Just Security
Friday May 10, 2019
By Amanda McCaffrey
IMAGE: Somalis walk next to the scene of a car bombing attack in Mogadishu, Somalia, on December 22,2018. – Seven people were killed in the double car bomb attack claimed by the jihadist Shabaab group near the presidential palace in the Somali capital Mogadishu, police said. (Photo by MOHAMED ABDIWAHAB/AFP/Getty Images)
The third in a trio of federal cases brought by the San
Francisco-based Center for Justice and Accountability (CJA) on behalf of
victims and survivors of Siad Barre’s rule in Somalia will go to trial
on May 13, almost 15 years after it was filed and more than 30 years
since the events at issue took place. Plaintiff Farhan Warfaa brought
this suit against defendant Colonel Yusef Abdi Ali (a.k.a. “Tukeh”) in
the Eastern District of Virginia, where Ali has been living for more
than two decades. Judge Leonie Brinkema and a jury to be selected next
week will hear four days of evidence and argument from the parties, with
a verdict expected on or after May 17. The three cases have provided
unique opportunities for the plaintiffs to seek recognition for the harm
they suffered decades ago, and represent an effort to ensure that
foreign perpetrators of torture and other violations of international
law do not find safe haven in the United States.
Political and Legal Background
The current case arises from alleged violations of international law
in Somalia under the Siad Barre regime, namely torture and attempted
extrajudicial killing. Barre became Somalia’s president in 1969 after
the assassination of then-President Abdirashid Ali Shermarke and a coup
that overthrew the Somali Republic. With support from the Soviet Union,
Barre led his revolutionary military junta to reconstitute the
government; but Soviet support faltered after Barre invaded Ethiopia,
another Soviet client, in 1977. The United States subsequently began to
ingratiate itself with the Somali government, providing one of its largest military assistance programs in sub-Saharan Africa at the time. For the next decade, the Cold War powers vied for Barre’s allegiance.
But with his 1978 defeat in the Ogaden War in Ethiopia, Barre’s rule
in Somalia grew increasingly tribalist and ruthless. He soon faced
opposition in northeastern Somalia—a region overseen today by the
Somaliland Administration—from the Somali National Movement (SNM), a
militia group founded in response to Barre’s abuses against the clan
that dominated that region. Colonel Tukeh, who had been trained in the
U.S. and Soviet Union as well as Somalia, led the Army’s Fifth Brigade
in a brutal crackdown against the SNM and the local population.
As Cold War tensions began to relax in the late 1980s, Somalia’s strategic importance diminished, changing the calculus of western donors who had watched Barre’s shift toward despotism with growing alarm. Earlier in the decade, Somalia had received $25-34 million annually in U.S. military aid alone, and by 1987 foreign aid represented more than half of the country’s GNP. But by 1989, the flow of foreign aid that had sustained Somalia since its independence virtually ceased.
Isolated and impoverished in its final years, Barre’s regime became
dictatorial, repressive, and violent. His forces—including the Somali
National Army and National Security Service (NSS)—detained, tortured,
and murdered tens of thousands of his people. Court verdicts have found
that former Somali Prime Minister and Minister of Defense General Mohammed Ali Samantar oversaw much of that mass killing and torture, as did Colonel Abdi Aden Magan, who headed the NSS Department of Investigations from 1988-90. And in the northeast, Tukeh directed the murder of thousands of civilians.
A coalition of many militia groups, including the SNM, and nonviolent
political groups led the rebellion that ultimately toppled the Barre
regime in 1991. Violence in the region has continued as members of
Barre’s clan have faced backlash for the preferential treatment some
received from his government.
Under the Barre regime and since its fall, it has been impossible for
ordinary citizens to bring civil suits in Somalia/Somaliland for the
human rights violations they suffered at the hands of government and
military officials. Neither have there been criminal prosecutions
seeking justice for Barre-era atrocities. Somalia has not ratified the Rome Statute
to join the ICC, which in any event would not have retroactive
jurisdiction over decades-past crimes. No international mechanism was
established after Barre’s government fell to adjudicate its abuses.
Until this trio of cases commenced in U.S. courts, there had been no
legal action—in Somalia or elsewhere—seeking justice for the crimes of
the Barre regime.
Seeking Justice in the United States
In 2004, CJA filed suit against General Samantar on behalf of three
survivors of his policies — Bashe Yousuf, Buralle Mohamoud, Ahmed Gulaid
— and the estates of four of his victims, including Aziz Deria’s father
and brother. The suit was filed in Virginia’s Eastern District, where
Samantar had found safe haven in 1997. The plaintiffs in Yousuf v. Samantar described
being abducted, confined, threatened, and tortured by soldiers under
Samantar’s command. Their claims proceeded under the Torture Victim
Protection Act (TVPA), which creates a cause of action against foreign
officials who commit torture and/or extrajudicial killing.
Interlocutory appeals in Yousuf created two key legal precedents with respect to foreign sovereign/official acts immunity. In 2010, the Supreme Court ruled unanimously
that individual foreign officials and their conduct are not shielded by
the Foreign Sovereign Immunity Act (FSIA). And in 2012, the Fourth
Circuit held that there is no common law immunity for jus cogens violations
— acts against the peremptory norms of international law — even when
committed by foreign officials or agencies. Such grave violations are
definitively beyond the scope of any official authority, even if carried out under the color of law or government endorsement, the court said. Samantar attempted to appeal this ruling, but the Supreme Court denied certiorari in 2014, while proceedings were ongoing in the Fourth Circuit, and again in 2015,
ending Samantar’s effort “to claim that the torture and extrajudicial
killing for which he admitted liability in U.S. court were official acts
entitled to immunity.”
