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.

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

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

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

I send greetings to all of my friends: May they live to see the dawn after this long night. I, who am most impatient, go before them.

When Zweig took his life, the world was indeed going through one of its darkest chapters. The Nazis and their Axis allies were at the height of their power, relentlessly grinding nations to the ground with their war machine and implementing industrialized genocide as the “Final Solution to the Jewish Question.”

What Zweig could not know, consumed by his total despair, was that in three years his “long night” would come to an end. The Nuremberg Trial, held in Germany in 1945-46, helped cast it away. As Nazi leaders were indicted and tried as war criminals at an international tribunal, the shield of sovereign impunity was finally broken. The highest-ranking state officials could no longer feel untouchable in the commission of heinous acts.

As the world marks the 80th anniversary of the Trial, its legacy remains complicated. The principle of legality conspicuously took a marginal role, as victor’s justice was in the air after World War II. The charges levied against German officials for crimes against peace concerning the invasion of Poland conveniently ignored the crime’s joint design and perpetration with the Soviet Union, which invaded in parallel from the East. The partisanship of Nuremberg is therefore best understood as international criminal law’s necessary evil, the moment which had to happen, but should never happen again. The magnitude of atrocities required to give life to the Trial left a permanent scar on the world. The Trial’s partisan approach could only be seen as permissible as one world order broke and another sought to emerge.

For international criminal law to remain a compelling set of norms, however, the central principles that formed Nuremberg must be vigorously defended. These tenets – that use of armed force is no longer a sovereign prerogative, but a criminally punishable act, and that no one can escape responsibility for international crimes – comprise the initial thread from which the modern international order was woven. Violations of these principles have accelerated recently, from Russia’s invasion of Ukraine to Israel’s desecration of humanitarian norms in Gaza. But perhaps a more pernicious threat to these principles, yet no less inconsequential, is the fall from grace of a previously foundational proponent of the international order: the United States.

Early Hope

World War II left in its wake a world beyond comprehension. The scale of atrocity – numerically and geographically – had hitherto never been seen. There was a pervading sense amongst the Allies that severe personal consequences should be meted out to all those responsible, with Germany at the top of the list among the defeated Axis powers. Yet it was far from inevitable that a criminal justice model would be used to secure accountability. Without the United States’ leadership, it would have likely never happened. Britain strongly opposed the notion of criminal trials for responsible Nazi officials. Winston Churchill made clear that he preferred summary executions. The Soviet Union wanted show trials with clearly predetermined outcomes. Only the United States, under the leadership of President Harry Truman, took a stand to “determine the innocence or guilt of the accused after a hearing as dispassionate as the times and the horrors … will permit.” This vision of justice was the catalyst for the establishment of the International Military Tribunal (and its counterpart: the International Military Tribunal for the Far East, which prosecuted Japanese war criminals). American determination that fair justice was necessary for peace was central to the emerging international system, which would restrict the use of force and strive for accountability for international crimes.

Long Decline

American integrity would not last long, however. In the wake of the trials, the United States had already concluded that national security advantages could sometimes trump accountability, actively leveraging former Nazis as intelligence agents to counter the emerging Soviet bloc. These contemptible actions set the stage for decades of American foreign policy that eroded the international norms it had just sought to entrench. This decline in moral leadership accelerated when the United States cast aside the prohibition on foreign intervention. Throughout the Cold War, the United States pursued an often-violent interventionist foreign policy aimed at securing pliable allies across the globe.

As the confrontation with the Soviet Union evaporated in the 1990s, a fleeting moment of hope arose. The United States intervened to defend Kuwait’s sovereignty from Iraq and provided robust support for the establishment of the International Criminal Tribunals for the former Yugoslavia and Rwanda. It supported the creation of the International Criminal Court (ICC) and signed its foundational Rome Statute in 2000, though never ratified it.

This brief American foray into collective self-defense and international criminal justice would meet its end after 9/11 and the commencement of the United States’ so-called Global War on Terror. Following the somewhat justifiable invasion of Afghanistan, the United States embarked on an unlawful invasion of Iraq. It complemented these actions with a state-sponsored program of enforced disappearances and torture, for which there was never any real accountability. In 2001, a fearful United States even adopted a law authorizing the use of military force to secure the release of any U.S. or allied military personnel detained in relation to ICC proceedings. U.S. policy also gradually deviated in other ways from recognized principles of international law; much later, for example, under the first Trump administration, approval of annexation crept its way into official U.S. policy through formal recognition of Israel’s unlawful occupation of Syria’s Golan Heights.

There were, however, a few last glimmers of hope. Although the United States failed to respond robustly to Russian aggression against Ukraine in 2014, it unequivocally condemned and supported resistance against Russia’s full-scale invasion of the country in 2022 and it has continued to do so – that is, until lately.

The End of all Reason

From Gaza to Ukraine, American foreign policy is now lurching toward a narcissistic pursuit of pyrrhic peace. In support of allies and adversaries alike, it is demonstrating an intent to undermine the precedents of unmitigated responsibility for international crimes, including aggression, set by Nuremberg.

Current U.S. initiatives explicitly challenge responsibility and liability for punishment of individuals for international crimes (Nuremberg Principle I). The recently proposed “peace initiative” for Ukraine, apparently authored by American envoy Steve Witkoff with input from Russian envoy Kirill Dmitriev and others, advocated for “full amnesty for […] actions during the war.” Regardless of this provision’s outcome in a final document, the very fact of its proposal suggests U.S. permissibility of international crimes so long as the perpetrator isn’t defeated on the battlefield. Russia’s commission of the worst mass atrocities on European soil in decades is being met with a forgiving embrace. Regarding the war in Gaza, the United States has provided immense quantities of weaponry directly tied to Israel’s international crimes and lashed out against those who credibly allege Israel is committing genocide against Palestinians in Gaza. The Trump administration is also applying sanctions as a punitive weapon to scare off independent institutions such as the ICC from holding officials accountable for grave crimes.

The “prestigious” mantle of leadership, no matter how soaked in blood, now creates an impression that one can perpetrate international crimes without consequences. Israeli Prime Minister Benjamin Netanyahu is warmly applauded by U.S. lawmakers and dotingly defended by President Donald Trump. Russian President Vladimir Putin was given the literal red-carpet treatment on American soil when he visited Alaska in August. Other countries feel emboldened to follow suit. For example, Hungary brazenly advertised itself for a state visit by Putin and hosting Netanyahu, two leaders wanted by the ICC. Instead of accountability for all responsible (Nuremberg Principle III), the world is returning to a time when the most senior orchestrators of criminal plans and policies can use their official position to protect themselves from punishment.

The central crimes that Nuremberg cast into international law (Nuremberg Principle VI) – war crimes, crimes against humanity, and aggression – are being bludgeoned into meaningless political words. Instead of being the most serious crimes of concern to all humanity, they are reforged as tolerable misbehavior or the permissible spoils of war. In Ukraine, the crime of aggression now appears to reward the perpetrator. The so-called peace initiative for Ukraine envisages the illegally occupied and annexed territories of Ukraine to be “recognized as de facto Russian” and “belong to the Russian Federation.” The war crimes and crimes against humanity that accompanied Russian brutality are being met with a callous shrug.

The seriousness of international crimes is being minimized even with issues traditionally seen as “untouchable.” In a recent vote on a normally consensual draft United Nations General Assembly’s triennial resolution condemning torture, the United States stood among the only three States in opposition, alongside Israel and Argentina.

Actions taken by the United States begin to look like active complicity with international crimes. The most obvious case relates to Gaza. Unflinching supply of armaments and intelligence to Israel – when joined with overwhelming evidence of Israeli forces committing war crimes, crimes against humanity, and genocide – means clear liability in aiding or assisting manifestly illegal actions targeting Palestinians (ARSIWA, Art. 16). More surreptitiously, American attempts to strongarm Ukraine and cajole Russia into halting its invasion also begin to increasingly seem like aid or assistance for Russia’s illegal conduct. Of course, good faith attempts to secure cessation of hostilities and an end to uncontrolled bloodshed through political or economic manoeuvring are certainly not unlawful per se. However, the line demarcating complicity is crossed when a peace process is used as an attempt to orchestrate broad support for a perpetrator’s act of aggression. Freezing an invasion by giving material or financial support with a view to facilitating ongoing occupation and annexation will constitute aid or assistance to another state’s commission of these continuing acts of aggression (ARSIWA Commentary, 66). The proposed Witkoff-Dmitriev “peace initiative” provided for factual recognition of Russian control linked to measures that seemingly pave the way for eventual full legal recognition. This is hinted at in the planned process of sanctions removal and economic investment – with no clear limitation toward activities linked to occupied territories – and equally in the use of the terms “internationally recognized as territory belonging to the Russian Federation” for the demilitarized buffer zone. These aspects suggest an intention to normalize occupation to the point that would cross into aid or assistance toward Russia’s aggression. It is more demonstrable in the United States’ political jockeying for recent U.N. General Assembly and Security Council resolutions about Russia’s invasion. The United States has pointedly fought back against references to the illegality of Russia’s actions, providing a vital lifeline for international endorsement of such conduct. In the backdrop, Trump has not hesitated to remark that Russia “fought and … won certain property” that they are seemingly entitled to take. This is the bleeding edge of complicity.

