May 12, 2019
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)
By Amanda McCaffrey
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.)
Just Security Org | Published: May 10, 2019