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.

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.

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.

Party Presentation

At the ICJ, contentious cases are brought by one State (the applicant) against another (the respondent). The parties present evidence and offer competing explanations of the evidence presented. The Court evaluates the evidence presented to it and considers the explanations offered to it, applying the relevant standard of proof. Each party is master of its own case. Each party is responsible for presenting the evidence and arguments that it wishes the Court to consider. And each party responds to the evidence and arguments presented by the opposing party. The parties present, and the Court decides. This is the principle of party presentation.

Party presentation respects the autonomy of each State to speak in its own voice, whether to allege a violation of its rights or to offer its own account of its conduct, in its own words. Party presentation also facilitates reliable truth-seeking, by clearly defining the issues in dispute so they may be tested through an adversarial process, with each party afforded an opportunity to challenge the evidence or arguments presented by the other. Consider the alternative. Imagine the Court issues a judgment in which it gives decisive weight to evidence not presented by either party, or to an explanation of the evidence not offered by either party. The losing party would be denied the opportunity to contest the reliability of the evidence or the plausibility of the explanation, including the opportunity to gather and present further evidence that might have persuaded the Court. Even the prevailing party may consider their victory a partial defeat, as it may be based on an account of its actions that it rejects. Wisely, the Court typically adheres to the principle of party presentation. (For an arguable exception involving Court-appointed experts, see here.)

In a genocide case, the applicant presents evidence and offers one explanation of the evidence: that the respondent’s officials (or other individuals under the respondent’s effective control) committed genocidal acts with genocidal intent. The respondent may or may not present evidence but, in any case, will offer a competing explanation of the evidence before the Court: that the acts were not committed by its officials (or others it effectively controlled), that the acts were not committed at all, or that the acts were committed with a different intent. The Court evaluates the competing explanations under its established standard of proof. If the Court is fully convinced by the applicant’s explanation of the evidence, then the Court should find that the respondent committed genocide. In contrast, if the Court finds that the respondent’s explanation of the evidence is reasonable, then the Court will not find the applicant’s explanation fully convincing.

Put another way, the Court will not find that a State acted with genocidal intent if another reasonable inference may be drawn from all the evidence before it. But that State must present an alternative inference to the Court and explain why it is reasonable in light of all the evidence. If the State fails to present the Court with a reasonable alternative inference, then it should not expect the Court to find one on its own.

In Bosnia v. Serbia, the Court noted that Serbia’s position “changed in a major way” during the oral proceedings, and “based itself” on the trial and appellate judgments of the International Criminal Tribunal for the former Yugoslavia (ICTY). These ICTY judgments found that the relevant acts of violence were committed with genocidal intent in Srebrenica, but were committed with the intent to displace rather than destroy the Bosnian Muslim group in other regions. The Court agreed. The Court was fully convinced that the Srebrenica massacre was committed with genocidal intent, but found that in other regions “an essential motive of much of the Bosnian Serb leadership—to create a larger Serb State, by a war of conquest if necessary—did not necessarily require the destruction of the Bosnian Muslims and other communities, but their expulsion.” These objectives “were capable of being achieved by the displacement of the population and by territory being acquired, actions which the Respondent accepted (in the latter case at least) as being unlawful.” The Court appeared to accept Serbia’s explanation of the evidence, and found that Serbia had not committed genocide or failed to prevent genocide except in Srebrenica.

In Croatia v. Serbia, the Court emphasized that “Serbia does not contest the systematic and widespread nature of certain attacks. However, it claims that these were intended to force the Croats to leave the regions concerned. In this regard, it cites [cases] in which the ICTY found that the purpose of the attacks on the Croat population was to force it to leave.” In other words, Serbia’s explanation of the evidence was that the attacks were intended to displace the Croat group but not to destroy it. More broadly, Serbia maintained that the evidence “shows a multitude of patterns giving rise to inferences of combat and/or forcible transfer and/or punishment” rather than genocide. The Court found Serbia’s explanation reasonable, drawing heavily on several judgments of the ICTY, and accordingly found that “Croatia has not established that the only reasonable inference that can be drawn from the pattern of conduct it relied upon was the intent to destroy, in whole or in part, the Croat group.”

With respect to Serbia’s counter-claims against Croatia, the Court observed that Croatia “maintains that the purpose of all the acts and statements of the Croatian authorities cited by Serbia was strictly confined to regaining possession of areas under Serb control.” The Court found that it “cannot see in the pattern of conduct on the part of the Croatian authorities … a series of acts which could only reasonably be understood as reflecting the intention, on the part of those authorities, physically to destroy, in whole or in part, the group of Serbs living in Croatia.” The Court could be understood as finding that Serbia failed to show that Croatia’s explanation of the evidence was unreasonable, or simply that Serbia’s own explanation of the evidence was unreasonable or unconvincing on its own terms.

The basic point is that, in each case and context, the Court considered whether the applicant’s explanation of the evidence was fully convincing, or whether the respondent’s explanation of the evidence was reasonable. The Court did not develop its own explanations of the evidence, untested by a rigorous adversarial process.

Myanmar’s Changing Position

Returning to the current proceedings, it appears that Myanmar’s legal strategy has fundamentally changed. In 2019, in response to the Gambia’s request for provisional measures, Myanmar’s counsel argued that there was “a reasonable alternative explanation for the intent behind the alleged acts,” namely the intent to deport the Rohingya group from Myanmar. Myanmar relied extensively on proceedings at the International Criminal Court (ICC), where the Prosecutor sought to open an investigation into whether Myanmar’s officials were individually responsible for the crime against humanity of deportation. According to Myanmar, the ICC proceedings showed that genocidal intent was not the only reasonable inference that may be drawn from the acts alleged. While counsel for Myanmar noted for the record that they “intend no admission or acknowledgment,” their legal strategy was to establish that it was reasonable to infer from the acts alleged an intent to deport rather than destroy the Rohingya. Notably, in 2024, the ICC Prosecutor applied for an arrest warrant for Senior General and acting President Min Aung Hlaing for the crimes against humanity of deportation and persecution of the Rohingya. Although ordinary people may find “crimes against humanity, not genocide” a damning admission rather than a clever defense, it largely worked for Serbia and might have worked for Myanmar as well.

But Myanmar’s legal strategy appears to have changed. It seems that Myanmar no longer plans to argue that its intent was to deport rather than destroy (or that it is reasonable to infer as much). Instead, it seems that Myanmar plans to argue that its armed forces were engaged in counterterrorism operations and their acts were intended to suppress or defeat the Arakan Rohingya Salvation Army (ARSA), an armed Rohingya group operating in northern Myanmar. As the Gambia’s counsel, citing Myanmar’s written submissions, told the Court:

Myanmar’s pattern of conduct, in contrast to that of Serbia, does not permit the Court to reasonably infer that its intent was to forcibly displace, or ethnically cleanse, the Rohingya Muslim group. Myanmar itself does not claim that this was its intent, or that such an intent can be reasonably inferred from its conduct. In fact, Myanmar has consistently denied this. …

Myanmar argues that the “clearance operations” were intended neither to forcibly displace, ethnically cleanse or destroy the Rohingyas as a group. Its only defence of this conduct is to claim that its actions were intended to combat terrorism, specifically to counter the activities of the Arakan Rohingya Salvation Army, referred to by the acronym ARSA throughout the pleadings. The “clearance operations” were exercises in counter-terrorism against ARSA, says Myanmar, not efforts to destroy the Rohingya as a group.

