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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

As global technology competition intensifies, new security risks are emerging. The first publicly reported AI-orchestrated hacking campaign appeared in 2025, and agentic AI systems are expected to reshape the offense-defense balance in cyberspace in the year ahead. More broadly, as AI diffuses through societies, policymakers must grapple with its implications for democracy, human rights, and the distribution of power between states and their citizens.

To make sense of these developments, we asked leading experts to identify key trends they will be watching in 2026 and beyond.

AI Federalism and the Future of U.S. Regulation

Josh Geltzer, Partner in WilmerHale’s Defense, National Security and Government Contracts Practice; Former Deputy Assistant to the President, Deputy White House Counsel, and Legal Advisor to the National Security Council: 

In 2025, the central AI policy debate in Congress revolved around whether to impose a federal “AI moratorium” that would block states from regulating AI for a set period of time. This proposal, strongly supported by the Trump administration, nearly passed as part of the summer’s “Big Beautiful Bill” and later resurfaced in the year-end National Defense Authorization Act, but ultimately failed due to insufficient congressional backing. As an alternative, U.S. President Donald Trump issued a December executive order aimed at limiting the impact of state-level AI laws without full federal statutory preemption. The order directed the Department of Justice to develop ways to challenge state-level AI laws deemed contrary to administration policy and, furthermore, instructed executive branch agencies to withhold certain funds from states maintaining AI regulations viewed as restrictive. It also committed the White House to draft a legislative framework for a uniform federal AI policy that would preempt state laws, while preserving state authority over issues like child safety, data center infrastructure, and government AI procurement.

Looking ahead to 2026, the debate is shifting from whether to “preempt something with nothing” to whether to “preempt something with something.” In other words, the key question will no longer be about eliminating state AI laws—which continue to proliferate—without a federal substitute, but will instead become about replacing them with a concrete federal regulatory framework. This change fundamentally alters the conversation: both supporters and critics of the 2025 moratorium must recognize that preemption with a substantive policy is a different proposition from preemption without one. What that federal framework will actually look like remains uncertain, but its details will be critical in determining the level of support for renewed legislation. The bottom line: expect a very different—and potentially more consequential— discussion about federalizing AI law in 2026.

David S. Rubenstein, James R. Ahrens Chair in Constitutional Law and Director of the Robert J. Dole Center for Law and Government at Washburn University School of Law:

The biggest AI federalism story of 2026 will not be about algorithms. It will be about silicon and steel. The National Conference of State Legislatures predicts that data centers will be a central legislative concern. While the dominant political narrative focuses on energy affordability and sustainability, the grassroots data center backlash runs deeper. People vote how they feel, and many Americans feel negatively about an AI-driven future. Data centers are vessels for AI anxiety and antipathy toward big tech more generally. This matters for two related reasons. First, the backlash reflects a broad coalition, spanning affordability, sustainability, job security, and corporate accountability. Second, even if energy costs are contained, the backlash probably will not be. For constituents anxious about AI, job loss, and cultural decay, blocking a local land-use permit or a corporate tax credit is how their voices will be heard.

Beyond infrastructure, states will continue to regulate AI itself. However, comprehensive AI acts are losing momentum. Colorado’s flagship law illustrates why. Originally passed in 2024, Colorado’s AI Act was designed to regulate AI discrimination across employment, housing, healthcare, and more. As the effective date approached, however, Colorado’s Governor and Attorney General backed the industry’s effort to gut the law. Instead, the Colorado legislature delayed the effective date to mid-2026, and future setbacks are likely. States are now pivoting to more targeted approaches, focusing on high-risk applications and legacy sectors. AI chatbots, for example, are in the legislative crosshairs, following headline news that linked chatbots to suicide, defamation, and deception. In 2026, states likely will respond with transparency laws, age-gating, and other guardrails. Pricing algorithms are also on the agenda. Some states may take a general approach, for example, by amending antitrust codes. But most states will seek to regulate price-setting algorithms in specific domains, like housing and insurance. Meanwhile, major legislation enacted in 2025 will take effect this year, including California’s “companion chatbot” law and Illinois’ employment-decision protections.

None of this sits well with the Trump administration. Acceleration and deregulation are twin pillars of the White House’s domestic AI agenda. Most recently, Trump issued an executive order to limit state AI laws through a multi-pronged approach: litigation, federal funding conditions, and regulatory preemption. The order’s ambition makes it legally vulnerable. The executive branch cannot unilaterally preempt state law without a delegation from Congress. Nor can the executive branch impose spending conditions that Congress itself rejected. Agencies will be hard-pressed to demonstrate otherwise in court. Legal issues aside, the order is politically tone-deaf. By large margins, Americans favor AI regulation. States are delivering. The federal government has not. Expect more of the same in 2026.

Losing Control of Autonomous Cyber Operations

Brianna Rosen, Executive Director of the Oxford Programme for Cyber and Technology Policy; Senior Fellow and Director of the AI and Emerging Technologies Initiative at Just Security: 

The emergence of highly autonomous cyber capable agents represents a qualitative shift in the threat landscape that existing governance frameworks are ill-equipped to address. Unlike AI systems that assist human operators, these agents can identify vulnerabilities, develop exploitation strategies, and execute intrusion campaigns with minimal human oversight. The GTG-1002 campaign disclosed last year offered an early glimpse of this future, but the systems now under development by both state and non-state actors will be far more sophisticated.

The governance challenge is twofold. First, attribution becomes significantly harder when autonomous agents can be deployed at scale, adapt their tactics in real time, and obscure their origins. Traditional deterrence models assume adversaries can be identified and held accountable; that assumption is eroding. Second, the speed of autonomous operations may compress decision cycles to the point where meaningful human control becomes impractical. An agent that can move from reconnaissance to exploitation in minutes leaves little room for deliberation.

These dynamics have implications beyond cybersecurity. Highly autonomous agents operating in other domains, from financial markets to critical infrastructure management, raise similar questions about accountability, control, and escalation risk. Policymakers in 2026 will need to move beyond sector-specific frameworks toward a more integrated approach to autonomous systems governance, one that addresses the underlying capabilities rather than their application in any single domain. The forthcoming U.S. cybersecurity strategy and ongoing discussions among allies about AI security cooperation offer opportunities to begin this work, but only if governments are willing to grapple with the harder questions about autonomy, speed, and control that these systems pose.

Teddy Nemeroff, Co-Founder of Verific AI; Former Director for International Cyber Policy on the National Security Council staff:

In 2026, agentic AI will play a decisive role in determining the balance between offense and defense in cyberspace. Last year saw the first publicly reported AI-orchestrated hacking campaign, perpetrated by Chinese state-sponsored cyber actors. Although the campaign used unsophisticated hacking tools and only compromised a handful of the approximately 30 organizations targeted, it provided a proof of concept for how AI could be used to automate 80 to 90 percent of hacking operations. This year, AI-orchestrated hacking campaigns will become the norm. Cyber criminals and states like Russia, Iran, and North Korea will adopt similar approaches, increasingly using agentic capabilities to run their own campaigns.

On the other hand, agentic AI will drive new innovations in cyber defense in 2026—from AI-enabled penetration testing to automated incident response. A key question will be how quickly these innovations can be implemented in cybersecurity products and distributed to owners and operators especially in key critical infrastructure sectors. This time lag will almost certainly give hackers the advantage in the short term, and that advantage may be overwhelming for under-resourced entities, like schools and hospitals, as well as poorer countries with weaker cyber defenses.

In addition to being a tool that cyber attackers and defenders use, in 2026, AI will increasingly shape the landscape in which they compete. As companies integrate AI capabilities into their enterprise systems, this will create new vulnerabilities that adversaries will seek to exploit and defenders must address—from prompt injection attacks to data exfiltration from AI systems. The widespread adoption of AI coding tools will also shape the cybersecurity environment in 2026, as hackers increasingly exploit weaknesses in hastily produced “vibe coded” software. On the other hand, experts hope AI can ultimately reduce software vulnerabilities through better pre-release testing and by lowering the cost to re-write flawed code in legacy technology used to operate many critical infrastructure systems today.

The White House is expected to issue a new cybersecurity strategy in January 2026—one that is expected to feature a heavy emphasis on offensive cyber and deterrence. This will provide an important signal as to how the Trump administration plans to address these challenges in the coming year.

U.S.-China Competition Accelerates Across the Tech Stack 

Martijn Rasser, Vice President of the Technology Leadership Directorate at the Special Competitive Studies Project:

In 2026, the transition from large language models to agentic AI—systems capable of autonomous reasoning and real-world execution—will redefine the stakes of technology transfer. We have moved from information risks to functional risks. Because agentic systems require vast, low-latency compute to manage industrial supply chains, cyber operations, and financial markets, the underlying hardware is no longer merely a commodity; it is the physical infrastructure of sovereignty.

To protect this infrastructure, the United States must move past the strategic myth that selling mid-tier hardware to adversaries ensures dependency. History and current industrial policy suggest the opposite: providing frontier compute to strategic rivals only provides the scaffold they need to train indigenous models and bridge the gap toward self-sufficiency. In 2026, economic security requires building a high fence around the entire compute stack. The goal of export controls should not be to keep adversaries addicted to U.S. technology, but to ensure that the most capable agentic frameworks—those that can disrupt global markets or automate high-speed cyber warfare—remain a privileged asset of the democratic world.

True diffusion should be a strategic reward for allies, not a commercial compromise with rivals. By strictly limiting compute access for adversaries while building a secure, high-capacity compute-as-a-service architecture for trusted partners, the United States can lead a coalition that ensures the rules of the road for autonomous agents are set in Washington, London, and Tokyo—not Beijing. In this new era, U.S. security lies in maintaining America’s technological lead, which should not be compromised for the sake of profit.

Geoffrey Gertz, Senior Fellow in the Energy, Economics, and Security Program at the Center for a New American Security; Former Director for International Economics at the White House: 

Over the course of 2025, the United States and China rapidly escalated trade and tech restrictions toward each other, then negotiated to roll them back. By the end of the year, the superpowers had established a fragile détente, with the Trump administration refraining from imposing new export controls or sanctions to retaliate for China’s cyberespionage out of fears of upsetting this shaky truce. The result is a quiet sea change in U.S. economic security policy. After years of steady progress on the China derisking policy agenda—marked by new controls on dual-use technology exports, outbound investments, and the transfer of sensitive personal data—at the outset of 2026 the Trump administration has effectively paused any new competitive actions toward China.