As a final undoing of Nuremberg, the United States now considers itself entitled to use armed force as a political tool. Deeply entrenched jingoism has given rise to an administration that genuinely believes it can commit violence (or threaten to do so) with impunity. The Trump administration routinely threatens annexation of territories in Panama, Greenland, and Canada. Extrajudicial killings of alleged drug traffickers in the Caribbean and Pacific, under attempts to invent a non-existent armed conflict, are used to advance a political agenda. Under the cover of wars against terror and drugs, it has even become a pretext to threaten military action against countries in Central and South America that provoke the ire of Trump. In its most recent flagrantly illegal act, the United States has committed aggression against Venezuela by bombing and invading the country, and kidnapping its head of state. The prohibition of the use of force, the sacrosanct principle of international law’s post-World War II order, has been turned into leverage for crude bargaining.

The World of Tomorrow

States complicit in attacks against the foundations of the world order must be called out for it. And this applies to the United States, which now stands in opposition to the Nuremberg principles. If the United States cannot rectify its behavior, remedying failures of the past and present by holding itself accountable, other States must stand strong in opposition to these attacks on the international order. Faustian peace projects which perceive justice as an impediment to safety and security must be rejected, prioritizing just peace in harmony with international law.

Nuremberg showed that there are certain principles that should define our shared humanity. We know that the world is imperfect (to say the least). We all feel exactly where the system is failing, where the cracks in the international security architecture lie, and who is responsible for them. But this battered hope cannot cause the abandonment of principles that safeguard justice for the world’s worst atrocities. To forsake the Nuremberg principles means to return to the world of yesterday, where power forgave brutality and perpetrators never worried about the prospect of punishment.

We are writing these lines from Kyiv, where people are recovering after yet another murderous Russian attack conducted in the middle of “peace negotiations.” The dead and injured are counted, the power and heating are out, and mournful reflections persist. Here, the long night continues unabated and two options remain: despair or look for the light scattered in the dark.

Yet history delivers a hopeful message: future visions remain deceitful. When Zweig wrote his suicide note observing the decline of Europe in 1942, he could not see the future end of Nazi rule. And yet, the Nuremberg trials occurred. In 1994, Radio Télévision Libre des Mille Collines broadcasters in Rwanda finished their call for the elimination of Tutsis by proclaiming that “if [they] exterminate all the cockroaches, nobody will judge [them] because [they] will be the winners.” And yet, the perpetrators faced prosecution before an international tribunal. In 1995, the BBC’s documentary “The Death of Yugoslavia” featured Serbian President Slobodan Milošević comfortably ensconced in his presidential chair and brazenly sharing his account of the horrific wars he himself was instrumental in conducting. At the time, he did not foresee his life ending in a Dutch prison cell while on trial for international crimes a decade later.

“The Agony of Peace” is the last chapter in Zweig’s “World of Yesterday.” However, even in the agony of peace, Zweig writes in his concluding sentence, “in the last resort, every shadow is also the child of light, and only those who have known the light and the dark, […] war and peace, rise and fall, have truly lived their lives.”

Authors note: Opinions expressed in the blog are solely the authors’ and do not necessarily reflect the views of the organisations and institutions they work with.

The post 80 Years After Nuremberg, Envisioning the Future of International Law 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.

It’s a canard.

Soviet President Mikhail Gorbachev denied the supposed promise had been made. Boris Yeltsin, the first Russian president after the Soviet breakup, did not raise it publicly or with his American counterpart. And Putin himself also did not raise it for the first seven years of his presidency.

A Russian Claim Takes Hold

The Kremlin did not like NATO enlargement from the beginning, and significant voices in the West, such as George Kennan, criticized Alliance enlargement. However, the notion of a NATO promise not to enlarge has gained currency only in the past two decades. That reflects sometimes contrasting statements made by Western officials in 1990 as well as successful Russian disinformation efforts launched after Putin had been president for years.

The supposed no-enlargement commitment has been adopted by a disparate group of Western commentators. For example, in May 2016, Texas A&M Professor Joshua Shifrinson wrote that NATO had pledged not to enlarge in 1990. Right-wing influencer Candace Owens tweeted on Feb. 22, 2022, on the eve of Russia’s all-out invasion of Ukraine: “NATO (under the direction from the United States) is violating previous agreements and expanding eastward,” citing remarks made by Putin.

What Was Agreed

As talks about the reunification of West and East Germany began in early 1990, some U.S. and Western officials floated the idea that NATO could agree not to enlarge. Some suggested a broad commitment while others focused more narrowly on what the Alliance might or might not do in East Germany. In one frequently cited conversation, Secretary of State James Baker told Gorbachev in Moscow in February 1990: “If we maintain a presence in a Germany that is part of NATO, there would be no extension of NATO’s jurisdiction for forces of NATO one inch to the east.” (I was then a deputy director on the State Department’s Soviet desk and a member of Baker’s delegation in Moscow, and understood this to mean no expansion of NATO forces into East Germany.)

In any case, as American University Professor James Goldgeier has noted, U.S. officials “backed away” from the broader suggestions. Instead, the negotiations on German reunification addressed the narrow issue of not introducing NATO forces into former East German territory after reunification. NATO member states made no broad undertaking to not take in new members.

The “two-plus-four” negotiations between West Germany and East Germany plus Britain, France, the Soviet Union, and United States produced the treaty on German reunification, signed in September 1990 in Moscow. The treaty includes no commitment not to enlarge NATO. Its Article 5 addresses the status of military forces in Berlin and former East Germany:

• As long as Soviet forces still remained in East Germany (withdrawal would not be completed until 1994), the only Western units that could deploy there were German territorial defense forces not under NATO command.

• The United States, Britain, and France would not increase their troop levels in Berlin.

•After completion of the Soviet withdrawal, German units assigned to NATO could deploy into former East Germany, but foreign forces could not.

In sum, the treaty ruled that non-German NATO military forces could not deploy into what had been East Germany, but it contained no broad commitment that the Alliance would not enlarge.

Gorbachev Denied It

Gorbachev was president of the Soviet Union in 1990 when the reunification treaty was concluded. In an October 2014 interview, he denied a NATO promise not to enlarge:  “The topic of ‘NATO expansion’ was not discussed at all, and it wasn’t brought up in those years.”

What was discussed, according to Gorbachev, was ensuring that NATO military structures did not deploy in former East Germany. That was a logical point given that Soviet forces would not complete withdraw for four years. As noted above, the reunification treaty addressed that.

Yeltsin Did not Raise It

The Soviet Union collapsed at the end of 1991. The new Russian leader, Yeltsin, was no fan of NATO enlargement, but there is no record of Yeltsin publicly claiming that the Alliance had committed not to enlarge. In an October 1993 letter to President Bill Clinton, Yeltsin wrote that enlargement violated “the spirit” of the German reunification treaty and seemed to suggest that the treaty’s limits on deploying foreign troops in former East Germany amounted to a broader ban on NATO enlarging to the east. However, he made no mention of any promise not to enlarge.

The issues of enlarging the Alliance and NATO-Russian relations arose regularly in talks between Clinton and Yeltsin. Most U.S. records of those conversations have been declassified.  They do not reveal a Yeltsin claim to Clinton that NATO was breaking a commitment not to add new members. Did no one in the Kremlin or in the Russian foreign ministry tell Yeltsin of this supposed promise? My own recollection from my time at the National Security Council from December 1994 to August 1997 is that Yeltsin never raised an alleged no-enlargement promise.

Nor Did Putin …

Putin became president of Russia on Jan. 1, 2000. In his first years as president, Putin seemed to want to cultivate positive relations with the United States and the West, though as it turned out, he apparently wanted to entertain ties only on his terms.

A few memoranda of conversations of meetings between Putin and President George W. Bush have been declassified. In their first meeting in June 2001, Putin questioned the need for NATO enlargement and said Russia felt “left out” but did not cite a NATO promise not to enlarge.  When asked about the prospective entrance of the Baltic states into NATO in a November 2001 interview, Putin questioned whether “mechanical enlargements” of the Alliance would increase security in the 21st century but voiced no word about a no-enlargement commitment.

