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.

IMAGES (left to right): A man takes a selfie in front a destroyed apartment building on April 9, 2022 in Borodianka, Ukraine. The Russian retreat from towns near Kyiv has revealed scores of civilian deaths and the full extent of devastation from Russia’s attempt to seize the Ukrainian capital. (Photo by Alexey Furman/Getty Images); A woman with a Ukrainian flag stands outside the International Criminal Court of Justice (ICJ) or Peace Palace on the first day of hearings on March 7, 2022 in The Hague The Netherlands. Ukraine is petitioning the ICJ to classify Russia’s invasion as a genocide and issue an injunction under the UN Convention against Genocide. (Photo by Michel Porro/Getty Images); Ukrainian servicemen carry the casket bearing the remains of journalist Maks Levins on April 4, 2022 in Kyiv, Ukraine. Levin, who was a contributor to LB.ua and Reuters, among other news organizations, went missing on March 13 and was found dead on April 1 near the village Huta Mezhyhirska, north of Kyiv. (Photo by Alexey Furman/Getty Images)

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In December 2022, the International Criminal Court’s Office of the Prosecutor (ICC OTP) launched its Policy on Gender Persecution. The Policy reflects the OTP’s existing commitment to focus its resources and attention on investigating and prosecuting sexual and gender-based violence (SGBV) crimes, including the crime of gender persecution. Moreover, the Policy builds upon the OTP’s prior work in this area, including its 2014 Policy Paper on Sexual and Gender-Based Crimes. This article highlights and discusses the OTP’s Gender Persecution Policy, while also situating its place in the trajectory of ICC’s progress related to the investigation and prosecution of SGBV crimes, and in particular the crime of gender persecution. Below, we first give an overview of the Rome Statute’s contributions to the development of international criminal law regarding SGBV crimes. Next, we address the OTP’s 2014 Policy Paper and describe some of the investigations and prosecutions of SGBV crimes which resulted from the OTP’s specific decision to ensure that these crimes were not overlooked. We then turn to the 2022 Gender Persecution Policy, detailing some of its key features and briefly discussing some implementation challenges.

The Rome Statute: Developing International Criminal Law Related to the Investigation and Prosecution of SGBV Crimes

Because the ICC functions based on a system of complementarity where it may only seize a case if the relevant state is “unwilling or unable” to prosecute, the Court is in a unique situation where through positive complementarity it can promote accountability and the development of international criminal law within national jurisdictions. Thus, through its focus on the definition of gender, as well as on the investigation and prosecution of SGBV crimes, the ICC has been fostering the development of international criminal law in this area, both within international as well as within national jurisdictions.

The ICC was the first international criminal tribunal to define “gender” within its founding statute. According to Article 7(3) of the Rome Statute, “gender” “refers to the two sexes, male and female, within the context of society.” The Rome Statute’s definition of gender has been criticized, due to its focus on the binary nature of the definition. Nevertheless, Article 21(3) of the Rome Statute requires that the statute’s provisions be interpreted and applied consistently “with international recognized human rights, and be without any adverse distinction founded on grounds such as gender.” Thus, both the 2014 Policy Paper and the 2022 Gender Persecution Policy adopt a broader view of gender and thereby enable the OTP to also adopt a more progressive, and non-binary, understanding of gender. However, this contemporary view taken by the OTP does not conflict with the Statute’s definition, since gender persecution crimes are understood from the perception of the perpetrator. The Gender Persecution Policy explains this, stating, “Gender refers to sex characteristics and social constructs and criteria used to define maleness and femaleness.”

In addition, the Rome Statute also criminalized a broader range of SGBV crimes than prior international criminal tribunals. Under the Rome Statute, acts of “rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity” may be prosecuted as underlying acts supporting charges of crimes against humanity (if the contextual elements of crimes against humanity are met) or as war crimes (when committed in the context of armed conflict). The Rome Statute is also the only international instrument to expressly recognize the crime against humanity of gender persecution. For gender persecution to constitute a crime against humanity, the perpetrator must target an “identifiable group or collectivity” based on gender grounds. Such groups include, for example, men, women, girls, boys and/including LGBTQI+ persons. Other international criminal tribunals had limited the reach of the crime of persecution to political, racial, or religious grounds. Thus, including the crime of gender persecution within the Rome Statute constitutes a significant step in the development of international criminal law related to the investigation and prosecution of SGBV crimes.

The 2014 Policy Paper: In Theory and In Practice

In its 2006 Report on Prosecutorial Strategy, the OTP had already signaled that it would select cases “paying particular attention to methods of investigations of crimes committed against children, sexual and gender-based crimes.” The OTP echoed a similar goal in its Prosecutorial Strategy for 2009-12, which repeated the objective of addressing charging practices in relation to gender crimes. Under the leadership of Prosecutor Fatou Bensouda, OTP’s 2012-2015 Strategic Plan announced a strategic goal committed to enhancing “the integration of a gender perspective in all areas of . . . work” and to paying “particular attention to sexual and gender-based crimes.” And in 2014, after extensive consultations with ICC States Parties, civil society, academia, and relevant United Nations agencies, the OTP launched its Policy Paper. With the 2014 Policy Paper, the OTP declared that it would adopt concrete steps to address the challenges it has previously faced in investigating and prosecuting SGBV crimes.

The 2014 Policy Paper broadens the OTP’s view of the definition of gender, explicitly interpreting “context of society” as acknowledging “the social construction of gender, and the accompanying roles, behaviours, activities, and attributes assigned to women and men, and to girls and boys.” Moreover, the 2014 Policy states the OTP will interpret and apply the definition of gender consistently with Article 21(3) of the Rome Statute and internationally recognized human rights. And the OTP confirmed in the 2014 Policy that it would consider acts of violence and discrimination related to socially constructed gender roles. The 2014 Policy also commits to bringing charges for SGBV crimes whenever the OTP concludes there is sufficient evidence to support them, and it recommends applying a gender analysis to all stages of the OTP’s work, including preliminary examinations, investigations, and prosecutions. Finally, the 2014 Policy recognizes that it may be difficult for the ICC alone to carry out this progressive agenda related to the investigation and prosecution of SGBV crimes. Instead, it specifically references positive complementarity and encourages states to carry out their primary responsibility of investigating and prosecuting these crimes, with support from the OTP.

In practice, the OTP made significant strides in advancing the goals of the 2014 Policy Paper. Under Bensouda’s leadership, the OTP initiated 13 new preliminary examinations, nine of which included SGBV crimes, and four which were brought on the prosecutor’s own motion. In addition, the OTP concluded two preliminary examinations (Nigeria and Ukraine) where it found that the criteria to proceed with investigations was met; in both situations, SGBV crimes were included. Moreover, the OTP opened seven new investigations, six of which encompassed allegations of SGBV crimes. Following the 2014 Policy Paper, the OTP increased its practice of charging defendants with SGBV crimes: in the four years that followed the Policy, SGBV crimes constituted nearly fifty percent of the crimes charged.

The OTP’s conviction record on SGBV charges, however, was more nuanced. In the Katanga and Ngudjolo Chui cases, although both defendants were charged with SGBV crimes, neither was ultimately convicted of such charges. In the Bemba case, the Appeals Chamber overturned a conviction on SGBV charges, and defendant Jean-Pierre Bemba Gombo, a former military leader now serving as Minister of Defense of the Democratic Republic of the Congo (DRC), was ultimately acquitted of all charges. On a more positive note, Bosco Ntaganda, the former military chief of staff of an armed militia group operating in the DRC, was charged with SGBV crimes, convicted of such charges, and the conviction was confirmed on appeal; thus, the Ntaganda case represents the first final conviction for SGBV crimes in the Court’s history. Most recently, Dominic Ongwen, a former commander of the Ugandan Lord’s Resistance Army, was convicted of numerous SGBV charges, making it the first case where the OTP supported a crimes against humanity charge with forced marriage as an inhumane act. In sum, despite mixed results, it can be argued that since the launch of the 2014 Policy Paper, the OTP’s investigation and charging practices regarding SGBV crimes have improved substantially. One might expect that the OTP will also have further success in obtaining convictions on such charges in the near future.

The Crime of Gender Persecution and the 2022 Gender Persecution Policy

The crime of gender persecution has not been prosecuted until recently. For the first time in the ICC’s history, in September 2019 a Pre-Trial Chamber recognized charges of gender persecution in Prosecutor v. Al Hassan. The trial against Al Hassan Ag Abdoul Aziz, a high-ranking administrator of the Islamic Police in Timbuktu, commenced in July 2020, and evidence regarding the commission of the crime of gender persecution has been submitted. Most recently, the OTP brought gender persecution charges in a case against Ali Muhammad Ali Abd-Al-Rahman. The trial against this defendant, an alleged leader of the Militia/Janjaweed in Darfur, Sudan commenced in April 2022 and is ongoing.

Under the leadership of Prosecutor Karim Khan, KC, and to enhance the OTP’s ongoing efforts to provide justice to victims of SGBV crimes, the OTP launched its Policy on Gender Persecution in December 2022. This Policy, launched after two rounds of public commentary (for our commentary see here), recognizes that SGBV crimes, including gender persecution, are “among the gravest crimes in the [Rome] Statute,” and confirms that investigating and prosecuting these crimes is a “key priority.” The Gender Persecution Policy also expresses the OTP’s commitment to pay “particular attention” to the crime of gender persecution “at all stages of its work from preliminary examination, investigation, to trial, sentencing, appeal and reparations.”

In addition, the Policy is commendable for other reasons. First, it includes a list of definitions of key terms as “gender,” “gender persecution,” “intersex,” and “LGBTQI+,” and as to “gender,” the Policy reaffirms that gender is a social construct that can evolve over time. The Policy reinforces this view of gender by defining “gender persecution” as a crime “committed against persons because of sex characteristics and/or because of the social constructs and criteria used to defined gender.”

