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

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

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

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

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

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

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

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

Early Hope

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

Long Decline

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

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

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

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

The End of all Reason

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

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

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

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

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

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

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

The World of Tomorrow

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

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

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

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

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

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

The post 80 Years After Nuremberg, Envisioning the Future of International Law appeared first on Just Security.

Originally published Jan. 21, 2025, and frequently updated.

A. Resources

Tracker: Legal Challenges to Trump Administration Actions 

B. “What Just Happened” Series

Mark Nevitt, Trump, the National Guard, and the District of Columbia: What You Need to Know (Aug. 18, 2025)

Kathleen Claussen, What Just Happened: The Tariff Litigation Advances (Jun. 4, 2025)

Chiraag Bains, What Just Happened: The Trump Administration’s Dismissal of Voting Rights Lawsuits (May 27, 2025)

Dani Schulkin, Tess Bridgeman and Andrew Miller, What Just Happened: The Trump Administration’s Reorganization of the State Department – and How We Got Here (Apr. 22, 2025)

Stefanie Feldman, What Just Happened: The Trump Administration Repealed Zero Tolerance Policy for Rogue Gun Dealers (Apr. 15, 2025)

Kathleen Claussen, What Just Happened: The Trump Administration’s Latest Moves on Tariffs (Apr. 3, 2025)

Ahilan Arulanantham and Adam Cox, Explainer on First Amendment and Other Legal Issues in Deportation of Pro-Palestinian Student Activist(s) (Mar. 12, 2025)

Brett Holmgren, What Just Happened: Security and Foreign Policy Implications of Pausing Intelligence Sharing with Ukraine (Mar. 6, 2025)

Nicholas Bednar, What Just Happened: Musk-OPM Send Email to Federal Employees Asking for Five Accomplishments (Feb. 22, 2025)

Roderick M. Hills, What Just Happened: Purges at the DOJ and FBI – How Do and Don’t the Civil Service Laws Apply (Feb. 14, 2025)

Alex Finley, What Just Happened: Security Implications of Trump’s Efforts to Trim the CIA Workforce (Feb. 7, 2025)

Jonathan Hafetz and Rebecca Ingber, What Just Happened: At Guantanamo’s Migrant Operation Center (Feb. 6, 2025)

Kathleen Claussen, What Just Happened: New Tariffs on Products from Mexico, Canada, and China (Feb. 5, 2025)

Tess Bridgeman, What May Be About to Happen: Can the President Dissolve USAID by Executive Order? (Feb. 1, 2025)

Brad Brooks-Rubin, What Just Happened: Trump’s Termination of West Bank Settler Sanctions (Jan. 30, 2025)

William Banks, What Just Happened: The Framing of a Migration “Invasion” and the Use of Military Authorities (Jan. 29, 2025)

Ilya Somin, What Just Happened: The “Invasion” Executive Order and Its Dangerous Implications (Jan. 28, 2025)

Tom Ellison, What Just Happened: Trump’s Executive Actions on Environment and Implications for US Climate Security (Jan. 24, 2025)

Ahilan Arulanantham, What Just Happened: Sanctuary Policies and the DOJ Memo’s Empty Threat of Criminal Liability (Jan. 23, 2025)

Andrew Weissmann, What Just Happened: What Trump’s Hobbling Privacy Oversight Board Portends for Exercise of Surveillance Powers (Jan. 22, 2025)

Justin Hendrix, What Just Happened: Trump’s Announcement of the Stargate AI Infrastructure Project (Jan. 22, 2025)

Tom Joscelyn, What Just Happened: Trump’s January 6 Pardons and Assaults on Law Enforcement Officers By The Numbers (Jan. 22, 2025) 

Mark Nevitt, What Just Happened: Unpacking Exec Order on National Emergency at the Southern Border (Jan. 21, 2025)

Tess Bridgeman and Rebecca Hamilton, What Just Happened: With ICC Sanctions (Jan. 21, 2025)

Sue Biniaz, What Just Happened: Withdrawing from Paris and other International Environmental Agreement Actions (Jan. 21, 2025)

C. Analysis and Perspectives

Elizabeth Goitein, Trump v. Illinois: A Narrow Supreme Court Decision with Broad Implications (Jan. 9, 2026)

Harold Hongju Koh, Bruce Swartz, Madeline Babin, Saavni Desai, Samantha Kiernan, Ananya Agustin Malhotra, Pete Nelson, Jake Reagan, Summia Tora and Julian Watrous, A SCOTUS Bench Memo for the Trump Tariff Case: Separation of Powers, Delegation, Emergencies, and Pretext (Nov. 3, 2025)

Kelsey Merrick, The Use of Tariffs to Raise Revenue is a Choice for Congress, not the President (Nov. 3, 2025)

Thomas E. Brzozowski, How Designating Antifa as a Foreign Terrorist Organization Could Threaten Civil Liberties (Oct. 27, 2025)

Cathy Buerger, Repression as Rescue: The Authoritarian Logic of Trump’s Early Executive Orders (Sept. 25, 2025)

Himamauli Das, Rethinking IEEPA Accountability and Oversight (Sept. 18, 2025)

Conner Bender, America’s Missile Shield Raises Legal and Cybersecurity Concerns (Aug. 27, 2025)

Devika Hovell, Raising the Cost of U.S. Coercion Against the ICC (Aug. 26, 2025)

Jordan Ascher, The APA Authorizes “Universal” Stays of Agency Action Under 5 U.S.C. § 705 (Aug. 22, 2025)

Andrew Miller and Kelly L. Razzouk, Save the PMF Program or Risk Losing a Generation of Public Servants (Aug. 1, 2025)

Michael Schiffer, Congress Shrinking from the World: the Constitution’s Article I in the Shadow of Trump 2.0 (July 23, 2025)

Ryan Goodman, Understanding DHS’s and ICE’s New Powers in Comparative Perspective (July 21, 2025)

Samuel Estreicher and Andrew Babbitt, Court of International Trade’s Flawed Ruling in Striking Down Trump’s Tariffs (July 14, 2025)

Lisa Larrimore Ouellette, The Trump Administration’s Multi-Front Assault on Federal Research Funding (July 9, 2025)

Bruce Swartz, Will to Resist: What Dartmouth Teaches Harvard About Protecting American Freedom (July 7, 2025)

John Lewis and Jordan Ascher, Pathways to “Universal” Relief after Trump v. CASA (July 3, 2025)

Harold Hongju Koh, Alan Charles Raul and Fred Halbhuber, After CASA: The Administrative Procedure Act Option for Challenging the Birthright Citizenship and Other Illegal Executive Actions (June 30, 2025)

Rebecca Hamilton, The Trump Administration’s Use of State Power: Keeping Track of the Big Picture (updated June 30, 2025)

Ilya Somin, Nondelegation and Major Questions Doctrines Can Constrain Power Grabs by Presidents of Both Parties (June 26, 2025)

Elizabeth Goitein, Federal Troops in Drug Raids Outside of Los Angeles: An Alarming Escalation (June 25, 2025)

Ryan Goodman and Steve Vladeck, The Posse Comitatus Act Meets the President’s “Protective Powers”: What’s Next in Newsom v. Trump  (June 20, 2025)

Adam Grogg and John Lewis, The Legal Defects in the Trump Administration’s Attempts to Deregulate Without Notice and Comment (Jun. 17, 2025)

Rachel Levinson-Waldman and Melanie Geller, How DHS’s New Social Media Vetting Policies Threaten Free Speech (Jun. 17, 2025)

Cathy Buerger, Unequal Before the Law: How Trump’s Death Penalty Order Codifies Dangerous Speech (Jun. 6, 2025)

Suzanne Summerlin, Too Big to Be Lawful: A Federal Court Halts Mass Layoffs Across the Civil Service (Jun. 3, 2025)

Kristin A. Collins, Gerald Neuman and Rachel E. Rosenbloom, Another Reason Trump’s Birthright Citizenship Order is Unlawful (May 15, 2025)

Mark Nevitt, The New “National Defense Area” at the Southern Border: What You Need to Know (Apr. 29, 2025)

