## Facts

- Somali plaintiffs, members of the Isaaq clan, alleged they suffered torture, prolonged arbitrary detention, and extrajudicial killings by Somali security forces during the Siad Barre regime.
- Defendant Mohamed Ali Samantar served as Somalia’s Minister of Defense (1980–1986) and Prime Minister (1987–1990); plaintiffs alleged he bore responsibility for abuses by forces under his authority.
- After the regime collapsed in 1991, Samantar fled and later became a lawful permanent resident living in Virginia.
- Plaintiffs sued for damages under the Torture Victim Protection Act (TVPA) and the Alien Tort Statute (ATS).
- Earlier appellate and Supreme Court decisions held the Foreign Sovereign Immunities Act (FSIA) does not govern immunity for individual foreign officials, leaving any immunity to federal common law.
- On remand, Samantar moved to dismiss based on head-of-state immunity and conduct-based foreign official (official-acts) immunity.
- The U.S. Executive Branch filed a statement declining to recognize immunity for Samantar, citing (among other considerations) the absence of a recognized Somali government to request immunity and Samantar’s U.S. permanent residency.
- The district court denied the motion to dismiss; Samantar appealed.

## Issues

1. Whether a former Somali official was entitled to common-law, status-based head-of-state immunity from a civil damages suit in U.S. courts.
2. Whether a former Somali official was entitled to common-law, conduct-based foreign official immunity for alleged torture, extrajudicial killing, and related abuses purportedly committed in an official capacity.
3. What level of deference a court owes to the Executive Branch’s determination that a foreign official should not be recognized as immune.

## Decision

- The Fourth Circuit affirmed the denial of Samantar’s motion to dismiss.
- Samantar was not entitled to head-of-state immunity because the Executive Branch did not recognize such immunity for him and he was not a recognized sitting head of state.
- Samantar was not entitled to conduct-based foreign official immunity because the Executive Branch declined to recognize immunity and, independently, alleged violations of jus cogens norms are not protected “official acts.”
- The suit under the TVPA and ATS could proceed.

## Legal Principles

- Immunity for individual foreign officials is determined by federal common law rather than the FSIA.
- Courts treat the Executive Branch’s immunity determination as controlling in this context, particularly on questions tied to recognition and foreign relations.
- Status-based immunity (e.g., head-of-state immunity) depends on the official’s status and the Executive’s recognition; former officials generally lack such immunity absent Executive recognition.
- Conduct-based foreign official immunity extends only to acts performed on behalf of a state within the scope of lawful official authority.
- Alleged torture, extrajudicial killing, and prolonged arbitrary detention—treated as jus cogens violations—cannot be characterized as legitimate sovereign “official acts” for purposes of conduct-based immunity.

## Conclusion

The Fourth Circuit held that Samantar could not invoke common-law foreign official immunity to defeat TVPA and ATS claims alleging jus cogens violations, giving controlling weight to the Executive Branch’s denial of immunity and concluding that such alleged abuses are not immunized as official acts.


Yousuf v. Samantar, 699 F.3d 763 (4th Cir. 2012)