Myanmar’s written submissions are not yet publicly available, but it is unlikely that the Gambia is mischaracterizing them. It seems that the Gambia has relied on Myanmar’s representations and now plans to call its sole expert witness to testify that Myanmar’s acts cannot be reasonably explained as a form of counterterrorism. The Gambia has also focused its oral arguments on refuting Myanmar’s “counter-terrorism narrative” (see here, here, and here). The parties will join issue, and the Court will decide whether the Gambia’s explanation of the evidence (genocide) is fully convincing, or whether Myanmar’s explanation of the evidence (counterterrorism) is reasonable.

It is not hard to see why Myanmar might change its line of defense. Any evidence it might present or argument it might offer at the ICJ to avoid a finding of genocide could be used against its leaders at the ICC on charges of crimes against humanity. Indeed, any evidence or admission of an intent to deport would carry weight at the ICJ precisely because it would be a statement against interest (or at least the interest of its leaders). At the same time, Myanmar’s new line of defense seems less likely to succeed. On its face, the idea that Myanmar’s acts with respect to the Rohingya were exclusively intended to suppress the ARSA appears not only unreasonable but preposterous. While there is no point prejudging Myanmar’s presentation a few days before it will be made, the scale and brutality of the violence directed at civilian members of the Rohingya group, including women and children, makes it difficult to see how the Court could possibly find it reasonable to infer from all the evidence taken together that Myanmar’s acts were exclusively intended to suppress an armed group.

Myanmar may try to revive its original strategy by arguing that the Gambia’s explanation of the evidence is less than fully convincing even if Myanmar’s alternative counterterrorism explanation is unreasonable. The idea here would be that an applicant must persuade the Court both that the respondent’s explanation of the evidence is unreasonable, and also that the evidence strongly supports each element of its claims. An applicant should not automatically win, by default, simply because the respondent’s defense is implausible. Whatever the merits of this idea, based on the first days of the proceedings, it seems unlikely that the Gambia’s case contains some fatal flaw, gap, or oversight that would lead the Court to reject its claims in the absence of a reasonable alternative explanation of the evidence put forward by Myanmar.

Whether a State committed genocide against a particular group is an objective matter of fact and law. But proving genocide at the ICJ is largely a matter of the evidence and arguments presented by the parties. Although the Court interprets the law for itself, it necessarily relies on the parties to bring forward evidence and contest its significance. The ultimate question for the Court is whether the Gambia’s explanation of all the evidence is fully convincing, or whether Myanmar’s explanation of all the evidence is reasonable. If Myanmar does not explain, in detail, how an intent to deport rather than destroy the Rohingya can be reasonably inferred from all the evidence before the Court, then the Court is highly unlikely to do Myanmar’s work for it. Nor should it. It is not the Court’s job to develop possible explanations of the evidence put forward by neither party, then evaluate their reasonableness in light of all the evidence before it without the benefit of adversarial testing. The parties present. The Court decides.

The post Proving Genocide: Party Presentation appeared first on Just Security.

Consequently, in this article, we will focus on the lawfulness of the seizure of the Marinera, and in particular jurisdictional and maritime law enforcement authorisation under the UN Convention on the Law of the Sea (UNCLOS), a treaty that is widely recognized to reflect customary international law binding on States that are not party to it, including the United States. (A forthcoming article will analyse the applicability of a second rule set under which the boarding and capture can be potentially assessed – the law of naval warfare.) We conclude that, based on the publicly available information to date, it is difficult to sustain the lawfulness of the U.S.-led and UK-supported seizure of the Marinera.

The Fundamental Issue – Did the Marinera Have a “Flag”?

On the claims as currently reported, the lawfulness of the seizure of the Marinera in terms of UNCLOS-based maritime law enforcement authorities turns primarily on whether the vessel was without nationality. This is because the law of the sea requires every vessel to hold a nationality – it’s “flag state,” which is the state in which it is registered. The flag state has jurisdiction over the vessel, and protection rights in relation to the vessel. If a vessel is without nationality, then this is tantamount to there being no jurisdiction over the vessel apart from (in a conduct management sense) the nationality jurisdiction of the crew members. This is unacceptable to states in that it creates the possibility of places where no state can exercise sufficient jurisdiction over wrongful activity – effectively, a place of impunity. Thus, when a warship (or other appropriately authorised sovereign immune vessel) comes across another vessel that it reasonably suspects of being without nationality, and that vessel is outside the territorial sea of all States, then that warship can exercise the UNCLOS Article 110 right of visit to board that vessel to determine the situation.

The U.S. claim regarding the Marinera appears to be that she was without nationality at the time of its seizure, based on the fact that she had previously been registered in Guyana (as Bella 1) but that this registration had since been rescinded by Guyana. At the time of the first attempted boarding in December 2025, the justification provided was that “[i]t is flying a false flag and under a judicial seizure order.” 

But the jurisdictional situation then shifted with the Dec. 31, 2025 indications of Russian registration, and a diplomatic note from Russia asking the United States to cease pursuit – presumably on the basis that Russia was now the flag state of the vessel. However, within this altered context, the U.S. administration’s explanation of the legal basis for the Jan. 7, 2026 boarding was more ambiguous than the original December 2025 claim: 

White House press secretary Karoline Leavitt said at a news briefing that the Marinera was “deemed stateless” after “flying a false flag.”

Another subsequent report explained that 

Officials with knowledge of the matter said the Trump administration was unimpressed by the ship’s sudden change of flag and there was a desire to send a wider message that such a ploy would have no practical effect.

It is not clear whether the “flying a false flag” assertion related to a claim that Marinera continued to use the Guyana flag after de-registration, or to a claim that the use of the Russian flag at the time of seizure was not effective. Nor has the being “unimpressed by the ship’s sudden change of flag” been unpacked or explained in any legal sense, although one commentator has indicated that it “would have set a bad precedent in a lot of ways if this ship would have been allowed to essentially re-flag mid journey and become a Russian vessel… They wanted to prevent this tactic from being repeated in the future.” There is also a report that “the Trump administration rejected the claim of a Russian flag and considered the vessel to be stateless, according to two sources familiar with the matter, paving the way for the vessel’s capture.” 

The United States also reportedly continued to refer to the vessel as Bella 1. If this is accurate, it would lend support to an argument that the United States simply rejected the Russian claim to have registered Marinera and that the United States therefore continued to view the tanker as stateless based on the de-registration by Guyana. It is notable that statelessness also appears to be the basis for the U.K.’s support to the operation, with the U.K. Defense Secretary stating that 

The tanker … had changed its name “five times in the last five years” and had been falsely flying the flag of Guyana when it was called Bella 1 and arrived in the Caribbean.

A stateless vessel, the defence secretary said, “may be lawfully intercepted and subjected to the law of the interdicting state.”

By contrast, as reported by the BBC, Russian claims made at the time referred to the tanker being “granted temporary permission to sail under the State Flag of the Russian Federation, issued in accordance with Russian legislation and the norms of international law.” One industry news site indicated that:

By December 24, 2025, the ship had changed its name to Marinera and flag to Russia, showing a fresh coat of paint after getting a temporary registration from Russia’s Maritime Register out of Sochi.

The Russian claim of jurisdiction and the U.S. counter-claim as to statelessness therefore raise three specific UNCLOS-governed issues: how a vessel may effectively change its registration; what is required for a “genuine link” to be recognized between a vessel and a flag State; and the question of a vessel’s status when it is viewed to be operating under “two flags.”

Was there a Changed Registration?

