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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 25-2232
GERT JANNES KUIPER,
Plaintiff - Appellee,
v.
MARIO ADALBERTO REYES MENA,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Rossie David Alston, Jr., District Judge. (1:24-cv-01785-RDA-LRV)
Argued: May 5, 2026 Decided: July 8, 2026
Before NIEMEYER, GREGORY, and AGEE, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge
Gregory and Judge Agee joined.
ARGUED: Kang He, MCGUIREWOODS LLP, Tysons, Virginia, for Appellant. Jason
P. Hipp, JENNER & BLOCK, LLP, New York, New York, for Appellee. ON BRIEF:
Jonathan Y. Ellis, H. Brent McKnight, Jr., Raleigh, North Carolina, Carolina G. Amarant,
MCGUIREWOODS LLP, Tysons Corner, Virginia, for Appellant. Daniel McLaughlin,
Claret Vargas, CENTER FOR JUSTICE & ACCOUNTABLITY, San Francisco;
Lawrence W. McMahon, Washington, D.C., Peter C. Welch, Los Angeles, California,
Justin J. Gillette, JENNER & BLOCK LLP, Chicago, Illinois, for Appellee. USCA4 Appeal: 25-2232 Doc: 41 Filed: 07/08/2026 Pg: 2 of 19
NIEMEYER, Circuit Judge:
During the Salvadoran civil war — particularly in March 1982 — Mario Adalberto
Reyes Mena, a colonel in the Salvadoran Security Forces, ordered the ambush and killing
of four Dutch journalists who were on assignment to El Salvador from a media outlet
affiliated with the Protestant Church of the Netherlands. The Salvadoran Security Forces
considered the journalists’ reporting, which was sympathetic to the opposition, to be a
threat. Jan Kuiper was one of the four journalists who were killed.
Gert Kuiper, Jan Kuiper’s brother, commenced this action against Reyes Mena
under the Torture Victim Protection Act of 1991, seeking declaratory relief and damages
for the “extrajudicial killing” of his brother. In response, Reyes Mena filed a motion to
dismiss the complaint based on, among other things, sovereign immunity under common
law for foreign officials acting on behalf of a government — i.e., “foreign official
immunity.” See Yousuf v. Samantar, 699 F.3d 763 (4th Cir. 2012). But, as we noted in
Yousuf, the immunity does not protect foreign officials accused of a violation of jus cogens
norms — “mandatory or peremptory norm[s] of general international law . . . from which
no derogation is permitted,” Black’s Law Dictionary 1026 (12th ed. 2024). See 699 F.3d
at 775–77. And these norms include a prohibition on extrajudicial killing, whether or not
committed in the official capacity of a sovereign. Because Jan Kuiper’s killing was
allegedly extrajudicial, we affirm the district court’s order denying foreign official
immunity and remand for further proceedings.
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I
Between 1980 and 1992, the government of El Salvador and its military forces (the
Salvadoran Security Forces or Salvadoran military) were engaged in a civil war with the
Farabundo Marti National Liberation Front (“FMLN”), a coalition of communist guerilla
groups. After the war was settled in 1992 by the Chapultepec Peace Accords, a United
Nations Truth Commission concluded that more than 75,000 civilians had been killed and
another 8,000 had disappeared during the war, and it attributed most of the losses to actions
of the Salvadoran military.
The U.N. Truth Commission found that during the war, the Salvadoran Security
Forces considered journalists to be a particular threat because independent media coverage
of the Salvadoran Security Forces’ human rights abuses imperiled the support that the
Salvadoran government was receiving from allies. Accordingly, the Salvadoran Security
Forces systematically targeted journalists and news outlets — both foreign and domestic
— that did not report favorably on the government, and members of the media were
threatened, attacked, killed, or disappeared.