Harold Hongju Koh, Fred Halbhuber and Inbar Pe’er, No, the President Cannot Enforce the Law-Firm Deals (Apr. 28, 2025)

Paul M. Barrett, Justice Department Fails to Address Central Point in VOA Case (Apr. 24, 2025)

Ahilan Arulanantham, Deportation to CECOT: The Constitutional Prohibition on Punishment Without Charge or Trial (Apr. 23, 2025)

Aadhithi Padmanabhan, The Fox TV Problem with Deporting International Students (Apr. 21, 2025)

John Mikhail, Birthright Citizenship and DOJ’s Misuse of History in Its Appellate Briefs (Apr. 18, 2025)

Paul M. Barrett, Unpacking the Voice of America Litigation (Apr. 10, 2025)

Harold Hongju Koh, Fred Halbhuber and Inbar Pe’er, No, the President Cannot Issue Bills of Attainder (Apr. 9, 2025)

Francisco Bencosme and Michael Schiffer, America’s Absence in Myanmar’s Early Earthquake Response: A Moral and Strategic Failure (Apr. 4, 2025)

Marty Lederman, Remarkable Things in the Government’s Alien Enemies Act Briefs to the Supreme Court (Apr. 3, 2025)

Stephanie Psaki and Beth Cameron, Dropping U.S. Biodefenses: Why Cuts to Federal Health Agencies Make Americans Less Safe (Apr. 3, 2025)

Edgar Chen and Chris M. Kwok, The Trump Administration’s 14th Amendment Retcon: ‘Wong Kim Ark’ Does Not Limit Birthright Citizenship (Mar. 28, 2025)

Mary B. McCord, Dissecting the Trump Administration’s Strategy for Defying Court Orders (Mar. 25, 2025)

Rebecca Hamilton, The Imperative of Solidarity in Response to Assaults on Legal Services, Universities, and Independent Media (Mar. 24, 2025)

Andrew Weissmann, The New “Blacklists” Work When Law Firms Stay Silent (Mar. 24, 2025)

Katherine Yon Ebright, The Courts Can Stop Abuse of the Alien Enemies Act – The Political Question Doctrine is No Bar (Mar. 20, 2025)

Rebecca Ingber and Scott Roehm, The Trump Administration’s Recent Removals to El Salvador Violate the Prohibition on Transfer to Torture (Mar. 20, 2025)

Mark Pomar, Trump Move to Eliminate VOA, RFE/RL Ignores Lessons of Global Power (Mar. 20, 2025)

Jean Garner, Journalists Who Took Risks for US-Funded Broadcasters Threatened Anew by Trump Shutdown (Mar. 18, 2025)

Ambassador Daniel Fried, The US Government’s Self-Harm in Killing Radio Free Europe/Radio Liberty (Mar. 17, 2025)

Faiza Patel, U.S. AI-Driven “Catch and Revoke” Initiative Threatens First Amendment Rights (Mar. 18, 2025)

Steve Vladeck, 5 Big Questions in the Alien Enemies Act Litigation (Mar. 16, 2025)

Noor Hamadeh and David McKean, Suspension of FCPA Enforcement Is Bad for U.S. and Global Business (Mar. 13, 2025)

Brian O’Neill, The President’s Declassification Power is a Double-Edged Sword (Feb. 28, 2025)

Michael Schiffer and Anka Lee, Trump’s China Tariff Now Treats Hong Kong the Same as the Mainland, a First in US Policy (Feb. 27, 2025)

Bill Frelick, The Racial Twist in Trump’s Cutoff of Refugee Admissions (Feb. 27, 2025)

Daniel Jacobson, The Trump Administration Cannot Use Award Terms and Conditions to Impound Funds (Feb. 24, 2025)

Mark Nevitt, How the Pentagon Personnel Firings Threaten Our Apolitical Military (Feb. 24, 2025)

Brian Finucane, U.S. Military Action in Mexico: Almost Certainly Illegal, Definitely Counterproductive (Feb. 20, 2025)

Tobias Barrington Wolff, The Attempt to Purge Trans Members from the Armed Services (Feb. 19, 2025)

Elizabeth Goitein and Katherine Yon Ebright, Trump’s Doubly Flawed “Invasion” Theory (Feb. 19, 2025)

Seth Binder, Sheridan Cole, and Haydn Welch, The Disastrous Costs of the Foreign Foreign Aid Freeze on US Interests in the Middle East and North Africa (Feb. 14, 2025)

Laura Booth, Can the President Dismantle the Department of Education by Executive Order? (Feb. 14, 2025)

Scott Busby, Freezing Support to Democracy and Human Rights Activists Undermines US Interests (Feb. 13, 2025)

Laura Thornton, Supporting Freedom and a Foreign Aid Freeze are Incompatible – But Perhaps the Point? A Case Study (Feb. 13, 2025)

Donell Harvin, The Need for Course Correction: The Risks of Treating Drug Cartels as Terrorist Threats (Feb. 12, 2025)

Winona Xu, As Sexual Violence Surges in Goma, US Aid Remains Crucial (Feb. 12, 2025)

16 US Human Rights Experts, Current and Former Members of UN Bodies, “The Trump Administration’s Attacks on International Law and Institutions”: Public Statement of American Human Rights Experts, Current and Former Members of UN Bodies (Feb. 10, 2025)

Simon Lomax, Greg Clough, Morgan Bazilian, Restarting US LNG Permitting Brings Geopolitical Benefits and the Potential for Climate Progress (Feb. 10, 2025)

Rebecca Hamilton, Connecting the Dots: Trump’s Tightening Grip on Press Freedom (Feb. 6, 2025)

Rachel Levinson-Waldman, The Dangerous Sweep of Trump’s Plan to Designate Cartels as Terrorist Organizations (Feb. 5, 2025)

Marty Lederman, The Most Indefensible Aspects of DOJ’s Briefs in the Birthright Citizenship Cases (Feb. 4, 2025)

Suzanne Summerlin, Federal Employee Rights: What Probationary Employees Need to Know (Jan. 31, 2025)

Faiza Patel, Trump’s Executive Order on Foreign Terrorists: Implications for the Rights of Non-Citizens (Jan. 31, 2025)

Sara Zdeb, The Real Reason Trump’s Purge of Career DOJ Officials Should Alarm You (Jan. 30, 2025)

Suzanne Summerlin, Beware the “Deferred Resignation” Offer: A Legally Dubious Proposal for Federal Employees (Jan. 29, 2025)

Stuart Gerson, Understanding Trump’s Choice for FBI Leadership in Light of the “Weaponization of the Federal Government” Executive Order (Jan. 29, 2025)

Adam Cox and Trevor Morrison, Trump’s Dictatorial Theory of Presidential Power – What the Executive Orders, in the Aggregate, Tell Us (Jan. 28, 2025)

Ambassador Donald Steinberg, `Elections Have Consequences’: Trump and Rubio’s Foreign Aid Halt Will Hit the World’s Most Vulnerable (Jan. 28, 2025)

Dafna H. Rand, Stopped Security Assistance: From Counter-Narcotics to Combating Human Trafficking Programs (Jan. 28, 2025)

Andrew Weissman, Why has the Trump Justice Department Not Moved to Dismiss the Case Against Trump’s Co-Defendants in the FLA Classified Documents Case? (Jan. 28, 2025)

Michael Schiffer, Stop-Work Order on US Foreign Aid Puts China First and America Last (Jan. 27, 2025)

Ambassador (Ret.) Dennis Jett, Deprofessionalizing the State Department Is a Threat to National Security (Jan. 24, 2025)

Jean Galbraith, The Legal Problem with Trump’s WHO Order: The US Cannot Withdraw Until It Pays Its Dues (Jan. 23, 2025)

Alex Abdo, A Free Speech View on the “Free Speech” Executive Order (Jan. 21, 2025)

Xiangnong (George) Wang, President Trump’s Attempt to “Save” TikTok is a Power-Grab that Subverts Free Speech (Jan. 21, 2025)

