Most discussion of disguising the aircraft’s military character has focused on whether doing so violates the law of armed conflict (LOAC) prohibition on perfidious attack, which involves feigning protected status under LOAC to kill the enemy. This article explains that using an aircraft not marked as military in character is lawful during peacetime and that, had there been an ongoing armed conflict (there was not), the attack would not have been perfidious under LOAC. However, if conducted as reported and if an armed conflict had been underway, the operation might have violated a separate LOAC obligation requiring that only military aircraft exercise belligerent rights, such as conducting attacks.

It is important to clarify at the outset that both the first and second strikes on the boat were clearly unlawful on other grounds (see here, here, and here). Moreover, it is difficult to see any operational merit in using an aircraft that appeared to be civilian to conduct the attack, although in the face of the administration’s lack of transparency, the wisdom of doing so is difficult to assess. That said, it is telling that subsequent attacks, which were likewise unlawful, appear to have been carried out by appropriately marked military platforms.

Which Body of Law Governs?

The administration claims that the drug boat strikes took place in the context of a non-international armed conflict to which LOAC rules apply. That claim is simply wrong (see the Just Security collection of articles on the attacks). The U.S. sinkings of alleged drug boats, at least until the U.S. attack on Venezuela (and still in cases lacking a sufficient nexus to that conflict), were governed instead by international law rules applicable in peacetime. This is because neither of the two requirements for the existence of a non-international armed conflict, an armed conflict between a State and an “organized armed group,” was satisfied at the time of the attack (or any time since). As explained previously in greater depth, 1) the drug cartels and gangs concerned do not qualify as “organized armed groups under LOAC, and 2) the violence between the United States and the drug cartels and gangs had not reached the requisite degree of intensity on Sept. 2 (DoD Law of War Manual, § 17.1.1; Tadić, para. 70). 

As a consequence, LOAC rules such as the prohibitions on attacking civilians and civilian objects, the qualification of shipwrecked individuals as protected persons who are hors de combat, and the prohibition on perfidy do not apply. Instead, the strike was an “internationally wrongful act” by the United States in violation of the right to life of those aboard the boat and an act of murder by some of those involved under the domestic criminal law of States that enjoy prescriptive (lawmaking) jurisdiction over the incident, such as the State of nationality of the participants in the strike and of those who were killed (see our discussion here).

As to the aircraft that conducted the Sept. 2 strike appearing to be of civilian character, the Chicago Convention on International Civil Aviation provides that “Every aircraft engaged in international air navigation shall bear its appropriate nationality and registration marks” (art. 20). However, the Convention explicitly excludes “State aircraft,” a category that includes “[a]ircraft used in military… services” from its reach (art. 3; with limited exceptions that are not relevant here). While there is a strong peacetime practice among States of identifying military aircraft using national rondels or insignia, tail markings, serial numbers, and unit or service identifiers, there is no international law obligation dictating how State aircraft must be marked. The use of an aircraft that appeared to have civilian (civil) status to mount the attack made it no more unlawful than it already was.

Did the Attack Violate the Perfidious Attack Rule? (had there been an armed conflict)

As noted, there was no armed conflict, and therefore, no violation of the prohibition on perfidious attack. However, even if an armed conflict had been underway, the use of an aircraft that appeared to be civilian would not, in the attendant circumstances, have qualified as a perfidious attack. 

There is universal agreement that under customary law, it is prohibited to kill or wound the enemy by resorting to perfidy (§ 5.22.2; see also ICRC Customary IHL study, rule 65). The DoD Law of War Manual defines perfidy as “acts that invite the confidence of enemy persons to lead them to believe that they are entitled to, or are obliged to accord, protection under the law of war, with intent to betray that confidence” (§ 5.22.1). A long-standing prohibition (see, e.g., 1863 Lieber Code, art. 16; 1899 Hague II and 1907 Hague IV Regulations, art. 23(b)), in treaty law, it is found in Article 37(1) of the 1977 Additional Protocol I for Parties to the instrument (the United States is not a Party). That provision extends the prohibition to perfidious capture. 

The applicability of the rule in non-international armed conflict is not entirely settled, an important point in light of the (flawed) U.S. claim that the attack occurred in that context. The DoD Law of War Manual discusses perfidious attack only in the context of an international armed conflict (conflict between States), although it does not expressly exclude application in a non-international armed conflict. However, the prevailing, and better, view is that it is likewise barred in such conflicts, with the ICRC setting out strong support for that position in its Customary International Humanitarian Law study’s catalogue of practice. This is also the conclusion of a study by the International Institute of Humanitarian Law (NIAC Manual, § 2.3.6). And the Rome Statute of the International Criminal Court includes perfidy as a war crime in both international and non-international armed conflict (arts. 8(2)(b)(xi) and 8(2)(e)(ix), respectively).

There is no question that civilian status is among the protected statuses that may not be feigned to attack the enemy. Indeed, “feigning civilian status and then attacking” is one of the five examples of perfidious attack in the DoD Law of War Manual (§ 5.22.3). And there is equally no question that the rule extends to aircraft. The international group of experts who prepared the HPCR Manual on the International Law Applicable to Air and Missile Warfare (Harvard AMW Manual) concluded that “[i]t is perfidious for a military aircraft to feign the status of a civilian aircraft,” giving as examples “painting civilian markings on a military aircraft” (commentary to rule 114(b); The Harvard AMW Manual confirmed that leveraging perfidy to “kill or injure an adversary” is unlawful in the aerial environment (rule 111). The Canadian Law of Armed Conflict at the Operational and Tactical Levels manual likewise provides that “using false markings on military aircraft such as the markings of civil aircraft” is among the “examples of perfidy in air warfare if a hostile act is committed” (§ 706(3)(a)). 

The aircraft at issue in the Sept. 2 U.S. strike did appear to be a civilian aircraft. And, while it was apparently squawking its military status, those aboard the boat that it was engaging would have been unable to acquire that signal. However, that does not end the analysis. There are two reasons the Sept. 2 attack would not constitute perfidy had it occurred during an armed conflict (as a reminder, it did not). 

First, a perfidious attack requires a specific intent. As noted in the DoD Law of War Manual, “The key element in perfidy is the false claim to protections under the law of war in order to secure a military advantage over the opponent” (§ 5.22.1, emphasis added). That military advantage can, for instance, be catching the enemy unaware or preventing the enemy from realizing the need to flee. 

Operationally, it is difficult to imagine how such military advantages could have played a role in the U.S. decision to use the aircraft. As has been demonstrated in the 35 drug boat strikes to date (and surely would have been apparent at the time of the first strike at issue here), U.S. forces can attack them with impunity, without risk, and with great tactical success. While it is true that the Sept. 2 strike was the earliest, it is hard to imagine why a very robust force would be concerned that a boat in transit that already had been located by U.S. forces might be able to get away if it spotted a military aircraft in the area, and that therefore they had to employ one appearing to be civilian to lull the crew into complacency. And in terms of vulnerability to attack from those aboard the boat lest they be alerted, it is unlikely that the boats posed much of a threat to intercepting aircraft or vessels had they been identifiable as military platforms – that is, reporting to date has not indicated the boats were armed with weapons that could have posed such a threat. Therefore, it is highly unlikely that the U.S. armed forces conceived a plan to sneak up on the drug boats to execute the strike successfully. This being so, the operation would not amount to perfidy had there been an armed conflict.

A second possible reason is that perfidious attack is limited to circumstances in which the specific intent is to feign protected status in order to kill or wound persons. The prohibition arguably does not extend to actions targeting objects; in other words, killing or wounding must be the intention, not the consequence. As noted in Bothe et al.’s New Rules for Victims of Armed Conflict commentary on Article 37, “sabotage or the destruction of property as such through the use of perfidious deception is not prohibited (page 234; see also Dinstein, page 305).

By this interpretation, even if the U.S. forces intended to feign civilian status to trick the boat crew, if the boat allegedly laden with drugs was the target, not the crew, the requisite intent may not have been present. True, those aboard the boats were almost certainly going to be incidentally killed or wounded. However, if the mission was solely to stop the shipment of drugs, not to deprive the cartels or gangs of those who transport them, that would be relevant to application of the perfidy rule. 

Despite the lack of access to all the facts, the intent requirements described above would seem to preclude characterization of the use of the seemingly civilian aircraft to mount the Sept. 2 attack as perfidy (again, assuming the prohibition on perfidy applies during non-international armed conflict and according to the erroneous U.S. view that such a NIAC was ongoing).

Was the Use of the Aircraft to Conduct the Attack Lawful?

It is well-settled in international law that “only military aircraft are entitled to engage in attacks in armed conflict” (DoD Law of War Manual, § 14.3.3.1; see also UK LOAC Manual, ¶ 12.34). This long-standing rule is based on the authoritative, albeit non-binding, 1923 Hague Rules of Air Warfare (art. 13). 

The Harvard AMW Manual experts agreed with the rule in principle, but concluded that it did not bar the use of civilian aircraft during non-international armed conflict, which the administration (wrongly) claims to have been engaged in on Sept. 2 (Harvard AMW Manual, rule 17(a) commentary). To support its position, it pointed to the use of law-enforcement aircraft during such conflicts. 

No such caveat appears in the DoD Manual, even though it post-dated the AMW project. Similarly, the UK Law of Armed Conflict Manual fails to distinguish the application of the rule in international and non-international armed conflict. And the German Law of Armed Conflict Manual appears to accept the rule in all armed conflict, noting, “Only military aircraft are entitled to conduct air operations. This also applies to all enforcement actions that do not in themselves entail the use of weapons such as intercepting, diverting or forcing to land other aircraft for the purpose of inspection” (¶ 1115).

If the Harvard AMW experts are right, there would be no violation of the limitation. But if the rule applies to all armed conflicts, the question becomes whether the aircraft is of military character. 

The Harvard AMW Manual experts defined a military aircraft as “any aircraft (i) operated by the armed forces of a State; (ii) bearing the military markings of that State; (iii) commanded by a member of the armed forces; and (iv) controlled, manned or preprogrammed by a crew subject to regular armed forces discipline” (rule 1(x), rule 13(j)). The requirement of being marked is based on the Hague Rules of Air Warfare (art. 3). 

The UK’s LOAC manual is in agreement with the marking requirement (¶ 12.10), as is the Canadian Law of Armed Conflict Manual (§ 704) and the German manual(¶¶  349, 1103). By these standards, the aircraft’s failure to be marked as military precludes its qualification as a military aircraft, and therefore it was unlawful for it to exercise the belligerent right of conducting attacks (again, assuming the limitation applies in a non-international armed conflict, and that such a conflict was in fact occurring, which it was not).

Interestingly, the DoD Law of War Manual takes a broader approach: “Military aircraft may be understood as aircraft that are designated as such by a State that operates them. The United States has not ratified a treaty that requires certain qualifications before an aircraft may be designated as military aircraft.” It cautions that while “[m]ilitary aircraft are customarily marked to signify both their nationality and military character … circumstances may exist where such markings are superfluous” (§ 14.3.3). In explanation of when such marking may be superfluous, a footnote cites as an example situations in which “no other aircraft except those belonging to a single state are flown” (citing the 1976 Air Force Pamphlet 110-31). 