Second, it includes definitions of victims who do not identify as men or women, thereby signaling that the OTP will employ a broad lens when considering the victim population subject to gender persecution. Through this Policy, the OTP has expressed its willingness to adopt an intersectional approach that acknowledges the inter-relationship between gender and other aspects of an individual’s identity which may render that individual particularly vulnerable to SGBV crimes, including the crime of gender persecution.

Third, the Gender Persecution Policy adopts a broad view of persecution, criminalizing persecution based on the perpetrator’s beliefs about what it means to be male or female. This type of subjective view of persecution is consistent with most expert commentary in this area of the law and reflects OTP’s progressive view about the crime of gender persecution.

Fourth, the Gender Persecution Policy clearly affirms the OTP’s commitment to investigating and prosecuting SGBV crimes, including the crime of gender persecution, as well as to the development of international criminal law more broadly. This commitment is reflected in the Policy in OTP’s clear stance of cultural relativism, stating that “breaches of fundamental rights cannot be ignored, dismissed or justified on the basis of culture.” The Gender Persecution Policy thus aligns with the modern understanding that arguments about cultural relativism cannot defeat accountability for SGBV and gender persecution crimes.

Fifth, the Policy analyzes the six elements of persecution as a crime against humanity under the Rome Statute; by doing so, the Policy provides clarity to different investigative and prosecutorial teams at the ICC as to the type of evidence that will be necessary to prove the different elements of the crime of gender persecution. In fact, the Policy describes in detail how the OTP will approach its investigation and prosecution of gender persecution throughout the different stages of the ICC’s criminal process.

Sixth, to further facilitate the prosecution of the crime of gender persecution, the Policy includes a detailed analysis of the distinction between motive and intent as they relate to the investigation and prosecution of this crime.

Last, the Gender Persecution Policy addresses various implementation challenges with a promise that the Policy will be regularly reviewed, and that the OTP itself will continue to monitor the implementation of the Policy.

Implementation Challenges

Although the Gender Persecution Policy itself contemplates the need for future oversight and anticipates implementation challenges, it is inevitable that stakeholders and court observers will look for outcomes, such as investigations, prosecutions, and convictions of gender persecution crimes. Moreover, the OTP will need to demonstrate its ability to lead in the development of international criminal law regarding the crime of gender persecution. To successfully implement the Gender Persecution Policy, the OTP will likely require staff training protocols, the creation of additional expert materials on gender persecution (such as, for example, additional materials on the distinction between motive and intent), as well as ongoing internal monitoring. An additional implementation challenge is related to victim participation. As we argue in a forthcoming article (“Prosecuting Gender Persecution at the ICC: Definitions, Policies, and Practice,” 46 Fordham International Law Journal 1 (2023)), a well-developed victim participation regime may facilitate regular collaboration with victims of gender persecution which can in turn aid the prosecution of this crime as well as the development of an effective reparations regime.

In sum, a successfully implemented Gender Persecution Policy can lead toward higher numbers of convictions of SGBV crimes, including gender persecution crimes. Additionally, a successful implementation of the Policy may ensure that the OTP’s focus remains on the prosecution of gender persecution. Although the Gender Persecution Policy is a progressive and impressive document, it remains crucial for the OTP to remain committed to ensuring its successful implementation.

IMAGE: Women in Lukodi celebrate after Dominic Ongwen, a child soldier- turned- commander, was found guilty by the International Criminal Court of war crimes and crimes against humanity, including a massacre in their village back in 2004, in Lukodi, Uganda, on February 4, 2021. (Photo by Sumy Sadurni / AFP) (Photo by SUMY SADURNI/AFP via Getty Images)

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An Overlooked International Crime

The crime category of persecution in international law is an important tool for exposing the underlying discriminatory drivers, including gender, of violence and atrocity. However, persecution generally, and gender persecution specifically, is not always well understood. This is despite inclusion in the Rome Statute of the International Criminal Court (ICC) more than 20 years ago and the strategic value such charges can bring. There are signs of change, including the new policy on Gender Persecution released by the ICC Office of the Prosecutor (ICC OTP Policy on Gender Persecution) and the Gender Strategy of the United Nations International, Impartial and Independent Mechanism (IIIM) – Syria, where I serve as Deputy Head, made public in October 2022 (IIIM Gender Strategy). The international community now has an important opportunity to build on this momentum to overcome historical silences and strengthen our responses to gender as a discriminatory driver of international crimes.

Labels Matter

International criminal law frameworks have been crafted to sanction not only the harms inflicted, but also the purposes driving  violations. In the aftermath of the Holocaust, it was not enough to condemn what happened as killing, or even extermination. A new crime – genocide – was named to accurately label the insidious aim of destroying a “national, ethnical, racial or religious” group. It was not enough to condemn the pervasive violation of fundamental rights by the Nazis. The crime of persecution was designated to call out the repugnant discriminatory targeting of group members on “political, racial or religious” grounds. These discriminatory drivers stem from mindsets that inflame violent behavior and brand people with certain identities as opponents, “others”, to be targeted.

Historically, some discriminatory drivers of violations have been worryingly absent from our catalogue of concern. A glance at the identity categories protected in the initial formulations of the crimes of genocide and persecution set out above reveals, for example, the absence of gender. In a world saturated with conflict-related sexual violence; forced marriage; honor killings; violence against people of diverse sexual orientations and gender identities; and the pervasive deprivation of the rights of women and girls, gender should be an identity category we consider in seeking to dismantle discriminatory drivers of international crimes.

New Opportunities

A few important footholds have emerged in the framework of international criminal law for addressing gender as a discriminatory driver of crimes. One of the most significant is the inclusion of gender persecution in the Rome Statute of the ICC, which arguably also reflects customary international law. The Rome Statute provision has, in turn, prompted a growing number of ICC member states to adopt parallel provisions in their national legislation. (Another foothold, the recognition of gender-based discrimination as one of the prohibited purposes of torture, in the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY) is worthy of separate consideration.)

Missed Opportunities

Despite the inclusion of the provision on gender persecution in the Rome Statute over 20 years ago, it has been largely neglected, resulting in a paucity of precedents and an accountability gap. This could reflect a lack of understanding of the crime of persecution more generally. It has been argued that persecution is one of the “forgotten” international crimes. This may come as a surprise to anyone familiar with the jurisprudence of the ICTY, where persecution charges were the key modality for addressing “ethnic cleansing” during the Balkans conflicts, and a prominent feature of many cases prosecuted. The ICTY showed that persecution charges are very effective for linking different rights violations to show patterns of crimes that form an overarching discriminatory campaign. In turn, this ability to contextualize individual acts as part of a connected series of events can facilitate the attribution of criminal campaigns to higher ranking officials who may not have been physically involved. Additionally, persecution charges are a vehicle for demonstrating the discriminatory animus behind crimes, including the reality that different discriminatory purposes often intersect to drive violations, elevating the gravity of the crimes.

Certainly, though, the strategic benefits of a persecution charge may not be widely understood outside the Balkans context. In the IIIM’s early engagement with Syrian victim and survivor communities concerning the most appropriate labels for describing the pervasive mistreatment of detainees, the crime of “torture” resonated far more powerfully than the crime of “persecution”, although this is evolving in light of the IIIM’s two-way dialogue with victims and survivors as part of its victim and survivor-centered approach.

Momentum at Last

There is at last some momentum towards correcting the historical silence on gender as a discriminatory driver of harm. The first generation of gender persecution charges has emerged at the ICC, including in the Al Hassan case (Mali) (charging persecution on the intersecting grounds of religion and gender), and the Abd-al-Rahman case (Sudan) (charging persecution on intersecting political, ethnic and gender grounds). Notably, in the German case against Sarah O (an individual affiliated with ISIL), a conviction was secured for persecution as a crime against humanity on intersecting grounds of religion and gender for mistreatment of Yazidi victims and there have been other promising developments in national systems.

We have also seen the development of the ICC OTP Policy on Gender Persecution and the IIIM Gender Strategy. (The IIIM is a justice facilitator supporting justice opportunities in many different jurisdictions.) In tandem, these documents represent an important groundswell of commitment to addressing discriminatory gender structures as drivers of international crimes. Both the ICC OTP Gender Persecution Policy and the IIIM Gender Strategy embody strong statements about using the gender persecution framework to overcome historical silences. As the ICC OTP Gender Persecution Policy states, “Accountability for gender persecution crimes can help contribute to sustainable peace and disrupt the normalization of institutionalized gender discrimination and violence” (pp. 4-5). The IIIM Gender Strategy reiterates that “the IIIM seeks to reflect accurately the role that gender has played as a driver of any of the crimes under consideration… The IIIM also seeks to proactively utilize crime categories that facilitate consideration of gender as a structural factor underpinning crimes, whenever compatible with the evidence” (p. 19).

Gender Sensitive Institution Building

The challenge now is to ingrain this new priority as a core part of the daily working methodology and cultural fabric of accountability institutions. This requires constant attention, ongoing commitment, and a multi-layered approach. Both the ICC OTP Policy on Gender Persecution and the IIIM Gender Strategy  recognize that success depends on centering a commitment to gender equality as part of the institutional environment.

The best prospects of success lie in clearly articulating why this approach matters to the quality of justice delivered. It is a question of ensuring a holistic and accurate characterization of the impact of crimes on entire communities. As the IIIM Gender Strategy explains:

“Conflict-related harms very often target the relationships that bind communities, including the gendered foundations on which communities rest… Failing to use gender as an analytical lens in accountability work creates a risk that the impact of crimes on affected communities as a whole is not accurately understood. Such risks are particularly acute in assessing crimes, such as genocide and persecution, which target groups.” (p.7)

Dismantling Gender as a Discriminatory Driver of International Crimes

There are signs of a growing commitment to addressing gender as a discriminatory driver of violence and atrocity. The ICC OTP Gender Persecution Policy and the IIIM Gender Strategy are new resources that help in the quest for more inclusive justice outcomes that empower victims and survivors through acknowledgement of the underlying drivers of harm. This provides opportunities to advocate for action and resources to address the problem. If we do not specifically identify and condemn the discriminatory drivers of crimes, what hope do we have of dismantling them as part of our quest for an atrocity-free, more peaceful world?

