Background
During El Salvador’s civil war in March 1982, Colonel Mario Adalberto Reyes Mena of the Salvadoran Security Forces ordered the ambush and killing of four Dutch journalists—including Jan Kuiper—who were reporting on the conflict for a media outlet affiliated with the Protestant Church of the Netherlands. The journalists had previously published stories critical of the Salvadoran military. After traveling to FMLN-controlled territory on March 17, 1982, they were killed in a deliberate ambush set up by officers under Reyes Mena’s command. A UN Truth Commission later concluded the killing was an intentional ambush designed to eliminate the journalists, and a Salvadoran court convicted Reyes Mena in absentia in 2025.
Gert Kuiper, Jan’s brother, sued Reyes Mena in October 2024 under the Torture Victim Protection Act, seeking declaratory relief and damages for extrajudicial killing. Reyes Mena moved to dismiss based on conduct-based foreign official immunity—immunity extended to foreign officials acting within their official capacity on behalf of a state. The district court denied immunity, finding the extrajudicial killing violated jus cogens norms. Reyes Mena appealed, arguing no jus cogens exception exists for official acts committed on behalf of a recognized government.
The Court’s Holding
The Fourth Circuit affirmed the denial of foreign official immunity. The court held that under international and domestic law, foreign officials are not entitled to conduct-based immunity for violations of jus cogens norms—peremptory norms of international law from which no derogation is permitted—even when those acts are performed in an official capacity. Jus cogens violations are not recognized as sovereign acts and therefore cannot be shielded by immunity.
The court explained that jus cogens norms include prohibitions on genocide, slavery, torture, murder, disappearance of individuals, and extrajudicial execution. Extrajudicial killing—the alleged conduct here—is universally recognized as violating a peremptory norm. Reyes Mena’s planning and ordering of the ambush that killed unarmed journalists constitutes such a violation. The court rejected Reyes Mena’s arguments that Yousuf v. Samantar (the controlling precedent) applied only to officials of unrecognized governments, that Congress’s silence in the FSIA about a jus cogens exception was instructive, and that jus cogens should apply only in criminal—not civil—proceedings.
The jus cogens exception to immunity does not depend on whether the defendant acted for a recognized or unrecognized government, nor on the civil or criminal nature of the proceeding. A peremptory norm of international law cannot be circumvented by the forum or the defendant’s government status. The court reaffirmed that the TVPA, which creates a private right of action for torture and extrajudicial killing, reflects and is consistent with the common law’s jus cogens limitation on immunity.
Key Takeaways
- Foreign official immunity does not protect officials who commit extrajudicial killings, even if acting within their official capacity and on behalf of a recognized government.
- Jus cogens violations—including murder, disappearance, and extrajudicial execution—are not considered sovereign acts eligible for immunity protection.
- The jus cogens exception to immunity applies in civil suits under the Torture Victim Protection Act, not only in criminal prosecutions.
- A state’s subsequent disavowal and criminal prosecution of an official’s conduct supports the conclusion that the conduct violated jus cogens norms and was not officially authorized.
Why It Matters
This decision significantly strengthens accountability for human rights violations during armed conflict. By holding that foreign official immunity cannot shield extrajudicial killings, the court ensures that victims of such atrocities can pursue civil remedies in U.S. courts regardless of whether the defendant acted for a recognized, allied government. The ruling forecloses arguments that immunity depends on the defendant’s government status or the civil versus criminal context of the proceeding. Foreign officials cannot escape liability by claiming they were merely following official policy during wartime.
The decision has broad implications for civil litigation under the TVPA. It affirms that peremptory norms of international law operate as an absolute bar to official immunity and cannot be circumvented by diplomatic status or sovereign authority. For attorneys representing victims of torture and extrajudicial killing abroad, the ruling confirms that U.S. courts will entertain such claims on the merits, provided the allegations meet the elements of a jus cogens violation.
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