Yet, it merits note that the Air Force Pamphlet cited by the DoD’s Law of War Manual also states that “while engaging in combat operations, military aircraft, as entities of combat in aerial warfare, are also required to be marked with appropriate signs of their nationality and military character” (§ 7.4, emphasis added). In other words, it appears that despite the mention of situations in which marking is superfluous in the DoD Law of War Manual, the U.S. position tracks those of other States vis-à-vis the circumstances at hand. At least with respect to belligerent rights, such as the right of attack, the aircraft concerned must be appropriately marked as military.

Conclusions

From the analysis above, a number of conclusions can be drawn about the Sept. 2 use of an aircraft to conduct the attack on the alleged drug boat.

1. As there was no armed conflict, the law of armed conflict, including the prohibition of perfidious attack, was inapplicable. Instead, the U.S. attack violated the right to life of those aboard the boat and may have constituted murder by some of those involved.
2. As the incident did not occur during an armed conflict, there was no requirement to mark the aircraft as a military aircraft.
3. Had the law of armed conflict applied because the situation qualified as an armed conflict (it did not), the rule prohibiting perfidious attack would not have applied since U.S. forces likely did not intend to deceive the adversary to secure a military advantage.
4. Even if U.S. forces did want to deceive those aboard the boat to achieve a military advantage, the prohibition on perfidious attack arguably only applies to situations in which the goal is to kill or wound, not to damage or destroy objects like drugs and boats transporting them (which may have been the case in this strike).
5. Only military aircraft may conduct attacks during an international armed conflict. Whether this rule applies to non-international armed conflict is less settled.
6. To qualify as a military aircraft during an armed conflict, the prevailing view is that aircraft must be marked as such, at least while engaged in combat operations. 
7. If the limitation of attacks to military aircraft applies during a non-international armed conflict, and such a conflict had been underway (it was not), the use of an unmarked aircraft to conduct the Sept. 2 attack would have been a LOAC violation.

The confused and confusing discussion that resulted when the use of a military aircraft to conduct the Sept. 2 attack came to light underscores the importance of first identifying the applicable body of law before rendering legal analysis. It also drives home the unintended knock-on consequences of asserting unsupportable legal claims, as this administration has repeatedly done. Indeed, but for its legally incorrect claim that a non-international armed conflict was underway at the time, the use of an aircraft that was not marked as military would have raised no additional legal issues at all beyond the unlawfulness of the strike itself. 

The post Using an Unmarked Aircraft to Attack an Alleged Drug Boat: Is it Perfidy? appeared first on Just Security.

The most recent illustration of the EU leaning into emergency powers is its reliance on an emergency provision in the EU treaties, Article 122 of the Treaty on the Functioning of the European Union (TFEU), to indefinitely immobilize roughly $246 billion in Russian Central Bank assets and reserves held by European financial institutions, and prevent the enforcement of contrary judgments. The EU also contemplated, but did not ultimately pursue, a follow-on measure that would allow it to borrow against those assets to provide loans to Ukraine to support its reconstruction. Instead, an overwhelming majority of European States agreed to borrow over $100 billion for Ukraine against the EU budget, to be repaid only once Russian reparations arrive. These moves raise serious questions under both international and EU law, and they have quickly triggered a strong political and legal response.

Those concerns notwithstanding, many have sympathized with the desire of major EU players to find creative ways to support Ukraine. We have argued in our article, Emergency Powers for Good, that certain measures at odds with the current international and domestic legal framework could nevertheless be justified. We developed a test that upholds some emergency measures that transform a society rather than returning it to the status quo before the emergency. Our test to justify transformative emergency measures requires a genuine emergency, broad consensus, protection of particularly vulnerable groups, and time limits.

Most U.S. emergency measures that pushed even the limits of the permissive U.S. emergency framework—such as President Joe Biden’s student debt forgiveness plan and Trump’s border wall project—do not pass this stringent test. We had to go back to President George W. Bush’s bailout of the auto-industry, with the support of Democratic congressional leadership and both the outgoing and newly elected-president, to find an emergency measure that would pass our test.

In contrast, we favorably assessed key EU emergency responses to the Covid pandemic, such as the transformative one trillion New Generation EU stimulus package that reshaped the EU economy. Now, we’re revisiting our analysis for the current emergency the EU faces: the growing threat from Russia and the Trump administration’s rejection of the Transatlantic Alliance in favor of peace with Moscow. We argue that although it would have been difficult to justify borrowing against Russian assets, not only because of the strong international law protections for sovereign funds—but also because of forceful opposition from a sizeable minority of European States—the alternative plan to borrow against the EU budget to help Ukraine passes our stringent test.

The “Sleeping Beauty” of the EU Treaties?

Until recently, the EU—ostensibly a creature of limited competences—hardly ever relied on residual emergency authority to make new law. But in the wake of Covid and the Russian invasion of Ukraine in 2022, the EU rediscovered a forgotten emergency provision in its founding treaties: Article 122 TFEU. Article 122(1) provides that

… the [EU] Council, on a proposal from the Commission, may decide… upon the measures appropriate to the economic situation, in particular if severe difficulties arise in the supply of certain products, notably in the area of energy.

Article 122(2) further provides that

[w]here a Member State is in difficulties or is seriously threatened with severe difficulties caused by natural disasters or exceptional occurrences beyond its control, the Council, on a proposal from the Commission, may grant… Union financial assistance to the Member State concerned.

The main advantage of using Article 122 over standard sources of authority is that it allows a super-majority of member States to circumvent more complicated EU lawmaking procedures. Of particular relevance here is the fact that most EU Council decisions related to EU Common Foreign and Security Policy (CFSP) must be adopted unanimously. By contrast, Article 122 only requires a super-majority of member States for a regulation to be approved. Additionally, fewer EU institutions need to opt in for a regulation to be passed under Article 122. Both the EU Council and the Parliament need to agree with the Commission’s proposal in the ordinary legislative procedure.

The appeal of relying on Article 122 should be clear. Unanimity is elusive in a body consisting of 27 member States. Several members have become regular spoilers that effectively veto major EU initiatives or constantly extract exorbitant concessions in return for their vote. And Parliament operates under a different incentive system than the more technocratic Commission and Council.

Yet it was only recently that Article 122 came to the fore of EU lawmaking. Since the current version of the EU treaties entered into force in 2009, the EU invoked Article 122 a total of 22 times. Seventeen of those regulations were enacted after 2020. The EU relied on Article 122, among other instances, to effectively double the EU budget and realign EU investment and energy policies. This was in response to the economic damage wrought by Covid, and the threat to EU energy supply after the Russian invasion of Ukraine. Alberto Gregorio de Merino, the EU Commission’s top lawyer, has called Article 122 the “sleeping beauty” of the EU treaties; a provision that existed in some form since the 1950s, but was only recently rediscovered as a basis for far-reaching EU legislation under the guise of emergency.

More recently, the EU invoked Article 122 to address the war in Ukraine beyond the energy crisis. In March 2025, the Council relied on Article 122 to create the so-called SAFE instrument for the EU defense industry. SAFE provides financial assistance up to €150 billion to EU members to allow them to increase public investments in the European defense industry. The Council justified the use of emergency authority for this measure by citing “the current exceptional security context” and the “need to make urgent and massive investments in the EU’s defence manufacturing capacities.”

The use of Article 122 for this purpose did not go unopposed. The EU Parliament is pursuing   litigation against the Council and Commission, primarily challenging the decision to end-run Parliament by relying on Article 122. The objection is not to the substance of the measure, but rather the use of emergency authority and the truncated procedure it allows—at the expense of the only democratically elected EU body. What the Parliament seeks is for the measure to stay in place, and for member States to be able to borrow and build up their defense industries, until new legislation that accomplishes the same goal with EU Parliament input is passed.

The Russian Central Bank Measures

For some time now, there has been talk of permanently seizing the assets of the Central Bank of Russia or repurposing them to support the reconstruction of Ukraine. But the United States and the EU have stopped short of taking that step. Freezing roughly $300 billion in Central Bank assets between the United States, the EU, and other G7 members was already a stretch. An asset freeze may be justifiable under international law as a countermeasure against Russia’s many violations of foundational international law norms. Yet countermeasures must be temporary and reversible. Permanently seizing central bank assets is a different proposition entirely.

Under international law, central bank assets are immune from execution in foreign States. Unlike the broader law of State immunity, which has developed sizable exceptions for commercial activity over time, the immunity of central bank assets has only grown stronger. Underlying this protection is a combination of reciprocity concerns and respect for the special function central banks preform in national and international economies. The International Court of Justice’s recent ruling in Certain Iranian Assets (Iran v. United States) did not disturb this legal status quo. Although the Court effectively sanctioned the attachment of $1.75 billion in Iran’s Central Bank assets in the United States to satisfy domestic judgements issued in favor of victims of Iran-sponsored terrorist attacks, the ICJ skirted the substance of the central bank immunity question.

On the domestic level, senior members of the Biden administration officially stated they believed the United States lacked domestic or international legal authority to permanently seize Russia’s central bank assets and transfer them to Ukraine. The U.S. Foreign Sovereign Immunities Act explicitly recognizes the immunity from execution of central bank assets. U.S. domestic law gives the president extremely broad authority to regulate economic transactions if he declares a national emergency. But seizure (vesting) authority exists only during an armed conflict in which the United States is a direct participant. There are some relatively narrow exceptions, but none straightforwardly apply to wholesale confiscation of Russian Central Bank assets. Although the United States has certainly played a central role in the Ukraine war, it is highly doubtful it is in an outright state of war with Russia. Nor, we suspect, is this a legal position the Trump administration would be willing to embrace. The political and legal ramifications of the United States essentially declaring war on Russia are a strong deterrent.

By contrast, key EU members have increasingly shown flexibility with respect to the disposition of the Russian Central Bank assets held in EU financial institutions, primarily in Belgium. With the U.S. role and degree of support for Ukraine constantly shifting under Trump, and transatlantic relations in a deep state of disrepair, the EU has found itself isolated in its effort to prevent Russia from further increasing its hold on Ukraine and threatening EU members directly. Supporting Ukraine by tapping into the blocked Russian assets gained political traction.

As a first step, the EU in December again invoked Article 122 to indefinitely immobilize the frozen assets of the Russian Central Bank within its jurisdiction and prohibit their return to Russia. Until now, the EU had to periodically extend the measures freezing the assets, and securing the necessary support from member States each time became taxing and uncertain. Members friendly to Russia, such as Hungary and Slovakia, have separated themselves from the bloc on this issue.

The new immobilization regulation “establishes exceptional and temporary emergency measures addressing the serious economic difficulties within the Union caused by Russia’s actions … and the risk of further deterioration of the economic situation in the Union.” It states that the “measures aim to avoid a serious deterioration of the economic stability in the Union and its Member States by preventing significant resources being made available to Russia to continue its actions in the context of the war of aggression against Ukraine.”