“What Just Happened” Podcast Series

David Aaron, Brian Netter and Mark Nevitt, Federalization of DC Law Enforcement, Legal Authorities and Updates (Aug. 20, 2025)

David Aaron, Carrie Cordero and Donell Harvin, Federalization of Law Enforcement in Washington DC (Aug. 14, 2025)

David Aaron and Steven Cash, The Budget Bill and the Future of DHS and ICE (July 18, 2025)

Chiraag Bains, Dani Schulkin and Maya Nir, Dismissal of Voting Rights Lawsuits (June 2, 2025)

Ambassador Daniel Fried, Dafna H. Rand, Michael Schiffer, Michael Hanna, Rachel Goldbrenner and Maya Nir What’s Next for U.S. Diplomacy and Foreign Assistance (May 19, 2025)

Ryan Goodman, Tom Joscelyn, Mary B. McCord, Paras Shah and Clara Apt, Politicization and Weaponization of the Justice Department in the Second Trump Administration (Mar. 6, 2025)

David Aaron, Kevin Carroll, Paras Shah and Clara Apt, CIA Officers’ Lawsuit at Intersection of DEI and National Security (Mar. 4, 2025)

David Aaron, Tess Bridgeman and Suzanne Summerlin, Understanding Federal Employee Rights (Feb. 18, 2025)

David Aaron, Tess Bridgeman, Ryan Goodman and Mark Nevitt, Potential U.S. Military Domestic Deployment for Immigration Enforcement (Jan. 28, 2025)

Steve Vladeck, David Aaron, Tess Bridgeman and Ryan Goodman, Trump’s Immigration Executive Orders (Jan. 22, 2025)

IMAGE: President Donald Trump signs executive orders in the Oval Office on January 20, 2025 in Washington, DC. Trump takes office for his second term as the 47th president of the United States. (Photo by Anna Moneymaker/Getty Images)

The post Collection: Just Security’s Coverage of Trump Administration Executive Actions appeared first on Just Security.

But the Appeals Chamber rejected this view by a narrow majority (3-2). Instead, it accepted the OTP’s position that a 2021 notification regarding the investigation of certain alleged crimes occurring since 2014 in the context of the Israeli-Palestinian conflict fulfilled the formal duty to notify. Two judges disagreed and opined that the Pre-Trial Chamber that first reviewed Israel’s claim should have examined the impact that numerous new referrals submitted by ICC member-States after October 7 had on the duty to notify. Furthermore, one of the majority judges wrote that the Prosecutor should continuously monitor the need to provide an updated notification when circumstances change. Still, he was not convinced that in the present circumstances the Prosecutor failed to properly exercise such discretion.

The upshot of the decision is that, as a practical matter, the arrest warrants issued by the ICC in 2024 against Israeli Prime Minister Netanyahu and former Defense Minister Gallant remain in force. In effect, the judgment marks a choice by the Court not to take an exit ramp, which could have put on hold the controversial warrants against Netanyahu and Gallant. Still, two other preliminary motions challenging the validity of the arrest warrants remain pending: One is based on the unclear legal status of the State of Palestine and its lack of jurisdiction over Israeli nationals; a second motion involves Israel’s request to disqualify ICC Prosecutor Karim Khan from the case due to a lack of perceived impartiality and quash the warrants he requested the Court to issue. A third motion to suspend the arrest warrants while the question of jurisdiction is being considered was rejected by the Pre-Trial Chamber on Oct. 17.

Beyond its importance to the Netanyahu and Gallant cases, the judgment is also notable for the Court’s narrow interpretation of the complementarity principle – a principle that envisions the ICC as an institution that is supposed to complement national criminal systems, not replace them. Article 18 of the Rome Statute, the Court’s founding treaty, lays out the formal notification procedure required when an investigation begins, in order to facilitate giving the right of way to domestic investigations. Arguably, the recent judgment detaches this procedure from its stated purpose of affording States a reasonable chance to claim jurisdictional primacy and undertake their own criminal investigations of conduct that falls under the scope of the ICC Statute. This outcome arguably goes against the Court’s declarative embrace of positive complementarity, and adds another layer of apprehension to an already troubling sequence of events surrounding Khan and the investigation (see e.g., here). When added to the Court’s rejection of non-members’ head of state immunity, the picture that emerges from the recent judgment is one of limited protection afforded by the ICC to sovereign rights and legal interests of non-ICC States.

The Court’s Judgment

In its judgment, the Appeals Chamber walked through the relevant chain of events: the 2018 Palestinian referral of a situation to the ICC, Prosecutor Fatou Bensouda’s 2021 decision to open an investigation and notify Israel, Israel’s evasive response to the initial notification, the post-October 7 referrals to the Court by several States, Israel’s May 1, 2024 request for deferral (which was rejected by the OTP for being allegedly submitted after the deadline), and the Pre-Trial Chamber’s rejection of Israel’s Article 18(1) challenge (issued in November 2024). It then moved to review Israel’s three objections to the 2024 decision.

First, the Court addressed Israel’s claim that the 2018 referral and 2021 notification did not cover post-October 7 events since the referral and notification were not intended to cover all crimes committed during an ongoing armed conflict. In particular, the 2021 notification referred only to Israel’s settlement policy and to two specific episodes (the 2014 Gaza hostilities and the violent clashes along Gaza’s border with Israel that took place in 2018). The Court held that the reference in the 2021 notification to war crimes implied a legal position that an armed conflict exists, and that the notification identified the parties to the armed conflict (Israel and Palestinian armed groups, including Hamas). Hence, it held that an armed conflict was one of the defining parameters of the 2021 notification. With regard to the claim underscoring the temporally defined nature of that notification, the Court noted that the Palestinian 2018 referral, against which the notification should be read, was not time limited. It cited an earlier decision in support of the proposition that “there is no expectation at this stage of the proceedings that the Prosecutor should notify States of every act he or she intends to investigate.” It also held that the 2021 notification alluded to crimes allegedly committed in 2014 as merely illustrative of patterns and forms of criminality, and stated that it should not prejudice the future scope of investigation of crimes falling under the same situation.

This formulation reflects, according to the Court, “the relationship between the provisions in the Court’s legal texts regulating the threshold for commencing an investigation under Article 53(1) of the Statute, the requirement to provide sufficiently specific information to a State for the purposes of Article 18(2) of the Statute, and the Prosecutor’s prerogative to continue the investigation within the parameters of the Palestine Situation.” As a result, the Court accepted the OTP’s position that the post-October 7 investigation covers “conduct committed in the context of the same type of armed conflicts, concerning the same territories, with the same alleged parties to these conflicts,” to which the 2018 referral and 2021 notification alluded.

Second, regarding Israel’s claim that the post-October 7 referrals triggered a new situation that would reset the clock, the majority of the Court held that Israel did not directly raise the matter before the Pre-Trial Chamber. Furthermore, the majority took the position that the post-October 7 referrals were connected to the 2018 referral and were designed to encourage the Prosecutor to advance the pre-existing investigation. It surmised that “[s]uch references are, thus, compatible with the notion that, in the early stages of the investigation, the Prosecutor is not in a position to identity or anticipate all potential cases for investigation and that, as the investigation progresses, it may come to encompass alleged crimes not previously identified or anticipated.”

Third, with respect to Israel’s claims that the factual context changed dramatically after October 7 and that the 2021 notification was not specific enough to cover it, the Court noted that the Pre-Trial Chamber found in 2024 that the 2021 notification was sufficiently specific and that the request for arrest warrants fell within its defining parameters. It also noted that defining parameters are case-specific and have to be considered against the scope of the original referral (which in the present case was broad in nature and encompassed both war crimes and crimes against humanity). It further concluded that “the alleged crimes display a continuity in pattern, even though a certain shift in circumstances may have occurred as a result of the events on and after 7 October 2023.” Put differently, the alleged crimes are sufficiently linked to the situation of crisis referred to the Court in 2018.