IMAGE: A Syrian woman displays harvested roses at an agriculture field near the village of Killi in Syria’s rebel-held northwestern province of Idlib, on May 1, 2023. (Photo by AAREF WATAD/AFP via Getty Images)

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On the same date, five years later, Christof Heyns, then United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions, warned countries at the U.N. Human Rights Council about a new threat to humanity: autonomous weapons systems. His presentation and report kickstarted multilateral discussions about how to address the next generation of warfare. Unfortunately, those talks have stalled, and there is a serious risk that rapid technological developments will outpace diplomatic results.

May 30 marks milestones for both these humanitarian disarmament moments: the 15th anniversary of the cluster munitions treaty, and the 10th of Heyns’ call for a moratorium on development and use of autonomous weapons systems, which would select and engage targets based on sensor processing rather than human inputs.

Although political and procedural hurdles have impeded progress on addressing autonomous weapons systems, proponents of a new treaty should look to the success of the Convention on Cluster Munitions, and the negotiations that led to it, for inspiration.

Convention on Cluster Munitions: An Effective Tool

Cluster munitions are large weapons that contain dozens or hundreds of smaller weapons known as submunitions. They kill and injure civilians at the time of attack, especially when used in populated areas, because the submunitions are dispersed widely. In addition, many of the submunitions do not explode on impact as designed – instead, they linger like landmines, endangering civilians for months or years to come.

The Convention on Cluster Munitions absolutely bans the production, transfer, stockpiling, and use of cluster munitions, as well as assistance with any of those activities. It also requires States parties to destroy stockpiles, clear cluster munition remnants, and assist victims.

As of this May, the Convention has 111 States parties and an additional 12 signatories, and it has done much to achieve its goal of ending the suffering and casualties caused by cluster munitions. According to the Cluster Munition Monitor 2022 report, States parties have destroyed 99 percent their stockpiles, removing 1.5 million cluster munitions and 178 million submunitions from countries’ arsenals. While States parties could do more, they have cleared wide swaths of land and provided a range of aid to victims.

States parties have also complied with the prohibition on use, and the stigma generated by the Convention has pressured some States not party to the treaty to cease their use. The United States, for example, has not used the weapon since 2003, except for one isolated attack in Yemen.

No treaty is a panacea. Russia and Ukraine, neither of which is a party, have both used cluster munitions since Russia’s full-scale invasion of Ukraine. Their use has caused hundreds of casualties for Ukrainian civilians. But these attacks have generated international condemnation and NATO States have rejected Ukraine’s request for transfers of cluster munitions.

Autonomous Weapons Systems: Struggle for New Law

Meanwhile, countries have yet to agree to a comparable treaty on autonomous weapons systems even though 91 countries have called for a legally binding instrument. As with cluster munitions, there are concerns that autonomous weapons systems would be indiscriminate, in this case because they would lack the technology and human judgment to distinguish between legitimate military targets and civilians or surrendering or wounded soldiers. Delegating life-and-death determinations to machines also raises a host of other ethical, legal, accountability, and security issues.

Six months after Heyns presented the issue to the Human Rights Council in 2013, the international debate shifted to the Convention on Conventional Weapons (CCW) because most countries wanted to deal with the issue through an international humanitarian law framework rather than an international human rights law body. Discussions in this forum allowed for countries to refine their policy positions, and convergence has emerged around a “two-tier” approach that would include both prohibitions and regulations on autonomous weapons systems.

Proponents use varied terminology, but the version espoused by many countries as well as Human Rights Watch and the Stop Killer Robots campaign calls for prohibiting autonomous weapons that select and engage targets without meaningful human control and adopting regulations to ensure that all other autonomous weapons systems can only operate with meaningful human control. Civil society organizations, along with the International Committee of the Red Cross and some countries, have also called for prohibiting weapons systems that target humans.

According to this view, meaningful human control requires that systems be understandable and predictable and constrained in the temporal and geographic scope of their operation.

Despite this widespread convergence, the CCW operates by consensus, which has prevented countries from agreeing to negotiate a legally binding instrument since a single country can delay and disrupt the process. Some countries, such as the United States, United Kingdom, Australia, South Korea, and others, prefer voluntary measures. Russia has repeatedly obstructed progress even at that level, seeking to weaken the annual mandate of the CCW Group of Governmental Experts that deals with the issue.

At the recent Experts meeting in Geneva in mid-May, States discussed ways to address what they refer to as “lethal autonomous weapons systems” (LAWS). On the last night, diplomats negotiated until past midnight trying to find compromise on a report of their conclusions, but the language became increasingly watered down. While the draft never included a mandate to negotiate a legally binding instrument, even though that is what most countries wanted, it reflected the convergence around a two-tiered approach and support for requiring elements like predictability and understandability in the use of force.

But by early morning, the only consensus States could reach was language like this weak excerpt from final report of the Group of Governmental Experts:

[T]he Group concluded that:

(a) IHL continues to apply fully to the potential development of LAWS;

Weapons systems based on emerging technology in the area of LAWS must not be used if they are incapable of being used in compliance with IHL.

In essence, it means that it is unlawful to use a weapon system that cannot be used lawfully – a true but rather obvious statement that could have been made before the meeting.

Form over Forum: Lessons from the Cluster Munitions Process

The inability to make progress under the CCW process indicates that it is time to seek another forum, and the Convention on Cluster Munitions offers lessons in that regard. In addition to being a successful humanitarian disarmament instrument, it was achieved through a process that serves as a useful model for autonomous weapons systems treaty negotiations.

Multilateral efforts to address the civilian suffering caused by cluster munitions also began in the CCW, and they were similarly stymied by consensus. In that case, countries pursued an independent process outside of the U.N., known as the Oslo Process, following the precedent of the 1997 Mine Ban Treaty negotiations.

The Oslo Process had four key benefits, which address shortcomings of the CCW forum. While there are some subtle differences, these characteristics can also be true of the U.N. General Assembly, as shown by the negotiations of the Treaty on the Prohibition of Nuclear Weapons. The General Assembly is another possible forum for negotiating an autonomous weapons systems treaty.

First, the Oslo Process was open to everyone, but participants had to commit at the beginning to the same goal, in that case to prohibit cluster munitions and adopt certain remedial measures. That step led to more effective and efficient negotiations by ensuring that participating countries agreed on the underlying purpose from the start. Second, countries also agreed early on to a deadline of less than two years, which expedited the process.

Third, negotiating States were not bound by consensus because their rules of procedure allowed for voting. They still sought to achieve unanimity on all matters and, in the Oslo Process, they never needed to resort to a vote, but the option was there, which prevented the threat of a veto leading to the lowest common denominator.

Finally, the Oslo Process was inclusive, involving a range of countries, international organizations, civil society, and survivors. This characteristic contrasts with the emerging CCW trend, exemplified at the last meeting when Russia insisted that observers be removed from informal sessions over the objections of 21 countries that supported their participation and the principle of inclusion.

Ultimately, countries that are serious about addressing the threats posed by autonomous weapons systems should not let the forum for negotiations dictate the form of their response to those threats. They should not remain beholden to the current CCW process, which seems after 10 years to have run its course. Instead, they should hold firm to their commitment to pursue a treaty on autonomous weapons systems and choose a process that will allow them to achieve it.

On this 15th anniversary, proponents of an autonomous weapons systems treaty can look to the Convention on Cluster Munitions for guidance and motivation. It shows that an effective, efficient, and inclusive process can lead to life-saving results.

IMAGE: States parties to the Convention Conventional Weapons gathered at the United Nations in Geneva for talks on autonomous weapons systems from May 15-19, 2023. (Photo via the Stop Killer Robots Campaign)

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On Dec. 7, the International Criminal Court’s (ICC) Office of the Prosecutor (OTP) launched its first Policy on the Crime of Gender Persecution, sending a global message that it prioritizes holding perpetrators of such crimes accountable.

Persecution—defined under the Rome Statute as “the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity”—is not new; it is a long-standing matter of international concern and its condemnation is firmly based in customary international law. As a crime against humanity, persecution crystallized as an international crime in the London and Tokyo Charters and in the judgements of the International Military Tribunals of World War II, with evidence of gender-based crimes appearing in their written records.

Today, in conflicts and other atrocities around the world, from Ukraine to Afghanistan, Nigeria to Colombia, armed actors have perpetrated gender-based crimes that may amount to gender persecution. In Iraq, ISIS shocked the world when it distributed horrendous videos through social media of its fighters throwing men accused of homosexuality off buildings to their deaths. In Mali, the ICC has charged armed actors for threatening, flogging, and maiming women for the slightest dress code violations based on the militia’s religious and gender ideology. In Colombia, activists have documented armed groups targeting Indigenous and Afro-descendant women and girls on the basis of their gender, race, and ethnicity, in a context shaped by legacies of misogyny, colonialism, and slavery.

Despite the widespread prevalence of these crimes and over 20 years of gender persecution’s inclusion in the Rome Statute, justice still eludes many victims. The primary barrier appears to be people’s inability to recognize these crimes—a problem that has historically even challenged the OTP. The OTP has just begun to bring charges of gender persecution in its cases. Other criminal tribunals and national jurisdictions have similarly failed to recognize and charge gender persecution. This has led to the significant gap in the development of international criminal jurisprudence on gender persecution. Because gender persecution is rarely investigated adequately or charged, whether in international or domestic courts, it lacks prominence in historical records.