In other words, the regulation frames the situation with Russia as constituting an economic emergency for the Union, and asserts a causal relationship between releasing Russian Central Bank assets and supporting Russia’s nefarious activities affecting the EU. At the same time, the Regulation makes clear that the measure does not alter the property rights in the assets. It highlights the temporary and reversible nature of the action, likely to address concerns under international law. The regulation also makes unenforceable in the EU arbitral tribunal decisions and court judgments that Russia might obtain, building on a controversial line of EU jurisprudence invalidating intra-EU investment arbitration.

While the indefinite freezing of the assets can by justified under international law, the use of Article 122 for this purpose raises substantial questions under EU law. Normally, economic sanctions measures are adopted under the CFSP chapter of the Treaty on European Union (TEU) and Article 215 of the TFEU, which governs economic sanctions (“restrictive measures” in EU speak). Under Article 31 TEU, an EU Council decision adopted unanimously is required as a first step. Clearly, the use of Article 122 in this instance was designed to circumvent opposition by member States more partial to Russia and immunize the immobilization of Russian Central Bank assets against future reversals. Critics within the EU again charged that powerful member States are using emergency authority to circumvent the appropriate, specific legal mechanism for amending EU sanctions.

The objections to the use of Article 122 proved powerful. EU members including Germany sought to rely on the provision to not only immobilize Russian assets, but also to borrow against them to provide forgivable loans to facilitate the reconstruction of Ukraine. That type of action would cross the legal line between temporary and likely permissible freezing of the assets to something that resembles permanent seizure. The EU proponents of the move tried to address the permanence and irrevocability concern by structuring the loans so that the money would be paid back eventually. But that would only happen after Ukraine receives reparations from Russia for the latter’s grave international law violations. We are not holding our breath.

Key EU actors like Belgium, where most of the assets are held, vehemently opposed the initiative and reliance on Article 122 to facilitate it. Scholars argued the move would be unlawful under EU law, because the Union would again be end-running the normal constitutional process specific to restrictive measures and excluding certain members. Eventually, the initiative failed. In late December, the EU approved €105 in loans for Ukraine without involving the Russian assets. Twenty-five of the EU’s 27 member States firmly supported this measure. It is unclear what legal authority the EU will invoke to operationalize such a plan. Article 122 is again a leading contender.

The Correct Role for Emergency Powers

Recent U.S. and EU practice on major regulatory initiatives reveals similar trends of fallback to emergency powers. Emergency authority, by its very nature, entails simplified procedures and broad discretion, giving executives substantial leeway to advance their desired policies when other legal routes are inconvenient or foreclosed. These trends are motivated in part by growing political polarization that makes legislative progress through standard routes difficult or entirely unattainable. They are also a product of increasingly powerful executives who have their own views about what the rule of law entails. And sometimes, they are necessary responses to true crises.

As a legal matter, borrowing against Russian frozen assets against an expectation of unlikely future Russian reparations is likely unlawful under international law. And it would be another untested extension of Article 122 that raises internal EU federalism and separation of powers issues. The latter problem would likewise arise if the loan to Ukraine that the EU Council just greenlit is grounded in Article 122. Although Article 122 broadly refers to measures “appropriate to the economic situation,” it specifies classic economic harms like supply chain disruption or energy crises. Collateral damage from the war in Ukraine and localized Russian aggression does not neatly fit in this category. Indeed, foreign and security policy is an area in which member States reserve their competence. Overriding member States with emergency authority seems to conflict with the limited nature of EU competence. At the same time, the current exceptional situation with Russia is exactly the kind of situation for which emergency authority exists. A broad reading of the text of Article 122 would extend it to this crisis.

That said, perhaps the best way to describe what we have here is an “unlawful but justified” situation. Our framework in Emergency Powers for Good would uphold a formally unlawful emergency measure under certain conditions: a real emergency, temporariness, protection for particularly vulnerable groups and broad consensus in support of the measure. In our view, an EU loan to Ukraine excluding Russian assets would easily meet those tests.

The post The EU Discovers Emergency Powers: Russian Assets Edition appeared first on Just Security.

A curated guide to major news and developments over the weekend. Here’s today’s news:

GREENLAND

In a late-night flurry of posts to his Truth Social account, President Donald Trump doubled down on his threats to take Greenland and said he would meet with European leaders at the World Economic Forum in Davos, Switzerland to talk about the spiraling crisis. He is expected to arrive at the Forum on Wednesday. In one of his posts, he said he’d told NATO Secretary-General Mark Rutte, “Greenland is imperative for National and World security. There can be no going back.” Trump also posted at 12:58 a.m. an AI-generated image of himself in the Oval Office with European leaders and displaying a map where the United States, Canada, and Greenland are covered in the American flag. The Financial Times reports; Michel Rose and Stine Jacobsen report for Reuters.

During his social media spree, Trump also posted screenshots of private messages he’d received from world leaders over Greenland, including one from French President Emmanuel Macron that read, “I do not understand what you are doing on Greenland.” CNN reports.

Trump also criticized the United Kingdom’s decision to hand over the Chagos Islands to Mauritius, a deal his administration previously supported, calling it an act of “great stupidity.” He said it was another reason the United States needed to acquire Greenland. Haley Ott for ABC News.

Over the weekend, Trump continued to push for American control of Greenland, risking damaging relations with Europe beyond the point of repair. Following Trump’s threats of economic coercion and military invasion of a NATO ally, “Veteran observers of European politics said the alliance between Europe and the United States that formed in the aftermath of World War II had already been fundamentally altered,” Michael D. Shear reports for the New York Times.

On Saturday, Trump posted on Truth Social that if the United States did not get a deal to buy Greenland, he would first impose a 10 percent tariff “on any and all goods sent to the United States of America,” from a certain group of European countries in February. He threatened to raise the rate to 25 percent in June. The threats upended months of trade negotiations between the United States and Europe. Adam Gabbatt, Robert Mackey, and Callum Jones for The Guardian.

In response, European capitals are considering hitting the United States with €93 billion in tariffs. “The retaliation measures are being drawn up to give European leaders leverage in pivotal meetings with the US president at the World Economic Forum in Davos this week, officials involved in the preparations said.” Henry Foy and Mercedes Ruehl report for the Financial Times.

In a text message to Norway’s prime minister Trump said that because he was not awarded the Nobel Peace Prize, he no longer felt “an obligation to think purely of Peace,” and therefore was pursuing the “Complete and Total Control of Greenland” in the interests of the United States. The text was forwarded by the White House to multiple European ambassadors in Washington. Geir Moulson and Jill Lawless report for the Associated Press.

Following a weekend of escalating U.S. threats, Denmark deployed additional troops to Greenland on Monday. Richard Milne, Henry Foy, Barbara Moens, and George Parker report for the Financial Times.

Over the weekend, thousands of people marched in Copenhagen to protest Trump’s escalating threats. “The crowd, waving Greenlandic flags, chanted ‘Greenland is not for sale.’ Many demonstrators wore red hats in Trump’s own ‘Make America great again’ fashion that read, ‘Make America go away.’” Barbara Sprunt for NPR.

A small European troop deployment to Greenland last week for an Arctic security exercise was viewed by some European officials as having been misread in Washington and as helping spur Trump’s retaliatory rhetoric and tariff threats, the Financial Times reported, citing officials and diplomats. The move was framed as a show of solidarity with Denmark and an “Arctic security” signal, but some diplomats said the messaging was too subtle or too easily misconstrued, while others doubted any reframing would have changed Trump’s response. Charles Clover, Richard Milne, and Amy Kazmin report.

TRUMP’S “BOARD OF PEACE”

When it brokered a ceasefire deal between Israel and Hamas, the Trump administration announced that a “Board of Peace” would oversee the rebuilding of the Gaza Strip, but it became clear over the weekend that Trump intends it to have a more ambitious mandate, “potentially rivaling the United Nations in what would be a major upheaval to the post-World War II international order,” reports Matthew Lee for the Associated Press.

The Times of Israel published the full text of  the board’s charter, which it says “was attached to the invitations sent out to dozens of world leaders who were asked to join Trump on the panel tasked with overseeing the postwar management of Gaza.”

Trump has named himself chair of the international organization and given himself veto power. He has invited world leaders to join the board, telling them if they pay $1 billion, they can secure a permanent seat while those countries that do not pay will have a three-year membership. “On Friday, Trump announced seven members on a founding executive board, including his son-in-law Jared Kushner, Secretary of State Marco Rubio, Middle East envoy Steve Witkoff and former British prime minister Tony Blair. Three others include World Bank President Ajay Banga, deputy national security adviser Robert Gabriel and billionaire private equity chief Marc Rowan.” Lauren Kaori Gurley and Michael Birnbaum report for the Washington Post.

France rejected Trump’s offer to join the “Board of Peace” and Trump responded on Monday by threatening a 200 percent tariff on French wine. The statement from the office of French President Emmanuel Macron said the board’s charter “goes beyond the framework of Gaza and raises serious questions, in particular with respect to the principles and structure of the United Nations, which cannot be called into question.” Clea Caulcutt for POLITICO.

Trump invited Russian President Vladimir Putin and Chinese President Xi Jinping to join the Board of Peace. “Later on Monday, the Belarusian Foreign Ministry said President Alexander Lukashenko also received an invitation to join the board.” Ivana Kottasová and Anna Chernova for CNN; Bloomberg reports.

Israel has also been invited, two sources briefed on the matter told Reuters, though it was not immediately clear whether Israel has accepted. Reuters reports.

Trump wants to hold a signing ceremony for the Board of Peace this week at Davos, which, along with the crisis over Greenland, is “transforming this week’s annual gathering of the global elite into an emergency diplomatic summit.” Cat Zakrzewski and Emily Davies report for the Washington Post.

MINNESOTA

Minnesota Gov. Tim Walz mobilized the state’s National Guard on Saturday to support local law enforcement and emergency agencies as protests continue in Minneapolis over federal immigration enforcement, though troops have not been deployed to city streets and remain “staged and ready to respond.” Guard units have been pictured preparing equipment and are expected to assist with public safety and protection of peaceful assembly should conditions deteriorate. Holly Yan, Hanna Park, Sydney Bishop, Zoe Sottile report for CNN.

Up to 1,500 active-duty U.S. soldiers, primarily from two infantry battalions of the Alaska-based 11th Airborne Division, have been placed on prepare-to-deploy orders for a possible mission to Minnesota, the Pentagon confirmed to reporters, though no decision has been made on whether the troops will actually be sent. Konstantin Toropin reports for the Associated Press.

The Justice Department has opened a criminal investigation into Minnesota Governor Tim Walz and Minneapolis Mayor Jacob Frey over whether their public statements unlawfully impeded federal immigration enforcement, with grand jury subpoenas issued as part of the probe but not yet received by either office, according to people familiar with the matter. Officials said the investigation is proceeding under a rarely used Civil War–era obstruction statute, based on a theory that state and local leaders conspired to interfere with federal agents. NBC News reported the statute was highlighted in a recent memo from Attorney General Pam Bondi that outlined legal tools prosecutors could use to pursue cases against individuals the administration has described as domestic extremists. Ryan J. Reilly and Peter Alexander report for NBC News.