The Dissenting Opinions and the Concurring Opinion

Judge Luz Del Carmen Ibáñez Carranza dissented from the majority. She accepted Israel’s claim that the Prosecutor failed to inform the President of the ICC of the post-October 7 referrals in apparent violation of Regulation 45 of the Court’s regulations and that this failure – which might have prevented the Court from determining that a new situation and a new duty of notification to Israel exists – was not properly considered by the Pre-Trial Chamber. Specifically, the Pre-Trial Chamber should have considered whether the new referrals gave rise to a new situation, and the majority should not have reviewed the question de novo. She also criticized the Pre-Trial Chamber for failing to consider whether, as a non-State party, Israel was even required to meet the one-month deadline for requesting deferral set out by Article 18(2) of the Statute. She wrote that “where a non-State party is involved, the principle of complementarity must be observed with particular rigour.”

Ibáñez Carranza also held that Israel’s Regulation 45 claim was central to its complementarity claim, and that the Prosecutor’s failure to inform the ICC Presidency that new referrals had been received post-October 7 prevented the Court from properly implementing its ensuing legal duties. The failure of the Pre-Trial Chamber to engage with this claim and to give reasons for its rejection of this part of Israel’s appeal “rendered the outcome of the Impugned Decision unreliable.” Hence, she would have remanded the question regarding the post-October 7 referrals to the Pre-Trial Chamber. She refrained from addressing the other grounds for challenge raised by Israel until this initial matter was resolved.

Judge Solomy Balungi Bossa, the second dissenting judge, was also of the view that given the significance of the post-October 7 referrals, the Pre-Trial Chamber erred in not addressing directly whether they gave rise to a new situation of crisis. Since she could not identify the legal basis on which this aspect of the lower decision was rendered, she also voted for remanding the case, and, like Judge Ibáñez Carranza, expressed no view on the other two grounds for challenge.

The most curious view is the concurring opinion of Judge Gocha Lordkipanidze. Although voting with the majority, he wrote that the Prosecutor should exercise due diligence and continuously assess whether an updated notification should be issued. Regular assessment “would strike a balance between two concomitant interests, on the one hand, providing a meaningful opportunity to a State to exercise its rights under Article 18(2) of the Statute and, on the other hand, ensuring the progression of the Prosecutor’s investigation without unwarranted interruption in accordance with the principles set out in the Court’s jurisprudence,” he wrote. Two factors are particularly relevant for the exercise of discretion, he averred: the lapse of time from the previous notification and diverging patterns and forms of criminality. He noted, in this regard, that new referrals may be indicative of such a divergence. He concluded with the following statement:

[I]n the specific circumstances of the present situation, no information has been placed before the Appeals Chamber that would compel the conclusion that the Prosecutor omitted to take the aforementioned factors into account in considering whether a new situation had arisen that would require a new notification under article 18(1) of the Statute to be issued. Should the Prosecutor, in a different scenario, arrive at the conclusion that changed circumstances give rise to a new situation upon receiving one or more referrals, he would be then duty-bound to decide whether to initiate an investigation into the new situation pursuant to articles 13(c), 14 and 53 of the Statute.

Complementarity and Mirroring

One notion that is completely missing from the Court’s decision on Israel’s Article 18 challenge is the concept of mirroring – the idea that a national investigation must be sufficiently comparable to a planned ICC investigation in order to render an ICC case inadmissible.  Still, for a State to effectively mirror an ICC investigation, it needs a certain level of detail from the ICC about the scope and focus of the intended investigation. This concept appears to have been central to previous Article 18 cases issued by the ICC. In a 2023 judgment on complementarity in the Philippines case, the Appeals Chamber held that:

[F]or the purpose of admissibility challenges under article 18 of the Statute, a State is required to demonstrate an advancing process of domestic investigations and prosecutions of the same groups or categories of individuals in relation to the relevant criminality, including the patterns and forms of criminality, within a situation. The domestic criminal proceedings must sufficiently mirror the scope of the Prosecutor’s intended investigation (para. 106)

It further held that the Prosecutor’s Article 18 notification must include situation parameters that are sufficiently specific as to enable the Philippines to demonstrate “the degree of mirroring” – that is, a high level of comparability of domestic and ICC investigations.

In the same vein, in a 2024 judgment issued in the Venezuela case, the Appeals Chamber held with respect to crimes against humanity charges:

[I]f a State does not investigate the factual allegations underpinning the contextual elements of the alleged crimes against humanity that were sufficiently notified to it, it follows that it will not be able to demonstrate, in the proceedings under article 18(2) of the Statute, that the domestic criminal proceedings sufficiently mirror the scope of the Prosecutor’s intended investigation (para. 281).

The idea of “sufficient mirroring” is also mentioned in the OTP’s 2024 Policy Paper on Complementarity and Cooperation, noting that domestic proceedings should investigate “substantially the same conduct.”

We believe that it is against this standard (i.e., that complementarity depends on “sufficient mirroring”) that the Court’s approach to the specificity of the Article 18 notification and to the need to issue a new notification when the direction of the OTP investigation changes should be evaluated. The majority cited with approval the Venezuela decision in support of the proposition that the Article 18 complementarity test is whether the domestic investigation involved “the same groups or categories of individuals in relation to the relevant criminality, including the patterns and forms of criminality, within a situation.” Yet, it also cited with approval the same decision for the proposition that “there is no expectation at this stage of the proceedings that the Prosecutor should notify States of every act he or she intends to investigate, especially in those situations referred to the Court which cover a large number of alleged criminal acts,” and upheld “the Prosecutor’s prerogative to continue the investigation within the parameters of the Palestine Situation.”

It is generally accepted that the principle of complementarity operates as a balancing mechanism, designed to ensure that the Court’s legal powers do not excessively interfere with the sovereign right and legal interest of States to investigate serious crimes. As Judge Ibáñez Carranza correctly noted, such a balancing act should be applied with particular rigor when the rights and interests of non-member States are implicated. The principle of complementarity is also supported by practical considerations regarding the limited capacity of the Court and normative considerations regarding the many advantages of close-to-home legal proceedings. The centrality of the principle is manifested in the ICC Statute in that it involves an assessment of investigation mirroring at two separate points in time, at two different levels of precision: 1) at the investigation stage – “same group and categories of individuals” and “substantially the same conduct” or “patterns and forms of criminality” under Article 18; and 2) at the individual pre-trial or trial stage: same person/same conduct under Article 19 of the ICC Statute.

The Article 18 notification is intended to ensure that relevant States are put on alert that a full-fledged legal investigation of an international crime is about to take place before the ICC. The notification is intended to provide them with sufficient information that would allow them a reasonable opportunity to generate a mirroring domestic investigation at the Article 18 level of precision. This is why the Philippines judgment examined whether the notification was sufficiently specific. The need for a specific notification is therefore analytically separate from the question whether or not the new direction of the intended ICC investigation is tied to a new situation of crisis referred to the Court, or whether it is conducted under the same situation of crisis which gave rise to the previous notification. The critical test, in our view, is whether a previous notification is sufficiently specific to allow for a mirroring investigation. Put differently, the prerogative of the Prosecutor to expand an investigation into an existing situation, including into new events, is distinct from the ongoing duty – alluded to by Judge Lordkipanidze – to evaluate whether the change in direction requires a new notification that would facilitate mirroring at the domestic level.

It is difficult for us to see how, in the case of Israel, application of the majority’s approach effectively provided Israel with such a reasonable opportunity to generate a mirroring domestic investigation. As we have explained before, the 2021 notification and the related preliminary examination focused on three issues: West Bank settlements, hostilities in Gaza in 2014, and clashes on the Gaza border in 2018. It did not refer, obviously, to the sharp escalation of the armed conflict on and after October 7, nor did it invoke any crimes against humanity, or any of the specific patterns or forms of conduct for which arrest warrants were eventually sought – that is, starvation-related war crimes and crimes against humanity. While the Court is correct that the Prosecutor could have expanded the investigation, provided that he remained within the boundaries of the 2018 referrals, it fails to explain how Israel could generate a mirroring investigation without receiving more information of the specific conduct, and patterns and forms of criminality that the developing OTP investigation is planning to focus on.

