Background
Mario Adalberto Reyes Mena, a former colonel in the Salvadoran Security Forces, ordered an ambush in March 1982 that killed four Dutch journalists, including Jan Kuiper. Gert Kuiper, Jan’s brother, sued Reyes Mena under the Torture Victim Protection Act of 1991 for damages and declaratory relief. Reyes Mena moved to dismiss, claiming foreign official immunity. The district court denied the motion, ruling that the alleged extrajudicial killing violated jus cogens norms. Reyes Mena appealed the denial of immunity.
The court’s reasoning
The court explained that jus cogens norms are peremptory rules from which no derogation is permitted. Violations of these norms, including extrajudicial killing, are not recognized as sovereign acts under international law. Therefore, foreign officials cannot claim immunity for such conduct, even if the acts were performed in an official capacity. The court rejected arguments distinguishing the case from prior precedent or relying on the absence of a statutory exception in the Foreign Sovereign Immunities Act.
under international and domestic law, officials from other countries are not entitled to foreign official immunity for jus cogens violations, even if the acts were performed in the defendant’s official capacity.
Yousuf v. Samantar, 699 F.3d 763, 777 (4th Cir. 2012)
What it means going forward
The ruling ensures that foreign officials accused of atrocities like extrajudicial killing can be sued in United States courts without claiming immunity, reinforcing the principle that such acts are not protected sovereign conduct.