The ICC Prosecutor Karim Khan, KC, issued the first Policy on the Crime of Gender Persecution in order to improve the recognition and investigation of this crime and ensure the pursuit of justice for victims. At the request of the Prosecutor, I led the drafting process for the Policy as the OTP’s Special Adviser on Gender Persecution. Taking direction from the Prosecutor’s initiative to strengthen engagement with civil society, this Policy was developed through an extensive year-long consultative process engaging governments, experts, civil society, affected communities, and survivors.

International criminal law recognizes that all people have gender expression and sexual orientation and can be targeted with sexual and gender-based violence. However, gender discrimination has not been historically identified as a driving factor of violence under international criminal law. For example, sexual violence is often viewed as a gender-blind crime, which ignores the prevalence of gender discrimination in such crimes. When the misogyny, homophobia, and transphobia that fuel gender-based violence intertwine with other forms discrimination, namely racial and ethnic discrimination, this can drive crimes committed on multiple persecutory bases—crimes that also often go unaccounted for.

To break cycles of violence, we must not only hold perpetrators accountable for crimes, we must also recognize why these crimes took place, which persecution charges help to visiblize. Where crimes are grounded in gender discrimination, we must ensure that this is recognized and the perpetrators are charged accordingly.

This new Policy takes a comprehensive approach to all crimes and severe deprivations of internationally recognized fundamental rights that may amount to the crime against humanity of persecution on the grounds of gender (gender persecution). It recognizes all of its victims, namely women, girls, men, boys, including/and LGBTQI+ persons. It also recognizes that acts or crimes of gender persecution may include forms of sexual violence or any physical violence or physical contact, as well as acts such as cultural destruction or confiscation, imposition of dress codes, and prohibition of education for girls, among others.

Persecution is unique in its capacity to unearth the discriminatory intent that can drive entire conflicts. Its recognition can also shed light on victims who are vulnerable because of multiple and intersecting forms of discrimination. Such recognition can also unveil the continuum of historical and longstanding structural discrimination and fundamental rights deprivations experienced by groups such as women, girls and LGBTQI+ persons. Ultimately, accountability for gender persecution crimes can help contribute to sustainable peace and disrupt the normalization of institutionalized gender discrimination and violence.

Now that the Policy has been launched, the real work of implementation begins. To ensure we move from paper to practice the Prosecutor already has plans underway to create further civil society engagement. This includes organizing a civil society round table discussion, as well as developing investigative materials and providing staff training so that these acts and crimes are recognized and perpetrators held accountable.

Now is the time to dust off the law books on the crime of gender persecution and bring justice to survivors and victims who have never in history received full recognition.

IMAGE: Afghan women display placards and chant slogans during a protest that followed a suicide bomb attack at the Dasht-e-Barchi learning centre, in Kabul, Afghanistan, on Oct. 1, 2022. (Photo via Getty Images)

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With rising geopolitical tensions and the consequent Cold War-style polarization, this trend is likely to continue. In response, the United States must not only work to reunite detainees with their families, but also to reduce the likelihood of the hostage-taking itself. The president and Congress already have the necessary legal tools. With more funding and better implementation of current law, the U.S. government might have the carrots and sticks needed to take a proactive approach to deter governments from nabbing Americans when they travel or work abroad.

The dramatic increase in the average number of U.S. persons wrongly detained abroad – which has increased 175 percent during the past 10 years – highlights the need for a new approach. Since 2001, the risk has also spread geographically as the number of countries that have wrongfully detained U.S. persons skyrocketed from four to 27. Five of these countries – China, Iran, Russia, Syria, and Venezuela – account for 75 percent of the wrongful detention cases. 

In 2015, facing political pressure from detainees’ families, President Barack Obama signed an executive order that created the Office of the Special Presidential Envoy for Hostage Affairs within the U.S. Department of State; established an interagency Hostage Recovery Fusion Cell within the FBI; and directed more cooperation across the U.S. government.

Obama also broadened the definition of a wrongfully detained person: not only would that include U.S. citizens and permanent legal residents but also non-U.S. citizens, when the United States has a national interest in that detention. 

Both Presidents Donald Trump and Joe Biden have continued to build on Obama’s policies. In June 2020, Trump signed the Robert Levinson Hostage Recovery and Hostage-Taking Accountability Act, which codified key elements of the Obama-era policies and empowered the Secretary of State to make wrongful-detention determinations. The law was named in honor of former FBI agent Bob Levinson, who disappeared in 2007 while on a visit to Kish Island in Iran, apparently as a CIA contractor, and is believed to have died after 13 years of wrongful detention in the country.  

In July 2022, Biden declared a national emergency to bolster efforts to bring hostages and detainees home, and attempt to prevent such abductions in the first place. The Biden administration has facilitated the release of 27 previously detained U.S. persons in the last two years. In some cases, the president agreed to prisoner exchanges and other undisclosed concessions. For example, in order to secure the freedom of Women’s National Basketball Association star Britney Griner last year, Biden agreed to release Viktor Bout, a notorious arms dealer, from a U.S. prison and hand him over to Russia, which promptly freed Bout.

Some Progress, But Not Enough

Detainees’ families and NGOs have acknowledged that the U.S. legal and policy framework for addressing wrongful detention has had a positive effect, especially to improve information dissemination, family engagement, and intragovernmental collaboration. 

But the government’s initiatives have not deterred detentions. 

In August 2020, two months after the passage of the Robert Levinson Act, U.S permanent resident and Presidential Medal of Freedom recipient Paul Rusesabagina was abducted in Dubai and flown to Rwanda, where he was wrongfully detained for 939 days. Gershkovich’s recent arrest happened contemporaneously with Rusesabagina’s release following years-long high-level negotiations between U.S. and Rwandan officials. In essence, even as one detainee was being released in Rwanda, another was detained in Russia.    

The 2022 Bring Americans Home Report, produced for the fourth year by a foundation named for American journalist James Foley, who was abducted and killed by ISIS in Syria, recommended a review of the U.S. government’s wrongful detention response architecture in order to guarantee the return of more detainees. The report urged the government to enhance the capacity, funding, and overall support for the Office of the Presidential Envoy and the FBI’s Hostage Recovery Fusion Cell, as well as other structural and procedural improvements. 

The James W. Foley Legacy Foundation also fiscally sponsors the Bring Our Families Home campaign, led by family members of five detained U.S. citizens in Venezuela, Iran, and China. The campaign has called on Biden to directly engage with all detainee families, as he has done in the cases of Griner and Paul Whelan, a former U.S. Marine wrongfully detained in Russia since December 2018. The campaign argues that, without the direct intervention of the president, little progress will be made in getting their loved ones home. The Biden administration has defended the President’s failure to meet all detainee families, stating that families of most of the released detainees never met with the president.

Preventing Detentions in the First Place

Coupled with these recommendations for structural adjustments, a proactive approach is critical for addressing the wrongful detention problem in a holistic manner. The present U.S. approach is overly reactive, because of its narrow focus on bringing home wrongfully detained Americans, without attention to, as both the Obama and Biden executive orders and the Levinson Act require, actions that could “reduce the likelihood of U.S. nationals being taken hostage abroad.”

Simultaneously implementing the prevention and recovery components of U.S. law and policy on wrongful detention with similar vigor would provide a framework for the United States to resolve existing cases while preventing future occurrences. This includes implementing Sections 4 and 5 of Biden’s executive order which provide for the public identification and designation of officials of foreign governments who are involved directly or indirectly in wrongful detention, and the seizure of their assets. Moreover, the inclusion of the threat of wrongful detention as a primary risk indicator on the U.S State Department’s travel advisories for all countries where Americans have been held could serve as both a punitive measure and a deterrent. 

In addition, U.S. foreign policy can be used to address wrongful detentions in domestic contexts, including in relation to U.S. allies and partners. Biden could, for example, condition security-sector assistance and other foreign aid on the degree to which a government respects the rule of law and observes international standards for fair trials and deprivation of liberty of their citizens. Adopting a strong and vocal U.S. stance against wrongful detention of allies’ and partners’ own citizens – perhaps with special attention to cases of human rights defenders, dissidents, and other domestic critics – might also reduce the likelihood that those countries would wrongfully detain U.S. persons, whether on their own initiative or at the behest of unfriendly nations such as Russia and Iran.    

What’s more, putting human rights at the forefront of any policy framework would be a proactive step. Under the U.S. Constitution, the government has the responsibility to protect and promote individual liberty, and those same obligations are reflected in international human rights treaties that the United States has signed. Therefore, the U.S. government should consider the implementation of its policy on wrongful detention as part of its responsibility under domestic and international human rights law. Besides, liberally interpreting the national interest clauses of U.S. policy on wrongful detention of non-U.S. persons enables the government to address harmful foreign State practices that may pose a threat to U.S. persons in the future. 

The Biden executive order requires the government to impose costs on those who participate, support, or facilitate wrongful detention, and to do so in coordination with like-minded governments and organizations. The United States could use multilateral institutions, such as the G7 and the United Nations, to galvanize support against wrongful detention, including through joint sanctions regimes against bad actors. Expanding the scope of the U.S. Magnitsky regimes to cover perpetrators of wrongful detention and encouraging the European Union to do the same, increases the scale of deterrence against further proliferation of the conduct globally. The United States also should support the mandate of the U.N. Working Group on Arbitrary Detention and regional human rights mechanisms in Africa, Europe, and the Americas, which can be useful for keeping track of developments that suggest an emerging threat of wrongful detention in those regions. 

Finally, the United States must fix its domestic arbitrary detention issues. The U.S. government’s use of rendition and torture, particularly against suspected terrorists, drew global criticism. More recently, its immigration-detention policies, such as the disproportionate, unreasonable, and unnecessary mass detention of immigrants,  in  violation of international standards that require a case-by-case assessment, has also attracted international censure. These failures at home have greatly undermined U.S. moral authority to effectively advocate against the use of arbitrary detention abroad. This contradiction must be addressed as part and parcel of an effective foreign policy.  