Putin attended the May 28, 2002, NATO-Russia summit in Rome that produced a declaration in which the sides said they would deepen relations between the Alliance and Russia. At a subsequent press briefing, Putin did not claim the Alliance had committed not to enlarge, though he had to know that allied leaders would hold a summit that November and extend invitations to additional countries to join NATO, likely including Lithuania, Latvia, and Estonia.

Just days earlier, on May 17, Putin had appeared at a press conference with Ukrainian President Leonid Kuchma. Instead of complaining about NATO breaking a no-enlargement commitment, he encouraged Kuchma to take Ukraine as far as it wished with the Alliance: “Ukraine has its own relations with NATO; there is the Ukraine-NATO Council. At the end of the day the decision is to be taken by NATO and Ukraine. It is a matter for those two partners.” (With that encouragement from Putin, Ukraine publicly announced just six days later its intention to seek NATO membership.)

Putin had obvious opportunities in subsequent years to raise NATO’s supposed promise. For example, in an April 2004 meeting with German Chancellor Gerhard Schroeder, Putin said NATO enlargement would not address contemporary threats but assessed NATO-Russia relations as developing in a positive manner. The Kremlin website makes no mention of an Alliance commitment not to enlarge.

In a May 2005 interview with a French TV company, Putin was specifically asked “does it irritate you that NATO is seeking to expand its influence among your neighbors and partners, in Ukraine and Georgia, for example?” Putin responded “This does not irritate us… If NATO wants to expand to take in these countries as members, that, of course, is another question.”  Putin went on to call enlargement a “technical process,” said he did not understand how enlarging to include the Baltic states would promote greater security, but added “I want to stress that we will respect their choice because it is their sovereign right…”

The interview gave Putin the ideal opportunity to remind the journalist and the world of any supposed commitment by the Alliance not to enlarge. According to the Kremlin website’s transcript of the interview, he said nothing about it.

… for Seven Years

By late 2006, Russian relations with the West, particularly the United States, had become more difficult. It appears that Putin publicly raised the alleged no-enlargement promise for the first time only at the February 2007 Munich Security Conference: “I think it is obvious that NATO expansion does not have any relation to modernization of the Alliance itself or with ensuring security in Europe. … And we have the right to ask: against whom is this expansion intended?  And what happened to the assurances [about not enlarging] our Western partners made after the dissolution of the Warsaw Pact? Where are those declarations today?”

Putin and Bush met in April 2008 immediately after the Bucharest NATO summit at which Bush had sought but failed to secure NATO leaders’ consensus for membership action plans for Ukraine and Georgia. Putin spoke at length about his concern about the Alliance taking in Ukraine or Georgia. Curiously, however, more than a year after his speech in Munich, Putin said nothing to the American president about a promise or assurance that NATO would not enlarge.

When Putin spoke in Munich, he had been president of Russia for seven years. So, are people to believe Putin only learned about this “promise” that late in his presidency? Even if in his early years as Russian president Putin sought good relations with the West, would he not have gently mentioned the promise? Or, more logically, did Putin and the Kremlin in late 2006 or early 2007 simply manufacture the argument based on some loose talk in 1990?

Putin uses this now as a pretext to help justify his neo-imperialist war on Ukraine. However, it is a promise denied by Gorbachev, never raised by Yeltsin, and not mentioned by Putin for seven years and then only when U.S.-Russia and NATO-Russia relations had begun to deteriorate.

The post A NATO Promise Not to Enlarge? No, Not Even According to Putin 1.0 appeared first on Just Security.

Point 26 of the original plan stated: “All parties involved in this conflict will receive full amnesty for their actions during the war and agree not to make any claims or consider any complaints in the future.” The intent appears to have been to provide full amnesty for any violations committed during the war. This would prevent Russia or Ukraine from investigating or prosecuting people for possible war crimes. 

Just three years ago, U.S. Secretary of State Antony Blinken announced that the United States had enough evidence to conclude that members of the Russian forces had committed war crimes and that the United States was “committed to pursuing accountability using every tool available, including criminal prosecutions.” Now, the United States appears to be supporting an erasure of any accountability for war crimes, despite an open case in the United States against four Russian-affiliated personnel for alleged war crimes. 

Ukrainian courts have already convicted over 100 Russians for war crimes, and earlier this year, Ukraine reported it had documented over 150,000 possible Russian war crimes. Numerous European jurisdictions have collected testimonies about violations and have started investigations as well. No country should support this amnesty, which is not only illegal but is morally reprehensible and which would close avenues for justice for the thousands of victims of this conflict. 

Why A Full Amnesty Provision Would Violate Russia and Ukraine’s Legal Obligations

An amnesty for war crimes would be in direct violation of Ukraine and Russia’s international law obligations. Ukraine and Russia are both party to the 1949 Geneva Conventions and Additional Protocol I of 1977. These are foundational international humanitarian law treaties, all of which apply to the armed conflict between Russia and Ukraine. The four Geneva Conventions and Additional Protocol I require States to pass domestic legislation criminalizing certain offenses, and to search for alleged perpetrators of grave breaches of the treaties.

Grave breaches include the most egregious violations against persons and objects protected by IHL, such as targeting civilians and protected medical facilities and personnel, torture and inhumane treatment. States are obligated to either prosecute the alleged perpetrators themselves, or, with required safeguards in place, transfer them to another State for prosecution. 

Each of the four Geneva Conventions (for example, article 131 of Geneva Convention III) provides that parties may not “absolve” themselves of grave breaches. The ICRC’s Updated Commentaries explain that this article was included specifically to ensure that parties to a conflict could not wiggle out of obligations through peace plans, and to ensure that a defendant facing war crimes prosecution could not use an amnesty provision in a peace plan in his defense.  

The ICRC’s Updated Commentaries note that “amnesties granted to persons who have participated in an armed conflict must not extend to those who are suspected of having committed grave breaches or other serious violations of humanitarian law” because an amnesty would violate the obligation to prosecute or extradite alleged offenders. The commentary cites a decision from the Extraordinary Chambers in the Courts of Cambodia in the case of Ieng Sary, who was a Khmer Rouge leader to whom the Cambodian King Sihanouk granted an amnesty by royal decree. The Court determined that the amnesty did not absolve Cambodia of its “absolute obligation to ensure the prosecution or punishment of perpetrators of grave breaches of the 1949 Geneva Conventions . . .” This is a crucial judgment, as it makes clear that States have an obligation to prosecute people who commit grave breaches of the Geneva Conventions, and that States cannot provide amnesties to perpetrators, as had been proposed in the original Ukraine-Russia peace plan. 

Additionally, international humanitarian law and human rights law require that victims have access to a remedy for violations. Allowing amnesty would close that avenue for many victims because they would not be able to seek redress in Ukrainian or Russian courts. Ukraine is already investigating thousands of violations, and remains the most likely jurisdiction for victims to seek justice since Ukrainian authorities are best placed to collect and analyze evidence. 

This is not a novel tension; these issues have played out in other peace processes as well. For example, the 1999 Lomé Peace Agreement, which brought an end to fighting in Sierra Leone, included an article that provided “absolute and free pardon and reprieve to all combatants and collaborators in respect to anything done by them in pursuit of their objectives.” However, five years later the Special Court for Sierra Leone, which was set up to prosecute atrocities from the conflict, concluded that the amnesty could not prevent the Court from prosecuting people for atrocities who otherwise would have been covered by the amnesty. A year after concluding El Salvador’s 1992 peace agreement that ended the civil war, El Salvador passed a law allowing amnesty for grave violations of the law during the armed conflict. The Inter-American Commission on Human Rights quickly said that this law violated El Salvador’s international human rights law obligations, which it reiterated in a report decades later. Although these were each non-international armed conflicts, the lessons hold for international armed conflicts as well.

Why it Matters in this Conflict

There is plenty of credible evidence that war crimes have been committed during the conflict between Russia and Ukraine, including bombardments of health facilities, deportation of children, and abuse of prisoners of war. In March 2022, Blinken announced that the United States had determined that members of Russia’s forces had committed war crimes in Ukraine. Blinken specifically referenced the intentional targeting of civilians: “Russia’s forces have destroyed apartment buildings, schools, hospitals, critical infrastructure, civilian vehicles, shopping centers, and ambulances, leaving thousands of innocent civilians killed or wounded. Many of the sites Russia’s forces have hit have been clearly identifiable as in-use by civilians.” 