The trend to watch this year is how long this truce will last, and what happens to the U.S. tech protection agenda in the meantime. The Commerce Department recently withdrew plans to restrict the import of Chinese drones and the White House opted not to introduce any significant new tariffs on semiconductors. Yet even as the Trump administration studiously avoids new tech restrictions that might destabilize the status quo, other parts of the government may have an incentive to act. Late last year, Congress passed a law that codified and expanded the outbound investment rules, and there are ongoing legislative efforts to strengthen U.S. chip controls. Meanwhile the Federal Communications Commission (FCC), a regulatory agency (debatably) independent of the administration, may  step in where the Commerce Department is stepping back: in late December the FCC issued its own rule restricting the import of foreign drones. Unlike Commerce’s proposed approach, the FCC rule applies to foreign drones from any country, rather than explicitly targeting China, perhaps in an effort to avoid provoking Chinese retaliation. This may become a model for additional new restrictions.

Ultimately, the current U.S.-China truce is likely to break down at some point, whether due to a miscalculation, unforeseen shock, or simply because one side or the other determines it no longer serves its interests. At that point the floodgates may open on new tech restrictions, as the various constituencies in favor of more rapid derisking seek to make up for lost time. Any companies making business decisions on the assumption the current détente truly represents a break in the longer-term trend of heightened geoeconomic competition may be disappointed.

Scott Singer, Fellow in the Technology and International Affairs Program at the Carnegie Endowment for International Peace; Co-Founder of the Oxford China Policy Lab:  

In 2026, general-purpose AI systems will begin to transform major economies and societies in more tangible, noticeable, and irreversible ways than we have seen before. Yet backlash will intensify, creating new and more potent coalitions to rein in AI. The United States and China will be ground zeroes for both these phenomena, with trends operating in parallel but taking shapes under two very different national systems.

AI systems continue to advance in both technical capacity and real-world utility. In late 2025, tools like Claude Code enabled AI-savvy users with no coding experience to fully automate a range of computer-based tasks. With Washington and Beijing both hoping to diffuse such tools throughout their economies, 2026 will showcase a race between the relatively laissez-faire U.S. approach and China’s top-down, whole-of-society AI+ initiative. At the same time, both countries are simultaneously grappling with AI risks that are no longer speculative but clearly present. China will begin implementing its recently published interim guidelines on “human-like” AI interaction services, responding to growing social concerns about emotional dependence and addiction. Meanwhile, parallel anxieties have crystallized in the United States around child safety, companion chatbots, and the ethics of rapid AI development, with bipartisan congressional calls for child safety legislation. Additionally, California has passed laws targeting companion chatbots.

As AI capabilities diffuse more broadly in 2026, expect to see new stakeholder coalitions emerge in both countries demanding governance frameworks that address growing harms. In the United States, the pro-regulatory coalition may include populists of the right and left, labor, parents, Catholics and other religious communities, and civil rights groups. As legislation moves slowly, many will turn to the courts to hold companies liable for AI-related harms. In China, the CCP will enforce its own values and monitor society for grass-roots sentiments that require a response. Beijing will not hesitate to penalize companies if deemed necessary.

Sam Winter-Levy, Fellow in the Technology and International Affairs Program at the Carnegie Endowment for International Peace:

A year ago, there was something close to bipartisan consensus on AI export controls: the United States should maintain as large a lead as possible over China in advanced chips and prevent Beijing from accessing the hardware needed to train competitive frontier AI systems. That’s still the dominant view in Congress, as well as the national security and AI policy communities. But in the White House, that consensus has collapsed. In December, U.S. President Donald Trump announced he would allow Nvidia to sell its advanced H200 chip to China, in return for the U.S. government receiving a 25 percent cut of the revenue. What was once a set of national security controls off the table for bargaining has become something closer to a pricing negotiation with both Beijing and Nvidia.

The key questions for 2026 center not on whether the Trump administration will maintain this approach, but on how far it will go and what constraints it will face. If the administration greenlights the sale of millions of H200 chips to China, it risks significantly eroding the U.S. compute advantage. But the license requirement remains in place, meaning multiple agencies will have to sign off on license conditions—along with Chinese companies and Beijing. If this process results in significantly limited sales, the effect will be much more muted. Pressure from Congress, where bipartisan concern about AI transfers to adversaries remains strong, may also slow things down.

On the other side of the ledger, how much progress will China make in indigenizing semiconductor manufacturing equipment and scaling domestic chip production—and will the relaxation of U.S. controls slow that drive or give Beijing less incentive to invest? For now, most projections suggest China will continue to struggle to make competitive chips in large quantities. If the administration succeeds in plugging gaps in its semiconductor manufacturing equipment export control regime, which for now it remains committed to, China will face even steeper obstacles. But Washington will need alignment in export restrictions from allies like the Netherlands, Japan, and South Korea, which may be reluctant to bear significant costs enforcing complementary controls now that the United States seems comfortable selling advanced chips to Beijing. If U.S. allies loosen their controls, China’s ability to manufacture high-end chips domestically could improve substantially.

Meanwhile, the competition is broadening. Chinese open-source models are seeing widespread adoption across the Global South, with significant support from the Chinese government—a trend that will accelerate as Beijing scales its domestic chip production. Toward the end of last year, the Trump administration launched its AI exports program to bolster the United States as the global supplier of AI and bring partners into an American-led ecosystem. Together with its newly announced Pax Silica initiative—an attempt to build a “coalition of capabilities” among states in the semiconductor supply chain—it represents one of the administration’s most prominent efforts to marshal public resources to compete internationally with China on AI. For now, both initiatives lack substance. But if the administration follows through with sustained funding and diplomatic engagement, they have the potential to strengthen the U.S. position in what is fast becoming a truly global contest for AI influence.

Lennart Heim, Independent AI Policy & Semiconductors Researcher: 

I will continue to closely watch China’s AI chip ecosystem in 2026. Chinese manufacturers still struggle enormously to produce advanced chips at scale—domestic production remains a small fraction of what the United States and its partners design and manufacture, yields are poor, and their technology nodes lag years behind. This gap has been widening, not closing, as TSMC and other chip manufacturers keep advancing. The key questions I am tracking: How many advanced AI chips will China actually produce domestically this year, and who will buy them? Can China manage to produce high-bandwidth memory domestically, given that the country can no longer import it? I expect this to be a major challenge—China’s production will certainly increase, but from a very low base.

But something has also shifted. In December, the Trump administration approved exports of Nvidia’s H200—the most powerful chip ever cleared for sale to China. With access to high-end foreign chips for domestic use, China might now be able to divert some of its scarce domestic production toward exports, potentially creating tech ecosystem lock-ins abroad. Will China do this, and where will these chips end up?

So far, I am not aware of data centers with advanced Chinese AI chips outside of China. But as the United States pursues major AI infrastructure deals overseas, China faces pressure to promote an alternative tech ecosystem. I will be watching whether China channels domestically produced chips to foreign deployments—or whether Chinese firms might even use their now legally purchased Nvidia chips to compete with U.S. hyperscalers in third markets. China certainly cannot compete on the largest projects with its own chips; they simply are not produced at that scale. But China does not need to match U.S. scale to be strategically relevant. More likely, it might stack modest volumes of AI chips with mobile networking, subsidized financing, and smartphones preloaded with Chinese AI as the default—the whole tech stack. The chip volumes will be limited, but these beachheads matter. As we have seen with other technologies, early deployments can create long-term dependencies if they are strategic.

Quantum Computing’s Industrial Challenge

Constanza M. Vidal Bustamante, Fellow in the Technology and National Security Program at the Center for a New American Security:

​​The United States, China, and Europe are preparing to refresh their national quantum programs in 2026, making this a pivotal year for quantum policy. As quantum sensors and computers move toward real-world utility and nations compete to secure their economic and security advantages, they are converging on a defining challenge: whether their industrial bases and supply chains are ready to support scale.

Despite boasting a world-leading ecosystem of universities and startups, thin and globally dispersed supply chains increasingly constrain U.S. quantum progress. The United States relies heavily on foreign (including Chinese) or fragile single-supplier markets for critical inputs, from precision lasers and cryogenics to photonic materials and advanced microfabrication. Yet less than twelve percent of federal quantum funding supports domestic enabling technologies and manufacturing capacity. Congressional bills and rumored upcoming executive orders signal awareness of some of these gaps, but concrete outcomes remain uncertain, especially as quantum continues to compete for attention with higher-profile policy priorities such as AI and conventional semiconductor manufacturing.

Meanwhile, China’s Fifteenth Five-Year Plan, due this March, is expected to further strengthen its already formidable industrial base by elevating quantum as the top “industry of the future.” And Europe, for its part, is preparing a Quantum Act for release in the second quarter, emphasizing “Made in Europe” industrial capacity and supply chains as part of a broader push for technological sovereignty.

The United States and Europe must take care not to turn their drive for self-reliance into costly fragmentation. Fully indigenizing quantum supply chains on either side of the Atlantic would demand time and investment neither can afford if they hope to stay ahead of China. A more credible path may lie in pooling allied capabilities now to secure trusted sources of critical materials, components, fabrication, and systems, while building domestic capacity over time—an approach reflected in initiatives such as the U.S. Department of State’s Pax Silica framework for AI. Whether the United States and its allies act on this logic in 2026 may determine whether they reap the substantial national security and economic gains of quantum technologies they have long sought—or cede that value to strategic competitors.

An Authoritarian Turn in Tech Policy?

Justin Hendrix, Cofounder and CEO of Tech Policy Press:

In February, heads of state and leaders of industry will gather in Delhi for the AI Impact Summit, the fourth in a series of global conferences that kicked off just one year following the launch of OpenAI’s ChatGPT. The tagline for the event is “Welfare for All, Happiness for All.” While we can expect another measured announcement from the gathered elites about international cooperation towards that goal, the year ahead appears set to more fully reveal what earlier techno-optimism and billions of dollars in marketing have obscured: that under present conditions, AI is more likely, on balance, to undermine democracy and strengthen authoritarianism.