The practice of wrongful detention anywhere is a threat to U.S. persons everywhere. That’s why it should be a top priority in U.S. domestic and foreign policy.

IMAGE: US journalist Evan Gershkovich, arrested on espionage charges, stands inside a defendants’ cage before a hearing to consider an appeal on his arrest at the Moscow City Court in Moscow on April 18, 2023. (Photo by NATALIA KOLESNIKOVA/AFP via Getty Images)

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Hybrid regimes, also known as “electoral autocracies,” are governments that endeavor to be seen as democracies but lack the fundamentals to warrant such a label. They hold elections but the playing field is rarely level, as ruling parties utilize a diversified portfolio of election manipulation tactics to secure power, including corrupted voter registration systems, intentional logistical delays, targeted violence, strategic results tampering, and compromised electoral management bodies.

Hybrid regimes pose a thorny policy challenge to the United States. In 2022, almost one-half of countries globally (72 in total) met the definition of “hybrid” or “electoral autocracy” and were present in every geographic region. Examples include Angola, the Democratic Republic of Congo (DRC), Nigeria, Mexico, El Salvador, Egypt, Turkey, Iraq, Pakistan, Bangladesh, and the Philippines.

Unfortunately, since these governments hold elections and display other trappings of democracy, some policymakers give them a pass on their democratic track record -– especially if the country is relevant to other American interests.

This is short-sighted and counterproductive, even –- and especially — for U.S. national security. Consider the case of Egypt: despite receiving billions in U.S. security assistance, the Egyptian government has been offering to sell arms to Russia to aid the Kremlin’s illegal war in Ukraine, in direct conflict with American policies. It is also exceedingly difficult, if not dangerous, for U.S. companies to invest in or access the markets of hybrid regimes. The opaque and compromised nature of institutions common to these States often results in unclear or biased regulation. For example, while Nigeria has the fastest-growing population in Africa and a market ripe for U.S. exports, corruption and biased regulation make it difficult for U.S. companies to operate there.

Failing to address the democratic deficiencies of hybrid regimes sets up the United States for long-term strategic failure and hinders American economic prosperity. To avoid these outcomes, the United States must carve out a new path forward that preserves near-term U.S. interests while also pressing these States to make democratic progress. After all, there is hope for hybrid regimes. As a recent study notes, “In the face of the global wave of autocratization, data shows that no less than eight countries are bouncing back and making U-turns … Cases like these raise some hope for a future reversal of the last 20 years’ downward trend towards autocratization.”

Thwarting US Interests

Hybrid regimes are less likely to uphold the interests of the United States and its democratic allies on the world stage. Of the 72 hybrid regimes, only 20 voted to remove Russia from the U.N. Human Rights Council in April 2022 over the full-scale invasion of Ukraine. Of the countries who joined with the United States in a U.N. General Assembly committee to condemn China’s human rights abuses in Xinjiang in October 2022, only four were hybrid regimes.

Hybrid regimes also are more prone to internal conflict and instability because they often lack legitimacy among politically marginalized groups (and sometimes large swaths of the population). They are ill-equipped to effectively handle security challenges –- often resorting to heavy-handed tactics that inflame violence –- and have weak institutions that are unable to challenge abuses of executive power.

The susceptibility of hybrid regimes to political violence and instability is perhaps most acute in sub-Saharan Africa. According to an analysis of 2022 data, hybrid regimes experienced almost three times as many conflict incidents and five times as many conflict fatalities compared to stronger democracies. Analysis of data for the past decade shows that hybrid regimes in sub-Saharan Africa are seven times as likely to experience a coup or attempted coup compared to democracies.

The Flawed Approach to Hybrid Regimes

As the United States increasingly engages in strategic competition with China and its authoritarian model, it must remember that it is free people and democratic societies who are its most valuable allies on the global stage. Premature acceptance of sub-standard elections and willful ignorance of democratic backsliding may provide short-term bilateral gains, but in the long term serves to further separate the people in these countries from the United States, eroding affinity between our peoples, and increasing risks of conflict and instability that weaken current and future allies.

It’s important to note the distinctions between hybrid regimes and authoritarian regimes, which do not hold plausibly competitive elections (if they hold elections at all) for the chief executive and the legislature and where institutions have little-to-no ability to check the power of the executive. This distinction enables the international community to minimize the democratic failures of hybrid regimes.

An example is the tendency to judge elections in hybrid regimes as “good enough” unless the fraud and violence are egregiously obvious. In February, the U.S. State Department rushed to congratulate the declared winner of Nigeria’s 2023 presidential election, even though the election was widely criticized by observers for targeted violence, lack of transparency, significant voter disenfranchisement, and outright vote manipulation in some states.

The United States has applied this low bar in other recent elections. Angola’s August 2022 presidential election saw the half-century rule of the MPLA party extended by another five years, in an election where the ruling party controlled the media and courts, imposed worrying changes to the vote-tabulation process, and heavily obstructed efforts to observe the election. Despite these red flags, the U.S. Embassy quickly congratulated the declared winner and commended “the millions of Angolan voters who cast their ballots in this election, and in doing so demonstrated their commitment to strengthening democracy.” Following Tunisia’s December 2022 parliamentary elections, which some international observers labeled a “sham,” the State Department issued a vanilla statement, noting low turnout and the need for greater political inclusion, but failing to cite any other major issues that impeded the credibility of the process, such as barriers to political party participation and egregious restrictions on the press.

Such omissions have immediate and direct consequences for U.S. security and economic interests. For instance, in Nigeria, the widely disputed election results and the high levels of regional disenfranchisement of voters will likely compound regional and sectarian grievances, fueling increased conflict and destabilization, and diverting even more resources and attention of the United States and like-minded partners to combat instability. And in Angola, the extension of MPLA rule under questionable circumstances could lead to continued democratic backsliding and undermine prospects for economic reform, harming U.S. economic interests, including trade (already in significant decline), and could make the country more vulnerable to the malign influence of Russia and China.

Sadly, hybrid regimes most often result from democratic backsliding, rather than autocracies moving toward democratic reform. Of today’s 72 hybrid regimes, 20 were considered stronger democracies 20 years ago, while eight were considered closed autocracies.

Democratic backsliding is usually a gradual process. The international community’s muted response to closing space in hybrid regimes tends to facilitate continued backsliding. Over the past five years, there has been a worrying global increase in the number of authoritarian regimes.  This suggests that early action to address the democratic deficiencies of hybrid regimes is critical to forestalling autocratic consolidation.

Failing to make the distinction between hybrid regimes and democracies, and failure to comprehend trajectories of democratic backsliding, undermines the intent of democratic initiatives like the Biden administration’s Summit for Democracy. At the most recent summit, countries that have been experiencing years of democratic backsliding and refuse to publicize their commitments to democracy (such as Nigeria and Philippines) are given equal standing with countries that are actively and transparently consolidating democracy. Of the 120 countries invited to participate in the 2023 Summit for Democracy, 25 were hybrid regimes. Only about half of these countries publicized their commitments from the summit. And of the stronger democracies invited, almost 40 are countries that experienced notable democratic backsliding over the past five years and are at increasing risk of becoming hybrid regimes this decade.

Democracies are not only more stable than hybrid regimes, but they also enjoy better economic growth, equality, and educational achievement. The failure to adequately differentiate hybrid regimes from stronger democracies fuels the counterproductive perception that “democracy fails to deliver,” when it is in fact the failure to achieve meaningful democracy that prevents so much of the world from enjoying its dividends. 

Walking and Chewing Gum at the Same Time 

The United States and allies must balance their cooperation with hybrid regimes, when it is necessary at all, with a push for those governments to reform and realize broader democratic progress. These aims are not contradictory, but complementary and central to advancing U.S. objectives. Achieving this balance will require prioritizing respect for democratic practices, institutions, and norms when determining how to engage hybrid regimes. Democracy will not always trump other factors, but it should be moved up the rank order of priorities.

There are practical steps the United States and like-minded allies can take -– using diplomacy and foreign assistance -– to advance near-term pressing issues while targeting democratic deficiencies that make hybrid regimes problematic for American interests.

For instance, the United States and G7 allies should make clear they will not welcome with open arms leaders chosen through dubious, sub-standard elections. From Washington to London, leaders should get serious about issuing public sanctions, including asset freezes and visa bans, for malfeasance during elections. On the flip side, the U.S. and allies should make better use of high-level diplomatic engagement, such as leveraging the legitimacy conferred by Cabinet-level visits, to incentivize governments to make changes and adhere to international democratic best practices.

These steps can be impactful while not undercutting cooperation on pressing matters. In Nigeria, for instance, the United States can engage the government to achieve priorities via the U.S. Ambassador and U.S.-Nigeria Binational Commission (BNC), a forum established in 2010 to discuss a range of interests. The Secretary of State need not make plans to visit Abuja to meet newly elected President Bola Tinubu while key court decisions -– and a potential independent audit -– are pending on the results of the recent election.

The United States and G7 allies should pay more rigorous attention to elections in general. Rather than accepting elections as a continuation of the status quo, the West should view electoral processes as critical moments to correct or continue countries’ democratic trajectories, and apply commensurate attention, pressure, and incentives. One step in the right direction would be to more explicitly and publicly link future foreign aid funding used to support elections in such countries to recipient governments agreeing to abide by established electoral standards, including enforcement of election law, equitable access to voting, and transparency in reporting election results and election data. Failure to link foreign assistance to meaningful reforms results not only in sub-par elections and wasted U.S. taxpayer dollars, but also provides diplomatic cover for election malpractice and malfeasance.