Paying Only Lip Service to Complementarity

The Court’s refusal to engage with Israel’s post-October 7 investigative activity is also troubling. Only seven months passed between the start of the October 7 war and the Prosecutor’s request for arrest warrants. Yet, by August 2024, the IDF reported that 74 criminal investigations into potential crimes occurring during the war had already commenced and that more than 1,000 incidents were being examined by the IDF’s operational fact-finding assessment mechanism. Such investigative activity – which appears at first look to be extensive in scope – should have been reviewed under the Article 18 sufficient mirroring standard and compared to the (unnotified) specific parameters of the ICC’s post-October 7 investigation. This is particularly so, since Israel formally asked the Court on May 1, 2024, to defer the investigation, a request flatly rejected by the OTP for Israel’s failure to meet the one-month deadline established by the 2021 notification. This underscores our point: The OTP denied Israel a reasonable opportunity to claim that a mirroring investigation regarding post-October 7 policies and practices exists because Israel refrained from seeking a deferral in 2021 with regard to allegations involving pre-October 7 policies and practices.

This radical reading of complementarity as a one-off mechanism, impervious to changes in time, circumstances, patterns and forms of criminality, and domestic political and legal changes, does not represent, contrary to the Pre-Trial Chamber’s position, an approach that emanates from the “very object and purpose of the statutory complementarity framework;” rather, it entails the hollowing out of complementarity in the face of open-ended referrals and ongoing armed conflicts. In fact, the majority’s approach effectively confers unlimited power on the Prosecutor to proceed without notification to investigate any issue emanating from an open-ended referral of an ongoing armed conflict. The judgment broadly read the “defining parameters” of the 2021 notification – reading them together with the 2018 referral (despite the fact that referrals simply serve to authorize OTP investigations and delineate the outer limits of their scope, but not to determine what specific issues falling within the said scope would actually be investigated and would require a mirroring investigation). It cited with approval the Prosecutor’s position that it suffices, for the purpose of relying on a past notification, that the crimes occurred in the context of the same armed conflict.  It also referred to the unprecedented events post-October 7 as “a continuity in pattern, even though a certain shift in circumstances.” The upshot of this  approach is that a notification relating to one episode occurring in the beginning of an ongoing armed conflict, which is covered by an open-ended referral, would result in the loss of Article 18 complementarity for all subsequent episodes occurring later in the conflict (provided that the first notification did not lead to deferral).

The potential abuse of this approach manifests itself here. Israel did not, and could not realistically ask for a formal deferral in 2021 regarding settlement-related crimes, given its traditional opposition to Article 8(2)(b)(8) of the ICC Statute and its ambiguous domestic law approach on the legality of settlements. This has no bearing, however, on Israel’s capacity to invoke complementarity with regard to other investigations actually launched by the OTP. The invocation of the earlier failure to obtain deferral in respect to one set of alleged war crimes (which as a non-member State it was not legally bound to do), for rejecting complementarity in respect of a very different set of war crimes and crimes against humanity occurring years later, appears to us unreasonable and running contrary to the basic tenets of the complementarity regime.

We note, in this regard, that Judge Lordkipanidze’s principled position on a case-by-case review of prosecutorial discretion is more reasonable than the one-off approach proposed by the OTP, which was implicitly endorsed by the other two majority judges. We do not understand, however, why after offering this approach, Lordkipanidze rejected Israel’s position. Given the passage of time from 2018 and 2021 to 2024, the dramatic shift in circumstances following the events of October 7, and the existence of new referrals, it is hard to justify a discretionary decision by the Prosecutor to deny Israel of its right to claim Article 18 complementarity – especially, given that the OTP did not cite any investigatory interests that would be seriously harmed by a new notification (and a one-month period allocated to respond to it by requesting a deferral – a request which the Court may accept or reject).

Although Israel (and Netanyahu and Gallant) may still claim before or at the commencement of the trial Article 19 complementarity – that is, that a domestic investigation of the same persons for the same conduct exists – the implications of barring Israel from invoking Article 18 are significant  First, an article 18 deferral would have prevented the issuance of arrest warrants against the two Israeli leaders. Second, under Article 19, Israel also needs to meet a higher degree of mirroring. Hence, denying Israel Article 18 complementarity has real implications for the legal rights and interests of Israel and the two defendants.

A Long-Term Blow to the Court

The refusal of the ICC to effectively defend the rights of non-member States such as Israel, by denying them a reasonable opportunity to claim Article 18 complementarity, raises serious concerns about the Court’s commitment to the principle of complementarity. From a policy perspective, it is striking that the Court never explains how and why granting Israel another one-month period to claim complementarity under Article 18 would have derailed the OTP investigation in the Palestine case. Nor does it explain why, as a matter of general policy, issuing new notifications when “shifts in circumstances” occur would disrupt the mission of the Court and undermine its goal of ending impunity, a goal to whose implementation the principle of complementarity importantly contributes.

Instead, the majority adopted an interpretation of Article 18 that hollows out the principle as a practical matter. It adopted a most forgiving approach toward the Prosecutor’s failure to notify the Court’s Presidency of the new post-October 7 referrals (it considered its invocation by Israel as a “formal aspect.”). And although Judge Lordkipanidze offered a reasonable middle ground for addressing a change in circumstances, he never explained why the tests he proposed for OTP discretion did not apply to the case before him.

Significantly, the hollowing out of non-member States’ complementarity rights – by punishing them for not meeting a deadline in a treaty they never ratified – is reminiscent of the Court’s doubling down on the rejection of head of state immunity of non-member States, an issue that exceeds the scope of this note (see for a discussion here and here). In both cases, the Court is nominally operating within the ICC Statute framework but is prioritizing the Court’s prosecutorial power over the legal rights of non-member States under international law. Note, the Court is doing this while it is facing sanctions by third states for alleged jurisdictional over-reaches, and while the OTP is facing its worst-ever ethics crisis. Arguably, the future legitimacy of the Court is bound to suffer if it stays on this confrontational course.

To conclude, we consider complementarity to be a central pillar of the legal regime created by the ICC Statute. The Court’s failure to effectively protect this principle and to afford Israel, the deferral-requesting State, an opportunity to show that it is genuinely investigating allegations of deliberate starvation in Gaza, is not likely to increase support for the Court and its operations. Given all the controversy around the case and the OTP’s handling thereof, doubling down on an extremely narrow – and in our view, untenable – legal construction of the duty to notify under Article 18 does not bode well for the Court. The judgment is likely to further exacerbate the conflict between the Court and its powerful enemies, and further jeopardize its ability to operate (as the post-judgment sanctions imposed by the United States on members of the panel illustrate).

The post Hollowing Out Complementarity: The ICC Rejects Israel’s ‘Court of Last Resort’ Admissibility Challenge appeared first on Just Security.

Why did Maduro tell the judge he’s still president? Why does that matter?

Under international law binding on the United States (and all countries), the sitting head of state or head of government of one country can’t be sued or prosecuted in another country’s courts. That’s why the U.S. president can travel to other countries without worrying about being sued, prosecuted, or arrested. This is such a well-accepted principle that it’s not codified in any treaty, but it has been restated innumerable times, including by the International Court of Justice and the U.S. State Department. The technical term for this is immunity rationae personae, or personal immunity, and it also extends to foreign ministers. It is designed to protect leaders of foreign countries from being hindered in performing their duties and is rooted in the idea that all countries are equal on the international plane (that is, they have sovereign equality).

But didn’t the United States prosecute Manuel Noriega after abducting him from Panama in 1989?

Yes. The United States didn’t recognize General Manuel Noriega, who was a military dictator, as Panama’s head of state, and the government of Panama didn’t request immunity on his behalf. (Especially in contested cases, it matters whether the government of a country tells the court and/or the State Department that an individual holds a particular position in that government that entitles them to immunity.) So U.S. courts let that prosecution go forward. The Eleventh Circuit Court of Appeals reasoned that Noriega wasn’t entitled to immunity “given that the record indicates that Noriega never served as the constitutional leader of Panama, that Panama has not sought immunity for Noriega and that the charged acts relate to Noriega’s private pursuit of personal enrichment.”

