Sovereign Immunity

• Author: International Law Group, PLLC
• Pages: 179-180

Page 179

The Plaintiffs in the following case are Somalia natives who claim that government agents of the regime of Mohamed Siad Barre tortured and otherwise mistreated them. The Defendant is Mohamed Ali Samantar who took part in the socialist coup of General Mohamed Barre in 1969; later he became a high-ranking government official and served as an army commander. He served as Somalia's Minister of Defense from January 1980 to December 1986, and as Prime Minister from January 1987 to September 1990. In either capacity, he knew or should have known about the torture and human rights abuses, and tacitly approved them. The Barre regime collapsed in 1991, and Samantar ended up in Virginia where the Plaintiffs found him.

Plaintiffs sued in a Virginia federal court based on the Torture Victim Protection Act of 1991 (TVPA), Pub. L. 102-256, 106 Stat. 73 (1992), and the Alien Tort Claims Act (ATCA), 28 U.S.C. § 1350. Samantar moved to dismiss for lack of jurisdiction under Fed. R. Civ. P. 12(b)(6) because he is immune under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. §§ 1602-1611. The district court agreed with Samantar and dismissed for lack of subject matter jurisdiction. The district court followed the majority view that the FSIA can apply to individuals, noting that the current Somalia government expressed its view that Samantar had taken the alleged actions in his official capacity.

The U.S. Court of Appeals for the Fourth Circuit reverses and remands. Since the FSIA does not apply to individuals like Defendant, it did not deprive the district court of jurisdiction as against Samantar.

The Plaintiffs do not claim that Samantar personally committed the atrocities. Instead, the perpetrators acted with the tacit approval and permission of the armed forces and commander Samantar. Defendant's fundamental argument is that Congress did intend to enable individual foreign officials to claim sovereign immunity under the FSIA. Disagreeing, the court held that the FSIA applies to foreign states and their instrumentalities, not to individuals.

Since the FSIA does not mention individuals or natural persons, this is still an open question in the Fourth Circuit. The Court then analyzes whether Congress intended to confer sovereign immunity under the FSIA on an individual formerly acting within the scope of his authority. After reviewing Seventh Circuit precedent, the FSIA itself, and the House Committee Report on the FSIA, the Court concludes...