In February 1982, four Dutch journalists — Jan Kuiper, Koos Koster, Johannes
Willemsen, and Hans ter Laag — traveled to El Salvador on assignment from a media
outlet affiliated with the Protestant Church of the Netherlands to report on the civil war.
As of that time, Kuiper and Koster had already published stories critical of the Salvadoran
Security Forces, including a documentary on government-aligned death squads. Koster
had also interviewed Archbishop Oscar Romero, a peace advocate who was later
assassinated on government orders. As they had planned, the Dutch journalists began a
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trip to Chalatenango on March 17, 1982, to visit an FMLN-controlled territory. For the
first portion of the trip, they traveled in a mini-bus marked “PRENSA” (Press) with an
FMLN escort, although the bus driver observed that they were being followed by what he
believed to be a Salvadoran military vehicle. The journalists then exited the mini-bus and
proceeded, unarmed, on foot through a hollow between two overlooking hills, with FMLN
guerillas as guides. The U.N. Truth Commission found that the Salvadoran Security Forces
had known in advance of the Dutch journalists’ planned trip and that officers of the Fourth
Infrantry Brigade under the command of Colonel Reyes Mena had met to plan an ambush
of the journalists as they passed through the hollow.
According to the plan, patrols were stationed on top of the two hills to carry out the
ambush. As the journalists proceeded on foot through the hollow, the patrols fired on them,
killing all four journalists, including Jan Kuiper, and all but one of the FMLN guides. After
the patrols reported back to the Salvadoran Security Forces base, Colonel Reyes Mena
dispatched a vehicle to pick them up.
The U.N. Truth Commission found that “the ambush was set up deliberately to
surprise and kill the journalists and their escort; that the decision to ambush them was taken
by Colonel Mario A. Reyes Mena, Commander of the Fourth Brigade, with the knowledge
of other officers; that no major skirmish preceded or coincided with the shoot-out on which
the journalists were killed; and lastly that [Reyes Mena] and other soldiers concealed the
truth and obstructed the judicial investigation.” The Commission also concluded that the
Salvadoran government had failed to meet its obligation to investigate, bring to trial, and
punish guilty parties, as required by international law.
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Similarly, a U.S. military investigation conducted shortly after the ambush
concluded that the patrol was set up in a tactical position atop two hills overlooking the
path below where the Dutch journalists had planned to pass, creating a “kill zone” that bore
the hallmarks of a classic ambush. The investigation found “no extensive evidence of
guerilla fire.”
Years later, in November 2022, a Salvadoran court indicted three former officers of
the Salvadoran Security Forces, including Reyes Mena, for killing the Dutch journalists.
Two of the former officers resided in El Salvador and were arrested there, but Reyes Mena,
who lived in Virginia, was able to avoid arrest by foregoing travel to El Salvador. In July
2025, a jury in El Salvador convicted Reyes Mena in absentia for the killings of the Dutch
journalists.
Gert Kuiper, the brother of Jan Kuiper, commenced this action in October 2024,
alleging that Reyes Mena’s participation in the killing of Kuiper’s brother violated the
Torture Victim Protection Act of 1991 (“TVPA”), which creates a cause of action against
a foreign official for torture or extrajudicial killing. Pub. L. No. 102-256, 106 Stat. 73
(1992) (codified at 28 U.S.C. § 1350 note). Kuiper sought a declaratory judgment that
Reyes Mena was responsible for the extrajudicial killing of his brother Jan, as well as
compensatory and punitive damages.
Reyes Mena filed a motion to dismiss the complaint, asserting, among other
defenses, that he was entitled to conduct-based foreign official immunity under
international common law. The district court denied Reyes Mena’s claim of such immunity
because “the alleged extrajudicial killing qualifie[d] as a violation of jus cogens.” The
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court noted 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.” (Quoting Yousuf v. Samantar, 699 F.3d
763, 777 (4th Cir. 2012)).
From the district court’s order dated September 10, 2025, Reyes Mena filed this
interlocutory appeal challenging the denial of his claimed immunity. See Yousuf, 699 F.3d
at 768 n.1 (citing Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949)).