On Friday, a federal judge in Minneapolis ordered ICE agents and other immigration officials to stop using excessive force against protesters while conducting their operations in the city. The judge’s order included detailed accounts of how ICE agents are treating people in the city: “A protester detained, her bra removed and wedding ring cut off, and some of her clothes never returned. The ‘gratuitous deployment’ of pepper spray. A couple’s car surrounded by agents, who pointed semiautomatic weapons at them at close range.” Stephanie Saul reports for the New York Times.

On Monday, the Trump administration said it was appealing the judge’s preliminary injunction. Mitch Smith for the New York Times.

The Justice Department is also asking the court to allow its surge of ICE agents in Minnesota to continue after a lawsuit was filed last week by state and local officials claiming that the deployment was unconstitutional. Minnesota had pushed for the federal judge to immediately block the deployment of 3,000 federal agents but she made no rulings last week. Mitch Smith reports for the New York Times.

Multiple attorneys say people being detained during ICE operations in Minnesota are being denied the constitutional right to see an attorney by the Department of Homeland Security (DHS). “Four attorneys told ABC News they have been denied access to their clients at the Bishop Henry Whipple Federal Building in Minneapolis, where they are being held,” Matt Rivers, Janice McDonald, and Armando Garcia report.

The FBI determined shortly after Renée Good’s killing that “sufficient grounds existed to open a civil rights probe into the actions of Jonathan Ross, the officer who shot Good.” The Justice Department says no such investigation exists. Perry Stein reports for the Washington Post.

Protesters interrupted a church service in St. Paul, MN, on Sunday. Protesters chanted outside a church where one of its pastors appears to also be the acting director of ICE’s field office for enforcement and removal operations in St. Paul, Lauren McCarthy, Maia Coleman, and Emily Cochrane report for the New York Times.

The Justice Department’s Civil Rights Division will investigate Sunday’s church protest, officials said. Assistant U.S. Attorney General Harmeet Dhillon cited violations of the Freedom of Access to Clinic Entrances Act. Andy Rose and Elise Hammond report for CNN.

IRAN

Iran’s judiciary signaled Sunday that some people involved in the recent unrest could still face execution, despite Trump’s suggestion otherwise. Judiciary spokesperson Asghar Jahangir said certain protest-linked conduct is being treated as “moharebeh,” or “waging war against God,” an offense that can carry the death penalty, and warned the cases would be “quickly prosecuted and punished.” He also said anyone who “collaborates with the enemy” during unrest would be punished under “clear” legal provisions. Billy Stockwell reports for CNN.

Iranian protester Erfan Soltani remains alive and in good physical health after fears he would be executed on Wednesday, a relative and a human rights group said. CNN.

A senior Iranian official confirmed the death toll from last week’s protests has topped 5,000, including about 500 members of the security forces, with some of the deadliest unrest in Iran’s Kurdish northwest. Reuters reports.

SYRIA

After several days of clashes, Syria’s government and the Kurdish-led Syrian Democratic Forces (SDF) reached a ceasefire agreement on Sunday, with President Ahmed al-Sharaa and SDF commander Mazloum Abdi agreeing that the SDF would pull back from key Arab-majority areas including Raqqa and Deir al-Zor. The deal also contemplates the SDF’s integration into Syria’s armed forces and the handover to Damascus of oil and gas sites, border crossings, and detention facilities holding Islamic State suspects. The Associated Press reports.

Turkish officials said Monday that the agreement’s terms to cede territory to Damascus could clear Ankara’s main impediment to restarting Turkey’s stalled peace process with the PKK, the Kurdish separatist group. Reuters.

An unknown number of Islamic State (IS) detainees escaped from Shaddadi prison in Syria’s Hasaka region amid renewed fighting around the detention facilities in the northeast and a security breakdown that left control of the site contested, with Damascus and the SDF trading blame over how control was lost. The SDF said the prison—one of three the SDF controls in the Hasakah region—came under repeated assault by “Damascus factions” and that its forces repelled the attackers several times before temporarily losing control, adding that several of its fighters were killed and more than a dozen others wounded. Ghaith Alsayed for the Associated Press.

Syrian authorities said around 120 IS detainees escaped from Shaddadi prison, adding that government forces moved into the area after the breakout and had recaptured 81 during sweep operations, with searches ongoing. Kurdish outlet Rudaw, citing an SDF spokesperson, put the number far higher—around 1,500 escapees. Reuters.

The SDF said it made repeated appeals to a nearby U.S.-led coalition base for assistance during the assault on Shaddadi prison by “Damascus factions,” but that the coalition did not intervene. The SDF added that dozens of its fighters were killed or wounded while defending the facility. Reuters.

U.S. Central Command said a U.S. strike in northwest Syria on Friday killed an Al Qaeda affiliate leader, Bilal Hasan al-Jasim, whom it described as “an experienced terrorist leader.” CENTCOM said al-Jasim helped plan attacks and was directly linked to the ISIS gunman who carried out the Dec. 13 ambush near Palmyra that killed two U.S. service members and an American interpreter and wounded other U.S. and Syrian personnel. ​​Marlene Lenthang reports for NBC News.

TARIFFS AND OTHER U.S. DOMESTIC DEVELOPMENTS

If the Supreme Court rejects the legal foundation for Trump’s tariff program, the administration would move “the next day” to reimpose similar levies under other authorities, U.S. Trade Representative Jamieson Greer said. In a Jan. 15 interview, Greer said the White House has “a lot of different options.” Ana Swanson for the New York Times.

U.S. consumers and importers paid about 96 per cent of the cost of last year’s U.S. tariff increases, with foreign exporters absorbing only about 4 per cent through lower prices, new research from the Kiel Institute for the World Economy found—cutting against Trump’s repeated claim that foreigners are footing the bill. Using roughly $4 trillion in shipment data from between Jan. 2024 and Nov. 2025, the researchers also found that after surprise tariff hikes on Brazil and India in August 2025, exporters largely did not cut unit prices to offset the tariffs, instead shipping less to the United States, pointing to higher U.S. prices over time and reduced export volumes rather than “foreign-paid” tariffs. Tom Fairless reports for the Wall Street Journal.

The National Guard will remain deployed in Washington, D.C., through 2026. About 2,400 troops are currently stationed in the city and they are mostly from Republican-controlled states. Steven Beynon reports for ABC News.

The three highest-ranking U.S. Catholic archbishops said Monday that recent U.S. actions on Venezuela, Ukraine, and Greenland raise “basic questions about the use of military force” and have put America’s moral role “under examination.” Michelle Boorstein and Anthony Faiola report for the Washington Post.

Chief Immigration Judge Teresa Riley emailed immigration judges instructing them that they are not bound by federal court rulings requiring bond-hearing eligibility for many detainees, according to documents the ACLU of Massachusetts filed with a Boston federal court Friday. The ACLU said the directive shows a deliberate effort to disregard those rulings, with a hearing scheduled for today. Reuters reports.

TRUMP ADMINISTRATION LITIGATION

A D.C. federal judge declined to pause the administration’s new seven-day notice requirement for congressional visits to ICE detention facilities, explaining in a Monday order that the policy constitutes a new agency action not covered by her prior ruling and that the lawmakers raised the challenge through the wrong procedural mechanism.  Michael Kunzelman reports for the Associated Press.

According to an international coalition of lawyers’ groups, it is now dangerous to be a lawyer in the United States. “The Day of the Endangered Lawyer, an annual event to raise awareness of risks to members of the profession, has in recent years picked Belarus, Iran and Afghanistan as its subject. For 2026, it has chosen the US.” Kaye Wiggins for the Financial Times.

Did you miss this? Stay up-to-date with our Litigation Tracker: Legal Challenges to Trump Administration Actions

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ICYMI: Yesterday on Just Security

On Martin Luther King Jr. Day, Let Not Arrogance Be Our Doom

by Bishop Garrison

The New Civil Rights “Backstop”: How DAs and AGs Can and Must Investigate ICE Abuses

by Jonathan Wroblewski

The post Early Edition: January 20, 2026 appeared first on Just Security.

Arrogance, the antithesis of that humility, is pernicious. It spreads like wildfire, consuming everything around it and leaving in its destructive wake the smoldering ash of relationships, friendships, and partnerships. Its bellowing smoke clouds vision, isolating and insulating individuals and organizations from constructive criticism and innovative thought. In the private sector, arrogance may yield short-term gains but is ultimately disastrous for sustained success. To phrase it more succinctly, if you’re lucky, you might get rich, but it will never make you truly wealthy.

In the public sector, the impacts of arrogance are more egregious, with consequences rippling across communities, academia, cultures, ethnicities. When viewed further through the lenses of national security and foreign policy, the effects can be cataclysmic: families destroyed, lives lost. These ramifications may last for years, if not generations, eroding trust in institutions, safety within communities, and confidence between allies. For instance, according to a Gallup poll in May 2025, 69 percent of adult Americans have little to no trust that the government works in the best interest of society.

On this day dedicated to his memory, we recall the words of Rev. Dr. Martin Luther King, Jr., who, like Eisenhower, spoke of humility and of arrogance. He viewed the U.S. government’s overconfidence as a blight founded in hypocrisy, staining the character of the nation and its citizens. During his April 1967 address in support of ending the Vietnam War and in the shadow of segregation, King delivered this message with blunt elegance:

…But honesty impels me to admit that our power has often made us arrogant.

We are arrogant in our contention that we have some sacred mission to protect people from totalitarian rule while we make little use of our power to end the evils of South Africa and Rhodesia, and while we in fact support dictatorships with guns and money under the guise of fighting communism.

We often arrogantly feel that we have some divine, messianic mission to police the whole world. We are arrogant, as Senator Fullbright has said, to think ourselves “God’s avenging angels.” We are arrogant in not allowing young nations to go through the same growing pains, turbulence and revolution that characterized our history.

We are arrogant in professing to be concerned about the freedom of foreign nations while not setting our own house in order. …Our arrogance can be our doom.

Fifty-nine years later, this theme remains salient as a foundational thread within national security and foreign policy. Recent events do not simply mimic the maelstrom of domestic and international turmoil in King’s era but are deeply committed reenactments of those same egotistical decisions across multiple areas of policy.

As concerns rise about the dawn of a budding technocracy, federal guardrails meant to ensure the least harm possible from emerging technologies are currently all but nonexistent. Thus far, the Trump administration has declined to close the gap, stating: “To win, United States AI companies must be free to innovate without cumbersome regulation.  But excessive State regulation thwarts this imperative.” State legislatures are attempting to fill the vacuum, but in doing so they create an inconsistent tapestry of regulation that is difficult for any person or group working in multiple jurisdictions (as almost all today are) to navigate. In the meantime, unchecked AI tools are currently used in an array of nefarious activity from housing redlining to the generation of pornography, including content involving children. Contrary to the government’s purported belief that a self-regulated industry will do the least harm, historical evidence shows that strong public governance in coordination with industry provides the best outcomes.

