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

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

Which Body of Law Governs?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusions

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

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

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

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

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

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

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

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

The “Sleeping Beauty” of the EU Treaties?

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

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

Article 122(2) further provides that

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

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

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

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

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

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

The Russian Central Bank Measures

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

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

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

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

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

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

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

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

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

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

The Correct Role for Emergency Powers

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The texts of these two provisions are the following:

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

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

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

(b) Limitation on the use of funds

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

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

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

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

The consultation and notification requirements are:

(c) Notification of Treaty action

(1) Consultation

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

(2) Notification

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

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

The Constitutional Dimension

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

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

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

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

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

The Reaction of Denmark, Greenland, and Other European Countries

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

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

The Foreign Policy and National Security Dimensions

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

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

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

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

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

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

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

Conclusion and Recommendation

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

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

In 2012-2013, due to the lack of a treaty that obligates States to prevent and punish crimes against humanity, and that calls for inter-State cooperation to that end, I proposed that the ILC undertake drafting articles that could serve as the basis for such a convention. Once the topic was formally launched in 2014, I submitted to the ILC a first report (2015), second report (2016), and third report (2017) proposing text for the draft articles, based on an assessment of State practice, treaties, general principles of law, and jurisprudence. Those proposals were refined in the ILC’s drafting committee, after which I prepared commentary that was developed and adopted in the plenary, allowing for a complete “first reading” package to be sent in 2017 to the General Assembly for reactions.

Over the course of nearly two years (2017 to 2019), the ILC received not only oral comments by States in the Sixth (Legal) Committee of the General Assembly, but also written comments by 38 States, seven international organizations, and more than 700 other persons (to include human rights committees, individuals holding human rights mandates, NGOs, and academics). In my fourth report (2019), I proposed revisions to the draft articles and commentary based on these comments, which were developed and adopted by the ILC at a “second reading.” The final product, consisting of a draft Preamble, 15 Articles, and Annex, along with commentary, was sent to the General Assembly, along with a recommendation that they serve as the basis for the negotiation of a new convention. The General Assembly has now decided to move forward, with preparatory work in 2026-2027 and negotiations in 2028-2029.

The draft Articles can be grouped into five different clusters. The first cluster consists of the draft Preamble and draft Article 1. The draft Preamble comprises 10 clauses, which indicate the reason for and foreshadow the substance of the draft Articles. Draft Article 1 identifies the scope of the draft Articles, succinctly stating that they apply to the prevention and punishment of crimes against humanity.

The second cluster encompasses the definition of crimes against humanity, as well as certain general obligations. Draft Article 2 defines “crimes against humanity.” The ILC discussed carefully what the definition should contain, principally by examining the evolution of crimes against humanity in international law and national laws from Nuremberg to the present. Ultimately, the definition that appears in Article 7 of the Rome Statute was viewed as capturing appropriately contemporary international law, and as one that may appeal not just to the 125 States Parties to the Rome Statute but to other States as well. The objective was not to preclude individual States from having a broader definition in their national laws if they wished to do so (draft Article 2 is without prejudice to such broader definitions), but to find common ground among States, thereby facilitating interstate cooperation on matters such as extradition and mutual legal assistance.

Draft Articles 3 and 4 address general obligations to prevent and punish crimes against humanity. Draft Article 3 contains an obligation for States to refrain themselves from engaging in conduct that, if prosecuted against an individual, would constitute crimes against humanity. Further, Draft Article 3 provides that each State undertakes to prevent crimes against humanity by others which, as the commentary notes, is a due diligence obligation to be assessed in context. Draft Article 4 expands upon the obligation of prevention, calling upon States to adopt appropriate preventative measures (the commentary notes that this may entail, for example, relevant training programs for police and military personnel) and to cooperate with other States, relevant intergovernmental organizations, and, as appropriate, other organizations (for example, the International Committee of the Red Cross).

The third cluster, consisting of draft Articles 6 to 10, indicates specific measures that must be taken by States at the national level to investigate, prosecute, and punish crimes against humanity when they occur. Draft Article 6 requires that crimes against humanity, as such, be constituted as offenses in national law, whether committed directly, attempted, or aided and abetted. Further, draft Article 6 addresses issues such as command responsibility, the impermissibly of a “superior orders” defense, no statute of limitations, punishment by appropriate penalties, and liability of legal persons.

Draft Article 7 requires that the State be in a position to exercise jurisdiction over an alleged offender when the offense occurs in a State’s territory (or territory under its jurisdiction), when it was committed by one of the State’s nationals, or when the alleged offender turns up in the State’s territory. If a State wants to exercise jurisdiction when a victim of the alleged offense is of its nationality, it can do so, but that jurisdiction is not mandatory.