II
Fundamental to the relationship of nations within the international community are
grace and comity — the mutual respect of each other’s independence. Underhill v.
Hernandez, 168 U.S. 250, 252 (1897); Schooner Exch. v. McFaddon, 11 U.S. (7 Cranch)
116 (1812). Thus, one nation’s acts “are not properly the subject of adjudication in the
courts of another government.” Underhill, 168 U.S. at 254. As a consequence,
international common law has recognized that foreign states, as well as officials acting
within the scope of their office for those states, may be immune from suit. See Samantar
v. Yousuf, 560 U.S. 305, 311–12 (2010); Yousuf, 699 F.3d at 774 (noting that “any act
performed by the individual as an act of the State enjoys the immunity which the State
enjoys” (cleaned up)); Restatement (Second) of Foreign Relations Law § 66(f) (A.L.I.
1965). Conduct-based foreign official immunity — which is sovereign immunity extended
to acts of officials — applies to “any . . . public minister, official, or agent of the state with
respect to acts performed in his official capacity if the effect of [a court’s] exercising
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jurisdiction would be to enforce a rule of law against the state.” Yousuf, 699 F.3d at 774
(quoting Restatement (Second) of Foreign Relations Law § 66(f)).
This common-law immunity for foreign states and their officials is recognized in
U.S. courts through a two-step procedure. To take the first, the foreign state or official
requests a “suggestion of immunity” from the U.S. Department of State. And at the second,
if the request is granted, the court generally surrenders jurisdiction. Samantar, 560 U.S. at
311–12. In the absence of the State Department’s recognition of immunity, the court can
nonetheless determine whether immunity applies under the common law. See id. In either
event, the State Department’s position on a foreign official’s immunity carries “substantial
weight” in the court’s analysis of the issue. Yousuf, 699 F.3d at 773.
In short, foreign states or nations and their officials acting in their official capacity
were, at common law, generally immune from suit in the U.S. courts. The officials,
however, were not immune from liability for their private acts. See Yousuf, 699 F.3d at
775; Chuidian v. Philippine Nat’l Bank, 912 F.2d 1095, 1106 (9th Cir. 1990).
In 1976, Congress enacted the Foreign Sovereign Immunities Act (“FSIA”), which
codified the common law as it applied to foreign states, providing that “a foreign state shall
be immune from the jurisdiction of the courts of the United States and of the States.”
28 U.S.C. § 1604. The Supreme Court has made clear that the statutory immunity granted
by the FSIA does not apply to foreign officials acting on behalf of the state. See Samantar,
560 U.S. at 305 (holding that an individual foreign official sued for conduct undertaken in
his official capacity does not qualify as a “foreign state” entitled to immunity from suit
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under the FSIA”). Rather, the Court observed, the immunity of foreign officials remains
governed by the common law, as it existed before the enactment of the FSIA. Id. at 324.
Notwithstanding common-law immunity of foreign officials for their official acts,
international law recognizes that there are certain types of conduct that amount to atrocities
against humanity and therefore are not protected by immunity — including torture,
genocide, extrajudicial executions, and others, all of which are not considered to be
sovereign acts. Such conduct violates jus cogens norms — meaning in Latin, compelling
or mandatory law — which preempt other law. As we have explained:
A jus cogens norm, also known as a “peremptory norm of general
international law,” can be defined as “a norm accepted and recognized by the
international community of States as a whole as a norm from which no
derogation is permitted and which can be modified only by a subsequent
norm of general international law having the same character.”