In foreign affairs, the United States’ capture of Venezuelan President Nicolás Maduro, and its claims of responsibility for the governance and oil of the country, is yet another chapter in American nation-building. The government conducted the removal while the Maduro regime remained in power, despite assurances that this type of interventionism would never happen again. Instead, coupled with multiple Venezuelan operations leading up to the Maduro raid, in the last year alone the United States has conducted airstrikes in Yemen, Syria, Nigeria, Somalia, and Iran with more likely to come. The current overarching U.S. foreign strategy is steeped in American exceptionalism, nationalism, and power projection, and evokes the bravado consistent with the historic critiques of the American military as a “world police force.” It is a call back to King’s remarks on the government’s internal perception of itself as “God’s avenging angels” with everything to teach and nothing to learn.

Domestically, the use of Immigration and Customers Enforcement (ICE) in widespread roundup operations – reportedly to capture “the worst criminal” noncitizens – has led to the erroneous arrests and deportation of individuals with a valid, legal status, including U.S. citizens. Inspections of facilities have declined as detention rates and deaths in custody have steadily risen according to a new report from the Project on Government Oversight (POGO), based on the 2025 data provided by Homeland Security. A number of those arrests have been conducted without warrants or probable cause, in violation of the individuals’ constitutional rights. Human rights groups reported detainees have been held in substandard conditions – such as those found in the notorious “Alligator Alcatraz” Floridian detention facility – akin to the conditions the United States often condemned as inhumane in other countries. In another instance, the government has reopened arguably unhealed wounds, utilizing the former site of a World War II Japanese internment camp to house immigrants. That facility was recently the site of an immigrant detainee’s death that the medical examiner is reportedly likely to  classify as a homicide.

Additionally, ill-prepared and trained ICE agents with limited background checks have engaged citizens, in what some former senior ICE officials and experts have identified as violations of agency procedures and conduct, sometimes with violent and fatal results. Images of these events draw comparisons to civil unrest abroad and harken back to memories of King’s civil rights era: military-style uniforms and masks similar to those used in Venezuela by the Special Action Forces (FAES) and Iranian security forces; regular use of smoke and gas grenades; deaths of unarmed civilians; and the detention of legal bystanders who speak up.

Alongside these events, the United States’ recent pressure and threats against longstanding NATO allies over desires to acquire Greenland sent diplomatic shockwaves through Western stability. The U.S. has long maintained a base on the island that is currently being expanded under previously agreed-to terms. Approximately 150 American service members are stationed at Pituffick Space Base in Greenland alongside hundreds of Canadian, Danish, and Greenlandic troops. The territory’s government stated the U.S. military could have easily expanded its footprint with the support of both Denmark and Greenland’s governments. Instead, the Trump administration’s offer to buy the autonomous territory outright and a rumored plan to pay citizens directly have been rebuffed by the government. Polling indicates both citizens of Greenland and the United States are against it. This aligns directly with King’s warning: “We [The U.S. government] feel that our money can do anything.”

Still, tensions around this issue persist. “Nobody’s going to fight the United States militarily over the future of Greenland,” Senior White House Advisor Stephen Miller defiantly proclaimed during a national news interview. He refused to discuss the potential use of force to acquire the territory even if Greenlandic officials continue to reject U.S. conservatorship. Now, numerous leaders within the European Union and Parliament have strongly condemned U.S. official statements on the issue, and allied soldiers recently deployed to conduct military exercises on the island. On Jan. 17, President Donald Trump announced tariffs beginning Feb. 1 against several NATO countries supporting Greenland with a June 1 deadline to increase percentages to 25 percent if the territory wasn’t sold to the United States by that time.

With all the evolving challenges facing the United States, a fundamental question exists: What type of citizen of the global community does America want to be, and what values define our country? The United States has never been able to achieve any strategic victory alone, yet now it dives deeper into isolation. We do this while leveraging the same tactics used by those we removed from power, labeling them dictators against democracy. How is that “peace through strength”?  Strategic bombings of authoritarian regimes in support of civic upheaval while, domestically, unnamed masked agents conduct sweeping raids, threatening lawful citizens with arrest, will not achieve Eisenhower’s “peace with justice.”

In his closing remarks from that storied speech, King spoke of hope through his own patriotism and love of country.

Let me say finally that I oppose the war in Vietnam because I love America. I speak out against it not in anger but with anxiety and sorrow in my heart, and above all with a passionate desire to see our beloved country stand as the moral example of the world…

The U.S. government, through a constitutional structure of checks and balances in equal branches of government, is inherently imperfect. The Constitution’s preamble immediately references the mission of creating “a more perfect Union” as its guiding principle. The document has required 27 amendments throughout the 237 years since its 1788 ratification. Yet, in that imperfection we have remained resilient, maintaining the promise of hope for all those who dream of a better future. We always strive to be more perfect, to be better.

The actions of the U.S. government – all within the first year of the administration’s term – do not embody the “shining city upon a hill” or invoke the pride of the words captured in “The New Colossus,” etched in bronze on the side of our international symbol of freedom:

…cries she
With silent lips. “Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!

Instead, these acts are materials in the construction of a house of hubris, and this house – our house – is on fire. With humility and our collective morals and values we must extinguish the flames, or “our arrogance will be our doom.”

The post On Martin Luther King Jr. Day, Let Not Arrogance Be Our Doom appeared first on Just Security.

Holder spoke about how, when values are shared, there are great benefits of concurrent state and federal criminal jurisdiction, the “most important” one being “the ability of state and federal law enforcement officials to work together as partners in the investigation and prosecution of serious crimes.” Working together reinforces for the public the principles of equal treatment under law and that those exercising government power and force – including deadly force – must be held accountable when they don’t meet minimum standards of decency and restraint. Working together also reinforces the idea that all of us, united and regardless of the past and historical divisions from where we come, support dignity and fair treatment for everyone. Holder recounted successful civil rights enforcement partnerships of state and federal law enforcement in South Carolina, Georgia, and Indiana. And he described a Memorandum of Understanding between the National District Attorneys Association and the Department of Justice that embodied the spirit of unity and why it’s so important. He said –

The MOU is intended to foster a more cooperative approach by local, state and federal authorities in the investigation and prosecution of color of law and hate crimes cases. It requires early communication among local, state and federal prosecutors to explore the most effective way to investigate these cases and to utilize the best investigative resources or combination of resources available. There are many benefits to such an approach: it encourages the use of coordinated or joint local, state and federal investigations in those instances where coordinated or joint investigation is in the best interest of justice; it decreases time delay between local, state and federal authorities about these important cases; and it increases public confidence in the criminal justice system. It is this type of cooperative effort, endorsed by the Department of Justice and the National District Attorneys Association, that maximizes all of our law enforcement capabilities in these important cases.

From Cooperation to Disunity

Unfortunately, division is a foundational part of our country’s history, and, accordingly cooperative law enforcement is not the norm, especially around civil rights. In fact, any fair reading of American history shows that working together in the enforcement of civil rights has been the rare exception.

And now, over the last weeks and months, that division has been forcefully exploited and reasserted by the Trump Administration. There will be no cooperation, for example, between federal and Minnesota law enforcement in the investigation of the ICE agent who killed Renee Good. There will be no federal civil rights investigation at all. Given what we know already, this has led not just to outrage from many career prosecutors in the Justice Department’s Civil Rights Division and the U.S. Attorney’s Office in Minnesota, but to outright resignations.

From the time of its enactment in 1866, the Civil Rights Act, the basis for 18 U.S.C. § 242, the law under which federal authorities investigate and prosecute excessive force incidents by those acting “under color of law” has been controversial and has raised federalism and many other concerns. In years past, federal prosecution was seen by many who were dubious of civil rights laws in the first place as an encroachment on state sovereignty. A political and pragmatic compromise was forged over time, with the Justice Department adopting what it called a “backstop policy” for criminal civil rights investigations. Under the policy, when state or local authorities undertake a “good faith” investigation into an act of possible law enforcement misconduct of a hate crime, the Justice Department defers to such investigation and foregoes its own involvement. As Holder explained it to the Judiciary Committee –

. . . the Department works with state and local officials and would generally defer prosecution in the first instance to state and local law enforcement. Only in highly sensitive cases in which the federal interest in prompt federal investigation and prosecution outweighs the usual justifications of the backstop policy would the federal government take a more active role. Under this policy, we are available to aid local and state investigations as they pursue prosecutions . . . Under this policy, we are also in a position to ensure that, in the event a state cannot or will not vindicate the federal interest, we can pursue prosecutions independently.

For many, the backstop policy was at least partially a copout and a failure. Despite many heroic federal civil rights prosecutions (full disclosure: I prosecuted criminal civil rights cases in the Criminal Section of the Civil Rights Division for five and a half years), during the post-Reconstruction era, the era of Jim Crow, and even to today, many critics believe there has been insufficient federal assertion of its constitutional responsibility to oversee state and local law enforcement and ensure that the principles of the 14th Amendment – that no person should be denied life or liberty by those acting under color of law without due process of law – were upheld.

But whether federal enforcement was sufficient or not in practice, there is no denying that federalism and the basic post-Civil War constitutional structure – a system of divided and shared power between the federal and state governments – can serve as a force, albeit perhaps inadequate, pushing back against abuses of power by one part of our government or too much power accumulating in one level of it. When power is abused in federal, state, or local government, federalism provides paths for other levels of government to address the underlying problems such as civil rights deprivations, sometimes through criminal investigation and prosecution and sometimes through other means.

Many times, those paths and the pushback of one governmental entity against another lead to unsatisfying results, such us in recent years when fatal police shootings that seem to many to be excessive do not lead to convictions. But serving as a backstop and investigating allegations of misconduct, even when ultimately not fully satisfying, serves as a check. It provides, at a minimum, some affirmation of the values of justice and fairness, and as resistance to the abuse of power. It is a critical feature of our constitutional order, even when only partially successful.

State and Local Law Enforcement Authorities As the New Backstop, albeit with many challenges

Federal and state roles in the protection of civil rights have, in many ways, now reversed. Federal law enforcement is carelessly and recklessly violating rights. It is projecting both the President’s quest for power and his desire to punish those who disagree with him. At the same time, federal civil rights enforcement is being methodically eliminated. When all this happens, there is an imperative for state and local officials to serve as a new backstop; to respond and investigate allegations of federal and local misconduct.

As is true when the federal government acts as a civil rights backstop, state and local action here will be difficult and may not be wholly satisfying either, especially when reviewing federal law enforcement action. State and local prosecutors face serious constitutional and practical obstacles to bringing criminal cases against federal officials who violate state law. An important one is American federalism itself, which defines the delicate balance of federal and state authority. Fundamental to the boundaries of authority is the Supremacy Clause of Article VI. It establishes that that federal laws are the “supreme Law of the Land” and take precedence over conflicting state laws. It ensures that the national government’s legitimate powers can be exercised without interference from state governments. And it has meant that legitimate acts of federal officials cannot be prosecuted under state law. That architecture has served important values. It is why federal marshals could not be prosecuted for trespassing or other state crimes under Mississippi law for escorting James Meredith to register as the first African-American to attend the University of Mississippi. The same principal applies equally when federal officials use force, including deadly force. In 1890, in In re Neagle, 135 U.S. 1 (1890), the Supreme Court held that a federal marshal was immune from state prosecution for actions necessary to protect a Supreme Court justice’s life. The marshal shot and killed a man who attacked the justice. The Court ruled that because the shooting was within the marshal’s federal duties, he was immune from state prosecution.