It’s important to keep in mind, though, that recognition by one country alone doesn’t change whether a genuine head of state is entitled to immunity on that basis. If that were the case, countries could game the law by simply withdrawing their recognition, nabbing foreign leaders, and trying them in their courts. The Panama case was arguably more complicated because there were democratically elected authorities in Panama who also did not consider Noriega to be the legitimate head of state.

And more recently the U.S. also prosecuted the former president of Honduras?

Yes, although because Juan Orlando Hernandez was a former, not a sitting, head of state, his prosecution did not violate head of state immunity. Also, importantly, in that case the United States requested and obtained his extradition from Honduras through legal channels. In addition, a country can always waive its own official’s immunity or decline to support the official’s claim to immunity.

Who decides whether to waive an official’s immunity?

Generally, it is the de facto authorities of the official’s home country. It can be complicated, though, especially if there are different political groups within a single country that are all vying for power. There is definitely a risk that arrest and extradition can serve as a convenient way to get rid of political rivals. That’s why international human rights law requires that defendants receive procedural protections, both in the extradition process and when they are eventually tried and prosecuted. Most extradition treaties also have exceptions under which a country that is asked to extradite an alleged offender can refuse to do so on the grounds that the request is politically motivated–but this doesn’t help if the extraditing country also supports the prosecution.

Will a U.S. court allow the Department of Justice to prosecute a sitting foreign head of state?

U.S. courts have dismissed civil suits filed against foreign sitting heads of state. If the U.S. government tried to prosecute a foreign sitting head of state that the executive branch recognized as such, then international law would certainly require a court to dismiss the case. But U.S. courts haven’t faced this particular dilemma, because in Maduro’s case the executive branch isn’t seeking to prosecute someone that it recognizes as a sitting foreign head of state. Instead, it has argued (as in the Noriega case) that Maduro isn’t entitled to be treated as a head of state.

The judiciary does not owe absolute deference to the executive branch on all foreign affairs matters, but it does give the executive branch deference on recognition decisions. It would be interesting to see what a court did in a clear cut case where non-recognition was absurd on its face – for example, if the Department of Justice said “the United States doesn’t recognize Mark Carney as Canada’s head of government,” or “the United States doesn’t recognize Emmanuel Macron as France’s head of state.”

This is a more complicated case. On the one hand, Venezuela now has an interim president, Delcy Rodriguez, sworn in shortly after Maduro’s capture. On the other hand, Rodriguez has publicly called for Maduro’s release and said he is still President of Venezuela. The case could take an interesting turn if Venezuela – through an amicus brief perhaps – informs the court that it has not waived Maduro’s immunity and he remains their head of state.

That said, the United States has not recognized Maduro as Venezuela’s head of state since 2019. That will likely be decisive for a U.S. judge under domestic law because of the executive branch’s exclusive recognition power, even though head-of-state status under international law does not depend on any single country’s recognition decision. Generally, under international law, if an individual has the legal authority to bind the country in its international relations, that person would be considered the head of state regardless of how that person assumed the position.

So international law doesn’t matter?

The United States always indicates when it files immunity determinations with U.S. courts that it is doing so after considering “the relevant principles of customary international law.” The biggest deterrent to violating international law regarding immunities is that other countries can start doing the same thing. The United States has often violated international law with apparent impunity, but every time it does so the international system becomes less stable and less predictable, in addition to less just. Moreover, it should go without saying that disregarding immunity for other countries or their officials also risks eroding the well-established norms that protect the United States and its officials in foreign courts.

Speaking of stability and predictability, what about the military operation to capture Maduro? Doesn’t that make his prosecution illegal?

There is zero international legal justification for conducting a military operation on another country’s territory to capture an alleged fugitive, let alone a foreign leader, without that country’s consent or authorization by the U.N. Security Council. But international law and U.S. law separate the question of how a defendant’s presence was obtained before a court from whether that defendant can be prosecuted. In international law, the principle is called male captus, bene detentus. It essentially boils down to the idea that a person can be unlawfully captured, but still lawfully prosecuted, as long as the proceedings themselves comply with applicable law.

Once Venezuela has a new acting president, will that change Maduro’s status? Can he claim immunity as a former head of state?

If relevant Venezuelan authorities do not treat Maduro as the head of state, then he would no longer be able to claim that status. As noted above, this question may be disputed if his successor maintains that he is still the head of state. Assuming a U.S. court determines he is not entitled to immunity as a sitting head of state, a different immunity analysis would apply.

Former foreign officials enjoy certain residual, conduct-based immunities for their official acts. However, drug trafficking and corruption do not fall within any head of state’s official duties. Such charges do not raise the immunity questions sometimes associated with legal proceedings against former foreign officials for international crimes such as torture that are necessarily committed under color of law. (There is also a separate question of immunity for international crimes before international courts; although Venezuela has announced its intended withdrawal from the International Criminal Court, its ratification of the treaty that created that court amounts to a renunciation of official immunities before the ICC for conduct that falls within the court’s jurisdiction.)

Setting aside Maduro’s unlawful capture, isn’t his prosecution a good thing?

That’s really a question for Venezuelans to answer, especially since the person who has now assumed power was Maduro’s vice president and close associate. It’s difficult for the United States to have credibility in upholding the rule of law when it so willingly violates it and applies inconsistent standards–whether it’s pardoning Hernandez while prosecuting Maduro and executing suspected drug couriers, or defying domestic court orders. Ideally, each country is responsible for ensuring its own compliance with both domestic and international law, with action by foreign or international courts available as a back-up when national institutions fail. In the U.S. legal and political system, the power to rein in a lawless executive branch lies primarily with Congress and with voters, not with courts. That’s one reason why the contours of domestic official immunity don’t necessarily mirror those of foreign official immunity.

International law outlaws coercive intervention in the internal and external affairs of other states precisely because there is a real danger of abuse and ulterior motives. The United States appears to feel that its military and economic superiority allow it to act unilaterally in violation of international law, and that cooperation and alliances are overrated. That might seem appealing in the short term, but the world has already seen where unchecked expansionism and claimed spheres of influence lead. The benefits of following agreed-upon rules have often been recognized only after significant harm caused by their disregard.

The post Head of State Immunity and Maduro on Trial appeared first on Just Security.

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

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

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

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

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

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

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

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

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

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

Why it Matters in this Conflict

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

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

Dismissing Accountability Efforts 

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

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

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

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

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

Such demands contravene the spirit and letter of international law.

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

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

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

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

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

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

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

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

We should not establish a precedent to the contrary now.

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

As these drug strikes intensify, speculation has mounted that Washington may expand operations into Venezuelan territory.  The administration’s saber-rattling has contributed measurably to this perception. On 60 Minutes this past Sunday, when asked, “Are [Venezuelan President] Maduro’s days as president numbered?,” Trump responded, “I would say yeah. I think so, yeah.” Similarly, in late September, when asked that same question, the White House Press Secretary replied, “I think President Trump believes that Nicolás Maduro is an illegitimate president leading an illegitimate regime that has been trafficking drugs to the United States of America for far too long and we’re not going to tolerate it.” In October, the New York Times reported that the administration had authorized covert CIA actions in Venezuela. Soon thereafter, Trump warned, “We are certainly looking at the land now, because we’ve got the sea very well under control,” and when questioned about whether  the CIA could execute Maduro, he responded, “I think Venezuela is feeling heat.” 

The possibility of military operations against Venezuela has now become a contentious issue on Capitol Hill. For instance, Senator Adam Schiff (D-California) warned in an Oct.17 statement,  

The Trump administration has made it clear they may launch military action inside Venezuela’s borders and won’t stop at boat strikes in the Caribbean…. In recent weeks, we have seen increasingly concerning movements and reporting that undermine claims that this is merely about stopping drug smugglers. Congress has not authorized military force against Venezuela. And we must assert our authority to stop the United States from being dragged — intentionally or accidentally — into full-fledged war in South America.

From the other side of the aisle, Senator Lindsey Graham (R-South Carolina) stated on Oct. 26 that “President Trump told me yesterday that he plans to brief members of Congress when he gets back from Asia about future potential military operations against Venezuela and Colombia…. So, there will be a congressional briefing about a potential expanding from the sea to the land. I support that idea. But I think he has all the authority he needs.” 