Within a year of the 2022 Russian full-scale invasion of Ukraine, driven by a bipartisan outpouring of U.S. support and empathy for Ukraine, the U.S. Congress passed the Justice for Victims of War Crimes Act, which expanded the personal jurisdiction of the War Crimes Act in order to allow prosecution of alleged war criminal, regardless of nationality, who was found within US jurisdiction. By the end of 2023, the Department of Justice brought its first case under the expanded Act for alleged war crimes committed against a civilian in Ukraine. The defendants are all Russian nationals or other foreign nationals who were members of the Russian Armed Forces or the Donetsk People’s Republic militia; the victim is a civilian who was allegedly abducted and tortured by the defendants. 

Dismissing Accountability Efforts 

Not only would point 26 of the peace proposal violate international legal obligations, it perhaps unsurprisingly goes against former U.S. positions on accountability. In March 2022, when Blinken stated that members of the Russian armed forces had committed war crimes, it would have been the State Department’s Office of Global Criminal Justice that led the process of determining that war crimes had been committed. That office (where I previously worked) existed for decades and was created to craft U.S. policy responses to atrocity crimes, including war crimes. But Secretary of State Marco Rubio closed that office, among others in the U.S. State Department, in July 2025, and with it dismissed experts who supported the work of pursuing justice and accountability for these crimes. 

Any future “peace plan” that allows amnesties would violate Ukraine and Russia’s international legal obligations and shut the door to justice for victims of the worst crimes, who the U.S. had previously supported in their quest for accountability. It is a bad plan, which has not worked in other contexts, and should not be supported by any state. All states are parties to the four 1949 Geneva Conventions, which means all countries are under an obligation to search for and prosecute alleged perpetrators of grave breaches, including those found in their territory who are alleged to have committed grave breaches in Russia’s war on Ukraine. Not only should states not support an amnesty for war crimes, but they should be investigating perpetrators in their own territories.  If investigations shut down, there would be no justice for the horrific and extensive violations that civilians and prisoners of war have endured. Justice supports peace in the long term. Dismissing justice and accountability will prevent a lasting peace from taking hold and must not be supported in any “peace plan.” 

The post Why a Ukraine-Russia Amnesty Would Violate Geneva Convention Obligations appeared first on Just Security.

Nuremberg’s symbolism has been poignantly woven throughout Russia’s onslaught on Ukraine. Russia denies that the Red Army committed any crimes during World War II and criminalizes critiques exposing them. By fortifying narratives about its allegedly unique role in defeating Nazis and branding Ukrainians as their successors, Russia assigns itself the role of a liberator who can never be a perpetrator – neither during World War II, nor during the ongoing aggression. Hence, the requested blanket amnesties.

The Kremlin’s demands for amnesties are not new – they have been persistent since its initial invasion of Ukraine in 2014. During and following the Minsk negotiations in 2015, Russia opposed not only atrocity prosecutions, but any holistic support to survivors, through reparations and other transitional justice measures. 

Such demands contravene the spirit and letter of international law.

International law is adamant on States’ duty to prosecute, punish, and prevent international crimes – war crimes, crimes against humanity, genocide, and aggression – as well as serious human rights violations such as enforced disappearances and torture. The universally ratified Geneva Conventions that protect civilians, prisoners of war, and wounded in war also oblige States to prosecute or extradite alleged perpetrators. Statutes of limitation do not apply – these atrocities may be tried decades after commission. War-related amnesties are possible, but only for sedition-like activities – not for the gravest international crimes. The rise of amnesties for military junta-era atrocities during democratic transitions and peace processes across Latin America prompted the Inter-American Court of Human Rights to consistently confirm the inadmissibility of amnesties for serious human rights violations. The Inter-American Human Rights Commission has recommended that States avoid far-reaching amnesty legislation. Nuanced prosecutions can also contribute to truth-seeking and wider redress, which can be essential to sustainable post-conflict recovery.

Russia’s crimes against Ukrainian civilians and prisoners of war are well-documented: they include widespread torture and sexual violence, enforced disappearances, child deportation, and concerted attacks on hospitals, power stations and civilian areas.

Several considerations prevent Ukraine – and its democratic and law-abiding partners – from agreeing to amnesties or de facto impunity for such atrocities. 

First, ceding more territories to the Kremlin, as the “peace” plan also proposes, would expose more Ukrainians to Russian crimes. International law’s prohibition of torture, war crimes, crimes against humanity, and genocide is absolute. Russia has disregarded this prohibition consistently by committing or facilitating  numerous atrocities in Georgia, Syria, Ukraine, CAR, and elsewhere – and has also  withdrawn from the Council of Europe anti-torture convention. Joining agreements which would place Ukrainians under the direct reach of the Russian government and in the viable danger of such atrocities, with no prospect of accountability, would arguably breach peremptory norms of international law. This would make such arrangements void under the Vienna Convention on the Law of Treaties (see article 53, for instance).

Second, Russia’s amnesty demands, unlawful from the outset, cannot restrain numerous prosecutions of its atrocities launched globally. Apart from Ukraine’s 204,000+ war crime proceedings (reflecting individual incidents, per Ukraine’s Code of Criminal Procedure), Russians’ crimes are investigated by the International Criminal Court (ICC), with six arrest warrants, and by third countries, under universal jurisdiction. The Council of Europe has recently endorsed the Special Tribunal for the Crime of Aggression Against Ukraine. Under international law, treaties do not bind non-parties. In contrast, all States must prosecute international crimes – or extradite the suspects for trial. Regardless of what temporary arrangements might be imposed on Kyiv, countries around the world should continue their investigations of Russian perpetrators, back the aggression tribunal and step up their support for the ICC, in its work on Ukraine and globally.

Crucially, justice for war crimes has been consistently demanded by Ukrainians, even during the most challenging periods of the invasion. Eighty-two percent of Ukrainians find trials “very important,” and ninety percent emphasise the urgency of supplementary redress through non-judicial channels such as reparations and truth-seeking. This stance is supported by leading actors: the U.N. Commission of Inquiry on Ukraine, the U.N. Special Rapporteur on Torture and the Council of Europe Human Rights Commissioner emphasize that justice is not a hindrance, but a pre-condition to sustainable peace for Ukraine.

Any compromise on prosecuting Russian perpetrators would further undermine the fragile system of international criminal justice painstakingly developed since World War II and Nuremberg. Amnesties for Russian war criminals would question the standing of the ICC amid one of its most vulnerable periods and its pending arrest warrants, against Vladimir Putin, but also other State leaders. Russia has used double-tap attacks and conducted warfare by means of atrocities in Ukraine, Syria, Mali and elsewhere. It may even create a precedent that would shield ex-Syrian President al-Assad, responsible for mass torture and many other serious crimes against Syrians (and already benefitting from Russian protection). Giving the Kremlin an accountability carte blanche would signal impunity to victims of al-Assad and other abusers backed by Russia and its proxies. Allowing the Kremlin to get away with crimes against humanity would also gravely weaken international efforts to conclude an overdue international treaty against these crimes.

Nuremberg was far from perfect. Hitler and some of his clique escaped by committing suicide or through the ratlines of the Cold War. Some convicted Nazi-lenient industrialists obtained early releases, as post-war Europe accelerated its economic recovery. And yet, with all of Nuremberg’s flaws, it was “one of the most significant tributes that Power has ever paid to Reason,” as emphasised by Robert Jackson, Nuremberg’s Chief Prosecutor for the United States and (and a U.S. Supreme Court Justice). It prevented the likes of Göring or Ribbentrop from walking around freely, without charge or trial.

We should not establish a precedent to the contrary now.

The post History and International Law Proscribe Amnesties for Russian War Crimes appeared first on Just Security.

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

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

IMAGES (left to right): Natural disaster and its consequences (via Getty Images); In this picture taken on September 28, 2022, an internally displaced flood-affected family sits outside their tent at a makeshift tent camp in Jamshoro district of Sindh province (Photo by Rizwan Tabassum/AFP via Getty Images; Trees smolder and burn during the Dixie fire near Greenville, California on August 3, 2021. – Numerous fires are raging through the state’s northern forests, as climate change makes wildfire season longer, hotter and more devastating. (Photo by JOSH EDELSON/AFP via Getty Images)

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Nevertheless, the Ukrainians are right to try to work with the draft peace plan rather than reject it out of hand. In an address to his fellow Ukrainians today, Ukraine’s President Volodymyr Zelenskyy said that the government would work on the plan rather than risk a break with the United States, which he described as Ukraine’s most important partner. This was the right call. And there is a way to do so for Ukraine and for those in the U.S. administration who understand the U.S. interest in Ukraine’s survival as an independent nation aligned with the United States and Europe.