Indeed, where authoritarianism is rising—and that is nearly everywhere, according to the 2025 editions of the Economist Intelligence Unit Democracy Index, the Freedom House Freedom in the World report, and the V-Dem Institute Democracy Report—AI is increasingly a tool of authoritarian control and a threat to democratic systems. OpenAI might be selling “democratic AI,” but as legal scholars Woodrow Hartzog and Jessica Silbey contend, today’s “AI systems are built to function in ways that degrade and are likely to destroy our crucial civic institutions,” which they say includes universities, the free press, and the rule of law itself. That is even before all of the ways AI is being deployed around the world for surveillance, manipulation, and control.

A clinical look at the situation requires adopting a new frame for the new year, and to prioritize interrogating the “tenacious connections” between AI and authoritarianism rather than building more intellectual scaffolding for “responsible AI.” Instead of prioritizing questions like, “How do we regulate tech to ensure a healthier democracy?” we should instead put more effort into answering “How do we preserve space for human agency and resistance in an increasingly authoritarian century?”

This may appear to be a pessimistic reorientation, but it points towards what should be sources of hope: the clear need for solidarity with existing movements for the rule of law, democracy, human rights, social and environmental justice; and the urgency of building alternative public technology infrastructures that are free from both corporate and state control. This is the reorientation that is needed in tech policy beyond simply asking corporations and states to behave more responsibly when it comes to AI.

Petra Molnar, Associate Director of York University’s Refugee Law Lab; Faculty Associate at Harvard’s Berkman Klein Center for Internet and Society: 

I expect a shift in the use of border technologies by Global North states, where surveillance and screening start well before a person reaches a port of entry through increasingly networked systems of social media surveillance, predictive analytics, and automated decision-making. This direction also complements the growth of more automated physical surveillance infrastructure, including autonomous surveillance towers at the U.S.-Mexico border, and additional in-land routine surveillance practices, such as biometric data gathering, app-based verification, and social media monitoring that expand already discretionary decision-making. All these technologies have profound ramifications for people’s human rights and civil liberties, yet governance mechanisms are lacking. While the European Union’s AI Act will likely shape regulatory conversations in 2026 on border technologies, the Act also leaves substantial room for state security rationales and procurement realities to determine what is deployed in practice instead of leading from a rights-protecting perspective at the border.

At the same time, global migration numbers will likely continue increasing in 2026. People in need of protection will continue to flee protracted and new conflicts, exercising their internationally-protected right to seek asylum. But in the current anti-migration political climate, governments will continue pushing for the normalization of surveillance and expanded data collection, with private companies like Anduril, Palantir, and Elbit Systems benefiting from lucrative public-private partnerships in a multi-billion dollar border industrial complex. As such, 2026 may be less about “new” tools—like robo-dogs, iris-scanning orbs and border vigilante apps—and more about existing tools becoming integrated into a continuous data-driven pipeline, from social media and biometrics to automated triage. Practical harms will not only include privacy loss, but also the amplification of discrimination and exclusion through opacity, algorithmic error, chilled speech and association, as well as the weakening of international legal norms.

The post Key Trends that Will Shape Tech Policy in 2026 appeared first on Just Security.

Unceasing attacks came from governments, including the most powerful, as well as from the private sector and non-state groups, pushing agendas in opposition to human rights. Many of these assaults are amped up by technology, with the methods and means becoming ever cheaper and ever more accessible to the masses.

An annual analysis from the Dublin-based international rights group Frontline Defenders paints a devastating picture of killings, arbitrary detention, surveillance, and harassment. CIVICUS, an organization that measures civic space (defined as “the respect in policy, law and practice for freedoms of association, expression and peaceful assembly and the extent to which states protect these fundamental rights”), documented declines in 15 countries and improvements in only three. The location and nature of the drops were diverse, taking place from mature democracies such as the United States, Germany, France, and Switzerland, to authoritarian regimes such as Burundi and Oman, and including countries in crisis and conflict such as Sudan and Israel. Some types of human rights were uniquely politicized and singled out in 2025, including women’s rights and environmental rights. Freedom House recorded the 19th straight year of declines in global freedom.

All this is compounded by an unprecedented slash-and-burn to international aid budgets for organizations and individuals working on human rights worldwide. The Human Rights Funders Network of almost 450 institutions across 70 countries estimates that by 2026, human rights funding globally will experience a $1.9 billion reduction compared to levels in 2023.

Taken together, this makes the world more dangerous than ever for human rights defenders and they have fewer resources at their disposal to combat the threats.

In 2026 and moving forward, two crucial questions arise for the defense of human rights globally. First, who will do the work of fighting to protect and advance human rights in the year ahead, and second, how can those in the international community still fiercely committed to human rights support them? These questions will be shadowed by another trend: impunity. Yet, at the same time, lessons and a few positive developments from 2025 can guide human rights defenders on how to seize opportunities in the coming year, beginning even this month at the United Nations.

The Earthquakes of 2025

Eviscerating Democracy, Human Rights, and Governance Assistance

In the United States, 2025 began with the newly inaugurated Trump administration dismantling the U.S. Agency for International Development (USAID) and canceling approximately 85 percent of its programming (from a budget of more than $35 billion in the fiscal year ending in September 2024). The gutting eliminated hundreds of millions of dollars of support for those working to protect human rights and expand freedom and democracy around the world. The State Department’s grantmaking efforts were similarly cut, with more than half of its awards canceled, including programs directly supporting human rights defenders such as one initiative providing emergency financial assistance to civil society organizations and a fund to promote human rights and democracy and respond to related crises.

Most other major donor countries followed suit, though not with the same sweep or to nearly the same degree. Canada said it would reduce foreign aid by $2.7 billion over the next four years, the Dutch announced structural spending cuts of € 2.4 billion on development aid starting in 2027, and the European Union announced a €2 billion reduction in its main mechanism for development aid for 2025-2027. Multilateral funders were not immune to the trend: the United Nations, for one, will see major budget and staffing cuts for human rights in 2026.

The U.S. retreat from foreign assistance rapidly impacted all development sectors, from health, to education, to humanitarian assistance, but no sector was targeted with such enmity as that of democracy, human rights, and governance. Advocates and implementers saw not only the dire resource clawbacks discussed above, but also found themselves tarred by a steady diet of derisive commentary from the very policymakers doing the cutting.

Secretary of State Marco Rubio, who, once championed human rights and democracy “activists” as a U.S. Senator, even serving on the board of the democracy-promoting International Republican Institute before the administration eliminated the congressional funding that supported it. He once told a crowd at the Brookings Institution “[f]oreign aid is a very cost-effective way, not only to export our values and our example, but to advance our security and our economic interests.”

But as secretary of state, he abruptly reversed course, writing last April that the State Department unit overseeing civilian security, human rights, and democracy had “a bloated budget and unclear mandate,” and that its “Bureau of Democracy, Human Rights, and Labor had become a platform for left-wing activists to wage vendettas against `anti-woke’ leaders in nations such as Poland, Hungary.” Other members of the administration were similarly sharp-tongued about the sector, with now-former USAID Administrator Pete Marocco conflating the promotion of “civic society” with “regime change” in official court documents and President Donald Trump himself referring to USAID’s leadership as “radical lunatics.”

The rhetoric mirrors similar language used by authoritarians across the globe who have long been opposed to foreign assistance for democracy, human rights, and governance work, and it has real-world consequences for those advocating for human rights and freedom. Leaders of multiple countries have seized on the words of the Trump administration to launch spurious investigations of human rights defenders and other civil society activists who had received U.S. funding.

Closing Civic Space and New Technology

Closing civic space is not a new threat to human rights defenders, but it is one that has reached a fevered pitch in the last few years. This has included both an increase in traditional attacks and a greater reliance on new tactics for suppression, especially in the digital sphere.

Nearly 45 percent of all civic space violations CIVICUS recorded for its annual analysis were related to the freedom of expression. The organization documented more than 900 violations of the right to peaceful assembly and more than 800 violations of freedom of association. The most frequent examples were detentions of protesters and journalists, followed by the detention of human rights defenders outside the context of a protest or journalism, merely for doing their work.

Authoritarian regimes also have become ever more adept at utilizing the digital space for repression. Tactics such as doxing, censorship, smearing, and online harassment are important tools in an authoritarian approach. They have been supplemented in recent years by less evident tactics such as shadow-banning, which the CIVICUS analysis defined as when “a platform restricts content visibility without notifying the user,” allowing the platform to maintain an appearance that it is neutral.

Women rights defenders face additional risks online, including technology-facilitated gender-based violence: In a global survey by the Economist Intelligence Unit, 38 percent of women reported personal experience with violence online, from hacking and stalking to image-based sexual abuse.

Attacks in the digital space often are also connected with or fuel physical attacks, “including killings, enforced disappearances, arbitrary detention and harassment,” as Frontline Defenders reported in its analysis. Tunisia is paradigmatic. Amnesty International reported that, beginning in 2024, a “wave of arrests followed a large-scale online campaign…which saw homophobic and transphobic hate speech and discriminatory rhetoric against LGBTI activists and organizations spreading across hundreds of social media pages, including those espousing support for the Tunisian President Kais Said. Traditional media outlets also broadcast inflammatory messages by popular TV and radio hosts attacking LGBTI organizations, calling for their dissolution and for the arrests of LGBTI activists.” 

What to Expect for Human Rights in 2026 

The absence of meaningful and unified international pushback to human rights abuses by some of the world’s most powerful nations means the rights-based international system will continue to face unprecedented attacks, and the challenges that rights defenders face in the year ahead are likely to increase in number and intensity. Authoritarians worldwide have monitored the assault against human rights in the past year — from genocide in Gaza to the crackdowns on protesters in Tanzania to restrictions on freedom of association and expression in El Salvador and so many more instances — and they have learned that they are unlikely to be held accountable internationally in the near term.

