Gert Kuiper v. Mario Reyes Mena

• Court: Court of Appeals for the Fourth Circuit
• Decided: July 8, 2026
• Docket: 25-2232
• Status: Published

Opinion

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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 high-

ranking 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 conduct-

based foreign official immunity. Accordingly, we affirm the district court’s order of

18 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