To be lasting, a settlement of the war that Russia unleashed against Ukraine must include a ceasefire along agreed-upon territorial lines; security for Ukraine; and continued Ukrainian sovereignty, even if Russia continues to occupy Ukrainian territory for the indefinite future. Those elements are present in the U.S. draft, albeit in distorted and unworkable forms and sometimes contradicted by other provisions in the same document. But they are there and, as diplomats say, the language can be worked.

Ukraine’s best play moving forward is to do what Ukraine successfully did with the “minerals deal” that started as apparent U.S. exploitation of Ukrainian resources and ended up as a reasonable proposal for joint U.S.-Ukrainian economic development. This peace proposal is more complicated. Nevertheless, Ukraine should embrace the U.S. initiative in principle and agree to work on the text with the United States on a fast track. Some of the clauses could be accepted in close to their current form. Others could be accepted “in principle” with language fixes that would make them acceptable for Ukraine and less vulnerable to Russian exploitation. Still others would be impossible for Ukraine to accept in their current form but, in some cases, language fixes could mitigate the damage. Ukraine’s tactical purpose in engaging to develop the would-be plan is wise, to avoid a blow up with U.S. President Donald Trump, a la the Feb. 28, 2025 Trump-Zelenskyy meeting in the Oval Office. It also could convince Trump again that Ukraine is not an obstacle to a negotiated settlement, and they might manage to either emerge with a workable plan around which a ceasefire could be arranged or put the Kremlin in the position of spoiler.

Options for the Counteroffer

This is what a Ukrainian counteroffer to the United States might look like, point by point from the draft as reported by the Associated Press:

1. “Ukraine’s sovereignty will be confirmed.” This could be accepted but fixed to have Russia affirmatively accept Ukraine’s sovereignty as an independent state.
2. “A comprehensive non-aggression agreement will be concluded between Russia, Ukraine and Europe. All ambiguities of the last 30 years will be considered settled.” Ukraine can accept this as a post-settlement project. There are reasons to question any such undertaking with President Vladimir Putin’s Russia, but Ukraine can suggest language that any such talks would follow a lasting ceasefire in the war and Russian implementation of its terms.
3. “It is expected that Russia will not invade neighboring countries and NATO will not expand further.” The language of the first clause needs to include a Russian commitment not to engage in any form of aggression against its neighbors. The language of the second clause needs to change as NATO is not a party to the agreement. As an alternative, the United States and Ukraine could agree that decisions about NATO’s potential future enlargement and Ukraine’s policy of seeking NATO membership will be made in light of the security situation in Europe generally, including implementation of this agreement and Russia’s respect for its commitments under it.
4. “A dialogue will be held between Russia and NATO, mediated by the United States, to resolve all security issues and create conditions for de-escalation in order to ensure global security and increase opportunities for cooperation and future economic development.” It makes no sense for the U.S. to “mediate” a NATO-Russia dialogue – the United States is a member of NATO and indeed the traditional leader of NATO. But NATO-Russia dialogue could resume after the war if Russia adheres to the terms of the agreement.
5. “Ukraine will receive reliable security guarantees.” Ukraine can accept this provision if coupled with agreement that such guarantees will be developed and agreed between the United States, Europe, and Ukraine before signing of the peace plan.
6. “The size of the Ukrainian Armed Forces will be limited to 600,000 personnel.” The proposed 600,000 limitation of Ukrainian armed forces is much higher than earlier Russian demands. But Ukraine currently has about 800,000-850,000 forces and had 250,000 before the war, according to Axios, and in any case, this unilateral limitation violates Ukraine’s sovereignty and does nothing to limit Russian forces. There is ample precedent, however, for agreements limiting conventional forces of European countries and Russia. An alternative clause could include a commitment to conventional arms control involving either Russia and Ukraine or even Europe as a whole after the end of the war if the terms of the agreement are met.
7. “Ukraine agrees to enshrine in its constitution that it will not join NATO, and NATO agrees to include in its statutes a provision that Ukraine will not be admitted in the future.” This makes little sense as NATO is neither a party to this agreement nor is likely to approve a change to the 1949 North Atlantic Treaty. Ukraine might consider a counter-formulation like the one suggested for clause 3 above: that its NATO aspirations will depend on the security situation, including implementation of the terms of this agreement.
8. “NATO agrees not to station troops in Ukraine.” Ukraine could agree to this language, which as written does not rule out European troops in Ukraine that wouldn’t be under a NATO umbrella, e.g., to provide air defense or training. The language could add “…in Ukraine, a non-NATO member.” That suggests that should Ukraine someday join NATO, the restriction would be off.
9. “European fighter jets will be stationed in Poland.” This odd formulation – to which the Poles rightly objected on the grounds that they should be consulted — does helpfully suggest that European contingency backup for Ukraine’s security is part of the agreement. Happily, the language does not prohibit U.S. planes stationed in Poland or European or U.S. planes stationed anywhere else. Ukraine can accept it.
10. “The U.S. guarantee:”
    1. “The United States will receive compensation for the guarantee.” This is a jarring bit of transactionalism but as written is sufficiently vague for Ukraine to accept.
    2. “If Ukraine invades Russia, it will lose the guarantee.” This opens to door for future false Russian claims of Ukrainian aggression. The language should be changed to include, for example, a U.S.-Ukrainian consultation process before any such decision to avoid a situation in which the United States unilaterally withdraws its support for Ukraine. It is unlikely that Ukraine would “invade” Russia anyway.
    3. “If Russia invades Ukraine, in addition to a decisive coordinated military response, all global sanctions will be reinstated, recognition of the new territory and all other benefits of this deal will be revoked.” The language is clumsy and “recognition of the new territory” is something to which the United States should not agree in any case. But the idea that yet another Russian attack on Ukraine should be met with severe penalties is a solid one, and Ukraine should find a way to accept a version of it.
    4. “If Ukraine launches a missile at Moscow or St. Petersburg without cause, the security guarantee will be deemed invalid.” This is weird (would Ukrainian missile attacks on Nizhni Novgorod be alright?) and duplicates an earlier point. It can go.
11. “Ukraine is eligible for EU membership and will receive short-term preferential access to the European market while this issue is being considered.” European Union membership is for the EU to decide, but the language could be altered to affirm Ukraine’s EU aspirations and Russia’s acceptance of them.
12. “A powerful global package of measures to rebuild Ukraine, including but not limited to… [the draft includes various economic initiatives including some with the U.S. and World Bank involvement]. The language is positive, if general; Ukraine can accept it.
13. “Russia will be reintegrated into the global economy:”
    1. The lifting of sanctions will be discussed and agreed upon in stages and on a case-by-case basis.” This is sufficiently caveated. Ukraine can accept it.
    2. “The United States will enter into a long-term economic cooperation agreement…” This is general but positive. Ukraine can accept it.
    3. “Russia will be invited to rejoin the G8.” This is for the G8 to decide but Ukraine can accept it if Russia’s adherence to the terms of a peace settlement is added as a condition.
14. “Frozen assets will be used as follows…[details follow for the United States and Europe to respectively use $100 billion in frozen assets for Ukrainian reconstruction and a residual amount for a separate U.S.-Russia investment fund.] This is an improbable proposal likely to fall apart, not least because most of Russia’s frozen assets are in European hands and because it is unlikely that Russia will agree in the end to losing control over its immobilized assets. But Ukraine can agree to this language.
15. “A joint American-Russian working group on security issues will be established to promote and ensure compliance with all provisions of this agreement.” Ukraine must be part of this process, as should either the EU or key European nations, e.g., U.K., France, Germany, and Poland.
16. “Russia will enshrine in law its policy of non-aggression towards Europe and Ukraine.” This is void of real content, given Russia’s track record of ignoring such commitments, e.g. the 1994 Budapest Memorandum that it violated with its 2014 original invasion of Ukraine, not to mention its February 2022 full-scale assault. Still, Ukraine could accept this, even knowing it lacks meaning.
17. “The United States and Russia will agree to extend the validity of treaties on the non-proliferation and control of nuclear weapons, including the START I Treaty.” This is strange language. START I is gone. New START, the most recent follow-on agreement, which has been extended to February 2026, could be extended further. Ukraine need not expend capital objecting to this clumsy clause.
18. “Ukraine agrees to be a non-nuclear state in accordance with the Treaty on the Non-Proliferation of Nuclear Weapons.” This refers, of course, to nuclear weapons, not nuclear energy, and Ukraine could agree to this, especially given that its obligations under this peace plan would be void should Russia again attack it. (Ukraine gave up its Soviet-era nuclear weapons after the breakup of the USSR in exchange for security assurances in the Budapest Memorandum – the same ones that Russia violated with its 2014 invasion and 2022 full-scale assault.)
19. “The Zaporizhzhia Nuclear Power Plant will be launched under the supervision of the IAEA, and the electricity produced will be distributed equally between Russia and Ukraine — 50:50.” Should Russia remain in occupation of Zaporizhzhia Province, this clause could benefit Ukraine.
20. “Both countries undertake to implement educational programs in schools and society aimed at promoting understanding and tolerance of different cultures and eliminating racism and prejudice:”
    1. “Ukraine will adopt EU rules on religious tolerance and protection of linguistic minorities.” Ukraine could agree to this, perhaps adding that this would be part of – and according to the terms of — its EU accession process.
    2. “Both countries will agree to abolish all discriminatory measures and guarantee the rights of Ukrainian and Russian media and education.” This is one of the few examples of reciprocal oblations under the peace plan. While Russia is almost certain not to agree to it as it has adopted a policy of hostility toward Ukrainian culture, Ukraine may well do so.
    3. “All Nazi ideology and activity must be rejected and prohibited.” This is a longstanding and cynical Russian ploy based on a false accusation that Ukraine is a hotbed of Nazism. The Ukrainian counter could be to insist on reciprocal Ukrainian and Russian measure against nationalist extremism.
21. “Territories:”
    1. “Crimea, Luhansk, and Donetsk will be recognized as de facto
       Russian, including by the United States.” This makes no sense, as “de facto” is not recognition. Ukraine should push for no U.S. recognition of territorial changes.
    2. “Kherson and Zaporizhzhia will be frozen along the line of contact, which will mean de facto recognition along the line of contact.” Freezing the current line may be acceptable to Ukraine but “de facto recognition” is contradictory. Again, Ukraine should push for no U.S. recognition of territorial changes.
    3. “Russia will relinquish other agreed territories it controls outside the five regions.” Ukraine could agree to this.
    4. “Ukrainian forces will withdraw from the part of Donetsk Oblast that they currently control, and this withdrawal zone will be considered a neutral demilitarized buffer zone, internationally recognized as territory belonging to the Russian Federation. Russian forces will not enter this demilitarized zone.” Even with the language on demilitarization, this gives Russia control over critical territory it has been unable to conquer in nearly four years of full-scale war. Ukraine should ask the United States to adhere to President Trump’s formula for a freeze of the lines in place.
22. “After agreeing on future territorial arrangements, both the Russian Federation and Ukraine undertake not to change these arrangements by force. Any security guarantees will not apply in the event of a breach of this commitment.” The Russians are unlikely to respect this provision any more than they respected previous commitments to respect the Russian-Ukrainian border. Ukraine may nevertheless feel it has to agree to this provision.
23. “Russia will not prevent Ukraine from using the Dnieper River for commercial activities, and agreements will be reached on the free transport of grain across the Black Sea.” Russia’s track record leaves it untrustworthy with respect to any such provision. However, Ukraine may believe that it can accept this provision.
24. “A humanitarian committee will established created to resolve outstanding issues…” This provision is vague and Ukraine should seek to strengthen it, especially with respect to Ukrainian children who have been abducted by Russia.
25. “Ukraine will hold elections in 100 days.” This is a Russian demand that violates Ukraine’s sovereignty. Ukraine could counter with an offer to hold national elections when the agreement is concluded and in force.
26. “All parties involved in this conflict will receive full amnesty for their actions during the war and agree not to make any claims or consider any complaints in the future.” Ukraine understandably may object to this provision, considering the energy and resources it has put into documenting and pursuing justice for the war crimes and crimes against humanity committed by Russia during the course of the war, not to mention the original crime of aggression in the original invasion.
27. “This agreement will be legally binding. Its implementation will be monitored and guaranteed by the Peace Council, headed by President Donald J. Trump. Sanctions will be imposed for violations.” This provision seems inconsistent with section 15 above (a monitoring group headed by the United States and Russia). This is probably the result of sloppy drafting and the Ukrainians should ask for clarification, including whether a ceasefire is contingent on such steps. If Russian legal processes are required before a ceasefire goes into effect, Russia could stall and demand changes based on alleged demands from its parliament while continuing to attack Ukraine.
28. “Once all parties agree to this memorandum, the ceasefire will take effect immediately after both sides retreat to agreed points to begin implementation of the agreement.” The Ukrainians may want to propose an immediate ceasefire without preconditions.