Yet despite these challenges, a few developments in 2025 offer some reasons for optimism in the year ahead. Several large-scale, youth-led movements in 2025 held their governments accountable for rights violations, from the July Revolution in Bangladesh that ousted an abusive prime minister to the Gen Z protests in Kenya over economic conditions and government corruption, a protest moniker that spread to other countries as well.

Some governments passed rights-protecting laws, from Thailand’s legalization of same-sex marriage to Colombia’s laws preventing child marriage. Courts stood up for human rights and held perpetrators to account, from the International Criminal Court’s conviction of Sudan’s Ali Muhammad Ali Abd-Al-Rahman for war crimes and crimes against humanity to the U.S. conviction of The Gambia’s Michael Saang Correa for torture, to the symbolic judgment of the People’s Tribunal for Women of Afghanistan. These trends are likely to continue in 2026, despite the challenges, because courageous human rights defenders are using every avenue to fight for rights.

This year will also bring targeted opportunities to continue the fight for human rights. A preparatory committee for a proposed international crimes against humanity treaty begins work this month at the United Nations. Also at the U.N., this year’s Universal Periodic Reviews, a regular peer review of countries’ human rights records, will focus on some of the world’s worst rights offenders — including Sudan, Eswatini, and Rwanda — as well as countries with highly mixed records. These reviews provide an opportunity for the world to examine, publicly and critically, the rights records of all 193 countries and for victims and activists to share their stories and insights. While the United States has not submitted its self-evaluation due late last year, the process continued with the usual submissions from the U.N. and others.

Creative activists also are likely to use prominent events, such as the 2026 Olympic Games, to push for the expansion and recognition of human rights. They can take the opportunity of the United States’ 250th anniversary celebrations to highlight and internationalize the country’s founding principles of life, liberty, and the pursuit of happiness, as well as the requirement that all governments “[derive] their just powers from the consent of the governed.”

Who Will Lead the Fight for Human Rights in 2026? 

As many governments pull back and even attack human rights, the work of human rights defenders and organizations will become more critical than ever. Some of them have been leading the fight for decades, including leading international NGOs, national organizations, networks, and prominent individual leaders. Others have done critical human rights work but haven’t labeled themselves as rights defenders, such as organizations providing access to clean water, supporting girls’ education, or working to prevent violent conflict.

Many work at the community level, alongside neighbors and friends, with human rights defenders networks around the world, from the Mozambique Human Rights Defenders Network to Somos Defensores in Colombia. Some are in exile, fighting for rights in their home countries and for refugee and diaspora communities, like the brave Afghan women who organized a landmark People’s Tribunal in 2025 to expose rights violations against women. Others are professionals whose skills directly relate to human rights — lawyers, judges, journalists, and more. They include people like the brave journalists who continue to report on the context in Gaza, despite the incredible risks, and the Burmese lawyers who continue to document rights violations. Some are individual activists, using their platforms and skills to protect rights and call attention to attacks against them, like Iranian Nobel laureate Narges Mohammadi who was recently detained alongside other rights defenders while attending a memorial service for a human rights lawyer. Some are informal coalitions, student and youth groups, or protest participants — social movements have been and will be an essential component of the fight for human rights. All of these actors play a critical role in the human rights ecosystem. All of them are human rights defenders.

Aid funding cuts have devastated civil society organizations and will continue to impact human rights advocates. A survey by the International Foundation for Electoral Systems and International IDEA of 125 civil society organizations based in 42 countries found that 84 percent of respondents had lost funding due to U.S. and other countries’ aid cuts, with the same number expecting further cuts in 2026. UN Women reported that more than one in three women’s rights and civil society organizations have suspended or shut down programs to end violence against women and girls and more than 40 percent have scaled back or closed life-saving services. The philanthropic organization Humanity United found that 44 percent of peacebuilding organizations that it surveyed would run out of funds by the end of 2025.

These cuts will only be amplified as time goes on, as fewer young people can become human rights professionals while managing to put food on the table, as legal cases that take years to process aren’t filed for lack of funding, as human rights abuses aren’t documented, as the attacks from authoritarian regimes go unchecked. Shrinking development budgets will no longer provide similar levels of support to courts and anti-corruption bodies that human rights defenders have traditionally approached to pursue justice or for support hotlines where ordinary people can call in anonymously to report abuses at the hands of security forces. Such foreign assistance enabled vital avenues of accountability, but also signified solidarity, that at least some political decisionmakers both at home and abroad believed in human rights and supported those working to deepen and protect them.

But despite the myriad challenges, there will be human rights defenders who continue to fight the fight. For many, changes in funding or the withdrawal of political top-cover won’t stop them from finding avenues. One need only look at Iran’s protests today, where thousands of people are exercising and demanding their human rights amidst a brutal crackdown, internet blackout, and without international funding. Rights defenders have been doing a lot with a little for many years. Some — especially women, youth, Indigenous people, and disabled defenders — have often been excluded from human rights funding and support in the past. A new generation has seen the horrors of Gaza, El-Fasher, eastern Ukraine, or even around the corner from their home, in the news and online, and they have committed themselves to social justice and the prevention of atrocities.

Human rights has always been a universal endeavor which has required diverse supporters, advocates, and allies – this is true now more than ever.

How Can the International Community Support? 

Even those governments and institutions that continue to lead in supporting human rights internationally will need to do more with less, as the above-outlined cuts exemplify, to support those on the front lines. This is the chance to shift “localization” – the practice of funding local civil society organizations directly and based on their priorities, rather than via large overhead-requiring NGOs funded by donor countries — from an ideal to a necessary strategy. A grant of $20,000 may not keep a major international organization online, but it can fund a community-based service provider. Donors can integrate a rights-based approach across portfolios instead of siloing the issue, integrating human rights goals and strategies into other foreign policy initiatives. For example, companies can integrate human rights efforts and measurements into their supply chains for products from batteries to chocolate, producing products they would already produce but in a way that advances human rights as well. Military operations can add human rights and gender considerations with little cost but potentially huge impact. This requires training, tools, and high-level political will to succeed. And they can continue to advocate for rights and use diplomatic pressure and support as key tools.

The elephant in the room is the United States. The Trump administration not only is backtracking on the traditional U.S. commitment and values of democracy and human rights internally and internationally but also has sought to hamper others in funding such initiatives. But there are still important steps that can be taken to protect human rights. Congress must do its job and provide oversight, holding the administration accountable to the laws that protect this important work. Members should speak out against injustices and rights violations, at home and abroad. Rep. Chris Smith (R-NJ), for example, has played a key role in the Tom Lantos Human Rights Commission, calling out rights abuses in places like Turkey, and Rep. Tim Kennedy (D-NY) led a congressional letter to the Department of Homeland Security urging the Trump administration to overturn its decision to terminate Temporary Protective Status for Burmese people.  State governments have always played a key role in advancing rights, and this will become more critical than ever.

Foreign governments that have engaged on human rights issues but haven’t been the largest international donors or advocates will be particularly important. Some of them are stepping up already. Examples include Japan playing a leading role in advancing women’s issues, South Africa and Gambia taking cases to the International Court of Justice accusing Israel and Myanmar, respectively, of violating the Genocide Convention, and Ireland continuing its steadfast allyship with human rights defenders.

Now is the time for committed countries around the world to continue to demonstrate the global nature of this agenda, set out more than 75 years ago in the Universal Declaration of Human Rights and reinvigorated by 18 international human rights treaties.

Philanthropy and the international private sector will be more essential than ever in 2026.  Foundations cannot offset the huge funding gaps left by governments and multilateral donors — total U.S. philanthropic giving is about $6 billion per year, whereas U.S. overseas development assistance alone in 2023 accounted for $223 billion — but they can provide strategic investments that help protect rights and those defending them, amplify their voices, fund innovative new approaches, and help the ecosystem survive. Philanthropies around the world provided nearly $5 billion in human rights support globally in 2020 alone, and their funding is critical for many organizations.

Companies have their own role to play, one that includes but goes well beyond corporate social responsibility, from responsible tech and AI to eliminating forced labor from supply chains to hiring diverse employees. The private sector has a unique opportunity to ensure that human rights remain on the global agenda, because there is a strong business case in favor of human rights protections and alliances with those who truly understand the needs and wants of local populations. A great example is the effort by numerous auto and electronics companies to move away from cobalt batteries, both a recognition of the horrible rights violations facing individuals and communities around cobalt mines in the Democratic Republic of Congo and a recognition that this move is also better for business due to supply chain volatility.

Defending against challenges to human rights, democracy, and good governance in 2026 and beyond will require creativity and broad coalition-building across sectors that too often are siloed, such as health, peacebuilding, humanitarian assistance, and the field of democracy, human rights, and governance. Everyone who does not traditionally think of themselves as a human rights defender, from government officials to the private sector, will need to step up to support those on the frontlines of the fight to defend human rights.

The post Who Will Stand Up for Human Rights in 2026 – and How? appeared first on Just Security.

We are delighted to host this symposium and grateful to the editors of Just Security and EJILTalk! for publishing it.

Over the coming days, the two sites will publish expert contributions leading into the negotiations of the draft International Convention on the Prevention and Punishment of Crimes Against Humanity (CAH). These negotiations will take place at the United Nations in New York from Jan. 19-30.

The negotiations have the potential to fill significant legal and institutional gaps. CAH are among the most serious crimes of concern to the international community. Yet, unlike other serious international crimes (such as war crimes and genocide) they are not covered by a specific international convention. This legal gap limits coordinated global action to prevent such atrocities, prosecute perpetrators, and assist victims. The draft Convention defines and prohibits these crimes, requires States to criminalize and prevent them, and enhances international cooperation, including by extradition and mutual legal assistance.

This symposium builds on an event we organized at the margin of the 69th meeting of the Committee of Legal Advisers on Public International Law (CHADI) at the Council of Europe in Strasbourg. The essays in this series – by Judge Guénaël Mettraux, Prof. Leila Sadat, Prof. Sean Murphy, Dr. Stephanie Egerer-Uhric and Dr. Jorg Polakiewicz – are intended to offer useful insights to negotiators on outstanding substantive issues and challenges that may arise from the negotiation process, with the aim of contributing to the further strengthening of the draft.

