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Warfaa v. Ali (Col. Tukeh)

Somalia: Torture and Crimes against Humanity Under the Siad Barre Regime

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Warfaa v. Ali (Col. Tukeh)

Somalia: Torture and Crimes against Humanity Under the Siad Barre Regime


IN BRIEF | BACKGROUND | LEGAL PROCEEDINGS

IN BRIEF


On November 10, 2004, CJA filed a case against a high-ranking Somali commander, Colonel Yusuf Abdi Ali (nicknamed “Tokeh” or “Tukeh”) for torture, extrajudicial killing, war crimes, and crimes against humanity.  The suit aimed to hold Tukeh responsible for direct acts of human rights violations as well as for abuse committed by soldiers under his command in northern Somalia in the 1980s. CJA represents Farhan Mohamoud Tani Warfaa, a member of the Isaaq clan who was subjected to brutal torture and abuse by Col. Tukeh and his troops.

The court administratively closed the case against Col. Tukeh in 2007, pending determination of the foreign official immunity issues raised by the defendant in Yousuf v. Samantar.  The case was reopened in October 2011, only to be stayed a second time pending the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co.   

BACKGROUND


The Siad Barre regime ruled Somalia from 1969 until it finally collapsed in 1991. Like all military dictatorships, the Siad Barre regime was intent on maintaining its power and, over the years, it adopted increasingly harsh measures to do so.  In the years leading up to its eventual collapse, the Somali armed forces committed horrific atrocities – mass detentions of political prisoners, torture, and murder.  They did so with particular ruthlessness in the northwestern region of Somalia, known today as Somaliland, and they targeted the majority clan in that region, the Isaaq. 

In response to this brutality, a pro-democracy resistance movement emerged in the 1980s, calling itself the Somali National Movement, or the SNM. When the SNM advanced, soldiers of the Somali armed forces responded with targeted reprisals against ordinary people of Isaaq background.  Government violence against Isaaq civilians escalated throughout the 1980s, reaching its peak in June 1988 when the Somali armed forces systematically executed thousands of innocent Isaaq people and buried them in mass graves in Hargeisa, the region’s largest city.

Col. Tukeh, commanded the Somali National Army’s Fifth Brigade in the late 1980s, giving him authority over the remote northern town of Gebiley and the areas surrounding it. Eyewitness accounts suggest that he willfully participated in the escalating violence against people of Isaaq heritage.  As early as 1984, Col. Tukeh and his troops were terrorizing the local Isaaq population-- conducting mass arbitrary detentions and subjecting people to cruel and inhuman treatment and torture, including starving them, beating them, and even killing them in mass summary executions.  Col. Tukeh and his troops burned homes, ransacked the livestock of rural and nomadic people, and plundered the wealth of city-dwellers with impunity.  Read more…

Mr. Warfaa was accused of assisting the SNM. He was tortured several times and subsequently interrogated by Col. Tukeh himself.  During one of these interrogations, Col. Tukeh shot him five times and ordered his soldiers to bury him.  As the soldiers carried him away, they discovered that he was not dead. They secretly agreed to accept a payment from Mr. Warfaa’s family in exchange for his release.  Read more…

LEGAL PROCEEDINGS


Complaint

Warfaa v. Ali was brought before the U.S. District Court for the Eastern District of Virginia on November 10, 2004.  The complaint accused Col. Tukeh of command responsibility and personal responsibility for crimes against humanity; torture; cruel, inhuman and degrading treatment; attempted extrajudicial killing; arbitrary detention; and war crimes.  The civil action was brought under the Alien Tort Statute (ATS) and the Torture Victim Protection Act (TVPA). The case was filed jointly by CJA and pro bono partner Cooley LLP, working on a pro bono basis. The case was referred by the district court judge to the U.S. State Department for its input on the extent to which foreign officials are entitled to immunity for official acts, and it remained stalled for nearly three years.  The court administratively closed the case against Col. Tukeh in 2007, pending determination of similar immunity issues raised by Yousuf v. Samantar.  Attorneys from CJA and pro bono partner Akin Gump Strauss Hauer & Feld LLP successfully moved to reopen the case in October 2011. However, the case was delayed again in April 2012, this time pending the determination of the Supreme Court in Kiobel v. Royal Dutch Petroleum Co., regarding the extraterritorial reach of the ATS. 

The case was stayed a third time in April 2013, after the Supreme Court issued its opinion in Kiobel, holding that the ATS is subject to a presumption against extraterritoriality.  Read more about the Kiobel ruling and the presumption against extraterritoriality here.

On July 28, 2013, the court solicited the State Department’s opinion as to whether the case was likely to have any adverse impact on U.S. foreign relations, and the State Department respectfully declined to express an opinion in a letter issued on September 19th, giving the court a functional “green light” to proceed.  Nevertheless, the court stayed the case for 120 days at a September status conference, in anticipation of whether the Supreme Court would grant certiorari to hear Yousuf v. Samantar and issue a definitive ruling on the immunity issues in play.  On January 24, 2014, the court stayed the case for an additional 120 days at a status conference, in order to provide an opportunity for the State Department to opine on questions of immunity for foreign officials; this time, however, the court made it clear that the case would finally proceed at the close of the 120-day period.  The State Department again respectfully declined to express an opinion as to Col. Tukeh’s request for immunity, and the court reopened the case and provided CJA and pro bono partner DLA Piper leave to amend the original complaint. Read the amended complaint here.

On May 31, 2014, Col. Tukeh’s counsel filed a renewed motion to dismiss on the basis of, among other things: (i) immunity, (ii) the political question doctrine, and (iii) the running out of the applicable statute of limitations period.  It is worth noting that Col. Tukeh’s counsel did not present any argument based on the Kiobel ruling.  CJA and pro bono counsel filed a brief in opposition on June 16 and presented oral argument at a hearing on July 25.  Surprisingly, Judge Brinkema announced at the hearing her intention to dismiss all ATS claims on the basis of the ruling set forth in the Kiobel case, without oral argument or briefing.  Judge Brinkema moreover denied Col. Tukeh’s motion to dismiss the plaintiff’s TVPA claims. 

Both parties’ counsel appealed Judge Brinkema’s judgment to the Fourth Circuit Court of Appeals.  On August 13, 2014, Col. Tukeh’s counsel filed a notice of interlocutory appeal on the issue of foreign official immunity.  CJA client Mr. Warfaa expressed his wishes to appeal Judge Brinkema’s dismissal of the ATS claims in order to seek a full accounting for the range of crimes that Col. Tukeh committed, including crimes against humanity and war crimes under the ATS.  On August 21, CJA filed a motion for entry of final judgment as to the ATS claims, enabling the plaintiff’s appeal on that issue to the Fourth Circuit.  Judge Brinkema granted CJA’s motion and ordered the case stayed pending the resolution of each party’s appeal.

On September 24, 2014, the Fourth Circuit issued a briefing order that consolidated both appeals and established a briefing schedule.  Col. Tukeh’s opening brief was presented on November 3, and Mr. Warfaa’s response brief was presented on December 8.

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