For the third time in five years, the Samantar case is back before the Supreme Court. On May 5, former Somali Defense Minister Mohamed Ali Samantar again petitioned for certiorari, after the Fourth Circuit dismissed his appeal of Judge Brinkema’s final judgment in the long-running ATS and TVPA suit against him for human rights violations committed by forces under his command in Somalia.
In January, the Supreme Court had denied cert following the Fourth Circuit’s surprising (and, in my view, incorrect) interlocutory decision in 2012 denying him immunity on the basis that “officials from other countries are not entitled to foreign official immunity for jus cogens violations, even if the acts were performed in the defendant’s official capacity.” The high court’s cert denial came after a flurry of confusing communications between Somali officials and the State Department that created uncertainty as to whether the Somali government was still requesting immunity for Samantar.
With the proceedings below now completed, and a new Somali Prime Minister reaffirming Somalia’s request for immunity, Samantar is again seeking Supreme Court review. For the legal and policy reasons I have explained previously, I believe the Supreme Court should grant cert and reverse (or vacate and remand).
While the Fourth Circuit’s desire to hold Samantar accountable for atrocities committed by Somali soldiers is understandable, this is a case where bad facts have made bad law: The panel’s holding is inconsistent with both domestic and international law governing official acts immunity and with the views of the Executive branch (as explained in the Solicitor General’s brief filed with the Supreme Court last December urging that cert be granted and the decision vacated and remanded).
If allowed to stand, the Fourth Circuit decision may also encourage foreign courts to deny immunity to U.S. officials who may be charged with or sued for jus cogens crimes or violations in frivolous actions in other countries.