Why We Need a CAH Convention

In his forthcoming contribution, Judge Mettraux explains that the concept of CAH was first used as a lay concept in 1748. The concept has since crystallized as a separate category of international crime during WWII and was further refined in the jurisprudence of international criminal tribunals since Nuremberg. Yet, CAHs have not been codified in a dedicated CAH Convention. Doing so is essential for several reasons.

First, a CAH Convention will fill critical gaps in the existing legal framework by addressing criminal conduct that is not adequately captured by the current treaty regime. Rather than being duplicative of existing conventions, a CAH Convention would serve distinctive and complementary prosecutorial functions. Of the generally recognized core-crimes, war crimes are codified in the Geneva Conventions and require a nexus to armed conflict and genocide under the Genocide Convention requires proof of specific intent to destroy a protected group. CAHs, however, encompass a broader category of conduct. They address widespread or systematic attacks directed against civilian populations, without the demanding mens rea threshold required for genocide. A CAH Convention would therefore address violations that fall outside the scope of war crimes and genocide, including discriminatory and other inhumane acts committed in peacetime, regardless of the nationality of victims or perpetrators. It would broaden the scope of the conduct that is regarded as criminal under international law and strengthen – rather than duplicate – the existing international criminal framework by filling existing normative gaps. This issue is discussed in several contributions, including that of Dr. Polakiewicz.

Second, a dedicated CAH Convention will also fill significant gaps that remain in the international legal framework created by the International Criminal Court (ICC), notwithstanding its jurisdiction over CAH. As Prof. Sadat’s contribution will discuss, the ICC Statute does not include an enforceable obligation by States to prevent CAHs, and does not provide for State responsibility, as it focuses only on individual criminal responsibility. Further, the ICC Statute also lacks specific provisions on mutual legal assistance and inter-State cooperation, which are now standard provisions in modern international criminal law treaties. In addition, the ICC complementarity regime places prosecutorial responsibility primarily on domestic criminal systems. However, practice has shown that the limited jurisdiction of the ICC as well as its limited resources and structural constraints have resulted in a very limited docket. By addressing these gaps, a dedicated CAH Convention would strengthen the international legal order and provide States with the necessary normative and operational tools related to CAH.

Third, and finally, a CAH Convention would complement existing domestic tools. In her contribution, Dr. Egerer-Uhrig will highlight the importance of a dedicated CAH Convention based on her experience as a prosecutor in Germany. Her two decades of investigative and prosecutorial practice, especially on crimes committed in Syria, show that CAH can be effectively prosecuted domestically, but also that no two conflicts are alike and that effective international cooperation is indispensable. Cooperation with international partners is essential in every stage of the prosecution of CAH, from evidence gathering to extradition and mutual legal assistance. By establishing a framework of cooperation, the adoption of a CAH Convention would constitute a fundamental and visible step towards preventing and punishing CAH.

Can We Strengthen the ILC Draft?

The draft Convention under discussion was developed and finalized by the International Law Commission (ILC) in 2019, following numerous years of deliberation. Professor Murphy served as the Special Rapporteur for the project and his contribution will describe well the draft, its conceptual structure, and its content. In 2024, after extensive negotiations, the U.N. General Assembly (UNGA) agreed to initiate an intergovernmental negotiating process – scheduled to begin in January 2026.

The ILC Draft is an excellent basis for the new Convention. It reflects the thinking and deep discussions of globally representative groups of eminent lawyers bringing together not only legal expertise but also different perspectives as to what is needed and what is possible. As drafted, the CAH Convention is already a significant step forward.

However, as noted by Prof. Sadat, to reach consensus and initiate negotiations, significant compromise was made at UNGA. Several proposals are on the table to further strengthen the draft.

The first issue is a definitional one. Article 2 of the draft defines CAH as certain defined acts “when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” This definition mirrors Article 7 of the Rome Statute. There are benefits, including a coherent interpretation, in having a consistent definition that is also the distillation of the practice of prior jurisprudence. Moreover, nothing in the draft precludes States to adopt a broader definition in their domestic system. That said, as the understanding of the CAH and some of its aspects has progressed since the adoption of the Rome Statute, some have called for the inclusion of different or additional elements, for example new conduct such environmental destruction, gender apartheid, forced marriage, slave trade and starvation. There have also been proposals suggesting the addition of a Martens Clause or advancing more specifically children’s rights, gender issues, and disability rights. The critical question is whether the inclusion of additional elements would allow for the prosecution of acts that are not yet covered by Art. 7(1)(k) of the Rome Statute, whether it would create additional expectations that cannot be fulfilled, and whether it would really facilitate the prosecution of CAH. Moreover, agreement on the Convention might become more difficult if the carefully negotiated and broadly agreed definition of the crime would to be amended.

A further issue is whether a new CAH Convention should contain explicit provisions excluding functional and personal immunities. Recent developments in international law, including at the ICC and the ILC, support the exclusion of immunity in CAH cases. At the same time, however, it is important to consider carefully how immunities should be addressed in a treaty that regulates inter-State obligations rather than individual international criminal responsibility. In domestic proceedings, national legislation would likely remain bound to respect the personal immunities of incumbent foreign “troika” (president, foreign minister, prime minister). Differently, and consistent with the most recent ILC draft articles, functional immunity might not apply. However, the draft faced some significant opposition when it was discussed (see also comments here) so reopening the debate may make CAH negotiations more difficult.

Finally, there are important questions of treaty design, for example on issues of reservations and other final clauses. Importantly, moreover, the dispute settlement clause (Article 15) raises significant questions and should be clarified. In particular, should parties agree to compulsory jurisdiction by the International Court of Justice (ICJ) over disputes between State Parties, or should the existing (and unclear) opt-out mechanism be retained? Limiting the ICJ’s jurisdiction would clearly limit the effectiveness of the Convention. The experience of the dispute resolution clause of the Genocide Conventions shows that access to the ICJ can serve as a powerful mechanism to address non-compliance, including (as shown in The Gambia v. Myanmar and South Africa v. Israel) in unexpected ways. The institutional role and jurisprudence of the ICJ have demonstrated that it is well placed to adjudicate such kinds of cases, always in accordance with the highest standards of judicial independence and intellectual rigor.

Are There Procedural Challenges?

As part of the compromise, the negotiation process that begins in January will be protracted: a second Preparatory Committee meeting (Prep-Com) is scheduled for April 2027, which will be followed by two Diplomatic Conferences scheduled for 2028 and 2029. It will be important that the two years are used in a meaningful way to strengthen the draft. It might be difficult to keep momentum for the four years’ process, knowing that the real decisions will only be taken in 2029. Innovative and sustained efforts will be key.

Another critical element will be whether the Prep-Com and Diplomatic Conference will take decisions by voting, as it is normal within the U.N. system, or would rather try to work by consensus (following the UNGA 6th Committee model). While consensus would be theoretically preferable, an obligation to reach consensus would make it difficult to agree on a robust outcome and would result in, if any, a much-diluted draft. Furthermore, the option of voting as a last resort is generally considered an essential tool for achieving consensus.

Finally, the process will clearly benefit from the expertise and knowledge of civil society organizations (CSOs). This is also important for transparency and inclusivity reasons, also because CSOs can strengthen the negotiation process. CSOs accredited to the Economic and Social Council (ECOSOC) will participate in both Prep-Com and the Diplomatic Conference, it will be important that, at the end of the 2026 Pre-Com, delegates decide to allow for the participation also of non-ECOSOC accredited organizations and other stakeholders, be it as part of the formal negotiations or through other means.

Conclusion

Crimes against humanity are some of the most serious international crimes. The forthcoming negotiations of a dedicated Convention can fill a significant legal and institutional gap. It will be key to use this opportunity to develop a strong and coherent draft that advances international law, to the benefit of humanity. We hope the symposium will help negotiators achieve these important goals.

The post Negotiating a Treaty on Crimes Against Humanity – Introduction to the Joint Symposium 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.

The post War Powers, Venezuela, Drug Boats, and Congress appeared first on Just Security.

It was only a few months ago in September that Maduro bragged that China had given him a phone that “the Americans can’t hack…neither their spy planes, nor their satellites.” In the end, it may not have mattered because apparently the CIA already had a spy in Maduro’s inner circle and a team on the ground that had been tracking his every move since August. But the sophisticated operation to capture Maduro revealed an even broader U.S. intelligence effort. Based on the statements of American officials and summary of events by General Dan Caine, the Chairman of the Joint Chiefs of Staff, the operation required the full panoply of U.S. intelligence capabilities, including human intelligence, geospatial intelligence, signals intelligence, and even potentially cyberattacks. 

Going forward, intelligence has a central role to play in capitalizing on the successful capture of Maduro and stabilizing post-Maduro Venezuela. It can demonstrate U.S. capabilities and resolve against several of America’s foremost state adversaries, and it can deal a serious blow to the illicit drug trade and finances of non-state actors like Hezbollah and cartels. A U.S.-aligned Venezuela would be an enormous asset and ally in the contemporary era of geopolitical conflict and competition. But this will not be easy. The great test for American intelligence in Venezuela will be if it escapes the historical cycle that so many are predicting will follow.

A Warning About Shadow Wars

American intelligence success underscored more than just Venezuelan intelligence failure because Maduro received intelligence, military, and technological support from China, Russia, Iran, and Cuba. Cuba even acknowledged that thirty-two members of its armed forces and intelligence services were killed in the raid, possibly protecting Maduro himself, in what is undoubtedly an embarrassing debacle for Cuban counterintelligence. In a rare admission, two Chinese military affairs experts highlighted several competencies and advantages the United States demonstrated in executing the mission, including evading the Russian-provided Venezuelan air defense system and recruiting Venezuelan officials as intelligence assets. Surely, Operation Absolute Resolve should go down in the history books as a stunning victory for American intelligence.

Not so fast. Intelligence, regime change, and Latin America? Venezuela has all the makings of another intelligence-spearheaded scandal, echoing several that happened in the twentieth century—from Guatemala to Cuba to Chile to Nicaragua. For a country haunted by the recent ghosts of Afghanistan and Iraq, and the more distant ghosts of the Cold War in Latin America, Maduro’s capture now has Americans wondering, what happens next? If the United States cannot help stabilize Venezuela, then Maduro’s capture will enter the annals of history as another example of a failed U.S. intelligence coup in Latin America.