The analysis and suggestions above are illustrative only. The point is that the text, however badly prepared and distorted, can be improved, and that the Ukrainians have an option other than surrender or defiance, neither of which would seem to be in their interest. It may be in Ukraine’s interest to make the effort to work on the text with the U.S. administration. If it does, it may find that its U.S. counterparts in such an exercise are reasonable and knowledgeable.

The Trump administration’s inconsistent approach to Ukraine often complicates its own stated objectives. It is the task of diplomats, my former profession, to try to provide options even in the most difficult of circumstances. And these do exist.

The post Ukraine’s Zelenskyy Has Options in Response to Latest U.S.-Russian ‘Peace Plan’ appeared first on Just Security.

And yet the posture of leaders in Moscow toward their Ukrainian compatriots was one of chauvinism and superiority. Ukrainians had long been subjugated by the Russian Empire and, except for a rocky five years between the end of World War I and the consolidation of the Soviet Union, they were unable to secure independence until after the collapse of the Soviet Union in 1991. Even today, Russians still refer to Ukrainians as “Little Russians,” a term that reflects Putin’s publicly stated motivations for recapturing Ukraine and eliminating its independent identity.

That kind of outlook extends from Russia’s historical record of often-horrific treatment of the Ukrainians, including Soviet leader Joseph Stalin’s 1930s policy of deliberate starvation of Ukrainian peasants that is known as the Holodomor, a memorial to which now stands prominent in Washington. The total Ukrainian death toll was at least 3.9 million. This history explains why Ukrainians today are highly reluctant to enter any peace arrangement with Russia without an ironclad security mechanism that cannot be compromised, as was the 1994 “Budapest Memorandum.” Russia, under President Vladimir Putin, has repeatedly violated that security agreement – in 2014 with its capture of Crimea and the invasion of eastern Ukraine, and of course most dramatically with the February 2022 full-scale invasion. The Budapest Memorandum had been signed by Russia and Ukraine, with the United States and the United Kingdom, in association with the conclusion of the process that resulted in the START nuclear-weapons reduction treaty. The Budapest Memorandum ostensibly assured Ukraine’s security and territorial integrity if it surrendered the nuclear weapons on its soil.

Yet today, Ukraine, which did give up those weapons, is fighting an existential war launched by Russia. So, Ukrainians are determined that any new peace agreement ensure that they will never have to fight another one. It is simply mindless to try to push Ukraine into a settlement just for the sake of any agreement. Words on paper are not enough.

Decades of Talks…And a Power’s Collapse

My own role as an arms negotiator in the U.S. government came to involve Ukraine after the Soviet Union officially passed into history on Dec. 31, 1991, and Ukraine became an independent country. Negotiations in the Strategic Arms Limitation Talks (SALT), which had begun in November 1969 in Helsinki, Finland, were held on a rotating basis between Helsinki and Vienna and concluded in Helsinki with the signing of the Anti-Ballistic Missile Treaty and the Interim SALT agreement in 1972. The follow-up talks, SALT 2, began in late 1972 and migrated to Geneva, Switzerland, on a permanent basis. Those negotiations then morphed into the Strategic Arms Reduction Talks (START) that culminated, more than two decades later, with the treaty entering into force in December 1994 in Budapest, Hungary, where President Bill Clinton signed for the United States and Putin for Russia. Ukraine, Belarus, and Kazakhstan also joined that treaty pursuant to the 1992 Lisbon Protocol, which modified the START Treaty to add the obligations of the newly independent states of the former Soviet Union (more on that later).

At the time of Ukraine’s emergence as a sovereign country, I was serving as the general counsel of the U.S. Arms Control and Disarmament Agency (ACDA). (I later served as Bill Clinton’s ambassador for arms control, non-proliferation, and disarmament.) The START Treaty had been signed by U.S. President George H.W. Bush and Soviet General Secretary Mikhail Gorbachev in July 1991, pending ratification by each side’s legislative branch, limiting each country to 6,000 strategic nuclear weapons. Three months later, in October 1991, the two leaders concluded a further, informal agreement known as the Presidential Nuclear Initiatives, in which the United States would eventually eliminate 95 percent of its tactical nuclear weapons and the then-Soviet Union would do the same. (Because no verification was conducted by either side, it has never been clear what Russia, which succeeded the Soviet Union in that agreement, actually did). The two sides also agreed that nuclear weapons could no longer be deployed on surface ships, that strategic bombers would be taken off alert, and nuclear-capable missile systems in excess of START Treaty limits would be deactivated. Most significantly, considering the collapse of the Soviet Union a few months later, the two countries agreed that all Soviet tactical nuclear weapons would be brought back to the then-Russian Republic, which was accomplished in January 1991.

