreme Court affirmed the Fourth Circuit’s holding that Samantar was not eligible for immunity under the FSIA because the statute was intended to apply to states and not individuals.
The case was remanded to the district court for consideration on whether Samantar would be eligible for a common law head-of-state immunity because at least some of the wrongdoing occurred while he was prime minister, or under foreign official immunity because the wrongdoing was in the course or scope of his official duties. The district court renewed its request to the State Department for a response to Samantar’s immunity claims. For the first time in this litigation, the State Department took a position expressly opposing immunity for Samantar. The district court held that Samantar was not entitled to either common law immunity.
The Fourth Circuit examined what is the appropriate level of deference a court should take regarding the Executive Branch’s position on sovereign immunity for individuals. The court concluded that it depends on whether status-based immunity, like head-of-state immunity, or conduct-based immunity is claimed. For status-based immunity, the court held that the Executive Branch’s view is entitled to absolute deference. For conduct-based immunity, the Executive’s position carries substantial weight, but is not controlling. Turning to the instant case, the court examined domestic and international law, as well as the opinion of the State Department, and affirmed the district court’s ruling that Samantar is not entitled to any common law immunity. Finally, the court held that officials from other countries are not entitled to immunity for jus cogens violations, even if the acts were performed in the defendant’s official capacity.
-Jennifer B. Routh