In a press conference on the operation, President Donald Trump announced that the United States would “run” Venezuela, adding that he was not afraid to put “boots on the ground.” But recent polling revealed little public support for an American invasion of Venezuela and the administration’s new National Security Strategy specifically eschews “imposing…democratic or social change,” suggesting just as little presidential appetite for a military occupation or nation-building effort in Venezuela. Intelligence could offer a lower risk way to advance U.S. interests. But one of the warnings of history is that intelligence and covert action have led to deeper U.S. entanglement and prolonged shadow wars for the United States in countries where other states are determined to protect their clients or are contesting American efforts to install a friendly government. The key will be for the Trump administration to use intelligence to control mission creep in Venezuela and for the U.S. Intelligence Community (IC) to support the administration with analysis and operations that keep U.S. foreign policy goals in Venezuela measured, attainable, and credible. 

The Trump administration will need to leverage the intelligence advantages revealed by Operation Absolute Resolve because it is doubtful Russia, China, Iran, Cuba, or non-state actors like Hezbollah or drug cartels will allow the United States to displace them in Venezuela without a fight. Everyone involved will be looking to exploit the power vacuum created by Maduro’s removal. The question will be whether the United States can successfully keep this struggle contained to the shadows without having to call in the military as an occupying force. Perhaps the most common perception of an intelligence-led shadow war involves paramilitary operations, which, historically speaking, can get ugly. Some observers are already predicting chaos in Venezuela. Street and jungle firefights between U.S. and foreign-supported proxies, political assassinations, and human rights abuses are all possibilities that the United States must avoid at all costs. This might not be easy with so many actors ready to be spoilers in any American plans for a post-Maduro Venezuela. 

Intelligence in the Lead

Succession is the big question facing both Venezuela and the Trump administration right now. A classified CIA report concluded that Maduro holdovers would be best positioned to head the new Venezuelan government. Nonetheless, the United States could lend intelligence support and protection for Venezuelan opposition figures, for example, María Corina Machado, who might be targeted based on the danger they pose to entrenched interests, like U.S. intelligence helped foil Russian attempts to assassinate Ukrainian President Volodymyr Zelenskyy. Aside from possibly turning members of Maduro’s inner circle into assets, the IC will have to continue analyzing both Maduro heirs apparent and opposition figures to prepare the Trump administration for future negotiations and possible changes in the government. Leadership analysis could shape other covert efforts, for instance, information campaigns to influence public opinion or elections to replace the government with one more amenable to working closely with the United States. The IC will also have to fend off competing efforts by adversaries to extend their influence over Venezuela’s new government. Furthermore, Maduro’s capture could expose internal rifts within Venezuela’s military and intelligence services that the IC could exploit to develop new assets and liaison partners. 

Regardless of who is in charge, the United States faces a Venezuelan state thoroughly compromised by both state and non-state counterintelligence challenges. As a preliminary measure, the Trump administration is already pressuring Venezuela’s interim government to expel all suspected intelligence officers from China, Russia, Cuba, and Iran. The IC will also have to identify spies for these states in the Venezuelan government and corrupt officials who have been co-opted by groups like Hezbollah and cartels. Acting President Decly Rodríguez has apparently ordered the arrest of U.S.-sanctioned Major General Javier Marcano Tábata, the director of military counterintelligence and head of presidential security, but his replacement by another U.S.-sanctioned general who was responsible for brutal crackdowns on protestors in 2014, will alarm human rights advocates. Venezuela could already be headed toward the Cold War-era model where the United States supported abusive, reactionary governments as long as they advanced American interests.

The problem is not only the people, but also the military and intelligence infrastructure positioned by foreign states in Venezuela. The Chinese telecom giant, ZTE, constructed a database for Venezuela modeled on elements of China’s social credit system to help extend government control over the population. China has supported Venezuela with radar and satellite technology as part of its growing space and surveillance foothold in the Western Hemisphere and Russia supplied Venezuela with its aerial defense system, even though both proved vulnerable to the U.S. military in Operation Absolute Resolve. Nonetheless, they are an area of access and influence for those states. Additionally, helping the new Venezuelan government roll back its dependence on Chinese and Russian technology is as much a U.S. national security imperative as a Venezuelan one because they are likely compromised and can provide information to foreign governments about U.S. intelligence operations in Venezuela. American intelligence officers therefore not only have to worry about the people they are working with, but also the systems in place. So, even a friendlier Venezuelan government does not mean it will be a friendlier operating environment for American intelligence.

The IC will also need to play a role in securing Venezuelan economic infrastructure. In the press conference following the operation, President Trump suggested U.S. oil companies would invest in and rebuild Venezuela’s oil infrastructure, which would be a pillar of any new Venezuelan government’s efforts to restore its economy and establish its legitimacy with the Venezuelan people. More recently, the Trump administration is insisting Venezuela sever economic ties with Russia, China, and Iran. These states undoubtedly do not want to see Venezuela’s considerable oil, mineral, and precious metal wealth come under American control. The IC would have to work with private sector U.S. companies on physical and cyber security to protect oil, mineral, and precious metal infrastructure from state-sponsored sabotage. Foreign investment to rebuild Venezuela’s crumbling energy and mining sectors will be critical to the country’s future, but companies will only want to invest if they consider it safe to do so. 

Violent non-state actors including Hezbollah and drug cartels have used Venezuela as a safe haven and base of operations. Russia, China, and Iran may exploit these non-state actors, and their willingness to use violence, to destabilize Venezuela. Moreover, these groups have their own economic interests in Venezuela, and it will be difficult to avoid bloodshed if the Venezuelan government attempts to root them out. The United States may revive elements of the Plan Colombia playbook, which was an agreement reached between the U.S. and Colombian governments to help the latter restore order after decades of instability created by non-state actors like drug cartels and the FARC. Economic development and intelligence support were central to the plan. In this respect, the Treasury Department’s Office of Intelligence and Analysis will play as big a role as any in the IC to identify, target, sanction, and disrupt foreign state and non-state actors engaging in criminal enterprises in Venezuela. Although political and military covert action always command more of the public’s attention, economic covert action could actually eclipse them in the shadow war over Venezuela’s future. 

Stabilizing Venezuela and securing American interests there will require tackling not only the state and non-state actors that can threaten reconstruction but also lingering corruption in the post-Maduro Venezuelan government. The IC can aid the U.S. government’s effort to transparently and successfully prosecute Maduro for his crimes. The prosecution will need access to intelligence collected on Maduro’s connection to drug cartels and narcoterrorist groups. This case could also present a foundation for anti-corruption investigations and trials in Venezuela that could restore public trust in the government.

From Covert Action to Public Accountability

The operation to capture Maduro was all the more remarkable as an intelligence success because it remained secret until its execution. This was quite an achievement for the second Trump administration, which suffered from pervasive leaking in its first administration. However, the Trump administration only informed the “Gang of Eight” after the operation was underway, and Democratic lawmakers are already claiming they were misled about the administration’s plans in Venezuela. The IC will be called upon to account for its activities at congressional hearings on the Maduro operation and the Trump administration’s policy for a post-Maduro Venezuela. The IC will have to resist pressure to politicize intelligence to suit either the Trump administration or opposing lawmakers. Resisting politicization also includes avoiding leaks from classified hearings or materials given to members of Congress, which could directly affect ongoing intelligence operations in Venezuela, like those that plagued previous American covert action operations in Latin America during the Cold War. 

That said, the IC should be as transparent as security permits precisely because secret intelligence operations in Latin America were the source of so much scandal and public outcry in other periods of American history. Immediately after Maduro’s capture, disinformation began to flood social media. The IC, which already struggles with countering disinformation and advancing its own narrative, will face disinformation operations designed to undermine global and domestic public trust in the U.S. government’s activities in Venezuela. Undoubtedly, foreign intelligence services will commit many of the same sins or worse that they will accuse the United States of in Venezuela, just as they did in the Cold War. The IC will have to work with both the Venezuelan and American governments to manage the information environment. Ultimately, the only thing worse than disinformation is information based on real abuses, so the IC must avoid repeating the mistakes it has made in other Latin American countries. The United States and its intelligence community have succumbed to these mistakes in the past, so the real test of resolve is yet to come. 

The post U.S. Intelligence in a Post-Maduro Venezuela appeared first on Just Security.

The fatal Minneapolis shooting is among the most serious in a series of incidents over recent months involving federal immigration agents’ use of force. Videos have documented agents firing pepper balls at clergy, shooting rubber bullets at journalists, and deploying tear gas against protesters. Many of these incidents raise questions about whether agents used excessive force in violation of the Fourth Amendment and federal criminal law. Yet, the Minnesota incident is only the first where the FBI has indicated it is investigating, and so far, DOJ has announced no criminal charges related to any such incident. While the current investigation is an important step, it is far from sufficient.

Private plaintiffs are challenging the legality of many DHS tactics in court. The Department of Justice (DOJ), for its part, has remained conspicuously silent through months of these tactics. This silence is a dangerous abdication of DOJ’s authority and responsibility. Under 18 U.S.C. § 242, which makes it a crime for any government official to willfully deprive someone of their constitutional rights, DOJ can and should investigate and, where appropriate, charge federal agents who use excessive force.

A Pattern of Force Raising Constitutional Questions

Reports of aggressive, violent, and potentially unlawful tactics by some federal agents have followed each surge of officers arriving in a new city to conduct the administration’s immigration enforcement operations. These have included a military-style, nighttime raid on sleeping families at an apartment complex, the firing of tear gas canisters, rubber bullets, and pepper balls at non-violent protestors, and widespread racial profiling followed by stops and detentions without reasonable suspicion or warrants. State and local officials have decried the unreasonable uses of force in court and in public statements, and at least two Senators have publicly called on DOJ to investigate. Nevertheless, the President and Department of Homeland Security leadership have repeatedly defended their tactics.

