Tort: Former Salvadoran colonel sued for 1982 murders of Dutch journalists

Where the brother of one of the journalists showed that he has been pursuing his rights diligently, but that some extraordinary circumstance stood in his way, the statute of limitations was equitably tolled.

Background

This lawsuit alleges that four Dutch journalists were ambushed and killed by a Salvadoran military patrol under the command of defendant Mario Adalberto Reyes Mena in 1982. Gert Jannes Kuiper, the brother of one of the decedents, alleges defendant violated the Torture Victim Protection Act of 1991, or TVPA. Defendant has filed a motion to dismiss.

Immunity

Defendant argues that is immune from suit (1) under the Foreign Sovereign Immunities Act, or FSIA, and (2) pursuant to conduct-based immunity under the common law.

As the Fourth Circuit has explained, “FSIA—based on its text, purpose and history— governs only foreign state sovereign immunity, not the immunity of individual officials.” However, the Supreme Court has noted two related avenues that might provide for the dismissal of a case based on the FSIA immunity of the relevant foreign state: (1) where the foreign state is the real party in interest and (2) where the foreign state itself—or a political subdivision, agency, or instrumentality thereof—is a required party warranting dismissal under Federal Rule of Civil Procedure 12(b)(7). Neither applies here.

With regard to defendant’s argument that he is entitled to common-law conduct-based immunity, the Fourth Circuit has expressly held that, “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.” Accordingly, defendant is not entitled to conduct-based official immunity under the common law.

Statute of limitations

Under the TVPA, a plaintiff has 10 years from the date a cause of action arises to bring suit for extrajudicial killing or torture. The alleged extrajudicial killing giving rise to plaintiff’s claims occurred on March 17, 1982. Plaintiff did not file suit until Oct. 9, 2024. Accordingly, the dispositive question is whether the doctrine of equitable tolling permits plaintiff’s claims to go forward notwithstanding the delay.

“Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Both elements are satisfied here.

Plaintiff has alleged that his brother was killed during a civil war that did not end until 1992. “There is a consensus among the federal courts that civil war and a repressive authoritarian regime constitute ‘extraordinary circumstances’ for purposes of tolling the TVPA’s limitations period.” After the civil war, plaintiff alleges that he continued to be unable to access information to support his claim because the Salvadoran Amnesty Law that was effective from 1993 to 2016 “made domestic investigations and prosecutions for crimes committed in the context of the armed conflict impossible.”

As to reasonable diligence, plaintiff alleges that, soon after the 2016 Supreme Court decision invalidating the Amnesty Law, and the Salvadoran Human Rights Unit was created to investigate crimes committed during the civil war, plaintiff filed a criminal complaint in El Salvador that ultimately led to the indictment of three former military officers, including defendant.

Retroactivity and standing

Defendant argues that the TVPA does not apply retroactively to conduct before its enactment in 1992. This argument is not well taken, however, as numerous courts faced with this question have found precisely the opposite—including judges in this district.

Defendants also argue that plaintiff, as decedent’s brother, lacks standing to pursue his TVPA claim. To determine whether a plaintiff would be a proper wrongful death claimant, the court must ultimately look to plaintiff’s ability to bring a claim under Salvadoran law. It is undisputed that plaintiff has standing in El Salvador to seek compensation for the alleged wrongful death of his brother.

Exhaustion

Defendant argues that plaintiff has not exhausted his remedies in El Salvador. Defendant has not shown that plaintiff’s potential responses to this affirmative defense—that any potential remedies in El Salvador are, for example, ineffective, unduly prolonged, inadequate or obviously futile—are foreclosed by the allegations in the complaint. Deferral of consideration of exhaustion is appropriate at this time. Finally, defendant has not satisfied his burden seeking a stay of this suit pending resolution of criminal proceedings in El Salvador.

Defendant’s motion to dismiss denied.

Kuiper v. Mena, Case No. 1:24-cv-1785, Sept. 10, 2025. EDVA at Alexandria (Alston). VLW 025-3-372. 40 pp.