Yousuf, 699 F.3d at 775 (quoting Vienna Convention on the Law of Treaties art. 53, May
23, 1969, 1155 U.N.T.S. 331); see also Restatement (Third) of Foreign Relations Law
§ 102 cmt. k (A.L.I. 1987); Jus Cogens, Black’s Law Dictionary 1026. Jus cogens norms
include “the prohibitions against genocide; slavery or slave trade; murder or disappearance
of individuals; torture or other cruel, inhuman, or degrading treatment or punishment; [and]
prolonged arbitrary detention.” Yousuf, 699 F.3d at 775 (quoting Evan J. Criddle & Evan
Fox-Decent, A Fiduciary Theory of Jus Cogens, 34 Yale J. Int’l L. 331, 331 (2009)); see
also Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 791 n.20 (D.C. Cir. 1984) (Edwards,
J., concurring); Restatement (Third) of Foreign Relations Law § 702 cmt. n. Violations of
these norms, even when committed as official acts of a foreign state, are acts that
international law does not recognize as sovereign acts for which an official is entitled to
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immunity. Yousuf, 699 F.3d at 776 (citing Siderman de Blake v. Republic of Argentina,
965 F.2d 699, 718 (9th Cir. 1992) (“International law does not recognize an act that violates
jus cogens as a sovereign act”)).
Thus, under international common law, while foreign officials may obtain immunity
for official acts that the official committed on behalf of the state, that immunity will not
protect the official’s violation of jus cogens norms.
With these applicable principles in hand, we address Reyes Mena’s appeal.
III
Reyes Mena contends that he meets all of the requirements for conduct-based
foreign official immunity and therefore that the district court erred in denying him
immunity. As he argues:
After all this action is not really about Reyes Mena. It is about a military
operation that Plaintiff alleges the Salvadoran government authorized and
conducted through officials like Reyes Mena. Adjudicating this dispute
would require U.S. courts to sit in judgment over the Salvadoran
government’s military operations and strategy during its civil war. Foreign
immunity is designed to prevent that result.
(Citing Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682, 691 n.7 (1976)
(“The courts of one country will not sit in judgment on the acts of the government of
another done within its own territory” (cleaned up)); Underhill, 168 U.S. at 252–53
(“Where a civil war prevails . . . generally speaking, foreign nations do not assume to judge
of the merits of the quarrel”)).
Reyes Mena confirms that, as a former colonel in the Salvadoran military, he was
clearly an official and that he acted in an official capacity, since his alleged ordering of the
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killing was consistent with El Salvador’s war-time strategy and was backed by highranking government officials. Thus, he argues that any decision by a U.S. court on the
legality of those actions would have the effect of enforcing a rule of law against El
Salvador.
Kuiper argues to the contrary that Reyes Mena’s actions were not performed in an
official capacity, since El Salvador has disavowed the actions and criminally prosecuted
Reyes Mena for them. Kuiper notes further that he brought this action against Reyes Mena
in his personal capacity such that the court’s exercise of jurisdiction would not be to
“enforce a rule of law against the state.”
The parties’ debate over whether Reyes Mena’s conduct meets the requirements for
conduct-based foreign official immunity is, however, of no moment in this appeal. The
issue presented here is whether foreign official immunity is available for violations of jus
cogens norms, which is the basis on which the district court ruled. And it is that issue that
we must address.
In focusing on jus cogens, Reyes Mena contends that the district court erred
in adopting “a categorical exception to immunity for alleged violation of jus cogens norms
. . . [and in concluding] that ‘the alleged extrajudicial killing in this case qualifies as a
violation of jus cogens’ that defeats [his] claim to conduct-based immunity.” He asserts
that
there is no general jus cogens exception to common-law, conduct-based
foreign official immunity, and Yousuf does not apply. The district court thus
reversibly erred in denying Reyes Mena the benefit of conduct-based
immunity. . . . As a matter of both international and U.S. law, there is no
general jus cogens exception to conduct-based immunity.
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He explains that creating such an “exception” defeats the comity among nations that
foreign sovereign immunity was designed to serve.
Reyes Mena, however, hardly supplies governing legal support for this argument.