To be sure, changing registration mid-voyage is an unusual practice and one that is viewed with suspicion. As to registration processes, Jen Parker has correctly observed:

Article 92 [of UNCLOS] makes clear that a ship may not change its flag during a voyage except in cases of a genuine transfer of ownership or formal change of registry. Simply repainting a flag or asserting a new nationality mid-voyage has no legal effect. However, as technology has allowed for the registration of vessels online at sea, there is an open question about whether it was formally registered to Russia at the time of boarding.

As noted above, and despite the ambiguous use of the term “temporary,” the reported Russian claim appears to be that a switch to Russian registry was completed in accordance with Russian domestic law and “the norms of international law.” On the sparse information available, it is therefore more likely than not that the Marinera’s registration by Russia would be considered, as a matter of international law, to be prima facie effective. This is in large part due to the second issue we need to assess – the law of the sea and its approach to “genuine link.” As Parker points out, the “genuineness” of the formal change of registry from Guyana to Russia is the key to whether the Marinera’s re-registration was effective. 

Genuine Link

States generally have wide latitude to determine what will be required as a matter of their domestic law to permit a ship to be registered in their State and, accordingly, fly their flag. Article 91(1) of UNCLOS provides that:

Every State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link between the State and the ship.

The 1986 UN Convention on Conditions for Registration of Ships details a range of more granular aspects around the concept of “genuine link” (for example, in Articles 5 and 6), setting out detailed requirements for flag states regarding their obligations to register, monitor, and take measures in relation to vessels under their flag. However, this treaty has not entered into force (it has not achieved the number of states and percentage of world fleet tonnage entry-into-force requirements as set out in Article 19). The orthodox interpretation of “genuine link” thus remains as stated in the relevant jurisprudence of the International Tribunal on the Law of the Sea (ITLOS), which in practice sets a pretty low bar. In the 2014 Virginia G case, ITLOS explained:

110. The Tribunal considers that article 91, paragraph 1, third sentence, of the Convention requiring a genuine link between the flag State and the ship should not be read as establishing prerequisites or conditions to be satisfied for the exercise of the right of the flag State to grant its nationality to ships…
111. … As stated by the Tribunal in the M/V “SAIGA” (No. 2) Case, “[t]here is nothing in article 94 [of UNCLOS, concerning the duties of the flag state] to permit a State which discovers evidence indicating the absence of proper jurisdiction and control by a flag State over a ship to refuse to recognize the right of the ship to fly the flag of the flag State.”

In other words, the concept of “genuine link” does not have a lot to say about what a State must require to permit a vessel to fly its flag, but is nevertheless quite clear that other states can’t use an argument about lax or scant flag state activity as a basis for asserting a lack of that genuine link.

A fair conclusion – on the admittedly slim facts at hand, but noting the official Russian claim – is that (1) the Russian registration is likely to be, prima facie, effective, and (2) the United States’s apparent rejection of that Russian assertion of registration, on the implied basis of non-genuineness, is difficult to promote. 

It is of course possible that the United States has other information that undermines the Russian claim. But on the publicly available information at the moment, the Russian claim of flag state jurisdiction, and thus protection rights over the Marinera, based on fulfilment of Russian domestic law requirements for registration and the limited international law approach to genuine link, appears to be effective. 

This then raises the third issue – could the effectiveness of this registration and Russia’s attendant assertion of jurisdiction and protection rights be overcome by a U.S. claim that the Marinera was in fact still registered by some other state as well as Russia at the time of the seizure?

A Two Flags Argument?

Article 92(2) of UNCLOS is very clear that:

A ship which sails under the flags of two or more States, using them according to convenience, may not claim any of the nationalities in question with respect to any other State, and may be assimilated to a ship without nationality.

The object of this provision is that a vessel in this situation is barred from claiming the protection of any of these flags, and thus becomes a vessel without nationality. The consequence is that the vessel is therefore liable to the right of visit (boarding without flag state consent) as per UNCLOS Article 110(1)(d) as a “ship without nationality.” This is where the ambiguity in U.S. statements complicates the analysis, because it is unclear which of the following (if either) is being asserted by the United States:

(1) The Marinera was not properly registered by Russia, and had no other nationality, so she was a vessel without nationality simpliciter.

(2) The Marinera was, at the time of the boarding, still registered by some other state as well as by Russia, and thus was a vessel without nationality by operation of Article 92(2).

As already noted above, the vessel without nationality simpliciter argument will fall at the hurdle of an orthodox interpretation of the flag state’s (rather slim) obligations in terms of achieving the necessary Article 91(2) “genuine link,” including the conditions for an Article 92(1) “real transfer of ownership or change of registry” during a voyage.

This would mean that the only “statelessness” justification the United States could make is the two flags argument. However, there has been no elaboration of any claim that the Marinera was operating under two flag registries at the time of the seizure, so this justification also seems likely to be ineffective.

Concluding Thoughts

It is possible, of course, that there has been a course of diplomatic dealings that remains confidential in nature that has muted Russia’s protest and given the United States (and UK) confidence to assert the statelessness of the Marinera. Russia’s reference to having given the vessel “temporary permission” to fly under its flag could, in such a scenario, be a face-saving means of asserting that the vessel was not in fact properly registered in Russia at the time of its boarding (or to allow the United States to claim as much). 

The Marinera was brought to the UK to take on fresh supplies, according to recent reporting. The UK’s involvement is significant. Given the UK recently stopped sharing intelligence with the United States that could be used in its lethal strikes against suspected drug ferrying vessels in the Caribbean and eastern Pacific, likely to avoid complicity in internationally wrongful acts, it is significant that the UK joined with the United States in support of this action, and may suggest there is at least a colorable basis in international law for the seizure. 

On the other hand, the information available to date would give rise to a very different conclusion. Indeed, it is very difficult to see how the boarding and seizure of the Marinera was lawful in terms of UNCLOS-based maritime law enforcement authorization. This then raises a separate question as to the legal basis – the law of naval warfare (LoNW). We will examine this issue in our next essay.

The post A Law of the Sea Assessment of the U.S. boarding of the Bella 1 / Marinera appeared first on Just Security.

The catalog below organizes our collection of articles primarily about the war into general categories to facilitate access to relevant topics for policymakers, researchers, journalists, scholars, and the public at large. The archive will be updated as new pieces are published.

We welcome readers to use this catalog to follow the unfolding situation and generate new lines of analysis. To search headlines and authors, expand one or all of the topics, as needed, and use CTRL-F on your keyboard to open the search tool. The archive also is available in reverse chronological order at the Russia-Ukraine War articles page.

The post Just Security’s Russia–Ukraine War Archive appeared first on Just Security.

I know this not as an academic observation, but from direct experience. From 2003 to 2004, while serving in the U.S. Department of Defense, I played a key role working with the Danish government and the Greenland Home Rule government to upgrade the early-warning radar at Thule Air Base, as it was known before it was renamed Pituffik Space Base in 2023. The radar modernization was essential to supporting the U.S. homeland missile defense mission. Without access to this radar, it would be far more difficult — if not impossible — for the U.S. military to defend the American homeland against long-range missile threats from North Korea or other adversaries.

The strategic importance of Greenland is not a new discovery. The United States has recognized its crucial location for more than eight decades. When Denmark was invaded and occupied by Nazi Germany in 1940, U.S. military forces moved quickly to occupy Greenland to prevent it from falling into German hands. During World War II, Greenland became a vital node in the North Atlantic air ferry route for the U.S. Army Air Force aircraft that transited to Europe. The airfields the United States built in Greenland enabled bombers and other military aircraft to transit to Great Britain, supporting the build-up of U.S. strategic airpower that ultimately help defeat Germany and the Axis powers.