Draft Article 8 provides that, if a potential situation involving crimes against humanity arises within a State’s territory, the State must investigate it. Such an investigation is not about targeting a specific individual; rather, it involves taking investigative steps to understand what may be occurring in a particular location, and may concern actions carried out by non-State actors. By contrast, draft Article 9 focuses on the apprehension and gathering of facts with respect to a particular individual. If someone within the State’s territory is suspected of committing crimes against humanity, the State is required to take that person into custody or otherwise prevent him or her from fleeing. The State must then conduct a fact-specific inquiry into the individual’s actions, essentially compiling a dossier detailing the basis for the suspicion. In addition, the State must notify other States that may also have jurisdiction over the case, recognizing that such notification may be important for mutual legal assistance or extradition.

Draft Article 10 obliges the State to submit the case for prosecution or to extradite the suspect to a State prepared to submit the case to prosecution. This aut dedere aut judicare obligation requires handing over the dossier to prosecutors, who retain the discretion to determine whether the case is suitable for prosecution. At the same time, this obligation can be satisfied by extraditing the individual to another State willing to submit the matter to prosecution.

The fourth cluster addresses international measures. Draft Article 13 indicates procedures for facilitating extradition if a State chooses to extradite an alleged offender to another State (notably, there is no obligation to extradite). Draft Article 14, as well as the draft Annex, address mutual legal assistance between States. In essence, these provisions help facilitate cooperation whenever a State requires another State’s assistance in gathering witness testimony or documentary evidence, or in enabling witnesses to travel cross-border to testify in a trial. If the two States already have a mutual legal assistance treaty (MLAT), draft Article 14 and that MLAT would be used. The Annex applies when there exists no MLAT between the two States.

Draft Article 15 addresses inter-State dispute settlement. Similar to the Convention on the Prevention and Punishment of the Crime of Genocide, this draft article provides that, if one State has a disagreement with another regarding the interpretation or application of the convention, it can raise the issue with the other State. Both States are then obligated to attempt to negotiate a resolution to the dispute. If no settlement can be reached, the matter may be referred by either State to compulsory dispute resolution at the International Court of Justice (ICJ). However, the third paragraph of draft Article 15 allows a State to opt out of such compulsory jurisdiction.

The fifth cluster focuses on certain safeguards protective of individuals. Draft Article 11 addresses the fair treatment of alleged offenders, including guarantees to a fair trial, access to legal counsel, and other fundamental protections commonly found in human rights law and domestic legal systems. Draft Article 12 focuses on protections for the victims, witnesses, and certain others affected by crimes against humanity. Such persons must be permitted to file complaints with government authorities without ill treatment, and victims shall be allowed to present their views at appropriate stages of the criminal proceedings. Moreover, draft Article 12 affirms the right of victims to seek reparation, though it does not specify the form that such reparation should take, or require that reparation be provided on an individual (as opposed to collective) basis. Draft article 5 contains a non-refoulement obligation; States are prohibited from returning a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to a crime against humanity.

The ILC considered several other matters that might have been included in the draft Articles but ultimately did not include them. For example, while the U.N. Secretariat produced an excellent memorandum in 2016 on existing treaty-monitoring mechanisms, the ILC opted not to include such a mechanism, seeing that as a matter best left for States to decide. Indeed, the draft articles are now in the hands of States, who I look forward to assisting as a U.N. expert during the negotiations.

The post Overview of the ILC Draft Articles for a Crimes Against Humanity Convention appeared first on Just Security.

Party Presentation

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

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

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

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

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

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

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

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

Myanmar’s Changing Position

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Another subsequent report explained that 

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

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

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

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

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

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

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

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

Was there a Changed Registration?

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

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

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

Genuine Link

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

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

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

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

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

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

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

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

A Two Flags Argument?

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

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

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

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

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

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

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

Concluding Thoughts

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

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

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

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

The announcement marks the latest in a series of steps under the two Trump administrations in which the United States has increasingly withdrawn from global engagement on climate. Although a future administration has options for rejoining the UNFCCC, this withdrawal is a further blow to global climate cooperation and more generally a demonstration of U.S. foreign policy volatility.

Background on the UNFCCC

The UNFCCC is the first global climate treaty; it was negotiated in the run-up to, and opened for signature at, the 1992 Rio Earth Summit. Its stated objective is to “prevent dangerous anthropogenic interference with the climate system.”

“Framework conventions” are generally designed to promote broad participation, including by leaving specifics for future elaboration. As such, the UNFCCC is quite general, setting out provisions on, e.g., relevant principles, mitigation and adaptation, finance, reporting on emissions, annual meetings of the “Conference of the Parties,” and future elaboration of the regime. At U.S. insistence, the emissions “aim” that applied to so-called “Annex I” Parties (which included the United States) and involved returning emissions to 1990 levels in the year 2000, was not legally binding.

The United States was an early ratifier of the UNFCCC, the Senate having approved it in 1992 by voice vote with no opposition. In signing the instrument of ratification, President George H.W. Bush deemed the agreement the “first step in crucial long-term international efforts to address climate change.”