Foreign aid has an important role to play in advancing U.S. interests in hybrid regimes by helping cultivate and reinforce democratic practices and norms outside a government in power. The United States is therefore smart to invest in civil society-led advocacy campaigns that hold leaders accountable and in efforts to strengthen political parties that can contest elections and offer an alternative to the status quo.  Yet the United States can do more to couple such capacity building via foreign aid with creating the political will for reform. While building democratic capacity can incentivize and enable the will to reform, capacity should not be viewed as an end in itself; this is a convenient, but short-sighted and counterproductive, approach. Diplomacy and foreign assistance can help enable this political will through a combination of incentives, pressure, and advocacy campaigns, as well as identifying and equipping rising political stars unafraid to push for change.

Looking Forward

As the U.S. and allies navigate relations with hybrid regimes, they should approach evaluating a country’s democratic performance as science and not art. Objective third-party evaluations of democratic performance are widely available but largely ignored in U.S. policymaking. Robust and credible civil society organizations proliferate in many hybrid regimes; yet despite many of these organizations receiving assistance from the United States, their warnings about democratic backsliding are regularly disregarded. The United States should pair support to these organizations with listening to their perspectives -– to the extent they reflect the people’s perceptions and expectations of democracy -– and account for their views in the policymaking process.

U.S. officials must resist the convenient but inaccurate narrative that the hybrid regimes of the world are slowly but surely moving in the right direction. Evidence of backsliding in the past 10 years has shown that is far from certain. A narrative of wishful thinking only results in misleading analysis and poorly targeted foreign assistance and diplomacy, serving to reinforce one-party rule and compound public grievances around the world. Using rigorous metrics can help make progress in this area. 

Major policy initiatives like the Summit for Democracy should require concrete commitments from all participants and demonstrable democratic progress against these commitments. These initiatives should include public accountability for democratic backsliding and for failure to achieve reform objectives. At minimum, governments on prior Summit invite lists who go on to enable backsliding should not be included moving forward.

Ideally, the United States should reward allies that make tangible democratic advances with tangible benefits. For example, the United States should consider re-initiating free-trade agreement discussions with Ecuador if President Guillermo Lasso’s government makes progress on anti-corruption and continues to consolidate democracy. Doing so would reward a key ally in the region and one of the remaining democratic bright spots with tangible changes that benefit the Ecuadorian people and U.S. interests. Similar carrots could be held out for progress in a range of other contexts as well. Participants should also commit to stand with democracy against autocracy on the world stage. Mitigating democratic backsliding and combatting authoritarianism requires the concerted efforts of a global community.  

With major elections coming up in several hybrid regimes this year and next — including Turkey’s planned runoff election on May 28, as well as balloting in DRC, Pakistan, Bangladesh, Algeria, Egypt, Tunisia, Mexico, and El Salvador — the United States must think carefully about how it will assess and react to these elections, and whether perceived short-term bilateral gains will truly be worth the long-term costs.

Going forward, while it is important for the United States to shore up its alliances with the Philippines and other partners to thwart China’s malign influence and kinetic threat, U.S. leaders also must be acutely aware of the democratic backsliding that is occurring in these hybrid regimes and use American leverage to counter it. Without such clear accountability and seriousness in upholding of democratic values, the United States can expect to have “allies” and “partners” that are not only less free and stable, but also distinctly unreliable.

IMAGE: US Vice President Kamala Harris (L) and Zambian President Hakainde Hichilema are seen outside at the State House in Lusaka on March 31, 2023 after a press conference. President Hichilema asked for US help to expedite debt restructuring negotiations with the country’s creditors.  (Photo by SALIM DAWOOD/AFP via Getty Images)

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International human rights are often viewed as the prerogative of the federal government. But that’s not the law, nor the reality. While U.S. states and localities may not enter into binding agreements with other nations or act contrary to federal law or policy according to legal precedent, U.S. states and localities can – and do – engage in a wide range of human rights policy making. Those policies can complement or fill a void in federal action in important ways.

Consider Russia’s war on Ukraine and the ensuing human rights catastrophe. In the immediate aftermath, several U.S. states issued Executive Orders to amplify, and in some cases build upon, federal sanctions targeting the Russian regime for its violations of human rights and international law. Taken together, these orders – issued by California, Colorado, New Jersey, New York, Ohio, Utah, Vermont – terminated or banned contracts with entities doing business in Russia, prohibited purchases of certain Russian goods, required reporting by government contractors of actions they have taken in response to the war, and called for divestment of public pension funds.

The new wave of human rights is local. U.S. state and local leaders can employ swift and wide-ranging tools to advance progress on human rights locally and globally. And more of them should.

Why Human Rights Matter to State and Local Leaders

U.S. state and local governments engage in human rights policy-making that may extend beyond their borders for several reasons.

First, politics. Many U.S. states and localities are home to a significant number of foreign-born and first-generation residents. These constituents often expect their governments to defend their rights both locally and internationally – for instance, by publicly recognizing the Armenian genocide or divesting public funds from apartheid South Africa. Securing the support of these constituents can be important for securing support in state and local elections.

Local action to advance human rights can matter for federal politics too. When subnational governments take a strong stand on a human rights issue, they send a signal to the U.S. federal government about their expectation (or at least hope) that their federal counterparts will act in a similar manner. Localities can be important human rights bellwethers, and the federal government would be wise to follow their lead.

Second, pragmatism. Good governance often requires U.S. states and localities to tackle human rights in some form. Many of the biggest challenges governments currently face – from the climate crisis to securing data privacy – bear directly on human rights in the United States and abroad. Governments often cannot tackle these challenges without considering what actions, and legal paradigms, will best protect the most vulnerable among us.

Furthermore, as the levels of government closest to the people they serve, localities may take stronger, clearer, and swifter stances on human rights issues than the often slower-moving branches of the federal government.

Third, morality. Many constituents in the United States care about human rights. They expect their governments to demonstrate moral leadership – and to use their economic might – to support human rights within and beyond their borders, as the local response to Russian aggression in Ukraine shows.

How U.S. States and Localities Can Advance Human Rights

If human rights matter to U.S. states and localities, how can they effectively advance those rights locally and globally? Several tools are available.

• Legislation: Legislation is one of the most common ways in which subnational governments seek to bolster human rights at the local level. Bills, if enacted, carry the force of law and therefore can serve as a powerful, concrete tool to promote human rights.
  • In 2014, California enacted the first comprehensive human rights accountability bill by a state. The bill defines crimes against humanity and offers survivors of human rights abuses an extended period of time in which to file their claims, expanding the availability of California courts to prosecute human rights crimes committed abroad. The bill passed through the state legislature with overwhelming bipartisan support. California more recently enacted Assembly Bill 1801 (2022), making Armenian Genocide Remembrance Day a statewide holiday – an issue of great import to California’s large Armenian diaspora and their supporters. New York City has embraced an expansive legislative approach to human rights, enacting its own Human Rights Law and creating a Commission dedicated to enforcing it. Although not expressly tied to international human rights law, New York City’s law shares a number of anti-discrimination principles with global human rights treaties like the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD).
  • Legislation can also be used to press for federal action on human rights. Cities for CEDAW, for example, advocates for localities to adopt measures reflecting CEDAW’s gender equity principles to pressure the U.S. Congress to ratify the treaty. The United States is one of only a handful of countries in the world not yet a party to the treaty, and given federal inaction to date, Cities for CEDAW is seeking to build momentum locally. As of June 2019, nine localities had adopted CEDAW ordinances and several dozen had adopted nonbinding resolutions. Similarly, in the early 2000s, several states adopted legislation seeking to divest public moneys in Sudan in response to the genocide in Darfur, prompting Congress to follow suit.
• Executive Orders: Governors and mayors can issue Executive Orders, using their independent executive authority to advance human rights. While executive action may be a less common approach to advancing human rights locally – in part because these actions are limited to those agencies and public employees within their jurisdictions – Executive Orders can embed human rights into the delivery of critical public services and infrastructure.
  • In 2020, Massachusetts issued an Executive Order to promote diversity, inclusion, and equal opportunity in its workforce. Although not presented in human rights terms, the order is premised on core international human rights principles and treaties, such as CERD and CEDAW. California issued a similar Executive Order last year (also establishing the state’s first Racial Equity Commission), as did the City of Los Angeles (see Directives 11 and 27).
• Proclamations/Resolutions: U.S. states and localities can issue formal statements, known as proclamations or resolutions. Although nonbinding, both actions can spotlight and elevate the status of an issue.
  • Two decades ago, Oregon proclaimed December 10 would be Oregon’s Human Rights Day, apologizing at that time for Oregon’s forced sterilization of its institutionalized patients between 1900 and 1920.
• Administrative & Budgetary Actions: Through their budgets and administrative agencies, U.S. states and localities can make investments and take administrative actions that promote human rights principles in concrete ways.
  • California has run a multi-million dollar operation along the state’s border with Mexico to ensure that all migrants who enter California are treated with dignity and care; since 2019, California has provided over 300,000 migrants immediate access to COVID testing, vaccination, and coordination for onward travel to their final destinations in the United States.
• Economic Measures: Finally, U.S. states and localities can use their economic strength to press for human rights reform beyond their borders, as many did by reinforcing federal economic sanctions targeting Russia. Divestment is another way in which U.S. states and localities can press for global human rights reform.
  • In 2007, the Illinois Governor signed a law barring the state from investing money in the Republic of Sudan and divesting any current investments linked to Sudan, joining with actions already taken by the Governors of Florida, California, Colorado, Texas, Kansas, Hawaii, Indiana, Iowa, Minnesota, Rhode Island, Vermont, and New York.