To begin, we note that as a matter of concept, jus cogens norms are not thought to
be an “exception” to immunity. Rather, conduct that violates a jus cogens norm is
understood as not constituting a sovereign act that would be protected by sovereign
immunity. See, e.g., Siderman de Blake, 965 F.2d at 718. In failing to recognize this
principle, Reyes Mena’s logic proceeds down the wrong track.
Jus cogens is understood to be a peremptory norm of international law from which
no derogation is permitted, and the concept has its roots in Roman law and the work of
classical publicists. Criddle & Fox-Decent, supra at 334 & n.6 (citing, e.g., Hugo Grotius,
On the Law of War and Peace (William Whewell ed. & trans., John W. Parker, London
2009) (1625)). The concept gained “enhanced recognition and credibility following the
Second World War,” as “the prosecution of Axis leaders at Nuremberg and Tokyo offered
compelling evidence that international law did, indeed, impose substantive limits on the
invocation of state sovereignty as a shield for officials accused of crimes against
humanity.” Id. at 336 & n.18 (emphasis added) (citing Lauri Hannikainen, Peremptory
Norms (Jus Cogens) in International Law: Historical Development, Criteria, Present
Status 150 (1988)).
More recently, in the Vienna Convention on the Law of Treaties, the parties have
recognized that a jus cogens norm is “a norm accepted and recognized by the international
community of States as a whole . . . from which no derogation is permitted.” Supra, at art.
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53. And this is similarly recognized in the Restatement of Foreign Relations Law, which
provides that “[p]eremptory norms of international law (jus cogens) . . . are recognized by
the international community of states as peremptory, permitting no derogation.”
Restatement (Third) of Foreign Relations Law § 102 cmt. k. And most important to this
appeal, we have recognized these principles, concluding that violations of jus cogens
norms, even when committed under the color of law, are “as a matter of international and
domestic law . . . by definition, acts that are not officially authorized by the Sovereign.”
Yousuf, 699 F.3d at 776 (citing, e.g., Siderman de Blake, 965 F.2d at 718 (“International
law does not recognize an act that violates jus cogens as a sovereign act”)); see also Warfaa
v. Ali, 811 F.3d 653, 661 (4th Cir. 2016). We have thus 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.” Yousuf, 699 F.3d at 777. This conclusion has also been reached by courts of
other nations. See, e.g., Att’y Gen. of Israel v. Eichmann, 16 Piske Din 2033 (1962), 36
I.L.R. 277, 309–10 (1968) (Isr.) (“[A]cts prohibited by the law of nations . . . are completely
outside the ‘sovereign’ jurisdiction of the State that ordered or ratified their commission,
and therefore those who participated in such acts must personally account for them and
cannot shelter behind the official character of their task or mission”); Regina v. Bartle, ex
parte Pinochet, [1999] 2 W.L.R. 827 (HL) 846–48 (appeal taken from Eng.) (concluding
that immunity is unavailable to former foreign official accused of directing widespread
torture because such acts do not constitute officially approved acts).
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In sum, “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, 699 F.3d at 777. And accordingly,
Reyes Mena would not be entitled to foreign official immunity on a motion to dismiss if
the acts attributed to him in the complaint are indeed violations of jus cogens norms.
The substantive nature of these peremptory norms are not seriously disputed, even
by Reyes Mena. The Restatement of Foreign Relations Law provides a list that includes
“genocide,” “the murder or causing the disappearance of individuals,” and “torture,”
among others, as “peremptory norms (jus cogens).” Restatement (Third) of Foreign
Relations Law § 702 cmt. n. Similarly, the Torture Victim Protection Act of 1991 creates
a cause of action for “torture” or “extrajudicial killings.” 28 U.S.C. § 1350 note. And in
Yousuf, we listed prohibitions on “torture, summary execution and prolonged arbitrary
imprisonment” as among those “universally agreed-upon norms.” 699 F.3d at 775; see
also Tel-Oren, 726 F.2d at 791 n.20 (Edwards, J., concurring) (noting that “on the basis of
international covenants, agreements and declarations, commentators have identified at
least four acts that are now subject to unequivocal international condemnation: torture,
summary execution, genocide and slavery” (emphasis added)). Professors Criddle and
Fox-Decent have also noted, as the result of their extensive research, that “jus cogens . . .