A New Conundrum for the NPT

But strategic offensive nuclear arms remained deployed on the territories of Russia, Belarus, Ukraine, and Kazakhstan, all of which had just become nascent independent nations. That was a major problem, because that would mean three more nuclear weapon States in the Nuclear Non-Proliferation Treaty (NPT), which only recognized five original nuclear weapon states, the number that existed when the treaty was signed and when it entered into force in 1970: the United States, the United Kingdom, France, China, and Russia. Any other countries that later came to possess nuclear weapons either never joined the NPT – India, Pakistan, Israel, for example (India and Israel were known to be pursuing nuclear weapons at the time) – or had joined as a non-nuclear weapon state and later withdrew – North Korea.

With respect to the START Treaty, the United States, the U.K., France, China, and Russia agreed in January 1992 that the relevant successor states to the Soviet Union would be Russia, Ukraine, Belarus, and Kazakhstan. And while several alternatives were considered for how to deal with the START Treaty given the new situation, none of us in the U.S. government wanted to renegotiate the treaty, given its vast complexity and the endless headaches it would cause to include new countries in the agreement. Such a challenge might be a lawyer’s dream, but definitely not a dream for a diplomat.

President Bush also was determined that no new countries would be added to the number of recognized “nuclear weapon States” in the NPT, then and now regarded as the centerpiece of international security. While the NPT’s language delineating only five nuclear powers necessarily meant only one country could inherit the Soviet Union’s status as one of the five, Ukraine emerged from the USSR’s collapse with, as noted earlier, more than 4,000 nuclear weapons on its territory. Increasingly concerned about potential hostility from Moscow, Kyiv viewed those weapons as a valuable insurance policy.

Facing this conundrum, the State Department tasked me with writing a briefing memorandum for department leaders. The April 10, 1992, memorandum stated that it was clear that the NPT’s negotiators intended that there could never be more than five nuclear weapon States that were parties to the NPT. In her superb 2022 book “Inheriting the Bomb,” Harvard Belfer Center Associate Mariana Budjeryn references the memo, observing that “only five states met the criteria for NWS status under Article IX of the treaty whereby a nuclear weapon state is one which has manufactured and exploded a nuclear weapon or nuclear explosive device prior to January 1, 1967…there is no question that the negotiators of the treaty intended that there could ever be more than five. In other words, no additional states could join the treaty in the capacity of nuclear weapon states without defying the very purpose for which the NPT was concluded” – that is, to discourage the further proliferation of nuclear weapons.

More than 30 years later, I continue to defend the NPT, which still comprises only five nuclear weapon state parties. In an April 3 article this year with regular co-author Professor David Bernell of Oregon State University, entitled “The Greatest Possible Danger and Hazard,” we noted President John F. Kennedy’s 1963 use of that phrase to describe the risk posed by the spread of nuclear weapons. Four countries had them at the time, and China became the fifth in 1964.

Searching for a Fix

So after the December 1991 breakup of the Soviet Union, in early January 1992, Secretary of State James Baker visited Moscow, Kyiv, Minsk, and Almaty to discuss the future relationships between the United States and the newly independent states, particularly with respect to arms control. This was followed by a full interagency team of some 20 U.S. officials in the second week of January 1992 to discuss all aspects of the arms control obligations of those states. The delegation was led by Undersecretary of State for International Security Reginald Bartholomew and included the State Department’s highly knowledgeable Jim Timbie; John Shalikashvili, the Joint Staff officer responsible for disarmament who later went on to become chairman of the Joint Chiefs of Staff; Steve Hadley, the capable assistant secretary of defense for international security who later became George W. Bush’s national security advisor; and Doug MacEachin, a highly respected senior CIA officer, later the deputy director of the CIA. I attended as the ACDA general counsel.

We went to Moscow first, where we held thorough consultations with a Russian team led by Ambassador Alexey Obukhov, a man whom I had come to know very well during the SALT II and the U.S. and Soviet Nuclear and Space Arms negotiations of the late 1980s. (My most vivid memory of Obukhov occurred more than four years earlier at the end of the INF negotiations in 1987. Reagan and Gorbachev were scheduled to sign the Intermediate Nuclear Forces (INF) treaty at the White House on Dec. 8 that year. But on the morning of Dec. 7 in Geneva, the negotiators had still not finished the treaty, and a U.S. Air Force cargo plane was waiting at the airport to carry those who would be going to the signing in Washington. The concluding negotiation would have to take place on the plane among just four of us who had the authority to make decisions: U.S. Ambassador Michael Glitman, who headed the U.S. INF delegation, and myself, plus Obukhov and an aide for the Soviet side. We raced the clock on board but managed to reach the final agreement. After we arrived, the necessary clerical work was done at the State Department, but when I received the original copies of the treaty at the State Department the following morning, I found a glaring typo that I don’t recall now but that changed the meaning of the treaty and had to be fixed. Fortunately, Glitman was in the building, so I could easily get his initials on the revised original copies, but then I had to go to the Russian Embassy and find Obukhov just as the General Secretary was arriving. Somehow I found Obukhov, and he initialed the texts to indicate that their principals could sign, as was the tradition. So the INF treaty was signed on time, on the afternoon of Dec. 8, 1987, at the White House, only a few hours after the treaty was finalized. It was probably the only time a major U.S. treaty was concluded with a foreign country’s representative while in flight on an Air Force plane.)

But spinning forward to January 1992 and the arms control talks with the former Soviet states, Obukhov greeted us all in Moscow by declaring, “Welcome to the Russian Foreign Ministry.” There was not much disagreement between our two sides. We affirmed to the Russians that the United States recognized Russia as the successor state to the Soviet Union for the NPT, and we discussed with them the need to provide for succession for the START Treaty and the 1990 Conventional Armed Forces in Europe Treaty (CFE). The Russians stated that it was important that all of the newly independent states would join the NPT as non-nuclear weapon states. By implication, that meant those new states would have to give up their nuclear weapons. The Russians also stressed the importance of the continued viability of the Anti-Ballistic Missile Treaty (ABM) in its relationship to START. The U.S. delegation agreed.

At the next stop, Kyiv, however, our experience was considerably different. The Ukrainians strongly asserted their desire to be both a party to START and accede to the NPT as a nuclear weapon state. I recall a senior Ukrainian official firmly describing his country as the France of the East – and France has nuclear weapons. It was clear to me after those talks that we would have a long road to travel with Ukraine.

We then moved on to Minsk, where we stayed at the then-late Soviet leader Leonid Brezhnev’s former hunting lodge outside of the city and held our meetings there. I recall deep snow covering the beautiful countryside all around us. Our discussions with Belarus couldn’t have been better: they agreed to cooperate on START and would join the NPT as a non-nuclear weapon state.

After the discussions with Belarus, we were planning to proceed to our fourth and last stop in Alma-Ata, as the Kazakhstan capital Almaty was known then. (An aside: Before we took off, our advance man called and told us that the Kazakhstanis had informed him that they would not provide gas for our U.S. Air Force plane to leave Kazakhstan, unless we gave them $20,000 in small bills. They would not accept credit cards, and while they had earlier apparently accepted a check from Secretary Baker, they would not accept one from us. As I stood on the tarmac in Minsk next to Undersecretary Bartholomew, or Reg, as we called him, a small plane pulled up nearby. Ambassador Jack Maresca, the U.S. ambassador to the Conference on Security and Cooperation in Europe (now the Organization for Security and Cooperation in Europe, or OSCE) and a former deputy assistant secretary of defense for Europe and NATO, was arriving from Frankfurt, where the United States held its funds. He stepped out of the plane, walked over to where Bartholomew was standing and without comment handed him a briefcase that apparently contained $20,000 in small bills. For a moment, I laughed to myself that I wasn’t sure whether we were doing disarmament or running drugs.)

We arrived at Alma-Ata in the early morning, our last stop on the disarmament consultation trip. Bartholomew went off to meet with the prime minister and later with President Nursultan Nazarbayev, while the rest of us called on the Foreign Ministry to discuss NPT, CFE, and START. Kazakhstan had only been an independent state for about two weeks, and clearly their officials were very much in learning mode. Our contact at the ministry said the only officials who worked on substance there were the foreign minister and his deputy; everyone else worked on protocol. But the requisite meetings were arranged, and the Kazakhstanis indicated they wanted to cooperate on all three treaties. That was particularly welcome for us, considering that soon after the collapse of the Soviet Union, Nazarbayev had publicly stated that Kazakhstan would join the NPT as a nuclear weapon state. He had clearly backed off that view.