But the Court also made clear that when a federal official’s actions are not “necessary and proper” to fulfilling official responsibilities, the possibility of state prosecution remains. Drawing the line between legitimate federal law enforcement use of force – necessary and proper to fulfill law enforcement responsibilities – and illegitimate and excessive use of force can be difficult. Sometimes it requires frame-by-frame analysis. It is part of finding the right balance of federalism and the rule of law, one that maintains the legitimacy and public trust in our constitutional order. It’s what makes this kind of backstop work difficult and often unsatisfying. And if recent Court decisions are any guide, we can be fairly certain that this Supreme Court will guard the constitutional boundaries surrounding the President and presidential power very carefully.

The same federal courts that have recognized that federal officials are insulated from state prosecution for the legitimate and reasonable exercise of federal law, though, have also clearly recognized that state criminal law provides an important check against the abuse of power by federal officials acting outside the scope of their authority. There is a long history of state action against federal officials who act outside their legitimate authority and violate the civil rights of those in this country. The Supreme Court has also made clear that “[a]n employee of the United States does not secure a general immunity from state law while acting in the course of his employment.”

 In the 1879 case of Tennessee v. Davis, a federal revenue collector was charged with state murder, in an incident that occurred while enforcing federal revenue laws and seizing equipment used in illicit distilleries. The revenue collector claimed he was assaulted and fired upon by a number of armed men, and that he returned fire only in self-defense. The Supreme Court allowed the case to proceed – though, in terms of venue, for the trial to be removed to federal court under a removal statute that still exists in form today. More than a hundred years later in Mesa v. California, in 1989, the Supreme Court allowed a postal worker to be prosecuted in California state court for manslaughter after the mail truck she was driving collided with and killed a bicyclist. Also in the 1980s, in Arizona v. Manypenny, the federal courts upheld a state conviction of a border patrol agent for shooting a Mexican man.

The Manypenny case is particularly instructive.

The agent, William Manypenny, was on duty near the Arizona/Mexico border, patrolling federal land in Pima County, Ariz. Manypenny and his partner, in plain clothes, confronted three Mexican men who were traveling north. The partner ordered the men to stop. One of the men turned and ran back south toward the border. Manypenny shouted for the man to stop. When he didn’t, Manypenny fired his shotgun three times in the man’s direction, hitting him in the upper spine, severing the spinal cord and leaving him a quadriplegic. Manypenny was later indicted, under Arizona law, for assault with a deadly weapon for shooting the man. A jury convicted him, but the trial judge set aside the conviction. The State of Arizona appealed, and after the Supreme Court approved of the appellate procedure, the court of appeals held that the judge’s entry of judgment of acquittal was error and reversed it.

Throughout American history, cooperative state-federal enforcement of civil rights has been the exception rather than the rule. More often, the Justice Department faced resistance to robust civil rights enforcement by the states, and through the Civil Rights Division had to step in as the backstop to ensure a proper response to the abuse of power by law enforcement. Now, the states face resistance from the Justice Department to legitimate and robust civil rights enforcement. Occasionally in the past, state and local authorities have stepped in when federal officials, under color of their authority, committed acts beyond that authority. Such investigations and prosecutions are rare in part because state authorities must show that they are not prosecuting federal officials who are carrying out their duties in good faith but rather are prosecuting because those officials engaged in unlawful conduct under the guise of federal law enforcement.

The capacity and willingness of state and local prosecutors to act, not in contravention of legitimate federal interests, but in defense of their citizenry when federal actors exceed their legal bounds, is not only consistent with the structure of American government but vital to it. Such efforts serve to ensure that the law applies equally to all, regardless of office, and are a fundamental safeguard of public confidence in the administration of justice. It is a feature of federalism.

 The Role of Civil Society

With the dramatic expansion of ICE and the limited vetting and training of new agents being deployed around the country, oversight is critical. The actions of the Trump administration mean that such oversight is now left largely to state and local government action. But our circumstances also demand something of the rest of us. We need to support those state and local officials who are taking up this new responsibility. The Trump administration has already resisted any cooperation with state and local officials examining federal enforcement in the case of Jonathan Ross; it has refused to share information and evidence about the shooting of Good with Minnesota officials. It will also undoubtedly retaliate against those local officials who examine federal enforcement in ways that are themselves abuses of power. We cannot ask state officials to put themselves in the line of the administration’s fire if we are not prepared to back them up.

 In that vein, I recently worked with members of the American Bar Association’s Criminal Justice Section to develop a resolution that “recognizes both the necessity of protecting legitimate federal functions and the equally compelling obligation to ensure that federal authority is not abused.” It publicly supports state and local officials who initiate the kind of difficult investigations of federal law enforcement accused of abuse. As the ABA report accompanying the resolution states, “[u]pholding the rule of law and public rights sometimes requires principled action by state and local authorities, free from political or institutional pressure, to hold all officials – federal or otherwise – accountable before the law.”

This resolution encourages appropriate action by state and local prosecutors to fill any accountability gaps when federal officers act outside the limits of their lawful authority and commit crimes under state law. In so doing, it affirms a commitment to a government of laws, where checks and balances are preserved, and where no person is above accountability. It is a small gesture of support to the men and women in the offices of Attorneys General and District Attorneys across the country who will courageously step in to protect all of our rights. We need to find other ways to support them.

AGs, DAs, and other state officials also must extend their oversight and pushback to excessive force beyond just criminal investigations and prosecutions. As Samantha Trepel indicated in an earlier essay in these pages, because of the challenges of criminal prosecutions of federal officials, states should – and are – pursuing creative methods to, at the very least, document perceived abuses. Governor JB Pritzker of Illinois created the Illinois Accountability Commission, “which aims to gather evidence of potentially unlawful conduct by federal agents, to support referrals to investigative agencies,” and make recommendations for changes to existing laws to better protect state residents. Other states and cities have created online portals that residents can use to report misconduct by federal agents (e.g., Minnesota). And more can be done. It’s all part of a necessary response to an excessively aggressive federal law enforcement deployment across the country, one that threatens the civil rights of so many, and one that federalism demands the hard work of our AGs, DAs, and all of us.

The post The New Civil Rights “Backstop”: How DAs and AGs Can and Must Investigate ICE Abuses appeared first on Just Security.

• Military Force Will Not Help the People of Iran
  by Dalia Dassa Kaye

U.S. Actions Related to Venezuela

• War Powers, Venezuela, Drug Boats, and Congress
  by Tess Bridgeman and Brian Finucane
• A Law of the Sea Assessment of the U.S. boarding of the Bella 1 / Marinera
  by Rob McLaughlin and Conor McLaughlin

U.S., Greenland, and NATO

• Collection: U.S., Greenland, and NATO
  by Just Security
• The North Atlantic Treaty and a U.S. Attack on Denmark
  by Michael Schmitt
• Trump Is Right About Greenland — Wrong About How to Secure It
  by Frank A. Rose
• How Congress Can Preserve NATO and Greenland: Using 22 USC 1928f to Protect the Peace
  by Alberto J. Mora

Emerging Technologies

• Key Trends that Will Shape Tech Policy in 2026
  by Just Security

Immigration / Law Enforcement

• DHS, DOJ and Customs & Border Patrol Policies: Use of Deadly Force and Moving Vehicles
  by Ryan Goodman

Symposium: Treaty on Crimes Against Humanity

• Negotiating a Treaty on Crimes Against Humanity – Introduction to the Joint Symposium
  by Chiara Giorgetti and Amb. Franz Perrez
• Overview of the ILC Draft Articles for a Crimes Against Humanity Convention
  by Sean Murphy
• The Prosecution of Crimes against Humanity: a National Perspective
  by Stephanie Egerer-Uhrig

International Law

• 80 Years After Nuremberg, Envisioning the Future of International Law
  by Jeremy Pizzi and Maksym Vishchyk
• Proving Genocide: Party Presentation
  by Adil Ahmad Haque

Global Governance

• Who Will Stand Up for Human Rights in 2026 – and How?
  by Andrew Friedman and Kimberly Hart
• The United States in Retreat
  by Julian Simcock and Chris Lu
• Legal and Practical Implications of the U.S. Withdrawal from the U.N. Framework Convention on Climate Change
  by Sue Biniaz and Jean Galbraith

Tracker: Legal Challenges to Trump Administration Actions (Updated)

• Litigation Tracker: Legal Challenges to Trump Administration Actions
  by Just Security

The post Digest of Recent Articles on Just Security (Jan. 11-16, 2026) appeared first on Just Security.

Now, with the likelihood of unrest and government crackdowns continuing, the possibility of a second U.S. attack remains viable. Iran’s people deserve international support as they endure what may prove to be the most brutal suppression in the history of the Islamic Republic. But the quick pivot to considering military force without serious domestic debate in the United States or clarity about what force is meant to achieve, and whether this is the best way to help the Iranian people, is alarming. The President and other senior officials have offered mixed messages on the purpose of military threats, suggesting goals ranging from the protection of protesters, the possibility of regime change, the promotion of freedom and democracy, striking more favorable diplomatic deals, and the need to reassert U.S. credibility. Such varied aims leave the strategic objectives of a potential strike unclear—and raise the risk that military action becomes a substitute for strategy. Moreover, military tools are unlikely to achieve any of these objectives, and may only make the situation worse. 

 Military Force is Unlikely to Advance U.S. Goals in Iran   

The most urgent rationale for using military force is to protect Iranian civilians. Reports on the death toll from the current unrest vary, but even cautious estimates suggest casualties in the thousands. Even with the government imposing a total internet blackout, the reports that have emerged make it clear the leadership sees the current protests as existential and has chosen to use the full force of the state’s security forces against its people. President Trump has repeatedly threatened Iranian leaders if they use force against the protesters, posting early in the crisis that the United States. is “locked and loaded” and would come to the protesters “rescue” if the killing continued. He later told Iranians to “keep protesting” and that “help is on the way.” 

But military strikes are unlikely to prevent Iran’s security forces from killing civilians. Striking the headquarters of the IRGC or other state institutions responsible for the killing may rattle the leadership. But as Israel’s previous killing of top IRGC officials has demonstrated, it is difficult to dismantle an expansive security apparatus through external military intervention alone. Moreover, previous attacks only led to more repression as paranoia about external intelligence infiltration led to mass arrests and executions. In this respect, military strikes can backfire and lead to even more indiscriminate killing of innocent civilians.