During the Cold War, Greenland assumed an even more central role in U.S. and NATO defense strategy. The 1951 Defense of Greenland Agreement between the United States and Denmark formalized an expansive U.S. military role on the island. In practical terms, the agreement gave the United States wide latitude to do whatever was necessary to defend Greenland — and, by extension, North America, against any threat from the Soviet Union. The treaty is also a pragmatic acknowledgment of reality: Denmark retains sovereignty, but Greenland’s defense rests on a bilateral security commitment in which U.S. military capabilities are decisive.

At its peak, the United States stationed more than 10,000 military personnel in Greenland, supporting nuclear bomber operations, air and missile early warning, and anti-submarine warfare. That presence required the development of extensive infrastructure, much of which still shapes Greenland today. Until very recently, Greenland’s main international airport, for example, was Kangerlussuaq Airport, originally the U.S. Air Force’s Sondrestrom Air Base.

Following the end of the Cold War, the United States closed most of its military installations in Greenland, with one critical exception: the early-warning radar at then-Thule Air Base. That installation remains indispensable to U.S. and allied defense today. It provides essential radar data warning of missile threats from Russia, China, North Korea, and others. In 2004, the radar was significantly upgraded specifically to support the U.S. homeland missile defense mission.

With the return of great-power competition, President Trump is right to highlight Greenland’s strategic value once again (though it does not have, as he asserted, “Russian and Chinese ships all over the place”). Beyond missile warning, Greenland’s geography makes it uniquely important for countering Russian submarine activity in the North Atlantic and Arctic. As undersea competition intensifies, Greenland’s role in maritime domain awareness and anti-submarine operations will only grow.

Counterproductive Approach

But none of that justifies or rationally explains the tactics that Trump and other administration officials are using in what they say is a bid to ensure U.S. security. In fact, the current approach could weaken rather than strengthen U.S. security.

First, Greenlanders themselves are unlikely to want to become part of the United States. As one of the few Americans who has negotiated directly with the Greenland Home Rule government, I can attest that these negotiations are complex and often difficult, even when conducted respectfully and behind closed doors. They require patience, persistence, and a deep understanding of local political realities. Public talk of annexation reflects neither.

Second, annexation rhetoric is politically toxic in Denmark, one of America’s most dependable NATO allies for more than 80 years. Denmark has been a steadfast partner in U.S. and allied defense, including in Greenland, but also in Iraq and Afghanistan, where it lost soldiers in U.S.-led missions. Undermining trust with Copenhagen over sovereignty issues would weaken the very alliance system that underpins U.S. security in the North Atlantic and beyond.

Third, the domestic politics in Greenland between the Home Rule Government and Copenhagen tend to be messy. Were the United States to annex Greenland, it would inherit a history of complicated domestic politics. Under the current arrangement, dealing with Greenland’s domestic political challenges is the responsibility of the Danish government, thus freeing the United States to focus on the key priority: security.

Strategic and Sustainable Security

There is a far better — and more effective — path forward.

The geopolitical and strategic environment in and around Greenland has changed fundamentally since the United States drew down much of its military presence in the early 1990s. The most consequential shift has been the return of sustained great-power competition, particularly with Russia and China, both of which increasingly view the Arctic as a domain of strategic competition rather than peripheral interest. As a result, the assumptions that underpinned earlier U.S. force posture decisions no longer hold. The time has come to reassess whether the current U.S. military posture in Greenland is sufficient to meet today’s — and tomorrow’s — security challenges.

As a first step, the Department of Defense should conduct a comprehensive review of U.S. defense requirements in the North Atlantic and North America. That review should be explicitly cross-domain in nature, integrating missile defense, space-based missile warning and tracking, undersea warfare, Arctic domain awareness, and the protection of critical infrastructure. It should also account for the growing interdependence between space, cyber, and conventional military operations, as well as the increasing importance of early warning and decision-time resilience in a crisis.

Based on this assessment, the United States should consider a series of practical, scalable measures to strengthen security in and around Greenland, including:

• Modernizing and expanding early warning and space-domain capabilities at existing U.S. installations to address emerging missile threats, including advanced cruise and hypersonic systems.
• Enhancing undersea surveillance and maritime domain awareness, recognizing Greenland’s strategic position astride key North Atlantic and Arctic sea lines of communication.
• Improving Arctic infrastructure and resilience, including logistics, communications, and energy systems, to ensure sustained operations in extreme conditions.
• Exploring rotational or presence-based deployments, rather than permanent basing expansions, to increase flexibility while minimizing political friction.
• Deepening intelligence, planning, and operational coordination with Denmark and NATO allies to ensure that Greenland-related contingencies are fully integrated into alliance defense planning.

Critically, any changes to U.S. posture should be pursued in close coordination with Denmark and Greenland. Following the defense review, Washington and Copenhagen should work together to update the 1951 Defense of Greenland Agreement — or its relevant annexes — to reflect modern defense requirements, technological realities, and alliance priorities. A tailored update would provide the legal and political framework necessary to support new capabilities while reaffirming respect for Danish and Greenlandic sovereignty.

This approach offers multiple strategic benefits. It would strengthen U.S. homeland defense, reinforce NATO cohesion, and enhance deterrence in the Arctic without resorting to unnecessary or destabilizing political moves. It would also demonstrate that the United States remains committed to working with allies rather than around them when addressing emerging security challenges.

Greenland is indispensable to the defense of the United States. That has been true since World War II and remains true today. The challenge is not recognition of Greenland’s importance; it is ensuring that security enhancements are strategic, sustainable, and allied-driven. Done correctly, a modernized approach to Greenland’s defense can enhance deterrence, preserve stability in the Arctic, and strengthen the transatlantic partnership for decades to come.

The post Trump Is Right About Greenland — Wrong About How to Secure It appeared first on Just Security.

Just last week, Deputy Chief of Staff Stephen Miller warned, “Nobody’s going to fight the United States militarily over the future of Greenland.” In justification, he claimed, “For the United States to secure the Arctic region, to protect and defend NATO and NATO interests, obviously, Greenland should be part of the United States.” Less bombastically, Secretary of State Marco Rubio told members of Congress that the United States is attempting to purchase Greenland. Yet he caveated that desire by noting to reporters, “If the president identifies a threat to national security of the United States, every president retains the option to use military force.” 

And on Wednesday, President Trump told the New York Times the only limit to his international actions was “My own morality. My own mind. It’s the only thing that can stop me…. I don’t need international law.” Two days later, Trump appeared to apply that approach to Denmark, warning he was “going to do something on Greenland, whether they like it or not,” and that while he “would like to make a deal the easy way, but if we don’t do it the easy way we’re going to do it the hard way.” As to justification, Trump warned, “If we don’t do it, Russia or China will take over Greenland.” However, it was unclear why current or expanded agreements with NATO Ally Denmark, such as the Defence Cooperation Agreement finalized last June, and the renewed commitment by other States to enhancing Arctic security (e.g., here and here), would not suffice to secure the strategically important territory.  

These threats have led some to wonder whether NATO would have to defend Denmark if the United States attempted to seize Greenland forcibly (see, e.g., Washington Week). This article explores that issue.

Article 5 of the North Atlantic Treaty

The 1949 North Atlantic Treaty (also called the Washington Treaty) established the NATO Alliance and set the terms according to which the Parties to the instrument (the “Allies” in NATO parlance) would respond to an “armed attack” on an Ally in collective defense. The key provision is Article 5:

The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.

As expressly confirmed in Article 5, the authority to act collectively derives from Article 51 of the UN Charter, which had been adopted four years earlier. In relevant part, Article 51 provides: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.” Since Article 5 is grounded in the Charter’s Article 51, action taken based on the former is subject to, at least, the same conditions and limitations as self or collective defense under the latter.

