Fourth Circuit Reaffirms Lack of Official Immunity for Jus Cogens Violations

 

Dutch journalists with Jan Kuiper on the left

Center for Justice and Accountability

On July 8, 2026, the Fourth Circuit held in Kuiper v. Reyes Mena that a former colonel in the Salvadoran Army is not immune from suit for the extrajudicial killings of Dutch journalists in 1982 during El Salvador’s civil war. Writing for a unanimous panel, Judge Paul V. Neimeyer reaffirmed the circuit’s holding in Yousuf v. Samantar (2012) that “jus cogensviolations are, by definition, acts that are not officially authorized by the Sovereign” and thus are not entitled to conduct-based immunity. The decision also decisively rejected various attempts by the defendant to distinguish or limit Yousuf’s holding.

Extrajudicial Killing in El Salvador

According to the complaint, the defendant Mario Adalberto Reyes Mena was a colonel in the Salvadoran Army in command of its Fourth Brigade. In March 1982, he allegedly ordered the ambush and killing of four Dutch journalists whose reporting was critical of the Salvadoran government and military. Informed of the journalists’ travel plans, soldiers positioned on hilltops shot and killed the four on March 17.

In November 2022, a Salvadoran court charged three former officers of the Salvadoran Security Forces, including Reyes Mena, with the killings. Reyes Mena, who moved to Virginia in 1984, avoided arrest by not returning to El Salvador. He was found guilty in absentia.

In October 2024, the brother of one of the murdered journalists sued Reyes Mena in U.S. District Court for the Eastern District of Virginia under the Torture Victim Protection Act (TVPA), which creates a cause of action against “[a]n individual who, under actual or apparent authority, or color of law, of any foreign nation … subjects an individual to extrajudicial killing.” The district court denied Reyes Mena’s motion to dismiss the action on grounds of foreign official immunity, and he appealed.

Foreign Official Immunity

As explained in TLB’s Primer on Foreign Official Immunity, the immunity of foreign officials from suit in U.S. courts is governed by federal common law (except for foreign diplomats and consuls, who are protected by treaties). Foreign heads of state, heads of government, and foreign ministers enjoy absolute immunity from suit during their tenures in office based on their status. Lower-level officials, and all former officials, are immune from suit only with respect to acts taken in their official capacities, which is often called “conduct-based immunity.”

In Yousuf, the Fourth Circuit held that violations of jus cogens norms of international law are not official acts to which conduct-based immunity attaches. Jus cogens norms are a subset of customary international law norms from which no derogation is permitted, such as the prohibitions against genocide, torture, and extrajudicial killing. Yousuf observed that “jus cogens violations may well be committed under color of law and, in that sense, constitute acts performed in the course of the foreign official’s employment by the Sovereign.” But, the Fourth Circuit continued, “as a matter of international and domestic law, jus cogens violations are, by definition, acts that are not officially authorized by the Sovereign.” As a result, the court concluded, “under international and domestic law, officials from other countries are not entitled to foreign official immunity for jus cogens violations.”

Other courts have disagreed. The Second Circuit, in Matar v. Dichter (2009), refused to recognize what it termed a “jus cogens exception” to immunity, as did the Ninth Circuit in Doğan v. Barak (2019).

The Decision in Kuiper

In Kuiper, the Fourth Circuit held to its position in Yousuf. “[W]hile foreign officials may obtain immunity for official acts that the official committed on behalf of the state,” Judge Niemeyer wrote, “that immunity will not protect the official’s violation of jus cogens norms.” Significantly, the court rejected several arguments to distinguish or limit Yousuf.

A Jus Cogens “Exception”?

Reyes Mena argued that he was a foreign official acting in his official capacity when he allegedly ordered the killings and that there is no “jus cogens exception” to conduct-based immunity. But the Fourth Circuit panel rejected this framing of the question. “To begin,” Judge Niemeyer wrote, “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.”

This is an important distinction. More than a decade ago, I emphasized the need to separate two different questions: (1) whether serious human rights violations are official acts to which conduct-based immunity attaches; and (2) whether courts should recognize a jus cogens exception to foreign official immunity once immunity has attached. Foreign official immunity may attach for various reasons—because a foreign official is a sitting head of state, for example. Conduct-based immunity, however, attaches only to acts taken in an official capacity. Whether extrajudicial killing, for instance, is such an act is a question that is logically prior to whether an exception to immunity should be recognized. If the answer is no—that, extrajudicial killing is not an official act—then immunity never attaches and the question whether to recognize an exception never arises.

In Yousuf, the Fourth Circuit held that jus cogens violations cannot be official acts to which immunity arises. I believe that is the right question and the right answer. The panel in Kuiper was right to reject Reyes Mena’s framing of the issue.

Recognized Versus Unrecognized Governments

Reyes Mena also attempted to distinguish Yousuf on the ground the official’s country in that case, Somalia, had no recognized government to request immunity for him. Although the U.S. government based its own determination that the defendant lacked immunity in part on this fact, the Fourth Circuit’s decision was broader. “Our holding in Yousuf did not rely on the status of the Somali government,” Judge Niemeyer noted, “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.”

The FSIA and the TVPA

Reyes Mena further argued that “no jus cogens exception applies to his claim of foreign official immunity” because Congress did not include a jus cogens exception in the Foreign Sovereign Immunities Act (FSIA). As the Fourth Circuit noted, however, the Supreme Court held in Samantar v. Yousuf (2010) that the FSIA does not address foreign official immunity a all.

Judge Niemeyer went on to note, as did the panel in Yousuf, that Congress’s enactment of the TVPA was “consistent” with its view of conduct-based immunity. As I have noted, the TVPA’s legislative history makes clear that Congress did not expect conduct-based immunity to attach to torture and extrajudicial killing, the two human rights violations for which the TVPA creates express causes of action. Judge Niemeyer went on to cite Judge Srinivasan’s concurring opinion in Lewis v. Mutond (D.C. Cir. 2019), which concluded that the TVPA “displaces any common-law, conduct-based immunity that might otherwise apply.” As I noted last week, the Supreme Court’s recent decision in Exxon Mobil Corp v. Corporación CIMEX, S.A. (Cuba) gives new weight to that argument.

Are Civil Suits Different?

Finally, Reyes Mena tried to distinguish civil suits from criminal prosecutions, suggesting that a jus cogens exception to foreign official immunity should apply only to the latter. This argument was foreclosed, Judge Niemeyer concluded, by Yousuf—another civil suit in which the Fourth Circuit held that jus cogens violations are not official acts.

But this argument was also inconsistent with “the peremptory, universal nature of the norms.” Jus cogens violations are not entitled to immunity, he noted, because they are not sovereign acts.

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.

Again, this seems exactly right to me.

Conclusion

As the Supreme Court has recently closed the door on human rights litigation under the Alien Tort Statute, express causes of action such as the TVPA have become all the more important. Defendants often claim foreign official immunity in such cases, arguing that the torture and extrajudicial killings the committed reflected state policy. The Fourth Circuit’s strong rejection of that argument points the way forward.