What if the objective is more expansive, aiming to not only protect protesters but to topple the regime itself? Trump’s statements moved in this direction as the protests gained momentum, encouraging the Iranian people to “Make Iran Great Again.” Senator Lindsey Graham and other U.S. officials have even been donning ‘Make Iran Great Again’ hats, branding Iran’s uprising as a MAGA movement. Though initially reluctant to meet former Iranian crown prince Reza Pahlavi, who has been actively encouraging protesters to overthrow the regime, senior White House envoy Steve Witkoff reportedly met Pahlavi last weekend. However, Trump has questioned Pahlavi’s support inside the country, suggesting he might be seeking information about potential alternative leaders should the Islamic Republic fall.

But the use of external military force to topple regimes has a poor track record historically. Without armed opposition forces on the ground, airpower alone has rarely succeeded in ousting governments. Peaceful protesters on the streets are not an army. They are not organized to take on the massive security capabilities of the Iranian state. This is not Syria, where an armed opposition had been organizing for years and exercising autonomy in parts of the country during the civil war before the surprising opportunity to advance to Damascus and overthrow Bashar al-Assad. Without defections and other signs of splintering among Iran’s security forces and leadership, regime collapse is unlikely. So far, such fissures have not emerged, even after the significant military setbacks during the Israeli and American attacks in June.

Another goal often linked to overthrowing the regime is the desire to see Iran transition to democratic governance, which is the aspiration for many Iranians inside and outside the country. Trump’s social media postings at times refer to his support for freedom in Iran, but the actions of his second administration suggest little interest in such objectives. The Venezuela model, that some fear may be in store for Iran, demonstrated that the administration was content with a change of leadership, not a change of the regime or its repressive machinery. Even if democracy, human rights and accountability were higher priorities for this administration, research on foreign military interventions suggests they tend to bring more repression and violence than democracy. There is little reason to believe Iran would prove an exception.

Another argument for military force is that it can advance diplomacy, forcing Iran’s leaders to accept terms they previously refused, such as the permanent suspension of uranium enrichment within the country, which has proven a major sticking point in nuclear negotiations. However, the use of military force in June did not move the Iranians to more accommodating positions. Instead of returning to the negotiating table, Iran’s leaders focused on restoring military capabilities, particularly missile capacity, to deter future attacks and make such attacks more costly for the United States and Israel. And in the aftermath of such unprecedented bloodshed in Iran, the political appetite for a deal in Washington is likely diminished. Military escalation tends to disrupt diplomatic processes, not encourage them, as evidenced when the June attacks derailed the Omani-mediated nuclear talks after five rounds of meetings.  

Finally, what if the objective is a show of force to maintain credibility, allowing Trump to claim he acted on his threats without risking prolonged military engagement. Trump prefers military operations that are decisive and short, and that do not require ground troops that could risk quagmires like Afghanistan and Iraq. But just because military operations may be conceived as limited does not mean that they are without risks. Iran has already threatened to retaliate against U.S. bases in neighboring countries if attacked. There are also secondary impacts, including the prospect that even limited strikes lead to unanticipated escalation, spilling over the borders to neighboring states and destabilizing global oil markets. Such concerns, which are not hypothetical as we saw during the June war, explain why regional states, particularly in the Gulf, lobbied Trump to refrain from an attack. 

A Smarter Way to Stand with Iranians

While it is still unclear what the administration is trying to achieve in Iran, military strikes are unlikely to advance any conceivable U.S. objective. The most immediate priority should be to help the Iranian people, and there are more effective and less dangerous ways to do so than resorting to force. 

One way to support Iranian protesters is to improve their ability to communicate with each other and the outside world during internet shutdowns and ensure that reliable information about the protests is available. Internet censorship circumvention tools like Starlink satellite terminals are already being utilized to send videos and images of the protests out of the country, and SpaceX has allowed for free access during this emergency. But relying only on private sector companies and the discretion of its leadership can be risky, and should not replace funding for governmental and nongovernmental organizations working in the internet freedom area, funding that the Trump administration has cut and is under pressure to restore. Funding for NGOs that help investigate and expose AI manipulated media that can be used by the Iranian government and other external actors to distort the nature of the unrest is also critical to document crimes and allow for accountability in the future. 

Another useful step to help Iranians who may be facing increased dangers within the country would be to reverse the current visa restrictions on Iranians who are seeking asylum in the United States and halt deportation flights of Iranians already in the country. The Trump administration sent two planeloads of Iranians seeking refuge in the United States back to Iran before the current protests, Iranians who were sure to face persecution upon their return. Future deportation flights at this perilous time in Iran would be particularly callous.

Finally, this is a moment for a global response, not unilateral military action. The U.S. government should be activating mechanisms like the United Nations, the Human Rights Council, and trans-Atlantic forums to hold those responsible for the killing to account. This is particularly difficult as the administration has withdrawn the United States from dozens of international organizations that press for accountability and rule of law across the world, not to mention the dismantling of U.S. agencies and nongovernmental organizations focused on supporting civil society and democratic governance. 

Ultimately, if the aim is to help the Iranian people, the best approach is to empower them to do it on their own without the complications and dangers of external military intervention. This is an Iranian uprising, and it is up to the people of Iran to decide their own future.

The post Military Force Will Not Help the People of Iran appeared first on Just Security.

Focusing on the atrocities members of ISIS committed—for example, against the Yazidis—police, prosecutors, and judges faced many challenges. Questions that had to be answered were:

• How to prove the widespread and systematic attack of ISIS against Yazidis?
• How to identify perpetrators – especially those who could be tried in Germany?
• How to cooperate effectively with a wide variety of stakeholders?
• How to prove intention of individual male or female ISIS members who committed acts of murder, torture, rape, and enslavement against Yazidis.

These questions had to be raised at every step of the way – at the beginning of building a criminal case, during the preliminary investigation against individual suspects, as well as at the trial proceedings.

Looking at the contextual elements – the widespread and systematic attack – we established the grounds for suspicion of core international crimes by witness testimony of many Yazidi witnesses in Germany who were able to name and describe higher-ranking ISIS fighters who were involved in the initial attack on the Sinjar region of Iraq in August 2014 and who were involved in the initiation of the slave trade with Yazidi women and girls. However, we faced the problem that it would be a huge challenge to bring cases to court as it was so difficult to build a case against individuals with a link to Germany.

The first trials for ISIS-crimes against Yazidis started in 2019 and 2020 against three female ISIS members. In the course of the investigation into the terrorist crimes of these three returnees, the cooperation with several NGOs, especially YAZDA, brought to light that Yazidi slaves were held captive in their households. So, we cumulatively charged these women with the crime against humanity of murder, enslavement, torture, and aiding and abetting rape.

At the time of the trials, we had established the facts for the contextual elements by collecting many witness statements of Yazidis, police reports, ISIS documents, and NGO and expert witness reports. The question was: how was the evidence going to be introduced into the court proceedings?

According to German procedural law everything of relevance for the assessment of someone’s guilt has to be part of the court hearings. As the witness statements of more than 100 Yazidi witnesses built the foundation of our general findings, we were aware that German courts might think it necessary to have many Yazidi witnesses testify about the atrocities they endured, even if they were not directly affected by the acts of the defendants. This was something we didn’t want to happen as it would have caused a lot of stress for many witnesses and the risk of re-traumatization. Ultimately, proof of ISIS’ destructive agenda toward the Yazidi religion was found through other evidence. For example, the court heard statements from police officers who carried out numerous interviews with Yazidi witnesses about the killings during the initial attack on the Sinjar region as well as the established slave trade and the cruel treatment of women and girls. Furthermore, we presented police reports about documented ISIS attacks on Yazidi villages and cultural heritage. Expert witnesses also testified on the Yazidi religion and culture and on ISIS’ structure, the terrorist attacks and crimes it committed, and the group’s propaganda and aim to establish a global caliphate.

Having established the facts for the contextual element, German courts had to examine the evidence for the individual crimes committed by the defendants. Proving this was the most important part – and the heaviest task – and it rested on the shoulders of Yazidi witnesses who had to give evidence about the incredibly cruel treatment by their enslavers.

There were challenges to questioning Yazidi witnesses in court. First of all, there was the challenging situation for the witnesses: In Germany, it is not sufficient to resort to the protocol of the interviews taken during the preliminary investigation. So, in general, witnesses have to go through the painful process of testifying in court again. They are entitled to legal representation, but still the courtroom clearly is a difficult environment to speak about the most terrible events in their lives: They have to speak in the presence of the defendant, the defense counsels, the judges, the prosecutors, and, in most cases, the public, representatives of NGOs, and journalists.

Another challenge can be the lack of specialization of German courts. During the preliminary investigation a lot of specialists are involved in the process, like police officers from war crimes units, prosecutors, and experts. German courts, on the other hand, do not only deal with core international crime cases. They also try cases of Islamic extremists, right-wing and left-wing terrorism, espionage, and weapons proliferation.

When it came to inter-cultural competence, it proved to be very helpful that some of the court chambers in Germany took the time to become familiar with the specifics of the Yazidi cases. Before the Yazidi witnesses were heard, experts explained the religious and cultural background of the Yazidis. It led to the conclusion that exact details of age and time or perceptions in chronological order are atypical and cannot always be expected from Yazidi witnesses. Instead, classifications of time are typically linked to historical events and sensations. These explanations gave the judges the opportunity to adjust their way of questioning the witnesses.

Interpretation was another issue of the criminal proceedings. It was not always easy to find interpreters who speak the “Shingali-Kurmanji” dialect of the Yazidis of Sinjar, a dialect mixing Kurdish Kurmanji with Arabic.

In the end, Yazidi witnesses proved to be survivors in the courtroom as well. One of the witnesses testified in five different cases before Higher Regional Courts, contributing to five convictions. With great patience and resilience, they managed and tolerated endless interrogations by all parties. In every case, judges concluded that the Yazidi witness statements were reliable, credible, and authentic and courts based their convictions on their testimony.

More than 20 years of investigations have demonstrated that crimes against humanity can be effectively prosecuted under the provisions of Section 7 of the German Code of Crimes Against International Law. However, every conflict is unique and every investigation inevitably starts with huge problems. Solving these problems requires clear rules, creativity, and sometimes a lot of patience. Above all, international cooperation is indispensable. I cannot think of any aspect of prosecuting crimes against humanity where it has not been of significant importance to cooperate with international partners. International cooperation is a quintessential element at every step of the way toward holding perpetrators accountable for crimes against humanity. An international convention on prevention and punishment of crimes against humanity would be a visible step toward accountability.

The post The Prosecution of Crimes against Humanity: a National Perspective appeared first on Just Security.

In this collection, experts examine the legal, political, and security dimensions of U.S. policy towards Greenland, including with respect to U.S.-NATO relations, congressional oversight, and broader geopolitical implications.  

• Alberto Mora, How Congress Can Preserve NATO: Using 22 USC 1928f to Protect the Peace in Greenland (Jan. 16, 2026) 
• Frank A. Rose, Trump Is Right About Greenland — Wrong About How to Secure It (Jan. 13, 2026) 
• Michael Schmitt, The North Atlantic Treaty and a U.S. Attack on Denmark (Jan. 13, 2026) 
• Ambassador Daniel Fried, Trump’s New Year Foreign Policy: The Risk that the Bold and the Bad Outweigh the Constructive (Jan. 8, 2026) 

The post Collection: U.S., Greenland, and NATO appeared first on Just Security.