The Article 5 Geographic Limitation

The Article 5 commitment is limited to action taken against allies in “Europe or North America.” Article 6 clarifies that this includes “an armed attack on the territory of any of the Parties in Europe or North America.” As Greenland is part of North America, the sole question vis-à-vis the geographical limitation is whether military operations into Greenland would be an armed attack on Denmark.

Much has been made of Greenland’s unique status. The territory enjoys broad autonomy under Denmark’s 2009 Self-Governing Act, especially in internal affairs. However, that autonomy is an issue of domestic law. Under international law, Denmark undeniably enjoys sovereignty over Greenland. In 1933, the Permanent Court of Justice, in a dispute between Norway and Denmark, found that Greenland was a Danish possession (Legal Status of Eastern Greenland). Subsequently, Denmark listed Greenland as a non-self-governing territory under Chapter XI of the UN Charter. In 1953, Greenland was incorporated into Denmark through domestic legislation, a status recognized by the General Assembly the following year (GA Res. 849). The United States has long acknowledged Danish sovereignty over Greenland (see, e.g., the 1916 Secretary of State declaration, the 1951 Defense of Greenland Agreement, and the 2004 Amendment to the Defense of Greenland Agreement). It is clear that Greenland falls within the geographical coverage of Article 5.

The Article 5 Trigger

Only an “armed attack” triggers the Article 5 obligation. Lesser unlawful actions do not suffice. For instance, the U.S. actions are already in violation of the prohibition on “intervention” into the internal or external affairs of another State. As noted by the International Court of Justice in its Paramilitary Activities judgment, intervention occurs when a State coerces another with respect to its “domaine réservé,” that is, matters left by international law to States (¶ 202). Trump’s “easy way or hard way” threat is paradigmatically coercive, for, as the Court noted, the use of force is a “particularly obvious” form of coercion (¶ 205). Moreover, the Court singled out “choice of a political … system” as a paradigmatic example of a matter falling within a State’s domaine réservé; whether a State retains sovereignty over territory is perhaps the most extreme manifestation of political choice. Despite this clear violation of international law, the U.S. intervention does not trigger Article 5.

Nor does the U.S. violation of the prohibition on the threat of the use of force set forth in Article 2(4) of the UN Charter: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations” (emphasis added). To violate the prohibition, the threat must be to engage in force that violates international law (Nuclear Weapons, ¶ 47). Such a threat must also be coercive, communicated, and credible to be unlawful (see my discussion of intervention here).

It is manifest that the U.S. threat to use force to seize Greenland is unlawful. After all, Article 2(4) specifically cites a use of force against “territorial integrity” as a basis for qualifying as a prohibited action (see also Friendly Relations Declaration). There are two bases for the lawful use of force against another State: UN Security Council authorization, which has not been granted, and self-defense under Article 51. Although the administration has claimed to need Greenland for defensive purposes, forcible defensive actions under Article 51 must respond to an imminent or ongoing armed attack. In this case, Denmark (and no other third State) has engaged in no hostile action against the United States. The threatened use of force by the United States is, as explained, coercive; multiple senior officials have communicated it; and in light of recent U.S. operations against Venezuela, the credibility of such threats cannot be dismissed as purely rhetorical. 

But again, this U.S. violation of international law against Denmark is completely insufficient to activate Article 5. Nevertheless, Denmark could communicate a request for assistance from other Allies below the level of a use of force pursuant to Article 4 of the North Atlantic Treaty, which provides for consultations among the Allies whenever, in the opinion of any of them, an Ally’s territorial integrity, political independence, or security is threatened. Doing so is not a precondition for action taken pursuant to Article 5.

The condition precedent to taking measures under Article 5 is strictly limited to situations in which there has been an “armed attack.”  The United States has traditionally adopted an expansive interpretation of “armed attack,” taking the position that any unlawful use of force qualifies as such (DoD Law of War Manual, §1.11.5.2; Taft, p. 300). This position diverges from that of most States in the world, including NATO members, and from the jurisprudence of the International Court of Justice, which limits armed attacks to the “most grave” forms of the use of force (Paramilitary Activities, ¶ 191).

That difference in approach is immaterial in this case. Any military operation sufficient to seize Greenland would unquestionably meet even the higher “most grave” threshold, thereby qualifying as an armed attack for Article 5 purposes. Indeed, the UN General Assembly’s Definition of Aggression Resolution, which was adopted by consensus, labels the “invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof,” as “aggression” (Res. 3314, art. 3(a)). Moreover, NATO’s own explanation of collective self-defense observes, “[a]n obvious example [of an armed attack] would involve an invasion by one state of the territory of another.”

A Legal Obligation to Assist?

According to Article 5, Parties to the North Atlantic Treaty “agree” to assist States that are the victims of an armed attack. This is a legal obligation, not a merely hortatory one. As a legal obligation, it must be fulfilled in good faith and in a manner consistent with the object and purpose of the North Atlantic Treaty (Vienna Convention, arts. 26 and 31(1); Gabčíkovo–Nagymaros, art. 142). Accordingly, a refusal to assist Denmark in the face of a U.S. attack would amount to an “internationally wrongful act” (Articles on State Responsibility, art. 2). In this sense, Article 5 differs from Article 51. Whereas the latter is permissive, the former is obligatory. In other words, while States could individually voluntarily agree to assist Denmark on an ad hoc basis, including by the use of force, under Article 51 of the UN Charter, they shoulder the obligation to “assist” under the North Atlantic Treaty. A key question, then, is whether the obligation to assist includes the use of force. As explained below, it does not.

Significantly, Article 5 imposes no limitations on whom collective defense may be directed against. In fact, in the aftermath of the 9/11 attacks on the United States, NATO invoked Article 5 for the only time in response to an attack by a non-State actor, al-Qaeda. There is no basis for concluding that the obligation would not extend to a U.S. attack on Denmark in the form of operations to seize control of Greenland.

As with any action in collective defense under the Charter, the State facing the armed attack, in this case, Denmark, has to request assistance (Paramilitary Activities, ¶¶ 196 and 199; Oil Platforms, ¶ 51) before other States may act in collective self-defense. For the Alliance, that request typically would be made to the North Atlantic Council (NAC). The Allies, in their role as members of the NAC, would be obligated by the principle of good faith to act on the request in a manner consistent with the treaty’s object and purpose–to lend assistance that renders the defense of an Ally against an armed attack effective. The nature and degree of assistance afforded by the other States would be limited to that requested by Denmark. 

Who Authorizes Action under Article 5?

The NAC is the body that would authorize a response executed under NATO command and control. It should be noted in this regard that the North Atlantic Treaty neither expressly designates the NAC as the entity authorizing collective action nor requires decisions to be taken by consensus. It merely establishes “a Council, on which each of [the Allies] shall be represented, to consider matters concerning the implementation of this Treaty” (art.  9). 

However, NATO practice has consistently treated the NAC as its core decision-making body. Moreover, the NAC has always operated on a consensus basis (see NATO’s description here and here). Importantly, because no procedural requirement of consensus appears in the treaty, a colorable argument might be fashioned that the NAC could act over U.S. objection, if only because it conducted the armed attack. That said, doing so would be institutionally unprecedented (as would an attack by one Ally against another). 