Tips for Promoting Human Rights Locally

To effectively engage in human rights work, U.S. states and localities should:

• Define human rights work broadly. Human rights have come to take on a broad meaning in society – a meaning not limited to the United States’ 20th century definitions of political and civil rights. In many parts of the world, human rights are understood to include the right to food, shelter, and health. Many recent social movements, such as Black Lives Matter, have been rooted in these social and economic human rights paradigms. Using this human rights framework can help governments show the seriousness with which they approach related issues and build upon an important legacy of work elsewhere in the world.
• Engage domestically and globally through a human rights lens. Domestically, U.S. states and localities should design the delivery of public services and build infrastructure to equitably meet the needs of all their residents. Hiring practices also provide a vehicle to protect the rights of vulnerable populations – for instance, to protect against formerly incarcerated individuals being discriminated against when seeking employment. When considering foreign partnerships and other opportunities, U.S. state and local leaders should take into account the human rights record of their counterparts. Doing so can help avoid reputational and political repercussions at home.
• Hire people with human rights and foreign affairs backgrounds. Bringing in people with the knowledge, experience, and background to advance human rights work will expand opportunities for synergistic work and partnerships. Consider the impact of LA City’s first Deputy Mayor of International Affairs Nina Hachigian, now the first U.S. Special Representative for City and State Diplomacy, who helped spearhead a global partnership of (now over) 400 mayors committed to addressing the climate crisis, among many other initiatives. Without the human rights know-how within government, it is much harder to know when and how to do the work.
• Build and engage in networks. Networks of like-minded U.S. states and localities can serve as a critical resource for sharing ideas and supporting each other’s work as a collective. C40 Cities is a great example of city mayors coming together to tackle the climate crisis even as the U.S. federal government announced its intention to withdraw from the Paris Accord. U.S. states have similar networks, such as the U.S. Climate Alliance and the newly formed Reproductive Freedom Alliance, but they could benefit from more.
• Engage in nonbinding commitments and partnerships (but avoid binding agreements with other countries). Under the Compact Clause of the U.S. Constitution, U.S. states and localities cannot enter into formal agreements with a foreign government without Congress’ consent. Nonbinding commitments or partnerships are lawful, however – and often just as effective. For example, the Cities Road to Zero campaign at COP27 resulted in many hundreds of cities around the world committing to net zero carbon emissions by mid-century, collectively equivalent to the world’s fifth largest emitter. Though not legally binding, the effort has proven to be effective at mobilizing local, federal, and international support for meeting climate crisis goals.
• Act in accordance with federal human rights law and policy. Human rights actions taken by U.S. states and localities must be consistent with federal foreign policy. Often the federal government sets a floor for foreign affairs actions, not a ceiling, allowing for significant state and local action on foreign affairs matters, including human rights.

Conclusion

Nation states may still be the default actor for engaging in global human rights in the international system. But U.S. states and localities have significant tools – and many good reasons – to lead the way in advancing human rights in the United States and beyond.

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Spyware use risks serious violations of international human rights law. It allows repressive regimes to identify dissent and then use geolocation and real-time tracking for failsafe targeting in real life. The Special Rapporteur on extrajudicial, summary, and arbitrary executions has implicated spyware in intelligence-gathering on Jamal Khashoggi prior to his murder in 2018. Forensic analysis by The Citizen Lab at the University of Toronto has evidenced spyware present on the devices of multiple human rights activists and journalists subject to torture, unlawful arrest, and physical violence worldwide. And spyware imposes a chilling effect on civic exchange and political engagement, undermining the rights to privacy, free expression, association, and assembly.

Spyware goes further than previous forms of surveillance – like bulk communications monitoring – because it allows for manipulation of communications and records to incriminate and blackmail targets. This has potentially catastrophic impacts for fair trial and due process rights, casting doubt on evidence used against individuals and the integrity of criminal investigation.

The Lack of Inadequate Spyware Regulation

As the Special Rapporteur’s Report documents, until now there has been no systematic approach to supervise and regulate the spyware industry and the proliferation of spyware internationally to prevent human rights harms. Victims of targeting (if they ever discover it) might be lucky enough to live in a State in which State agencies can be challenged in court for alleged human rights violations (a rarity internationally). But even then, the case would suffer from the evidential and practical difficulties of holding a spy agency to account when the evidence of wrongful conduct is hidden or opaque because the spyware deletes its traces.

Some spyware makers have signed onto the UN Guiding Principles on Business and Human Rights or the similar OECD Guidelines, both sets of corporate responsibility guidelines relating to matters including human rights, employment and industrial relations, environment, anti-corruption, consumer protection, and taxation. The Guiding Principles and OECD Guidelines urge companies to respect internationally-recognised human rights and to try to prevent adverse human rights impacts linked to their operations or products.  However, manufacturers of spyware cannot be held to account for failing to uphold these “soft law” commitments because of the lack of a binding enforcement mechanism (complaints under the OECD system against UK and German spyware manufacturers were effectively ignored).

While some jurisdictions have enacted human rights “due diligence” legislation (such as California, the UK, Australia, and France), its adoption is far from universal. In any event, such legislation generally stops at reporting and transparency of supply chains, rather than requiring active steps on the part of business to mitigate risks posed by their clients. Attempts to rely on private law harm-based doctrines (tort or delict) against manufacturers face issues of State immunity (where users are foreign State agencies), jurisdiction (where supply and use cross borders), and the poor analogy of human rights impacts with paradigmatic physical harms actionable in civil suit.

Finally, while spyware surveillance technology is formally subject to the export control regimes originally designed for conventional arms, such as the Wassenaar Arrangement and the EU Recast Dual-Use Regulation, that system suffers from limited international coverage and the often vague nature of export obligations, typically requiring exporting States only to “take into account” or “consider” human rights risks.

In light of the clear human rights risks, and the challenges for oversight, the UN High Commissioner for Human Rights has called for a moratorium on the trade in surveillance technology to “allow States to work on an export and control regime, as well as to boost legal frameworks securing privacy,” a call echoed by multiple UN Special Procedures mandate holders. In April 2022, the Republic of Costa Rica became the first State to demand a moratorium. This was followed in March this year by a joint position adopted by Australia, Canada, Costa Rica, Denmark, France, New Zealand, Norway, Sweden, Switzerland, the UK, and the United States recognizing the “need for strict domestic and international controls on the proliferation and use” of commercial spyware.

A Regulatory Approach for Sypware

We welcome the growing international momentum towards regulation of the international spyware trade which is fit for purpose and. As the now released position paper by the Special Rapporteur’s mandate sets out, there is novel approachbeing set out that should inform the next steps in the field. In suggesting a mechanism for an international legal response to the concerns raised by spyware, the position paper does not concede that all forms of spyware are capable of lawful use. Far from it. Certain spyware tools may never be capable of lawful application because, by their nature, their use violates principles of proportionality/necessity or undermines the integrity of evidence and due process. To avoid these problems, at a minimum, spyware must be engineered to: (a) focus on certain data, rather than automatically accessing targets’ and contacts full data, in violation of principles of proportionality and necessity; (b) flag cases of apparent misuse and build in kill switches so manufacturers can prevent it; and (c) maintain an uneditable record of actions taken by the user, so that human rights compliance can be properly assessed by judicial authorities.

As for a regulatory framework, our position does not take a hard and fast approach on the structure, but we offer a couple of ways to take forward our regulatory proposal.  We make the case that the focus is less about the title of the regulatory framework but rather its agreed features that are the imperative to implement.  So, the regulatory framework should: (a) be international in nature (either by way of treaty or by way of relatively consistent adoption by a large number of States); (b) depend on State obligations as a means of regulating corporate behaviour; (c) be limited to the spyware field; (d) entail compulsory and concrete action on the part of States; (e) impose actual liabilities upon private entities developing spyware to undertake due diligence showing there is no real risk of spyware being used by clients to breach human rights; and (f) provide a direct form of accountability, vindicable in domestic court, whenever the company fails to do so and the spyware has infected a target.

We are under no illusion that repressive regimes will embrace this framework – the objective is instead to ensure that many of the democratic States which spyware manufacturers choose as their bases (because of their favourable commercial and stable environment) will do so, and will require it of their trading partners. If the majority of companies’ home jurisdictions and clients have signed up to a responsible regulatory regime, spyware manufacturers facing the choice between operating exclusively outside that regime or trading with its adherents are likely to choose the latter.

We urgently need a system where the developers of spyware tools are forced either to require their State customers to provide credible guarantees on future human rights compliance, or to cease supply. This will force State customers to put in place protections so that their spy and investigative agencies can provide the assurances sellers require to maintain access to the technology. The spyware trade has occurred for too long in the long shadows cast by an inadequate legal framework. The victims of the abuse of spyware oblige us to shine a light.

IMAGE: A photographic illustration shows a mobile phone near the NSO Group company logo on Feb. 9, 2022, in the Israeli city of Netanya. (Photo by Jack Guez / AFP via Getty Images)

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The fires scorched more than 13,000 acres of the Indio-Maíz Biosphere Reserve, a tropical preserve in the southeast and home to several Indigenous communities and endangered wildlife. Ortega and Vice President Rosario Murillo, his wife, responded with total negligence to the point of refusing foreign aid offered by Costa Rica. Small groups of university students took to the streets in protest. To change the conversation, Ortega decreed new reforms to pension plans that would have significantly cut retirees’ pensions. That only stoked the flames of anger. The mobilizations and calls for change got larger. Within days, hundreds of thousands of students, pensioners, farmers, feminists, and businesspeople were marching in the streets of the capital city, flying blue and white national flags, and demanding a more democratic future.

But in the five years since, political, economic, and social conditions have only gotten worse. Nicaragua has become a true dictatorship with no discernible vision beyond keeping the Ortegas and their cronies in power. The United States is one of the only actors positioned to support Nicaragua’s path back to democracy, but to be successful, it must be far more strategic and stay the course over the long term.

So how did things go so wrong in Nicaragua?