There was a special urgency to this stop, too. With the dissolution of the Soviet Union, Kazakhstan still had on its territory more than 100 SS-18 strategic nuclear missiles, each outfitted with 10 500-kiloton warheads, then the world’s most powerful nuclear weapon systems, although the United States was building its equivalent. Nazarbayev had informed Bartholomew that he had already received offers from several Middle Eastern countries to purchase some of the warheads, but he had refused all offers. In a later-declassified operation called Project Sapphire, the United States worked with Kazakhstan to remove the fissile material.

From Agreement in Theory to Agreement in Practice

Various concepts had been advanced for dealing with the new fact that START now involved formerly Soviet strategic arms deployed in four newly independent states. Reasonably early, leaders of all parties decided to make the treaty multilateral. Though that set off a difficult negotiation with Ukraine, it did lead to the aforementioned Lisbon Protocol of May 1992, in which all three non-Russian successor states — Belarus, Ukraine, and Kazakhstan — agreed to assume the obligations of the START Treaty and to join the NPT as non-nuclear weapon states – meaning returning the strategic nuclear weapons on their territories to Russia — “in the shortest possible time.”

Persuading Ukraine to meet the latter of those terms, however, was like pulling teeth. The presidents of the three states agreed to sign letters to President Bush clarifying their commitments, outside the text of the Lisbon Protocol. But while Belarus and Kazakhstan promptly supplied the letters, working with Ukraine’s President Leonid Kravchuk was excruciating. There was considerable friction and back-and-forth between Washington and Kyiv (then still known by the Russian spelling Kiev), and even after much debate, the Kravchuk letter remained ambiguous. Ukraine also insisted on a reference in the letter to the importance of security guarantees. Although Kazakhstan first demanded the same, it soon backed away. Ukraine never did. As the Ukrainians saw it, Russia was far too great a threat. Those of us negotiating with Ukraine at the time saw their recalcitrance as inhibiting progress. But their fears of Russia, of course, have proven to be correct – devastatingly so.

In the end, the Lisbon Protocol was approved as envisioned, and by the time the START Treaty had been ratified and entered into force in December 1994, the three non-Russian former Soviet republics had given up their strategic arms and joined the NPT as non-nuclear weapon state parties. But it was never an easy path, right up until the May 1992 signing ceremony. Secretary Baker asked me to arrive in Lisbon two days prior to the ceremony, to work out any “last-minute details,” so when I arrived in Lisbon, I made the rounds of the delegations. Belarus presented no difficulties. While the Kazakhstanis were hard to track down, once I found them, they also were very cooperative. Then I had a long meeting with the Russians, and they were on board, though they made it abundantly clear that it was absolutely essential that non-Russian parties would join the NPT as non-nuclear weapons state parties. It also would be a condition for ratification by Russia’s parliament, the Duma.

The Ukrainians were a completely different matter. Whereas one meeting sufficed with each of the other parties, I had three with the Ukrainians that nevertheless came to an unsatisfactory conclusion. Their posture essentially was maybe they would sign, or maybe not. They were still not convinced. Moreover, they were even uncertain about providing a signed copy of the Kravchuk letter. The next evening, I reported the challenges to the State Department’s Timbie, who was in London with Baker on other business. Timbie called me early the next morning and said that Baker, as soon as he learned of our travails, had gotten Ukrainian Foreign Minister Anatoliy Zlenko on the phone. “I will tell you later what the Secretary said,” Timbie told me, “but suffice it to say that I have never heard one man speak to another in quite that way.”

So, the Ukrainians were cooperative after all, and the signing of the Lisbon Protocol went ahead as planned. The day of the ceremony, I was asked by Baker’s staff to brief the four foreign ministers on the procedure to be followed. I did so as Baker, his counterparts and all their staffs were crammed into a tiny holding room off the large room where the waiting documents were arranged on a table. We could hardly turn around. As I finished my explanation and how they would know the ceremony was concluded, Baker interjected, “And then you all leave!” He didn’t want any Ukrainian or Russian speeches. The signing went off without a hitch, to the applause of the delegations.

The campaign for START ratification and, thus, entry into force was reasonably constructive, at least until its very end. Kazakhstan and Belarus ratified START, gave up their nuclear weapons, and joined the NPT in 1993. Ukraine’s Rada (parliament), after several false starts, approved the START treaty early in 1994 but held back on ratifying the NPT. The plan had been for the START Treaty to be brought into force as part of the CSCE summit in December 1994 in Budapest. But something had to be done regarding Ukraine and the NPT.

Given the situation, Rose Gottemoeller, senior arms control official at the National Security Council for the newly independent states who later became undersecretary for arms control and international security and deputy secretary general of NATO, called and asked me to go to Kyiv and make a pitch for the NPT. At the time, I was very involved in a project on the pending indefinite extension of the NPT (which ultimately was achieved in May 1995), but I agreed I would go to Kyiv in mid-September, with the CSCE summit less than three months away.

My principal talking point was going to be that the NPT is the “club of civilization” and it was time Ukraine joined it. I had a good reception in the Foreign Ministry, where I met with Ambassador Boris Tarasuk and Kostiantin Hyrashchenko, the key figures in the government on this subject, and I had a most constructive discussion separately with the chairman of the Rada’s International Security Committee. Next my schedule called for me to meet with the deputy leader of the Rada. But when I walked into the very large room where he was to meet me, klieg lights went on, and I found myself giving a speech to perhaps 20-plus members of the Rada sitting on risers in front of television cameras. I strongly emphasized “the club of civilization” idea, and all of the discussion was positive. The Rada approved the NPT two weeks later and START was formally brought into force at the CSCE summit in December. After 22 years of talks, we finally had a complete strategic offensive arms agreement in force.

The Threat to Ukraine

As we now know, however, there was a missing piece – and an unfortunate side to all this. It had been essential to the viability of the NPT that the weapons on Ukraine’s territory be sent to Russia. But Ukraine viewed Russia as such a threat that they demanded more be done to satisfy their security concerns. After all, Russia still had a naval base at Sevastopol on Ukraine’s Crimean Peninsula, the home of Russia’s Black Sea fleet. (Soviet leaders had transferred control of Crimea to the Ukrainian Republic in 1954.) Russia continues to desire the minerals in Ukraine’s Donbas region, the location of much of the fighting in recent years, and Ukraine has some of the richest farmland in Eastern Europe. Furthermore, the Kremlin was already aware of the greater affinity the Ukrainian people had for the West compared with the East. That  dynamic came to a climax in 2013 and 2014, when a pro-Russian president of Ukraine, Victor Yanukovych, sought to pull the country back from its ambitions to join the European Union, sparking protests that ultimately prompted him to flee – tellingly, to Moscow. Putin captured Crimea shortly thereafter and went on to invade eastern Ukraine in April 2014.

Throughout the 1994 CSCE Summit and conference in Budapest, the Ukrainians had demanded binding security guarantees if they were to transfer their weapons to Russia and be left defenseless. Toward the end of the summit, there was a half-hearted attempt to do so, by means of a document called the Budapest Memorandum, a politically binding (that is, not legally binding) agreement in which Russia, the U.K., and the United States gave assurances of securing Ukraine’s borders in exchange for Ukraine transferring the nuclear weapons to Russia. Ukraine clearly expected the United States and the U.K. to live up to the agreement. But in practice, the United States did not treat it as legally binding and gave it little attention.

A Promise Made Is a Debt Unpaid

Russia has violated Ukraine’s border three times since signing the Budapest Memorandum: seizing Crimea in 2014; seizing part of the Donbas (and trying to acquire all of it) the same year; and launching an all-out invasion in 2022, which became a brutal, destructive, illegal war. In the first two cases, the U.K. and the United States did nothing beyond issuing weak protests and sanctions. They did little to make Russia pay a substantive price for its actions. In subsequent years, the United States did help Ukraine’s military to a certain extent with supplies and training. But only after Russia’s February 2022 full-scale invasion did NATO and EU countries finally begin sending massive quantities of arms to Ukraine. Their assistance to Ukraine has proven decisive in helping it hold off Russian forces — to a degree.

But it was too late to have prevented Russia’s all-out push to conquer Ukraine, even though Russian forces had massed along Ukraine’s borders for months before February 2022, and the United States had been warning of the likely scenario. If the United States had sent substantial forces into Ukraine in advance to protect it, there would have been no full-scale invasion in 2022.

So the United States has a substantial unfulfilled obligation to set things right, whatever that may take. That should mean at the very least exerting maximum pressure on Russia to compromise and, in the meantime, supporting European efforts to aid Ukraine with any military assistance required, including intelligence, logistics, potential deployments, and more. One can only hope that the United States will live up to its promise in time to save Ukraine from a war that never should have happened.

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