It is essential to emphasize that the absence of NAC authorization would not extinguish the Article 5 obligation to provide assistance in collective defense. That obligation could be satisfied through coordinated or unilateral action outside NATO command structures. If the assistance involved the use of force, it would be subject to the self-defense requirements of necessity and proportionality (Paramilitary Activities, ¶¶ 194, 237; Nuclear Weapons, ¶ 41; Oil Platforms, ¶¶ 43, 73-74, 76). 

What Assistance is Required?

While assistance is a binding obligation (subject to the request of the victim State) in the event of an armed attack, Article 5 does not require any particular form or level of assistance. This is clear from the “such action as [the assisting State] deems necessary” text in the article. In particular, it need not involve support at the level of a use of force or otherwise involve participation in the hostilities. The practice of individual Allies in the aftermath of the NAC’s determination that Article 5 applied to the 9/11 attacks is illustrative, as support ranged from overflight, intelligence sharing, and airspace surveillance to robust military action.

As I have noted elsewhere, such flexibility is not a defect in the treaty but instead a structural feature that allows the Alliance to function despite differing national threat perceptions and domestic legal and political processes for providing assistance. Thus, while a failure to provide any assistance to the victim State upon request could not be reconciled with Article 5 as a matter of treaty law, there is no quantitative or qualitative threshold of assistance beyond the requirement that the Allies act, as described above, in good faith in an effort to restore and maintain the security of the designated region.

Could the United States be Expelled from NATO?

Unlike the UN Charter, which provides for the expulsion of a member that has “persistently violated the Principles” of the UN Charter (art. 6), the North Atlantic Treaty, while allowing States to withdraw (art. 60), contains no comparable provision (on the issue of NATO expulsion (see Aurel Sari‘s excellent analysis). Therefore, the sole course of action other Allies could take in the face of the U.S. threats or subsequent military operations against Denmark would be to suspend or terminate the operation of the treaty on the basis that the United States is in “material breach.” The relevant law appears in Article 60 of the Vienna Convention on the Law of Treaties, which reflects customary international law (Gabčíkovo–Nagymaros, ¶ 46), an important point given that the United States is not a Party to the instrument.

A material breach involves “the violation of a provision essential to the accomplishment of the object or purpose of the treaty” (art. 60(3)). To the extent that the object and purpose of the treaty is the maintenance of “stability and well-being in the North Atlantic area” (preamble), and States have committed to assist each other to defend against armed attack, threatening an armed attack, let alone engaging in one, self-evidently amounts to a material breach. The decision to suspend or terminate would have to be unanimous (art. 60(2)(a)), although Denmark, as a “party specially affected,” could invoke the breach as a ground for suspension of the operation of the treaty as between itself and the United States (art. 60(2)(b). Suspension would entail the termination, in whole or in part, of rights and obligations under the treaty as between the United States and all other Allies; termination would permanently extinguish those rights and obligations. In such a case, North Atlantic Treaty obligations would continue in force for all other Allies.

Of course, suspending or terminating the obligation to assist the United States pursuant to Article 5 would be meaningless in the face of a U.S. armed attack on Denmark. However, it would probably sound the political death knell for U.S. participation in the Alliance. More immediately, it could help counter any argument that a U.S. objection in the NAC could bar NATO action. 

Concluding Thoughts

That this essay addresses whether other Allies would be obligated to assist in the collective defense of Denmark should the United States launch an armed attack against Greenland is astonishing. But it is no less remarkable that the United States would even threaten to use force against a NATO Ally that has fought at its side in recent conflicts in Afghanistan, Iraq, Syria, and elsewhere. Indeed, it is worth remembering that the per capita death rate of Danish troops in Afghanistan was on par with that of the United States, and those troops were there in the collective defense of the United States.

But considering recent events, it sadly makes sense to understand what Article 5 requires of Alliance members, and what it does not. Whether the Allies would come to Denmark’s defense if the United States attacked Greenland is uncertain, as is the manner in which they might do so. Nevertheless, it is clear that, in the event of a (hopefully unlikely) U.S. armed attack, the North Atlantic Treaty obligates other Allies to assist Denmark in collective defense should Denmark so request. That obligation would have to be performed in good faith and in light of the treaty’s object and purpose, although it leaves States discretion as to the form that assistance takes. Neither the identity of the attacker nor NATO’s internal decision-making practices negate that obligation.

The post The North Atlantic Treaty and a U.S. Attack on Denmark appeared first on Just Security.

Legal Background: The War Powers Resolution

The War Powers Resolution provides the statutory framework for the unilateral use of military force by a president, such as the ongoing maritime strikes and the U.S. operations in Venezuela. Congress enacted this law over President Richard Nixon’s veto in 1973 to reassert the body’s constitutional prerogatives with respect to war and peace. In essence, Congress sought to forestall any president from taking the country to war without congressional authorization or even without congressional awareness (as had allegedly been the case for aspects of the wars in South-East Asia, such as the incursion into Cambodia). Congress attempted to do this through a framework requiring transparency before forces are in harm’s way, and mechanisms for automatic termination of unilateral presidential uses of force absent specific congressional authorization. 

Reporting: To this end, Section 4(a) of the Resolution establishes reporting requirements to prevent the president from taking the country to war in secret. In the absence of a declaration of war or other statutory authorization, the executive branch is subject to multi-tiered obligations to report to Congress within 48 hours of certain activities by U.S. armed forces. 

First, under subsection 4(a)(1) the Executive must report when U.S. military forces are introduced into “hostilities” or introduced into “situations where imminent involvement in hostilities is clearly indicated by the circumstances.” Such hostilities reports are the focus of this essay. 

Second, even if U.S. forces are not engaging in hostilities, subsection 4(a)(2) requires the Executive to report the introduction of “combat equipped” forces into a country (the executive branch defines “combat-equipped” as forces equipped with crew-served weapons such as machine guns requiring more than one person to operate and mortars). The goal of this provision is essentially to avoid putting U.S. forces into a position that could lead to imminent hostilities without congressional awareness.

Third, pursuant to subsection 4(a)(3), the president must also report a substantial enlargement of such combat equipped forces in a country where such forces are already present.

Two mechanisms to terminate unilateral deployments into hostilities or imminent hostilities: Notably, under Section 5(b) of the 1973 Resolution, the submission of a report under the first of these scenarios — introduction of U.S. forces into hostilities or situations of imminent hostilities — starts a 60-day clock for the withdrawal of U.S. armed forces from such situations unless Congress declares war or otherwise enacts specific statutory authorization for the use of force. No further action needs to be taken by Congress for the termination to become effective (though in practice, presidents have found numerous ways to try to circumvent the termination requirement or argue its inapplicability). 

When enacted, the War Powers Resolution provided a mechanism in section 5(c) for Congress to order the removal of U.S. forces from hostilities through a concurrent resolution—that is, a resolution passed by both houses of Congress but not presented to the president for his or her signature or veto. Particularly following the Supreme Court’s 1983 decision in INS v. Chadha that ruled unconstitutional the so-called legislative veto, section 5(c) is widely viewed as unconstitutional. Following Chadha, Congress enacted expedited procedures for joint resolutions requiring the removal of U.S. armed forces from hostilities, which does require presentment to the president.

As one of us previously wrote (with Stephen Pomper), one of the consequences of Chadha was to “encourage[] a lingering (and in our view incorrect) impression that other provisions of the War Powers Resolution are constitutionally infirm — an impression that the executive branch has sometimes encouraged.” It is to that issue that we now turn. 

Constitutionality of the War Powers Resolution

Although it is sometimes asserted (including recently by Vice President J.D. Vance) that every presidential administration has claimed the War Powers Resolution is unconstitutional, that claim is inaccurate. (Charlie Savage recently wrote in the New York Times about the administration’s misleading claims on this front.) 