include[s], at a minimum, the prohibitions against genocide; slavery or slave trade; murder
or disappearance of individuals; torture or other cruel, inhumane or degrading treatment or
punishment; [and] prolonged arbitrary detention.” Criddle & Fox-Decent, supra at 331–
32 (emphasis added).
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Thus, at a minimum, jus cogens norms include prohibitions on torture, summary or
extrajudicial executions, and genocide.
In this case, Reyes Mena is alleged to have known about the Dutch journalists’ travel
plans, participated in a meeting to plan an ambush on them, and, as the commanding
officer, ordered their extrajudicial killing. This alleged conduct violates a jus cogens norm
and therefore it may not be protected by conduct-based foreign official immunity. As we
held in Yousuf, “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.” 699 F.3d at 777.
Accordingly, we affirm the district court’s order to the extent that it rejected Reyes
Mena’s claim for conduct-based foreign official immunity.
IV
Reyes Mena makes several arguments in an effort to circumvent our conclusion.
We find, however, that none are persuasive.
A
First, Reyes Mena argues that “Yousuf does not apply here,” because “Yousuf denied
foreign official immunity for alleged violations of jus cogens norms to an official from a
foreign State [Somalia] without a recognized government to whom comity and immunity
could be owed,” and he, by contrast, “is a former official that allegedly acted on behalf of
a recognized government — indeed, a U.S. ally.” (Emphasis added). This argument,
however, takes an overly limited view of Yousuf. Our holding in Yousuf did not rely on
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the status of the Somali government, but instead on the nature of the defendant’s actions,
which violated jus cogens norms and thus could not be considered to be sovereign acts.
While we did acknowledge that the State Department had taken a position opposing the
defendant’s immunity, in part because he was “a former official of a state with no currently
recognized government to request immunity on his behalf,” Yousuf, 699 F.3d at 767, we
made clear that our holding did not rely on that observation, expressly noting that the State
Department’s guidance had “supplied us with additional reasons to support” the
conclusion that the defendant was not entitled to immunity. Id. at 778 (emphasis added).
Reyes Mena’s argument to distinguish Yousuf thus does not reach its holding, which
governs.
B
Reyes Mena next argues that no jus cogens exception applies to his claim of foreign
official immunity because Congress did not include such a general jus cogens exception in
the FSIA, which created immunity for sovereign states. The Supreme Court, however, has
rejected similar arguments. In Samantar v. Yousuf, the Court recognized that the petitioner
“argue[d] that we should construe the FSIA consistently with the common law regarding
individual immunity, which—in petitioner’s view—was coextensive with the law of state
immunity and always immunized a foreign official for acts taken on behalf of the foreign
state.” 560 U.S. at 320. But the Court dismissed that argument, noting that “[e]ven reading
the Act in light of Congress’ purpose of codifying state sovereign immunity, however, we
do not think that the Act codified the common law with respect to the immunity of
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individual officials.” Id. (second emphasis added). As such, the Samantar Court made
clear that the FSIA does not define the contours of foreign sovereign immunity for
individual officials.
And with regard to the common law for individual officials, we have noted, when
rejecting conduct-based immunity for a jus cogens violation in Yousuf, that “Congress’s
enactment of the TVPA, and the policies it reflects, [were] both instructive and consistent
with our view of the common law regarding . . . jus cogens.” 699 F.3d at 777. More
specifically, we explained that “in enacting the TVPA, Congress essentially created an
express private right of action for individuals victimized by torture and extrajudicial killing
that constitute violations of jus cogens norms.” Id.; see also Lewis v. Mutond, 918 F.3d
142, 148 (D.C. Cir. 2019) (Srinivasan, J., concurring) (“[The TVPA] subjects foreign
officials to liability for acts undertaken in an official capacity and thus displaces any
common-law, conduct-based immunity that might otherwise apply in the context of claims
under the Act”).