Traditionally, the DOJ—in any administration—would seek accountability for unlawful, excessively violent tactics by law enforcement officers, by charging them with violating people’s constitutional rights. However, the DOJ has not announced any charges relating to federal immigration enforcement actions, nor (before Wednesday) had it indicated it had even taken notice.

This is not surprising. By now, it is clear to those paying attention that the DOJ is acting as the administration’s enforcer, prioritizing politicized prosecutions against Trump’s perceived enemies, rather than exercising its independent judgment. And while public attention, understandably, has focused on those high-profile questionable prosecutions, DOJ’s omissions—the cases it is choosing not to pursue—also deserve scrutiny. The agency’s silence about violent tactics by federal agents suggests an apparent abandonment of its criminal civil rights enforcement authority, a silence that is destructive to the rule of law itself.

DOJ’s failure to act signals a troubling abdication of its authority to enforce the constitutional limits of federal agents’ coercive power. The federal statute that is most clearly implicated by aggressive ICE and CBP tactics, 18 U.S.C. § 242, is a Reconstruction-era law that makes it a criminal offense for federal, state, or local government officials to willfully deprive a person of their constitutional rights. Congress passed the statute as part of a series of laws intended to protect the rights of Black Americans following the Civil War. The statute was among those aimed at enforcing the protections of the newly enacted Thirteenth, Fourteenth, and Fifteenth Amendments.

Investigations and prosecutions under Section 242, while not numerous, are often significant. Career prosecutors under both Republican and Democratic administrations have, for decades, relied on the statute to investigate the conduct of law enforcement officers when needed. DOJ used Section 242 to prosecute the men, including law enforcement officials, responsible for the 1964 murder of three young civil rights activists in Mississippi. In 1993, under the leadership of Attorney General Bill Barr, DOJ obtained indictments against four Los Angeles Police Department officers involved in the 1991 beating of Rodney King, two of whom were later convicted at trial. Nearly three decades later, the first Trump Administration’s DOJ, again under Attorney General Bill Barr’s leadership, opened an investigation into the death of George Floyd. The DOJ later charged four Minneapolis Police Department officers with violating Section 242, ultimately convicting them for violating Mr. Floyd’s constitutional rights.

DOJ’s failure to address apparent uses of excessive force by federal immigration agents, coupled with DHS doubling down on the appropriateness of its violent and constitutionally questionable tactics, makes the situation more dangerous. In prior administrations, agents credibly accused of violating the Constitution by using unreasonable force would commonly be placed on leave, or on desk duty, while the agency (in this case, ICE or CBP) conducted an internal administrative investigation or referred the incident to DOJ. DOJ could then conduct a criminal investigation when warranted and, if no charges resulted, the agency could determine whether it needed to take administrative action or return the officer to enforcement duties. Currently, however, DHS has permitted agents to continue to serve, with few known exceptions—and even lauded their conduct. Meanwhile DOJ’s silence emboldens further aggressive uses of force.

Select Incidents Meriting Investigation

Over the past seven months, many incidents involving federal immigration agents’ force have been documented on video. While each incident requires thorough investigation to determine whether agents violated federal law, the publicly available evidence in many cases appears to implicate Section 242 and merit a full investigation. Indeed, at least one federal court has already concluded that individual and organizational plaintiffs made a “strong showing” that the government’s tactics constituted unreasonable force in violation of the Fourth Amendment.

September 19, 2025 – Broadview, Illinois

To take one widely-reported example, on September 19, 2025, at least one federal agent stationed on the roof of an ICE processing and detention facility in Broadview, Illinois, fired pepper balls at Reverend David Black as he prayed outside the building with a group of protestors holding signs, shouting, and dancing. A video shows Reverend Black, dressed in clerical garb and standing with his arms extended, palms open and empty, in a parking space outside the building, when an agent drew and repeatedly fired a pepper ball launcher at Black, striking him in the head, arms, and torso, and causing him to fall to his knees. Black later stated in a court declaration that the officers had issued no warnings or orders to disperse before firing, and none can be heard in the video. Neither Black nor the other protestors visible in the video appeared to pose any threat to the officers.

While a full investigation would be required, the publicly available evidence indicates that one or more officers may have committed a felony civil rights violation in firing pepper balls at Reverend Black. To establish a violation of Section 242, a defendant must have been (1) acting under color of law when he (2) willfully (3) deprived a person of a constitutional or federal right. Officers act “under color of law” when they act in their official capacity. The agent who fired at Reverend Black was acting under color of law, and in firing pepper balls at Reverend Black and other protesters, the officer may have violated both Black’s First and Fourth Amendment rights.

Focusing on Black’s Fourth Amendment right to be free from the use of unreasonable force by a law enforcement officer, it is not apparent there was a need for any force—the protestors did not pose a discernable threat to the safety of the officers or anyone else, and the video indicates no urgent need for the protestors to move. Firing pepper balls with no warning at a pastor’s head while he was praying under these circumstances is objectively unreasonable. And the very obvious unreasonableness of those actions indicates that the officer knew firing on Black would be unlawful. Knowing this—and choosing to fire anyway—is the definition of willfulness. Finally, Reverend Black’s reaction—clasping his hand to his eyes and collapsing on his knees—shows that he suffered bodily injury. Proving this element makes the crime a felony. In any previous administration, an incident like this, caught on video, would have prompted an immediate DOJ investigation.

October 23, 2025 – Oakland, California

In Oakland, on October 23, 2025, the Reverend Jorge Bautista attended an early morning vigil to protest an expected immigration enforcement surge in the Bay Area. As trucks carrying CBP agents drove past protestors toward a bridge connecting Oakland with the agents’ destination, a Coast Guard base, agents exited the trucks and approached the protestors, including Reverend Bautista. One agent trained a pepper ball launcher on Bautista from about five feet away. As Bautista said, “we’re here in peace,” the agent fired a pepper ball into Bautista’s face, leaving him coated in powder and bleeding from his chin. While video and photographs that capture the incident do not show all the circumstances that would be relevant to determining whether this use of force was reasonable, firing at such close range at the head of a pastor who, by his words and actions showed that he did not pose a threat, appears unreasonable; these facts would support an investigation.

June 7, 2025 – Paramount, California

On June 7, 2025, journalist Ryanne Mena was interviewing protestors near a Home Depot in Paramount, California, wearing press credentials, when federal agents exiting a nearby warehouse began firing rubber bullets at her and the protestors. They did so without first issuing a warning. Mena said relatively few protestors were present, and she did not see anyone threatening or antagonizing the agents. As she and a second journalist ran for cover, a rubber bullet struck her in the head; the other journalist was hit in the forehead with a tear gas canister. This incident, too, would be an appropriate subject for a Section 242 investigation.

Proving Section 242 violations beyond a reasonable doubt can be challenging in part because the law permits officers to use force—even lethal force—in certain circumstances. When officers willfully exceed the bounds of the law, however, the DOJ is authorized to prosecute. The DOJ’s prosecution of federal officers who have violated Section 242 involves, at its core, the enforcement of not just a criminal statute but the rule of law itself—as it ensures the officers entrusted to execute the law themselves act within its bounds.

Bringing civil rights prosecutions against law enforcement officers is never easy. Juries tend to be wary of harshly judging those who choose a job protecting the public at risk to their own safety. But DOJ has traditionally recognized the importance of holding the agents and officers who wear badges and carry guns responsible when they willfully violate the rights of those whom they serve. This practice underscores the idea that no one is above the law.

The video evidence and other evidence already in the public domain about these and other incidents provides ample cause to open civil rights investigations. Yet we have heard resounding silence from this DOJ.

Other Avenues for Relief are Challenging

Action from DOJ in response to excessive force by federal immigrant agents is vital also because alternative paths for pursuing accountability are challenging. Local prosecutors face significant legal hurdles in bringing charges against federal officials for violating state law: where federal agents’ actions are authorized by federal law and “necessary and proper” for fulfilling their federal duties, they may be immune from prosecution under the Supremacy Clause. Private litigants also face significant doctrinal challenges when suing federal officers, as the Supreme Court has both limited the availability of injunctive relief for ongoing violations and narrowed the circumstances under which suits for monetary damages may be brought against federal officials. Where litigants can sue, the robust protections provided by qualified immunity often mean the suit is dismissed before discovery—even if a court agrees that the federal officials violated the Constitution.

States, therefore, are pursuing creative methods to document perceived abuses, as Governor Pritzker has done in creating the Illinois Accountability Commission. This Commission aims to gather evidence of potentially unlawful conduct by federal agents, to support referrals to investigative agencies and recommendations for changes to existing laws to better protect state residents. Other states and cities have created online portals that residents can use to report misconduct by federal agents. Still others have announced they are investigating possible violations of state law by federal agents or that they stand ready to do so. Meanwhile, many state and local law enforcement leaders remain focused on improving both public safety and community trust, which go hand-in-hand. Their approaches include better engagement with communities, an emphasis on deescalation, and new guidelines for policing protest events. Where federal officers are not immune from state prosecution (because, for instance, their actions violate federal law) states can select the appropriate charge from an array of state statutes, including ones that, unlike Section 242, permit prosecution for criminal negligence and other lesser levels of intent than Section 242 requires.

***

DOJ has the authority, resources, and responsibility to hold federal agents accountable for willful constitutional violations. It has the tools and power to deter further unlawful acts. Unfortunately, DOJ’s current abdication of responsibility puts communities at needless risk and undermines the rule of law itself.

The post DOJ’s Dangerous Silence in the Face of Federal Immigration Agents’ Violent Tactics appeared first on Just Security.

Less noticed, however, was the continued progress made by the Trump administration, working with allies, on a framework to support Ukraine’s security in the event of a ceasefire in the war with Russia, a plan that could include European and even U.S. forces in Ukraine.

With all that, Trump’s foreign policy remains an inconsistent array of initiatives and adventures: bold but seemingly ill-considered assertions of strength in Latin America, wanton threats of aggression against a democratic member of NATO and withdrawal from international bodies and the U.N. climate treaty, but also work with friends and allies that — with some glaring exceptions — was often constructive to thwart the aggressive designs of Russian President Vladimir Putin in a way that sounds almost as if the United States still believed in the “free world.”