Although it is true that prior to Chadha, the executive branch regarded the concurrent resolution mechanism for terminating introductions into hostilities as unconstitutional based on the Supreme Court’s analysis of the Presentment Clause (Article I § 7 of the Constitution), that is distinct from claims regarding the constitutionality of the resolution as a whole, or any of its other specific provisions. As the Department of Justice’s Office of Legal Counsel (OLC) noted in 1979, “the only provision that this Administration has suggested presents constitutional problems related to the right of Congress to act by concurrent resolution.” 

Under administrations of both political parties, OLC has repeatedly accepted that other provisions of the resolution are constitutional at least on their face, including the reporting requirements, 60-day clock, and the revised joint resolution mechanism for withdrawing U.S. armed forces from hostilities. Harold Hongju Koh, Legal Adviser to the Department of State during the Obama administration, testified with reference to the War Powers Resolution that “[t]he Administration recognizes that Congress has powers to regulate and terminate uses of force.”

What’s more, in practice presidents have endeavored to comply with these requirements. First, all presidents since Ford have submitted the 48-hour reports described above. Second, while presidents have certainly stretched or narrowed their interpretations of the statute’s terms to avoid the termination requirement, they have attempted to make arguments under the law for why it does not constrain their activity in a given case, rather than arguing that the law itself is unconstitutional. 

In our view, the constitutionality of the War Powers Resolution is on firm ground. Congress holds the preponderance of the war-making, and war-adjacent, powers in the Constitution. Moreover, Congress has since the founding regulated when and how the United States may use force abroad (from the late 1700s to the frameworks in place today that are the subject of this essay). In sum, both the text and historical and modern practice make the statute’s constitutionality clear. 

Multiple Hostilities (and 60-Day Clocks Running) in Latin America

The first set of hostilities involves the administration’s campaign of lethal strikes against suspected drug ferrying boats in the Caribbean and eastern Pacific—Operation Southern Spear—in which the administration claims (erroneously) that it is involved in non-international armed conflicts against an unreleased list of 24 criminal gangs and drug cartels but, paradoxically, that it is not in “hostilities’ for WPR purposes (despite submitting a report implying that it was so involved 48 hours after the first Sept. 2 strike, as required by the WPR). These hostilities appear to be ongoing following 35 strikes and over 100 people killed. On Jan. 4, Secretary of State Rubio stated that “we continue to reserve the right to take strikes against drug boats that are bringing drugs towards the United States that are being operated by transnational criminal organizations.”

The other set of hostilities involves the administration’s unlawful use of force against Venezuela—Operation Absolute Resolve—including the seizure of its president and commander in chief, Nicolás Maduro, and his wife, Cilia Flores, in a military raid. That operation took place in the context of an immense military build-up in the region, continued threats of military force, and a naval blockade against U.S. sanctioned oil shipments from the country that remains ongoing. 

Congress has already voted on a series of measures under the War Powers Resolution that would require President Trump to remove U.S. forces from hostilities related to the boat strikes as well as in or against Venezuela. Another such vote is expected this week in the Senate. 

We now turn to explaining the two sets of hostilities, how each is governed by the War Powers Resolution, and what opportunities this creates for Congress. 

The Maritime Strikes Termination Clock

Consistent with section 4(a)(1) of the War Powers Resolution, the White House reported the first maritime strike (which occurred on Sept. 2, 2025) to Congress in a Sept. 4 letter. This report triggered the start of the Resolution’s 60-day clock—which was due to expire on Nov. 3.

But as this deadline approached, the Trump administration shifted its view on whether these strikes constitute “hostilities” under the 1973 law. The head of the OLC reportedly informed a small group of lawmakers that the maritime strikes did not constitute “hostilities” despite having initially reported them under the law. 

An anonymous senior administration official told the Washington Post that the War Powers Resolution doesn’t apply to the maritime strikes because, “even at its broadest … [it] has been understood to apply to placing U.S. service-members in harm’s way.” According to this official, “[t]he operation comprises precise strikes conducted largely by unmanned aerial vehicles launched from naval vessels in international waters at distances too far away for the crews of the targeted vessels to endanger American personnel.” Thus, “the kinetic operations underway do not rise to the level of ‘hostilities,’” according to the administration.

Contrary to the administration’s arguments, the War Powers Resolution’s clock has been ticking since Sept. 4th of last year, and exceeded the 60 day deadline in early November. Based on the text, legislative history, and past executive branch practice, the better view is that airstrikes, even when U.S. armed forces are not exposed to significant risk, are hostilities under the Resolution.

As one of us (Finucane) has previously explained:

There are many flaws with the Trump administration’s reported interpretation of hostilities. As indicated in the legislative history, Congress understood the term “hostilities” to apply broadly, more broadly than “armed conflict.” The Obama administration’s prior attempt to restrictively interpret the term garnered strong bipartisan congressional opposition.

Moreover, the War Powers Resolution was enacted not only against the general backdrop of the Vietnam War, but more specifically President Nixon’s legally contested aerial bombing of Cambodia in 1973 (Operation Freedom Deal) which Congress sought to terminate through funding restrictions. As Representative Zablocki (a key architect of the War Powers Resolution) explained, “[w]hat really helped the war powers legislation was the arrogance of the executive branch in saying ‘We’ll bomb Cambodia as long as we desire, regardless of what Congress says.’” It thus beggars belief that Congress somehow intended the War Powers Resolution not to cover U.S. airstrikes.

Indeed, in October 1973, to prevent a resumption of the Cambodia aerial bombing, Congress enacted (just weeks before the War Powers Resolution itself) a funding restriction barring “the involvement of United States military forces in hostilities in or over or from off the shores of North Vietnam, South Vietnam, Laos, or Cambodia, unless specifically authorized hereafter by the Congress.” (emphasis added) On November 16th—a week after the War Powers Resolution was enacted over Nixon’s veto—the Defense Appropriations Act of 1974 was signed into law with the exact same prohibition on “hostilities” but effective upon enactment. From this context, it appears clear that Congress meant to capture aerial bombing within the scope of the term “hostilities” and thus the restrictions of the War Powers Resolution. 

Although the Trump administration’s attempt to circumvent the 60-day clock is legally unconvincing, it is hardly the first administration to resort to “creative” lawyering to continue hostilities past the deadline. In recent years, both the Obama administration (in Libya) and the Biden administration (in Yemen) relied on strained interpretations of the War Powers Resolution to continue hostilities notwithstanding the law’s restrictions and the absence of congressional authorization. 

But the Trump administration’s reported theory goes even further than the arguments from past administrations in suggesting that any standoff airstrike by the United States is outside the scope of the War Powers Resolution by claiming that the resolution is inapplicable even when the president believes the strikes are part of an ongoing armed conflict, which purportedly includes hostile actions against the United States (the notion of an armed conflict with cartels and gangs and of hostilities against the United States by such groups are both facts we dispute, but which the administration has consistently claimed). Such an interpretation would allow the United States to wage an air war indefinitely without congressional authorization. 