Therefore, we cannot agree with Reyes Mena’s argument that the absence of a jus
cogens “exception” in the FSIA’s statutory provisions is “instructive to whether such [an]
exception exists in [the] common-law immunity afforded to officials.”
C
Reyes Mena also takes issue with the application of jus cogens norms to foreign
official immunity in the context of a civil suit, rather than a criminal prosecution. He
contends that while “some foreign courts have abrogated conduct-based immunity for jus
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cogens violations” in the criminal context, that recognition “provides no basis for a
categorical exception in civil cases.”
His argument, however, is directly foreclosed by our prior holding in Yousuf, which
recognized the application of jus cogens norms in a civil case brought under the TVPA and
the Alien Tort Statute. 699 F.3d at 763; see also Warfaa, 811 F.3d at 661 (holding that a
former colonel in the Somali military was not entitled to foreign official immunity from
civil claims brought under the TVPA).
Moreover, applying jus cogens only in a criminal context would belie the
peremptory, universal nature of the norms. As noted above, the application of jus cogens
norms to deny immunity to foreign officials — when the officials commit acts that are
atrocities against humanity — is explained by refusing to recognize that they are legitimate,
sovereign acts. See Yousuf, 699 F.3d at 776 (“[A]s a matter of international and domestic
law, jus cogens violations are, by definition, acts that are not officially authorized by the
Sovereign”); see also Siderman de Blake, 965 F.2d at 718 (“International law does not
recognize an act that violates jus cogens as a sovereign act”). This reasoning does not
depend on the civil or criminal context in which jus cogens is applied. Whether a
proceeding is civil or criminal does not change the nature of the act in question and
therefore does not alter the availability or unavailability of immunity for that particular
conduct. As one scholar persuasively reasoned, “[I]f there is no immunity from criminal
proceedings, then it is not clear as a doctrinal matter why there would nevertheless be
immunity from civil proceedings for the same conduct.” Chimene I. Keitner, Foreign
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Official Immunity After Samantar, 44 Vand. J. Transnat’l L. 837, 848 (2011) (footnote
omitted).
D
Finally, Reyes Mena argues that “if the Court interprets Yousuf broadly as adopting
a general jus cogens exception to immunity that would apply even to this case, Yousuf
should be overruled.” He does acknowledge that he is making this argument for
preservation purposes should the issue be considered en banc. Despite that possibility,
however, we have already rejected an argument that Yousuf was wrongly decided. See
Warfaa, 811 F.3d at 661 (The defendant “would have us overrule [Yousuf], but that course
is not open to us”). In Warfaa, we reiterated Yousuf’s holding that “foreign official
immunity could not be claimed for jus cogens violations, even if the acts were performed
in the defendant’s official capacity,” id. at 661 (cleaned up), and concluded that the district
court had properly held that a former Somali colonel accused of attempted extrajudicial
killing was not entitled to foreign official immunity on a claim under the TVPA, id. at 655,
657.
* * *
In his complaint, Kuiper alleged that Reyes Mena ordered the ambush and killing
of his brother, Jan Kuiper, an unarmed journalist. We conclude that the alleged conduct,
if proved, would amount to a violation of the jus cogens norm of international law
prohibiting extrajudicial killing and therefore that such a violation would preclude conductbased foreign official immunity. Accordingly, we affirm the district court’s order of
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USCA4 Appeal: 25-2232 Doc: 41 Filed: 07/08/2026 Pg: 19 of 19
September 10, 2025, to the extent it denies Reyes Mena conduct-based foreign official
immunity.
AFFIRMED
19