In an earlier Just Security essay, I addressed the question whether the counter-drug strikes on the alleged drug-smuggling boats violated international law. I concluded that they clearly do. A second essay explored whether counter-drug operations conducted on another State’s territory can comply with international law. Absent the consent of the State into which they are mounted, such operations would be unlawful. 

Here, I examine whether the administration’s saber-rattling and accompanying military deployments already qualify as a threat of the use of force in violation of Article 2(4) of the UN Charter and customary international law. In identical letters to the UN Secretary-General and the Security Council on Oct. 16, Venezuela’s Ambassador alleged that they do, citing President Trump’s statements regarding “ground” operations. Five days later, a UN Independent Expert and two Special Rapporteurs echoed this position. Referring to the U.S. military buildup and lethal maritime strikes, which they label “extrajudicial executions,” the three concluded that the U.S. actions “violate the fundamental international obligation[ ] not to threaten to use armed force against another country.” 

Clearly, the U.S. actions are threatening to Venezuela. The legal question, however, is whether they amount to an unlawful threat under international law or are merely a lawful “show of force.” To answer that question, I begin with a brief explanation of shows of force. My discussion then turns to the criteria according to which threatening action is rendered unlawful. I apply each to the Venezuela case, concluding that the deployments, accompanied by the administration’s statements, constitute a violation of international law.

Shows of Force

The deliberate use of military presence as a tool of political influence in peacetime is a long-standing practice known as a “show of force.” As the U.S. Navy/Marine Corps/Coast Guard Commander’s Handbook on the Law of Naval Operations explains (§ 4.4.2), shows of force can be calibrated “to exert the precise influence best suited to U.S. interests.” 

Perhaps the most well-established example of the United States using military presence to assert rights under international law is the Department of Defense’s Freedom of Navigation Program, which involves challenges to excessive maritime claims. Another common example is conducting exercises like NATO’s annual BALTOPS (Baltic Operations), which is designed, in part, to demonstrate NATO’s resolve and capability vis-à-vis potential Russian aggression. Shows of force can also be conducted to deter imminent adversary actions or to show support for allies and partners, as when the US Navy deploys carrier strike groups off Taiwan without official announcement.

But shows of force can also have malevolent purposes, a paradigmatic example being Russia’s massive military buildup along its border with Ukraine in 2021-early 2022, during which Russia deployed over 100,000 troops, missile systems, and aircraft to the borders of western Ukraine, Crimea, and Belarus. Large-scale exercises, including amphibious activities in the Black Sea and the Sea of Azov, accompanied the deployments. At the same time, Russia made sweeping demands on Ukraine and NATO. The threat materialized in February 2022 when Russia launched its so-called “special military operation,” the large-scale attack on Ukraine.

So, under what circumstances does a show of force rise to the level of an unlawful threat of the use of force, an “internationally wrongful act” under the jus ad bellum (law governing the resort to force by States)?

An Unlawful Threat of the Use of Force?

Article 2(4) of the UN Charter requires: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.” This prohibition on both threats and uses of force irrefutably reflects customary international law (Paramilitary Activities, ¶¶ 188-190; Friendly Relations Declaration, prin. 1). 

Not every show of force that another State perceives as threatening violates the prohibition. For example, in its 1986 Paramilitary Activities, the International Court of Justice (ICJ) rejected Nicaragua’s suggestion that joint U.S.-Honduran exercises near its border were a threat of the use of force in the attendant circumstances (¶ 227). Complicating matters, the precise threshold at which a show of force crosses the line into an unlawful threat remains somewhat ambiguous. Nevertheless, there is relative agreement that the action in question must involve a threat of an unlawful use of force, and that the threat has to be coercive, communicated to the target State, and credible. Satisfaction of these criteria will often be highly contextual, especially in the absence of an explicit threat.

Threat of Unlawful Force: Most importantly, there must be a threat, and the action threatened must be of an unlawful use of force against the target State. As noted by the ICJ in its 1986 Nuclear Weapons advisory opinion (¶ 47). 

The notions of ‘threat’ and ‘use’ of force under Article 2, paragraph 4, of the Charter stand together in the sense that if the use of force itself in a given case is illegal – for whatever reason – the threat to use such force will likewise be illegal. In short, if it is to be lawful, the declared readiness of a State to use force must be a use of force that is in conformity with the Charter. 

Accordingly, if the threat is to use force in order to defend against an “armed attack” in individual or collective self-defense under Article 51 of the UN Charter and customary law, or to act pursuant to a Security Council authorization to employ force in accordance with Chapter VII of the Charter, the threat is lawful. 

Turning to the case at hand, it is self-evident that the prospective U.S. military operations qualify as a “use of force.” Therefore, the first question is whether the U.S. statements and actions amount to a threat against another State. 

It is difficult to interpret the public statements regarding “ground operations,” Maduro’s days being numbered, or his illegitimacy as anything other than a threat. Additionally, the U.S. assets that have been assembled in the Caribbean far exceed those necessary to conduct (unlawful) maritime counter-drug operations. Indeed, a carrier strike group is an ill-fitted tool to employ against small drug trafficking boats, and B-52s and submarines are nearly useless against them. But they are all uniquely suited, together with amphibious capability, to mounting offensive operations against a coastal nation. Their presence can only be rationally explained as a threat against Venezuela. Both sides of the aisle in Congress are certainly interpreting them as such, with some members doing so with trepidation and others with enthusiasm.

It is likewise clear as a matter of international law that the United States is directing the threats at another State (Venezuela), a condition precedent to the unlawful use of force. This is so despite U.S. assertions, with which I agree, that the Maduro government, having lost the July 2024 election, is illegitimate. Under international law, an authority that exercises effective control over the territory and population of a State (a de facto government) enjoys international legal protection requiring respect for the State’s sovereignty, proscribing intervention in its internal affairs, and, as here, prohibiting the threat of the use of force against it (Tinoco Arbitration, pages 381-82).

To be unlawful, the threatened action against the other State must be unlawful. In a U.S. Mission to the UN statement, the United States asserted that it “has reached a critical point where we must use force in self-defense and defense of others” in the face of drug trafficking into the United States. Accordingly, the question is whether operations into Venezuela against drug cartels or Venezuelan government assets to impede trafficking into the United States (or to topple Maduro, thereby stemming that flow) would be a lawful act of self-defense. If so, the United States is not unlawfully threatening the use of force.

To make the claim, the Trump administration has characterized drug-trafficking having lethal consequences in the United States as an “armed attack,” the condition precedent to using force in self-defense pursuant to Article 51 and customary international law. Yet, as I have previously explained, 

the causal chain between drug production/shipment/sale and those consequences is attenuated enough to preclude qualification of drug trafficking as a use of force, especially one at the armed attack threshold. After all, the drugs must be distributed and sold, often by individuals or groups that are not members of the drug cartel, and users acting unlawfully have to purchase them. And in most cases, their use does not result in death or serious injury.

This is the case whether drug cartels are bringing the drugs into the United States on their own, which seems to be what the United States claims when it characterizes the situation as a “non-international armed conflict” (NIAC) with drug cartels like Tren de Aragua, or whether the cartels are acting “on behalf” or “with the substantial involvement of” Venezuela (Paramilitary Activities, para. 195), which the administration seems also to be asserting. In a previous essay, Ryan Goodman and I examined the legally contradictory nature of the assertions; however, for the purposes of this analysis, claims of a right to act in self-defense are simply baseless.

It is also noteworthy that the U.S. statement to the UN mentioned the defense of others, presumably a reference to the right of “collective defense,” which is permissible under Article 51 and customary international law. The problem is that it is universally accepted that “there is no rule permitting the exercise of collective self-defence in the absence of a request by the State which regards itself as the victim of an armed attack” (Paramilitary Activities, ¶ 199). And even when such a request is made, operations in collective self-defense may only be conducted within the parameters of that request. For the reasons set forth above, no State is facing an armed attack from Venezuela based on drug-trafficking. Nor am I aware of any State requesting forcible support in collective self-defense from the United States, and certainly not at a level that the United States seems ready to deliver. 