The UNFCCC regime has evolved considerably since its entry into force in 1994:

• The Parties adopted the Kyoto Protocolin 1997, an agreement that the United States never sought to ratify due to, among other things, its failure to include commitments for developing countries whose emissions were growing.
• Building on the 2009 Copenhagen Accord, the Parties adopted a non-binding instrument in Cancun in 2010 that, among other things, quantified the UNFCCC’s objective of preventing dangerous interference with the climate, bolstered reporting and review, raised the profile of adaptation to climate impacts, and moved away from the Kyoto paradigm by covering developed and developing countries alike.
• Most consequentially, the Parties concluded the landmark Paris Agreementin 2015. It aims to limit global temperature rise to well below 2 degrees C (pursuing efforts to limit it to 1.5 degrees C) above pre-industrial levels and includes various mechanisms to promote the achievement of such goal. The backbone of the Agreement is the “nationally determined contribution,” i.e., each Party is responsible for designing its own emissions plan, which should become more ambitious with each five-year update.

The United States withdrew from the Paris Agreement under the first Trump administration. President Joe Biden rejoined the Agreement, signing the relevant instrument on day one of his administration in 2021. Shortly after taking office, Trump announced the second U.S. withdrawal from the Paris Agreement, which will take effect on Jan. 27.

Legal Aspects of U.S. Withdrawal From the UNFCCC

As a matter of international law, Article 25 of the UNFCCC permits States that have been Parties for more than three years to withdraw following one year of notice. U.S. withdrawal will therefore take effect one year after the United States submits its notice of withdrawal.

We assume that the United States will submit this notice shortly. (We note, however, that Trump’s Jan. 7 memorandum did not precisely say that the United States would formally withdraw. Rather, it described “withdrawal” as meaning “ceasing participation in or funding to” U.N.-affiliated entities, including the UNFCCC.) At the time of this writing, no notice of withdrawal has been posted by the Office of the U.N. Secretary-General, which serves as the treaty depository.

As a matter of domestic law, the mainstream legal view, as taken in the Restatement (Fourth) of Foreign Relations Law, is that the president may constitutionally withdraw the United States from a Senate-approved treaty where, as here, the withdrawal is lawful under international law and neither the Senate’s resolution of advice and consent nor a congressional law has put limits on withdrawal. The president’s power to do so has never been definitively resolved by the courts. In the 1979 case of Goldwater v. Carter (which involved President Jimmy Carter’s termination of a mutual defense treaty with Taiwan), a fractured Supreme Court declined to address this issue. In practice, however, presidents have exercised this unilateral withdrawal power, especially in the years since Goldwater. Examples of scholarly writings on the issue can be found here, here, here, here, here, and here.

Implications of U.S. Non-Party Status

The U.S. withdrawal from the foundational climate treaty is hugely symbolic, particularly given that the first Trump administration chose to remain a Party to the Convention and participated constructively in its proceedings. As a practical matter, however, the United States as a non-Party may not be discernibly different from how the United States functioned as a Party under the second Trump administration in 2025. In addition to not appearing at key meetings of Parties, the United States has been functioning as a de facto non-Party in other ways, including its notable failure in 2025 to submit a mandatory report on its greenhouse gas emissions.

As a non-Party, the United States will have the right to participate in Convention proceedings as an observer — without the right to vote or other rights associated with Party status. However, it seems unlikely that the administration will take advantage of such participation, given its lack of participation over the past year when the United States was still a Party.

While the world is familiar with U.S. flip-flopping on climate, given the history with respect to both the Kyoto Protocol and the Paris Agreement, withdrawal from the entire regime takes U.S. abdication of climate leadership to a new level. Many Parties may be relieved that the administration is not participating, given its current policies; however, in the longer term, U.S. absence could have a negative impact on the effectiveness of the regime and the willingness of other countries to take ambitious action.

Potential Rejoining

A future administration could have the United States rejoin the UNFCCC. This would also be necessary if the United States wishes to rejoin the Paris Agreement. (Article 20 of the Paris Agreement makes Party status in the UNFCCC a condition of joining the Paris Agreement.)

As a matter of international law, rejoining is straightforward. The UNFCCC provides in Article 23 that a State can become a Party 90 days after it deposits its instrument of ratification or accession. After doing that, the United States could rejoin the Paris Agreement, which per Article 21 would take 30 days after the deposit of its instrument.

As a matter of domestic law, there are multiple future pathways to rejoining the UNFCCC. In our view, the original Senate resolution of advice and consent remains in effect (unless repealed by the Senate) and provides the legal authority for rejoining by a future President. One of us (Sue) outlined this argument in 2017 in an unpublished paper, and the other of us (Jean) developed this position at length in a 2020 law review article. A future president could also seek a second round of advice and consent, ask Congress to approve rejoining, or potentially join the UNFCCC under his or her independent constitutional powers.

The post Legal and Practical Implications of the U.S. Withdrawal from the U.N. Framework Convention on Climate Change appeared first on Just Security.

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

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

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

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

Why We Need a CAH Convention

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

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

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

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

Can We Strengthen the ILC Draft?

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

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

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

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

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

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

Are There Procedural Challenges?

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

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

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

Conclusion

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

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