US court clears way for torture lawsuit against alleged Somali war criminal

An appeals court ruling which denied an alleged war criminal from Somalia immunity from prosecution in a US courtroom is only a partial success, a human rights group said on Monday.

The decision by the fourth circuit court of appeals in Virginia has opened a path for an individual lawsuit for torture and attempted murder against Colonel Yusuf Abdi Ali, who was head of the Somali army’s Fifth Brigade during the brutal Siad Barre dictatorship of the 1980s and who fled to Canada before settling in the US.

The California-based Center for Justice and Accountability (CJA), which represents Ali’s alleged victim, Farhan Warfaa, said the three-judge panel’s ruling that stripped specific war crimes and crimes against humanity elements from the case was disappointing.

CJA lawyer Kathy Roberts said it limits the future effectiveness of the Alien Tort Statute (ATS), the two centuries-old legislation relied on by human rights groups in recent years to seek relief in American courts for foreign nationals for crimes committed against them in other countries.

“The decision appears to reverse more than three decades of legal precedent that has allowed victims of human rights abuses to bring lawsuits against the worst international human rights criminals, when they are found in this country, for mass atrocities committed abroad,” she said.

“We welcome today’s ruling that Colonel Ali must face justice for his crimes in court but we respectfully disagree with the panel’s decision to dismiss the mass atrocity claims. The attacks on Mr Warfaa were not isolated. They were part of a systematic and widespread attack on civilians. Colonel Ali should be held to account for all of his crimes.”

The CJA presented its arguments at a hearing in September, during which the judges were presented with evidence that Ali shot Warfaa five times at close range during an interrogation over the theft of a water tanker. Assuming Warfaa was dead, the lawsuit stated, Ali ordered henchmen to dispose of his body. Instead he was smuggled to safety.

Ali’s brigade continued to terrorise the Isaaq clans of the separatist province of Somaliland until Siad Barre was overthrown in 1991.

In dismissing the war crimes element of the CJA lawsuit, the judges sided with a US supreme court ruling in a separate case, Kiobel v Royal Dutch Petroleum, in which justices ruled the corporate defendant had no significant contact with the US and therefore did not “touch and concern” the country sufficiently for action under the ATS.

But on the issue of individual immunity, the panel appeared to support the ruling in another CJA case, involving Muhammad Ali Samantar, a member of Siad Barre’s revolutionary council. The panel determined that having held a government office did not provide alleged perpetrators of human rights crimes with a shield from prosecution, allowing Warfaa’s claims to continue under the Torture Victim Protection Act.

Warfaa, who was 17 at the time of his abduction and alleged torture, is now a respected village elder of his Isaaq sub-clan near the Somaliliand capital of Gabiley. He told the Guardian in September the legal action was a way to ensure that a dark period in his country’s history would not be forgotten.

“This is not just a case to me, it’s a part of my life I will never forget and I want to see those responsible realise what they have done,” he said.

“They may have forgotten but myself and others like me will never be able to. I want to see justice and I want my kids to learn that nobody is above the law and every action has a consequence, whether in this life or the afterlife.”