The Maduro capture gives credence to Trump’s own subsequent boast that when he is exercising his commander in chief authority, he is constrained by no law, but only by “his own morality” – whatever that might be. Indeed, Maduro’s capture constituted an act of military aggression and the initiation of an international armed conflict, all in violation of the U.N. Charter’s prohibition against the non-authorized use of force. It also runs against more than 80 years of U.S. post-war diplomacy designed primarily to create and reinforce a rules-based international order geared to the prevention of war. In ordering the capture, Trump also disregarded Congress’s constitutional authority to declare war and the related consultation requirements imposed by the War Powers Act. His statements regarding Greenland constitute clear signals of his determination to continue with his scofflaw behavior.

Unfortunately for Trump’s imperial ambitions – but fortunately for the rule of law, the U.S. national interest, and international stability – Trump’s ability to execute any act of military aggression against Greenland is constrained by an additional statute: 22 U.S.C. 1928f. This statute – which was not applicable to Venezuela because it is not a NATO member — was adopted by Congress pursuant to Section 1250A of the 2024 National Defense Authorization Act and was designed to prohibit the president from materially altering the U.S. government’s relationship with NATO and the North Atlantic Treaty (the diplomatic instrument that gave rise to NATO) without prior congressional approval. 

How Section 1928f Applies to the Use of Force against Greenland

In addition to its consultation and notification requirements, the statute – which is titled “Limitation on Withdrawal from the North Atlantic Treaty Organization” – contains two principal provisions: first, as the title implies, a broad prohibition against withdrawal from NATO or taking other analogous steps that would materially damage the U.S. relationship with the organization and, second (and critically), a limitation on the use of appropriated funds such that the president would be precluded from using such funds to implement the actions prohibited by the statute. 

The texts of these two provisions are the following:

§ 1928f. Limitation on withdrawal from the North Atlantic Treaty Organization

(a) Opposition of Congress to suspension, termination, denunciation, or withdrawal from North Atlantic Treaty

The President shall not suspend, terminate, denounce, or withdraw the United States from the North Atlantic Treaty, done at Washington, DC, April 4, 1949, except by and with the advice and consent of the Senate, provided that two-thirds of the Senators present concur, or pursuant to an Act of Congress.

(b) Limitation on the use of funds

No funds authorized or appropriated by any Act may be used to support, directly or indirectly, any decision on the part of any United States Government official to suspend, terminate, denounce, or withdraw the United States from the North Atlantic Treaty, done at Washington, DC, April 4, 1949, except by and with the advice and consent of the Senate, provided that two-thirds of the Senators present concur, or pursuant to an Act of Congress.

The applicability of this statute stems from Greenland’s status as an autonomous territory within the Kingdom of Denmark and Denmark’s status as a member of NATO. As Mike Schmitt has explained, “[i]t is clear that Greenland falls within the geographical coverage of Article 5.” 

While the administration will undoubtedly claim that, because it has no intent to formally “withdraw” from the North Atlantic Treaty, the statute is not applicable to the current situation, this assertion would be false. A U.S. attempt to seize Greenland militarily would constitute an attack on Denmark and, through the operation of Article 5 of the North Atlantic Treaty, an attack on each of the other 30 NATO members (excluding of course the U.S.). Not only would this attack instantaneously breach, either directly or constructively, each of the four prohibitions in clause (a) of Sec. 1928f (meaning it would invariably constitute or lead to the suspension, termination, denunciation, and withdrawal of the U.S. from the Treaty), it would necessarily also lead to the destruction of the organization in its current form as the U.S. wages war on our former allies. 

Because these consequences are inevitable, any order by President Trump to launch an attack on Greenland necessarily triggers the automatic cutoff of authorized or appropriated funds that would be required to execute the assault. In addition, because the administration has clearly not only engaged in “deliberation” about taking military action against Denmark and NATO, but, indeed, has reportedly already ordered that military planning be initiated, the consultation and notification requirements of Sec.1928f have already been triggered.  

The consultation and notification requirements are:

(c) Notification of Treaty action

(1) Consultation

Prior to the notification described in paragraph (2), the President shall consult with the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives in relation to any initiative to suspend, terminate, denounce, or withdraw the United States from the North Atlantic Treaty.

(2) Notification

The President shall notify the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives in writing of any deliberation or decision to suspend, terminate, denounce, or withdraw the United States from the North Atlantic Treaty, as soon as possible but in no event later than 180 days prior to taking such action. [Emphasis added.]

It has not been reported that the Trump administration has yet complied with either of these two statutory requirements. If that is the case, it is already in breach of them.

The Constitutional Dimension

The division of constitutional authorities between Congress and the Executive in foreign affairs, including the authority to withdraw from treaties (on which the Constitution is silent), has historically been a matter of legal dispute between the two political branches. While this is a complex topic and the executive branch has been accorded great deference in the post-ratification management of treaties, with respect to the North Atlantic Treaty there is a strong argument that Congress’ assertion of a measure of legislative control so as to protect the U.S.-NATO relationship should be given preeminence over the administration’s intent to destroy the organization. 

First, Congress has a long history of deep and consistent legislative involvement in the U.S.–NATO relationship generally and with the North Atlantic Treaty specifically. Second, according to the Congressional Research Service in a Jan. 6, 2025, Legal Sidebar, the enactment of Section 1928f “is the first statute in which Congress has prohibited unilateral presidential withdrawal from a treaty.” And third, Congress has coupled its treaty termination prohibition with the Section 1928f(b) limitation of funds provision, thus coupling its unchallengeable constitutional power of the purse with the legislation designed to protect NATO. 

These factors led the CRS to conclude that if the Trump administration were to refuse compliance with the Section, it may well find that its presidential power relative to that of Congress is at “at its lowest ebb” under the Youngstown framework. Thus, if Congress were to seek to challenge Trump’s aggressive designs on Greenland, the invocation of Section 1928f would provide a strong foundation for the challenge.

Moreover, as practitioners and scholars have argued, the North Atlantic Treaty’s status as an advice-and-consent treaty and its subject matter also counsel towards congressional authority to regulate withdrawal, suspension, or denunciation: 

As the North Atlantic Treaty is an Article II treaty adopted with two-thirds approval by the Senate, requiring congressional authorization for withdrawal places limitations on withdrawal that are consistent with the degree of authorization needed to enter the treaty. Such limits are also consistent with the subject matter of the treaty, which relates to the war powers shared between Congress and the president.

The Reaction of Denmark, Greenland, and Other European Countries

The governments of both Denmark and Greenland have repeatedly stated that they oppose the annexation or sale of Greenland to the United States, a stand that is reinforced by a large majority of the public, as evidenced by public opinion polls in both countries. In addition, Denmark has announced that it is bolstering its military presence in Greenland and will consult with European allies to potentially solicit additional military support. Sweden, France, and Germany have already sent troops and the U.K. is considering it. Other EU-member countries, such as Spain and Italy, while not yet committing troops to Greenland have condemned the threatened aggression.

Danish authorities have stated that they would fight back if invaded. 

The Foreign Policy and National Security Dimensions

The repercussions of Trump’s threats against Greenland and Denmark have already been severe inasmuch as they have demonstrated to NATO and all other European nations that the United States cannot be trusted as an ally, partner, or even a good neighbor; and, worse, that the United States actually presents a military threat. 

Should the United States actually seek to accomplish its Greenland landgrab, the consequences would be infinitely worse. With NATO shattered, the European Union – along with the U.K. and Canada – would likely react by summarily: terminating all military and intelligence cooperation; closing its airspace to U.S. flights; terminating all U.S. basing rights in their territories; detaining and disarming all U.S. military personnel and assuming custody of all U.S. military equipment; and interning all U.S. intelligence, diplomatic, and other personnel. 

Beyond those immediate security consequences, economic sanctions would be levied quickly, financial cooperation and European investment in U.S. debt instruments would plummet, and Europe would seek to lessen its dependency on the dollar. Sales of U.S. products or services to Europe would sharply decline, including sales of military weapons, and the U.S. defense industry would shrink. Tourism in both directions would also decrease. There will be global economic repercussions as well. And this would only be the start.

As harmful as these security and economic countermeasures may be to the United States, the negative impact of U.S. aggression may even be worse across the Atlantic. Beyond the damage to Denmark, the most immediate impact will be felt in Ukraine and Europe as a whole. While President Trump insists that U.S. possession of Greenland is imperative for the protection of the U.S. and Europe from encroachments by China and Russia, that claim is bogus. 

In business terms, the value proposition that President Trump seems to be advancing is the following: The United States will acquire Greenland, which although vast, is barren and frozen, for the costs of waging a war of aggression on Denmark and Greenland; destroying NATO; severing our economic, military, and political relationship with the EU, the U.K., and Canada; enduring economic and commercial sanctions; and abandoning the heretofore fruitful collaborative effort to build a rules-based international order. If this is the proposed deal, most Americans will have no trouble concluding that it is a fool’s bargain, particularly from a security standpoint. 

To be clear, the principal beneficiary of Trump’s aggression will be Russia, which will no longer have to contend with NATO’s defensive barrier. What Trump has actually done by threatening Greenland and Denmark is to open up a “second front” to help relieve the pressure on Russia’s military, finances, and society created by Ukraine’s stout defense of its sovereignty and by the growing European support for Ukraine. Trump’s threats to Greenland both complicate Ukraine’s effort to strengthen its supply chains to compensate for the decrease in American support and Europe’s effort to rebuild its own military (in light of the growing U.S. indifference to Europe) and to simultaneously increase its level of support to Ukraine. 

Ironically, Trump’s second front mirrors the second front launched by Roosevelt and Churchill during the Second World War, with the difference being that the Allies launched D-Day to help save democracy while Trump’s assault is designed to advance autocratic objectives that are inimical to America’s national interest but congenial to Russia’s imperial ambitions. If Russia continues to advance, Europe may well be faced with the very difficult choice of allowing Russia to absorb Ukraine or, instead, to integrate Ukraine and its very capable military into Europe and enter into the defensive war against Russia on Ukraine’s side. This could spiral into an even more dangerous global war. If it does, the Trump administration will share a very large portion of the blame.

Conclusion and Recommendation

President Trump’s threats of military aggression towards Greenland and Denmark are madness. If carried through they will betray American values, make the world less safe, shatter NATO, destroy our historic relationship with our European partners, and cause other incalculable damage to the U.S. national interest. Congress should immediately wrestle from the president his power to launch his threatened unprovoked, unauthorized, and pointless war of aggression against NATO. It can do so by depriving him of the financial means to do so by triggering the application of 22 USC 1928f and ensuring that the administration complies with its requirements.

The post How Congress Can Preserve NATO and Greenland: Using 22 USC 1928f to Protect the Peace appeared first on Just Security.