The Bold: Venezuela

The Jan. 3 military operation to capture Maduro was a clear violation of the U.N. Charter and questionable under U.S. domestic law as well. It resulted in at least seven injured U.S. service members and likely killed as many as 80 people in Venezuela to capture two people indicted under U.S. law. And it also set an enormously dangerous precedent for removal of a sitting head of state – albeit a dictator – through unlawful military force. But on one score, it was astonishingly successful – Maduro and his wife have already been presented to a U.S. court for prosecution. It is not clear, however, what happens next in Venezuela.

The closest analogy to Trump’s move against Maduro was the much larger and longer invasion of Panama by the administration of President George H. W. Bush in December 1989. As with Trump’s move, the United States captured and put on trial Panamanian dictator Manuel Noriega. And, like the Venezuela raid, the Panama operation had questionable legal basis and generated wide international opposition (including condemnation by fellow U.N. members – at the Security Council in the case of Venezuela and the General Assembly in the case of Panama).

The Panama invasion was ultimately successful, however: Panamanian opposition leader Guillermo Endara, who had probably won Panama’s presidential election earlier in 1989, assumed power. The transition was relatively orderly; in that sense at least, while deep antipathy about U.S. military intervention in the region remained (and remains today), this actual “regime change” worked so well that few in the United States recalled the U.S. invasion of Panama until this week’s events.

It is not clear whether the Venezuela operation will end up so well. So far, the operation has removed the head of Venezuela’s regime but, unlike in Panama, the regime remains in place, and the Trump administration seems in no hurry to remove it. Unlike the Bush administration in Panama, Trump has belittled the head of Venezuela’s opposition, Nobel Peace laureate Maria Machado, and done nothing to support her political ally, Edmundo Gonzalez, who probably won Venezuela’s 2024 presidential elections. On the contrary, the Trump administration appears to be prepared to work with acting President Delcy Rodriguez, a stalwart of the Maduro regime. Trump himself has focused on U.S. access to Venezuela’s oil reserves rather than a stable transition to a viable and productive government.

While it is early to draw conclusions, the United States may intend to work with the Maduro regime minus Maduro for the sake of U.S. access to Venezuelan oil. Rather than “run” Venezuela directly, as Trump mentioned, the U.S. may be counting on Rodriguez being a pliable client. This would risk putting the United States on the side of an unpopular and repressive regime that lost (and had to steal) national elections in 2024 after running Venezuela’s economy into the ground. U.S. policy in Latin America has often followed the course of supporting one or another dictator who promised to take care of U.S. business and other interests. It seldom ended well. In the case of Venezuela, the massive investment in its oil industry that Trump says he seeks and would be needed to restore the country’s economic health requires a degree of internal stability and predictability that the old regime, even with U.S. backing, may not be able to provide.

A better alternative would be for the United States to help organize a transition to a more sustainable government through free elections. There is precedent for negotiated transitions from dictatorship to democracy in Latin America, though not under the coercive hand of foreign intervention. Such a wiser course could yet emerge from the Trump administration, although it will require a significant step back from its current threats and promises on Venezuela’s oil. (Going after “shadow fleet” tankers, especially those with ties to Russia, may be a useful tactic, if combined with an effort to regularize Venezuela’s oil exports as part of a transition to a democratic and responsible government.)

It is likely that the administration did little planning for “day-after” scenarios in Venezuela; for good operational reasons, knowledge of the raid against Maduro was kept to a small group and the confusion in U.S. policy since Maduro’s removal may reflect Trump’s improvisational style, which might yet be righted at least to some extent, rather than a bad course set in stone.

The Bad: Greenland

There is no reasonable case to be made for the Trump administration’s demands to acquire Greenland. Trump has claimed, without evidence, that the United States needs to annex Greenland because Russian and Chinese warships were concentrated near it and offered other security rationales. But U.S. security interests can be addressed under the 1951 Defense of Greenland Agreement, which gives the United States extensive military basing rights on the island. Denmark’s government has made clear that it would be open to greater U.S. military presence on Greenland. But neither Trump nor his administration have presented any example of unmet U.S. security requests. Neither has the Trump administration cited any specific requests it has made of Denmark that Denmark has refused either with respect to security or Greenland’s minerals.

In an interview with CNN, White House Deputy Chief of Staff Stephen Miller made another case for U.S. acquisition of Greenland: the “iron laws” of the world, he asserted, include strength, force, and power, and little else, and that therefore the United States can take Greenland if it so decides. Miller thus bases his claim on might-makes-right, an assertion of the rights of power without restraint or relationship to values. Instead, he argues that sovereignty and might are their own justification. In doing so, he negates the foundational principle of the United States, from the Declaration of Independence, that sovereign rights and power are subject to higher principles, including the consent of the governed and respect for the self-evident truth of human equality. His argument for U.S. conquest of Greenland is thus un-American.

The renewed U.S. threats against Greenland triggered alarm in Denmark, whose prime minister issued a statement about the consequences of U.S. aggression against her country. Denmark found support among not only its Nordic neighbors but also other key European countries such as the U.K., France, Germany, Poland, Spain, even including Italian Prime Minister and otherwise Trump ally Giorgia Meloni — they issued a statement expressing commitment to Arctic security (addressing the ostensible U.S. concern about Greenland) while backing Denmark’s sovereignty.

European resistance – and hopefully U.S. congressional resistance – to the prospect of such U.S. aggression may deter the Trump administration from acting on its threats with military force, though the latest statements still refer to buying the territory. But the impact of any such takeover threats will trigger mistrust in allies and partners around the world that will last at least as long as the Trump administration is in power, likely longer. The situation in which NATO allies need to defend themselves against potential attacks against their own NATO ally and key member of the alliance since its founding, the United States, is profoundly damaging. In U.S. threats toward Greenland, there is no upside or mitigating circumstance.

The Constructive: Security for Ukraine

In the United States, the news about Venezuela and Greenland obscured continued constructive talks about a framework for Ukraine’s security. Leaders from the U.K.- and French- led “Coalition of the Willing” met in Paris on Jan. 6, with special envoys Steve Witkoff and Jared Kushner representing the United States. The meeting resulted in a statement that indicated significant progress in outlining European and even U.S. backing for Ukraine’s security in the event of a ceasefire in Russia’s now nearly 12-year assault on the country, beginning with the 2014 seizure of Crimea and parts of the eastern region of Donbas. The statement outlined general pledges including a U.S.-led ceasefire monitoring mechanism, long-term military assistance for Ukraine; a “multi-national force for Ukraine” that would be European-led and with “proposed support of the U.S.” including for deterrence; and “binding commitments” to support Ukraine in case of future armed attack by Russia.

These arrangements fall short of NATO’s article 5 commitments of collective defense for its own members, and there continues to be no near-term prospect of Ukraine gaining membership. The commitments also are not “Article 5 like,” as Steve Witkoff has extravagantly suggested. And they have the weakness of being contingent on a ceasefire, a condition that gives the Kremlin an incentive to avoid a ceasefire altogether.

But they are much more than anything Ukraine has had before. The notorious Budapest Memorandum of 1994 that provided U.S. and U.K. security assurances for Ukraine in return for its agreement to give up its nuclear arsenal included nothing like this announced framework. Putting the United States in the lead of a ceasefire monitoring mechanism inside Ukraine would be a significant deterrent to future Russian aggression against Ukraine. Having European forces in Ukraine would be another.

Doubts about U.S. reliability as an ally have grown, especially since the current round of threats against Greenland. But having two inner-circle Trump allies representing the United States suggests that Stephen Miller’s “might-makes-right” defense of U.S. aggression is not the only word within the administration. The constructive meeting in Paris also indicates that the Kremlin attempt to derail the NATO talks about security for Ukraine through bogus charges of a Ukrainian attack on a Putin palace has failed. That Russian attempt, ill-prepared and hasty – suggests alarm within the Kremlin about the progress being made among the United States, key Europeans, and Ukraine about post-conflict security. The test before the United States will be whether Putin’s refusal to take seriously Trump’s efforts to end the conflict will trigger a U.S. reaction, such as increased economic pressure, for which there are many options.

Melding Different — and Incompatible — Traditions

So at the end of the first week of 2026, U.S. foreign policy is an inconsistent collection of initiatives and threats. The Venezuela operation still has potential to lead to a stable Venezuelan government with a democratic mandate, but the Trump administration risks aligning itself with the regime it supposedly acted against. The United States and Europe are making steady progress for Ukrainian security, far beyond what the Biden administration even considered, but Trump’s commitment to Ukraine’s security and to staring down Putin’s stonewalling has yet to be tested. And U.S. aggression against Greenland remains a possibility, which is a shameful and dishonorable situation for the United States to be in.

The Trump foreign policy includes different and incompatible traditions of U.S. strategic thinking over the past 100 years. One of them is isolationism in its original, “America First” guise, which was anti-European and indifferent to the fate of democracies facing aggressive dictators such as Hitler and Stalin. Another is fortress America, a related school of thought that held essentially that the United States could strengthen its hemispheric position — including through raw power — and thus shut out the dangers that the world might pose. These foreign policy options led to disaster: U.S. indifference to the rise of Hitler and thus to World War II.

On Dec. 7, 1941, the folly of such options was laid bare. On Dec. 9 of that year, President Franklin Delano Roosevelt gave one of his radio “fireside chats” that included the following:

“There is no such thing as security for any nation – or any individual – in a world ruled by the principles of gangsterism. There is no such thing as impregnable defense against powerful aggressors who sneak up in the dark and strike without warning. We have learned that our ocean-girt hemisphere is not immune from severe attack – that we cannot measure our safety in terms of miles on any map any more.” 

America’s interests are best served by opposing gangsterism. In Venezuela, the United States needs to rediscover its values and side with the people there; in Greenland, the United States needs to pursue its interests without threat of aggression; in Ukraine, the United States should push forward for the sake of security, working with friends and allies against gangsters. And the United States should never, as it contends with gangsters, become one.

The post Trump’s New Year Foreign Policy: The Risk that the Bold and the Bad Outweigh the Constructive appeared first on Just Security.