In the late 1970s, a left-wing revolutionary guerrilla group emerged in Nicaragua – the Sandinistas – and successfully overthrew the 40-year Somoza family dynastic dictatorship. The Sandinista movement ushered in a new social policy in education, healthcare and land reform intended to benefit the broader Nicaraguan populace. Among the leading luminaries was a charismatic young leader named Daniel Ortega, who would become president in 1985 (he lost his re-election bid in 1990).

The Sandinista revolution was short-lived. Those unhappy with the Sandinista reforms created a rebel movement, the Contras, made up of Somoza sympathizers and reactive counterrevolutionaries. With Ronald Regan’s election in 1980, Nicaragua quickly became a Cold War proxy battleground between Washington, Russia, and Cuba as they vied for influence and power. The Reagan administration prioritized funding the Contras (albeit illegally – the Iran Contra Affair) in a bloody civil war against the Sandinista government that took the lives of an estimated 50,000 Nicaraguans.

Fast forward through a few center-right governments in the 1990s and the natural disasters, political corruption, and repressive monetary policy that marked the early 2000s, and we find a people disillusioned once more. And so, when Ortega, the former revolutionary turned president, runs for office again in 2006, he wins.

This time, however, the socially minded young leader had morphed into something unrecognizable. From 2007 to 2018, Ortega and Murillo used corruption, cronyism, populism, and propaganda to create an authoritarian government without institutional counterweights. They implemented a social policy of partisan patronage and cronyism that utterly failed to reduce the nation’s profound social and economic inequities. And Ortega has been doubling down on repression and violence to keep his tenuous grip on power.

Crimes Against Humanity, a Sham Election, and a Mass Exodus

The regime responded to the peaceful protests in April 2018 with a lethal campaign that left 355 people dead, thousands injured, and hundreds kidnapped and imprisoned without due process. The Group of Human Rights Experts on Nicaragua, established by the United Nations, recently concluded that since those uprisings, the Nicaraguan government has committed and continues to commit crimes against humanity with total impunity.

On top of the ongoing violence against his own people, Ortega has taken no chances with any form of dissent or opposition to his rule at the electoral level either. Ahead of the 2021 presidential elections, Ortega and Murillo imprisoned 40 political opponents, including seven presidential candidates. Political prisoners were tortured, starved, and completely cut off from the outside world. The election itself was a sham and in no way free and fair, but nonetheless placed Ortega back in power for another five years.

The political landscape has deteriorated to the point that Ortega’s governance has destabilized the country and the region. Hundreds of activists, human rights defenders, and journalists have fled into exile in neighboring countries to escape the surveillance and repression of the government. More than 10 percent of Nicaragua’s population of 6 million have also fled the country, many making their way on a perilous journey to the U.S. southern border in search of a safer life (in the first six months of 2022, the number of Nicaraguans taken into custody by U.S. Customs and Border Protection rose 158 percent compared with the same period in 2021).

Whether for good or ill, the United States has long maintained an outsized influence and role in Nicaragua, and the U.S. government under both presidents Donald Trump and Joe Biden recognized the need to act against its descent into authoritarianism. Both administrations, to their credit, have taken significant actions against Ortega, albeit for wildly different political reasons. Trump issued sanctions against top political figures, including Murillo, issued Executive Order 13851 in November 2018 declaring Nicaragua a national emergency threat to the United States, and ensured that the United States played a key leadership role in the Organization of American States Working Group on Nicaragua, which was tasked with finding a peaceful and sustainable solution to the ongoing crisis. In December of the same year, Congress passed the Nicaraguan Human Rights and Anticorruption (NICA) Act, imposing restrictions and sanctions on institutions and individuals responsible for the Nicaraguan government’s violence and infringement of the civil rights of protestors.

When Biden took office, his administration continued to take a hard line on Ortega’s actions, issuing more sanctions, and amending the Trump executive order to sanction various sectors of the economy and impose visa restrictions on more than 500 Nicaraguan individuals and their family members connected to the regime. Congress also passed the RENACER Act in November 2021, which holds Ortega’s government accountable for electoral fraud and ongoing human rights violations. What’s more, other countries and blocs – including the United Kingdom, Canada, and the European Union – have followed the U.S. lead on actions against the Ortega government.

These have been important steps to try to keep Ortega’s government accountable, and analysts say that U.S. policy actions have shown some signs of impact, albeit limited due to lack of consistency and proportionality to behaviors of the regime. For example, sanctions appear to have been a contributing factor when in March, the regime released 222 political prisoners and placed them on a plane to the United States. (In a cruel twist, Ortega stripped them of their citizenship mid-flight; though free, they lost their nationality, property, and access to bank accounts in Nicaragua.) Another 66 people remain unjustly imprisoned.

Potential Diplomatic Tools and Long-Term Strategies

On the whole, however, U.S. policy towards Nicaragua under the last several administrations has been largely ad hoc, appears to lack a clear roadmap towards the end goal of a restoration of democracy and regional security, and fails to consistently coordinate with other countries. As Biden seeks to pursue democracy and the fight against authoritarianism as a key tenet of his foreign policy, the United States must use diplomatic tools and employ long-term strategies to arrest Nicaragua’s descent into autocracy.

One potential roadmap that could offer a path to democracy and security is through U.S. leadership in organizing an internationally coordinated and consistent squeeze on Ortega’s pillars of economic, financial, and diplomatic lifelines. This type of international pressure could help to dry up the support systems that both keep the Ortega regime afloat and undergird its ability to perpetrate violence and repression against the Nicaraguan people. Such an approach would include efforts designed to drain off access to international funding, entice defections and generate the real threat of individual criminal responsibility for the crimes committed to date.

Such a path would require the U.S. government to create – and act on — a policy that is commensurate with its designation of Nicaragua as a threat to national security, particularly as the regime strengthens its ties to China and Russia. This means working to develop a coordinated policy towards Nicaragua with other governments in the region and beyond (including allies such as the European Union, the United Kingdom and Canada). Such a policy should include five key elements:

1. The United States should appoint a special envoy tasked with developing a comprehensive strategy to support the restoration of democracy and security over the medium- to long term. The envoy should also coordinate among U.S. government bodies, international allies, and Nicaraguan civil society to find a democratic solution to the crisis. Designating a special envoy will send a clear signal that Nicaragua is a priority for the Biden administration.

2. Any comprehensive strategy also needs to include a more strategic, coordinated, and consistent use of targeted individual sanctions and sector-specific sanctions of businesses tied to the Ortega government. Though Presidents Trump and Biden have already issued high-level sanctions, the U.S. government needs a larger strategic plan on how to more effectively achieve the aims of the NICA ACT, which requires the Executive Branch to “impose restrictions and sanctions on institutions and individuals responsible for the Nicaraguan government’s violence and infringement on civil rights.” This should include the Nicaraguan Armed Forces and the multitude of businesses that the army owns in the country. Sanctions could impact not just the army’s leadership but also rank-and-file members. If, for instance, they impacted the army’s pension funds, that could in turn lead to defections and the weakening of Ortega’s grip on power.

And in terms of sectoral sanctions, Biden’s amendment of Trump’s executive order specifically targets the gold sector, noting that the Ortega-Murillo regime has used it to fund its authoritarian and destabilizing activities. This amended executive order also gives the U.S. Treasury Department the authority to target other sectors of the Nicaraguan economy. Investigative reporting has mapped out how the regime created a network of businesses and figureheads for personal enrichment and money laundering (energy, media outlets, and real estate are clear standouts), and it details how these businesses benefit from such arrangements (such as receiving state-funded contracts). Targeting these businesses and additional economic sectors would effectively hamper the interests that keep the Ortega-Murillo family and their cronies afloat.

3. The Biden administration must strategically utilize all the economic tools at its disposal. The United States should reassess its free-trade agreements with Nicaragua (such as CAFTA-DR), rethink its role in international financial institutions that provide loans to Nicaragua, and reconsider its contributions to regional banks, such as the Central American Bank for Economic Integration. Also, a range of possible policy actions are well within the administration’s power and authority , including forcing Nicaragua to comply with human rights and labor rights guarantees as a condition of any U.S. funding or trade.

4. The U.S. government should capitalize on its role in multilateral political spaces, such as the United Nations and the Organization of American States (OAS), to address past and ongoing human rights violations and international crimes. The United States must explore all options within multilateral bodies to provide redress for human rights violations and should work with other countries to initiate national-level investigations and potential prosecutions in a third country under the auspices of universal jurisdiction for international crimes , given domestic prosecutions in Nicaragua seem impossible under the Ortega government.

5. Together with regional and international allies, the United States needs to develop a collective and sustainable plan to meaningfully support Nicaraguans fleeing the Ortega regime, including the 222 former political prisoners. Such a plan should include expedited asylum and services – and the United States should lead by example. The Biden administration should certainly be applauded for its role in helping to secure the release of the 222. However, by granting this group entry to the United States via humanitarian parole, they have no access to state and federal benefits. With their citizenship having been stripped, many also had their properties, bank accounts, and pensions in Nicaragua taken away and have no real income to support their basic needs. Most are still waiting for work permits, and without Medicaid they are forced to pay out of pocket to meet the physical- and mental-health challenges they now suffer after 20 months of torture in prison.

Taken together, these actions will send a powerful message that Nicaragua has become a pariah that is undermining international security. Such measures will limit opportunities for the Ortega regime to use international funding to prop up the state machinery that is oppressing the Nicaraguan people, and provide initial avenues for accountability for government crimes.  And finally, these recommendations will provide much-needed support for those fleeing authoritarianism in search of a safer life while creating the conditions for their eventual return.

IMAGE: Antigovernment protesters hold a Nicaraguan flag over their heads against the sky and yell slogans in front of a riot police line during the 71st International Celebration of Human Rights in Managua on December 10, 2019.  (Photo by INTI OCON/AFP via Getty Images)

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