But could the U.S. operations and official statements be characterized as a warning that the United States is going to engage in forcible law enforcement? After all, the U.S. statement claimed “Nicolas Maduro is a fugitive from American justice and the head of the vicious narco-terrorist Cartel de Los Soles.” 

Putting aside the contradictory fact that the United States is already justifying its actions as self-defense during a NIAC, law enforcement on the territory of another State requires that State’s consent. And in any event, given the scale of the force assembled, it is difficult to imagine that the contemplated operations could comply with the international human rights law conditions for using lethal force in other than an armed conflict (see my explanation here).

A useful precedent in this regard is the 2007 Guyana-Suriname Arbitral Award. There, the tribunal acknowledged that while international law permits the use of force for law enforcement if it is  “unavoidable, reasonable and necessary,” Suriname’s conduct “seemed more akin to a threat of military action rather than mere law enforcement” (¶ 445). The action involved an officer warning a Guyanese oil rig and drill ship to leave Suriname’s waters, stating that if it did not, “the consequences will be yours.” In other words, if an act(s) looks enough like a threat to use force, it is hard to make a law enforcement claim. To suggest that the U.S. force assembled in the Caribbean is there in a law enforcement mode would simply not pass the straight-face test.

As an aside, the U.S. statement to the UN noted that “President Trump has determined the United States is in a non-international armed conflict” with drug cartels, presumably to justify “status-based targeting” of the drug-traffickers (attacking them based on their membership in an organized armed group). This characterization is flawed on multiple levels. But even if it were not, NIAC status (or even “international armed conflict” status) has nothing to do with the lawfulness of the threatened military operations as such. It governs how hostilities are to be conducted, not whether force may be resorted to by a State.

Coercive Threat: In addition to the threatened action being unlawful, the threat must be “coercive” in the sense of compelling the target State to do something it would not otherwise do, or refrain from conduct in which it wishes to engage. It is conditional – do, or not do, something, or force will be used against you. Threats of forcible action are “usually viewed as a form of coercion” (Dinstein, page 92). 

As it involves the use of force, the threatened U.S. action is unequivocally coercive. Its coercive nature is further highlighted by the fact that the threat is conditional. The United States has repeatedly articulated its two demands, both of which, by the way, have merit. First, it is seeking regime change by compelling Maduro to step down, a worthy objective, for it is undeniable that he is illegitimately holding power. The second is to stem the flow of drugs from Venezuela into the United States. I hasten to caution that while I find both goals laudable, they serve here only to satisfy the requirement of coerciveness in a threatened use of force; they do not make the U.S. threat lawful.

Communicated Threat: For coercion to be effective, the threat must be communicated to the State being coerced. This can be done implicitly or explicitly. Such threats may be conveyed in writing, expressed in verbal statements by leaders or State officials, transmitted by intermediaries, evidenced by a failure to deny persistent allegations of threatening conduct, reflected in actions that can reasonably be considered to threaten force, or communicated through any other means. 

In this case, the statements of the United States were well-publicized, as have been the deployments of the military forces to within striking distance of Venezuela. The President’s public acknowledgment of his authorization for covert action was particularly compelling in demonstrating satisfaction of the communication criterion. That the threat of the use of force has been effectively communicated to Venezuela is undeniable, given its request for an emergency meeting of the Security Council, which was held on Oct. 10. Similarly, in a televised speech on Oct. 31, Maduro declared, “Everything being done against Venezuela is designed to justify war, overthrow the government, and seize our oil resources.” Venezuela has now readied its military in preparation for U.S. strikes and has reached out to Russia and China for assistance. It is self-evident that Venezuela has received the message and understands it.

Credible Threat: Finally, to be unlawful, the threat must be credible. In other words, “the State making it is capable of carrying it out and the threat appears objectively to be serious and not simply rhetorical” (Gill/Tibori-Szabo, page 60). Imminency of a threatened action further enhances credibility. 

This criterion is obviously satisfied in light of the U.S. deployment of a powerful military force capable of conducting sustained offensive operations against Venezuela with impunity. Moreover, the willingness of the United States to use force has been aptly illustrated by its 15 strikes on alleged drug trafficking boats (as of Nov. 2), which apparently killed 65 individuals in what the UN Office of the High Commissioner for Human Rights has accurately labeled “extrajudicial killings.” The confluence of firepower and a demonstrated willingness to use it unlawfully makes the threat highly credible.

Concluding Thoughts

To date, most scholarly and policy attention has focused on the lethal maritime strikes and the possibility of U.S. armed operations against Venezuela. There is widespread consensus in the international legal community that the lethal maritime attacks have no basis in international law and that offensive action into Venezuela by U.S. forces would be unlawful on multiple grounds.

The international law community has paid less attention to the possibility that the United States is presently unlawfully threatening Venezuela. Yet, it seems clear that the United States’ current posture toward that nation–consisting of lethal maritime strikes, high-profile deployments, public statements suggestive of regime change, and a demonstrable readiness to escalate–goes far beyond the bounds of a lawful show of force. Having satisfied the core requirement of the threatened action being unlawful, as well as those of conditionality, coerciveness, communication, and credibility, the actions of the United States combined amount to an unlawful threat of force in violation of Article 2(4) of the UN Charter and customary law.

I share the administration’s disdain for Maduro and its alarm about the trafficking of drugs into the United States. But engaging in patently unlawful actions to address those concerns is a short-sighted strategic blunder with long-term negative international security consequences. Put bluntly, the United States is in a deep hole of illegality; it needs to stop digging.

The post U.S. Saber Rattling and Venezuela: Lawful Show of Force or Unlawful Threat of Force? appeared first on Just Security.

Just Security, as a co-sponsor of the event, is pleased to feature a series in connection with the weekend. Prior to ILW, the series launched with articles by ABILA President Michael Scharf and ILW Co-Chairs William Aceves, Amity Boye, and Jessica Peake. Other analyses coming out of the weekend, including by both established and emerging international law scholars, will further explore this theme.

This series contains the following articles and will be updated regularly: 

• Michael P. Scharf, “Crisis as Catalyst in International Law” (Oct. 16, 2025)
• William J. Aceves, Amity Boye, and Jessica Peake, “Crisis as Catalyst: Past, Present, and Future of International Law” (Oct. 21, 2025)
• Chiara Giorgetti, Milena Sterio, Rebecca Hamilton, and Megan Corrarino, The Just Security Podcast: Reflections on International Law Weekend 2025 (Nov. 3, 2025) 
• Coalter Lathrop, “Crisis as Catalyst: Seabed Minerals and the (Un)Making of International Law” (Nov. 24, 2025)
• Naida Softic, “Crisis Without Consent: What Intergovernmental Organization Refusals Reveal about Mandate, Liability, and Legitimacy” (Forthcoming)  
• Emmanuel U. Osayande, “When Crises Become Courtrooms: How Africa’s Engagement with the ICJ is Rewriting the Playbook of International Law” (Forthcoming) 

The post A Series on the Occasion of ABILA’s International Law Weekend 2025 appeared first on Just Security.

In this special episode co-produced with ABILA’s International Law Chats podcast, which Giorgetti and Sterio co-host along with Alison Macdonald KC, the guests — each of whom also participated in International Law Weekend — discuss the weekend’s theme, “Crisis as Catalyst on International Law”; takeaways from panels on topics ranging from the proposed Crimes against Humanity Treaty to international environmental law and more; and how international lawyers and law students might think about their role in the present moment. 

Show Note: 

• International Law Chats – an ABILA podcast 
• Crisis as Catalyst in International Law by Michael P. Scharf (October 16, 2025) 
• Crisis as Catalyst: Past, Present, and Future of International Law by William J. Aceves, Amity Boye and Jessica Peake (October 21, 2025)  
• A Series on the Occasion of ABILA’s International Law Weekend 2025

The post The Just Security Podcast: Reflections on International Law Weekend 2025 appeared first on Just Security.