In February 2012, Samantar had stated in open court
that he would not contest the plaintiffs’ action against him, accepting
default liability for all violations they alleged. Judge Brinkema of
the Eastern District of Virginia — the same judge who will hear Warfaa’s
case next week — awarded each of the three surviving plaintiffs and
four represented estates $1 million in compensatory damages and $2
million in punitive damages, for a total award of $21 million.
This judgment represented the first time a court of law had held a
Somali official accountable for human rights crimes under Barre. CJA
advocated for Samantar’s removal from the U.S. until his death in August
2016; unfortunately, the plaintiffs were not able to recover the award
granted by the court.
The second CJA case involved Colonel Abdi Aden Magan, whose NSS
forces had arrested Abukar Hassan Ahmed, a professor of constitutional
law at Somali National University, in 1988. Ahmed was an outspoken human
rights advocate and critic of the Barre regime. Magan’s NSS detained,
starved, and tortured Ahmed for months, accusing him of supporting opposition groups and writing for Amnesty International. Ahmed was shackled in his cell in an excruciating position day and night for three months.
Tracking His Torturer
After a 30-minute internet search
in 2005, Ahmed discovered that Magan, the man responsible for his
torture and arbitrary detention, was living freely in Columbus, Ohio.
CJA filed suit
on Professor Ahmed’s behalf against Magan in 2010. In Nov. 2012 a
federal judge in the Southern District of Ohio found Magan liable for
arbitrary detention, cruel treatment, and torture. “The court’s decision
today is of great consequence not only for me but also for the many
other Somalis who were tortured or even killed by NSS officers,” Ahmed reflected after the judgment in Ahmed v. Magan.
“In order for Somalia to heal after 20 years of military rule, it is
essential to confront and hold accountable individuals like Colonel
Magan.”
Based on this judgment, a federal magistrate judge awarded Ahmed $5
million in compensatory and $10 million in punitive damages in August
2013. At the hearing to assess damages, Ahmed explained
that he wanted justice not only for himself, but for the silent victims
of torture around the world. “That’s why I want to come to the United
States to have the justice that I couldn’t have in my country,” he said.
Magan had fled, apparently to Kenya, while Ahmed’s suit against him
was pending. Even if Magan had assets worth $15 million, Ahmed would not
be able to enforce the American judgment in Kenya without a separate
proceeding before a Kenyan court. Still, the Southern District’s
decision marked the first time a member of the NSS had been held liable
in court for violations committed under the Barre regime.
Ahmed became legal adviser to the president of Somalia in 2011,
assisting the drafting of the new Somali Constitution and Human Rights
Bill. He has also resumed teaching law at the City University of
Mogadishu, and in October 2013, he received the International Bar Association Human Rights Award.
“The dictators and their thugs think that justice has geographical
limitations, but justice is universal. . . . It belongs to all
humanity,” Ahmed said when accepting the award in Boston. “[M]y victory
before the Ohio Court is not just for me, but for all the silent victims
of torture—alive or dead.”
Abducted as a Teenager
In the suit that will go to trial Monday, Farhan Warfaa alleges that
he was abducted as a teenager in 1987 by Tukeh’s soldiers, who claimed
he was responsible for the disappearance of an Army water tanker. Warfaa
says he was taken to the Army’s regional headquarters, where he was
confined, interrogated, and tortured for months, including by Tukeh
himself.
Warfaa’s complaint alleges that his “arms and legs were bound, he was
stripped naked, and he was beaten to the point of unconsciousness at least nine times.” One night in March 1988, while Tukeh allegedly was interrogating Warfaa
in his office, the SNM attacked the Fifth Brigade. Warfaa says that
Tukeh ordered his officers to capture or kill the SNM soldiers, then
shot Warfaa five times at point-blank range and left him for dead. The
officers ordered to bury Warfaa soon discovered that he was still alive,
however, and allegedly ransomed him back to his family. It is possible
that Tukeh did not know Warfaa had survived until the CJA lawsuit was
filed.
At trial in Virginia next week, Warfaa will be seeking justice for
the torture and attempted extrajudicial killing he alleges Tukeh
commanded and committed. The precedent from Yousuf means that
Tukeh cannot claim official acts immunity for the violations alleged by
Warfaa. “Because [Warfaa’s] TVPA claims are premised on alleged acts
that violate jus cogens norms,”—here, the international
consensus against torture and extrajudicial killing—“the act of state
doctrine is inapplicable,” wrote Judge Brinkema in her July 2014 opinion denying the defendant’s motion to dismiss Warfaa’s TVPA claims.
With Barre’s commanders having found refuge in the United States and
Somalia’s government still struggling for stability, civil suits before
American courts are these plaintiffs’ only legal recourse to pursue
justice for the harm they suffered. For Bashe Yousuf, Aziz Deria,
Buralle Mohamoud, Ahmed Gulaid, Abukar Hassan Ahmed, and Farhan Warfaa,
federal judges half a world away are singularly able to acknowledge
their suffering, endorse an authoritative record of the injuries they
survived, and confirm the responsibility of their persecutors.
(As a member of Stanford Law’s International Human Rights and
Conflict Resolution Clinic, the author was invited by CJA to conduct
independent legal monitoring of the Warfaa v. Ali trial. The views expressed here are her own and not those of the Clinic, Stanford University, or CJA.)