The Venezuela Hostilities – Operation Absolute Resolve

There is no doubt that Operation Absolute Resolve constitutes “hostilities” within the meaning of the WPR. And while WPR reports to Congress have almost never specifically stated so, this was implied in the report President Trump sent to Congress. In the context of explaining why the president needed congressional authorization to undertake the operation, one of us (Bridgeman) recently outlined (with Brian Egan and Ryan Goodman) the extensive nature of the military engagement:

On Jan. 3, President Donald Trump ordered a military operation that bombed Venezuelan air defenses and other targets in the country, seized Venezuelan president Nicolás Maduro and his wife Cilia Flores from their home, killed approximately 75 or 80 people, caused the injury of around six or seven U.S. service members, and potentially resulted in regime change Venezuela. As described in the War Powers Report subsequently provided to Congress, “the Armed Forces of the US conducted targeted and limited military strikes within the territory of the Bolivarian Republic of Venezuela.” The operation was more extensive than this brief sentence would indicate, distinguishing it from other contested unilateral uses of force that relied on unmanned “over-the-horizon” strikes (Syria in 2017 and 2018) or other types of one-off kinetic strikes (Iran in summer 2025). 

Numerous officials in the Trump administration have publicly acknowledged that this named military operation was inherently risky (calling it “very dangerous” and “audacious”). It involved approximately 200 U.S. personnel on the ground in Caracas. There were, as would be expected in an operation of this nature, fire fights between U.S. forces and opposing forces, involving both Venezuelan and Cuban military forces. What’s more, the operation took place in the context of an extensive military build-up in the region, coupled with threats against Maduro to cede power, as well as an ongoing U.S. naval blockade of Venezuelan oil tankers. (The threats and blockade continue today.)

These facts are also important for the analysis of whether the operations constituted “hostilities” for WPR purposes. Based even on OLC’s exceedingly narrow view (a view contrary to the statute’s legislative history) on what types of military engagements constitute “hostilities” for WPR purposes, all of the hallmarks are present. To focus on the most salient and long-held criterion for the executive branch as to what constitutes hostilities – actual “exchanges of fire” between U.S. and hostile forces – this operation clearly did so. Indeed, the combat resulted in dozens of fatalities amongst Venezuelan and Cuban combatants as well as Venezuelan civilians, and injuries to seven U.S. servicemembers. Reportedly, one of the U.S. helicopters that took hostile fire during the operation almost didn’t make it out of Caracas. 

The U.S. Senate also took the position that the military incursion into Venezuela constituted “hostilities.” On January 8th, the Senate voted 52-47 to advance a joint resolution to block further U.S. military action in Venezuela. That resolution specified in pertinent part that “use of military force by the United States Armed Forces within or against Venezuela constitutes the introduction of United States Armed Forces into hostilities.” 

The Venezuela Termination Clock

At a minimum, the 60-day clock started running on Sunday Jan. 5th—48 hours after the operation to capture Maduro occurred. (Depending on the facts, there may be an argument that the clock should have started earlier in connection with the drone strike on Venezuela disclosed by President Trump.) 

The Trump administration will most likely argue that there are no ongoing hostilities. Unlike the argument advanced in relation to the strikes on suspected drug trafficking vessels, which rested on the idea that the hostilities were essentially not intense enough insofar as they did not pose risks to U.S. personnel, in the Venezuela context the administration is instead likely to argue that Operation Absolute Resolve was a one-time engagement that ended as soon as US aircraft left Venezuelan airspace, taking all US personnel with them.

There are reasons to contest any such claims. 

The U.S. military incursion into Venezuela, aerial bombardment of the country, attacks on Venezuelan and Cuban forces, and seizure of the commander in chief of Venezuela’s armed forces constitutes an “international armed conflict.” In contrast to the standard for a non-international armed conflict, the standard for an international armed conflict under international law is low. As explained by the International Committee of the Red Cross in its 1952 commentary on the Geneva Conventions, “Any difference arising between two States and leading to the intervention of armed forces is an [international] armed conflict within the meaning of Article 2, even if one of the Parties denies the existence of a state of war.”

This international armed conflict appears to be ongoing, including the prospect for further hostilities. Rather than proclaim the attack of January 2nd/3rd a “one and done affair,” President Trump has threatened another round of airstrikes, threatened the acting Venezuelan president with a fate “worse” than Maduro, and left open the possibility of U.S. “boots on the ground” in Venezuela. Notably, the War Powers report submitted by the White House to Congress in connection with the raid does not specify that U.S. military operations have concluded, as most reports of limited engagements (such as hostage recoveries, evacuations, rescue missions, and the like) have in the past. Instead, it is silent on the expected duration of the operations, although the president is statutorily required to provide that information. Moreover, U.S. armed forces remain stationed in the region and continue to support the interdiction of sanctioned oil tankers.  [Update: In a statement of administration policy opposing and threatening a veto of the Senate Venezuela resolution, the White House asserted that there were ‘’ongoing national security threats posed by the Maduro-led Cártel de los Soles and other violent drug-trafficking cartels.” This characterization by the administration reinforces the conclusion that “hostilities” remain ongoing.]

For these reasons, the 60-day clock for Operation Absolute Resolve appears to still be ticking.

How Should Congress Respond?

The Senate has now voted to discharge Senator Kaine’s joint resolution from the Senate Foreign Relations Committee, teeing up a floor vote on the resolution itself as well as potential amendments. In the House, Congressman McGovern has also introduced a concurrent resolution to remove U.S. armed forces from Venezuela without specific congressional authorization. (As a concurrent resolution would not be presented to the President for signature or veto, the Supreme Court’s decision in Chadha renders it highly unlikely it could be binding even if passed by both houses of Congress.) 

In addition, measures in both the House and Senate have been introduced to exercise Congress’s ultimate war power—the power of the purse—to block funding for U.S. military operations in or against Venezuela. At present, it is unlikely that Congress could muster the votes for these various measures to overcome presidential vetoes even if they passed both houses. 

Longer term, both sets of unauthorized hostilities and the willingness of the White House to disregard the 60-day clock with respect to the boat strikes should serve as a forceful reminder that Congress needs to reassert its constitutional prerogatives and responsibilities over the use of military force. Among other things, such congressional action should entail reforming the 1973 War Powers Resolution to close loopholes in that law and give it more teeth. Such reforms would include defining key terms, shortening the termination deadline for any unauthorized hostilities, enhancing transparency requirements, and, crucially, imposing mandatory funding cutoffs. 

Regardless of the near term prospects for meaningful legislative reform, Congress must also engage in more rigorous oversight. This should include using all of the tools at its disposal (from the nominations process to use of its subpoena power, among others) to demand that the administration answer for its unilateral uses (and abuses) of U.S. armed forces and shine a spotlight for the American people on the gravity of the situation. 

Conclusion

The U.S. Constitution assigns the power to Declare War and related war powers to the Congress for good reasons that remain as relevant today as ever. It is precisely because going to war is one of the most consequential choices a country can make that decisions on resorting to the use of force were intended to be difficult—to be made after public debate and deliberation by the people’s elected representatives. Although the President would have authority as commander in chief to repel sudden attack, other military actions would require the collective decisionmaking of the legislature. The Constitution does not authorize one person taking the country to war based solely on that individual’s policy or personal preferences.

Obviously, presidential administrations of both parties have departed from this constitutional model by using military force without congressional authorization in situations outside of immediate self-defense. But even by the standards of prior executives, the flurry of unilateral military actions by this administration is striking and deeply troubling to members of Congress and the public across ideological lines. Since returning to office, President Trump has overseen military strikes in Yemen (against the Houthis), Iran, the Caribbean, the Pacific, and Venezuela, all without any plausible congressional authorization (Nigeria might be added to that list, depending on the administration’s justification). (This is an addition to military actions in Syria, Iraq, and Somalia notionally pursuant to the 2001 Authorization for Use of Military Force.)

The last year of unauthorized, discretionary military interventions and the president’s threats of more to come—including even against a NATO ally—should spur the Article I branch of the U.S. government to reassert its constitutional prerogatives and indeed constitutional responsibilities over the use of force.

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