As has become tradition, we’ll end the year with Just Security’s most-read articles of 2023, which typically include important analysis of some of the year’s most headline-grabbing issues. Our Top 22 in 2022 covered congressional hearings on the January 6th attack on the Capitol, litigation on rule of law issues in the United States, Russia’s invasion of Ukraine, U.S. military operations in Ukraine and Syria, and more.
With so much news coming at readers from so many directions, we also thought to take advantage of the reflectiveness occasioned by an end-of-year wrap-up. We’re reviving a concept originated by our former Editorial Director Kate Brannen, who asked: What stories or topics merited more attention in the past year, with a particular eye toward what might inform law and policy conversations in the year ahead?
Drawing on our own views, insights from authors, and recent conversations with others in the Just Security community, here are nine themes from 2023 that merited deeper attention – and that will almost certainly continue developing in the year ahead.
BRICS Beyond BRICS
Amid recent talk of shifting global alliances, there was comparatively little coverage of the proposed expansion of the BRICS alliance, currently made up of Brazil, Russia, India, China, and South Africa. The group recently extended invitations to Argentina, Egypt, Ethiopia, Iran, Saudi Arabia, and the United Arab Emirates. If all new invitees agree to join, as they’re expected to do in early 2024, the number of member States will more than double.
A bigger BRICS could position itself as a power player alongside, and potentially in competition with, existing multilateral and regional bodies – although it would still face the same consensus-building challenges of any such organization. Margaret Myers noted that the bloc’s August 2023 summit “was mostly effective in highlighting the considerable divergence in views held by the current five BRICS members.”
Even with the Israel-Hamas and Russia-Ukraine wars dominating headlines, the extent of civilian suffering there and in other warzones around the world – including Ethiopia; Nagorno-Karabakh; Sudan, with its own entry below; and Yemen, currently in a moment of precarious peace – bears inclusion on this list. It’s not a novel observation that international law presents an enforcement problem, but as evidence of international humanitarian law violations mounts and the international system struggles to respond, questions about the future of civilian protection, including atrocity prevention, merit heightened attention. So too do specific dimensions of the ongoing wars, such as the impact of artificial intelligence (AI) use on civilian casualties. There’s also the question of aggression “contagion”: will a limited international response embolden other States to undertake their own campaigns of conquest or ethnic cleansing, and how might that shape the future of international relations?
Data in the Intelligence Community
The proliferation of devices that now collect our data has regulators and other oversight bodies struggling to keep up, and civil rights advocates concerned – and that’s doubly true when it comes to data use in the complex intelligence and security policy landscape. A partially declassified report from the U.S. Office of the Director of National Intelligence recently revealed a high degree of uncertainty, even internally, about policies governing use of commercially available information – data that can be bought and sold on the private market – by intelligence and law enforcement agencies.
Other data-meets-intelligence issues to watch in 2024 include how governments regulate Pegasus-style spyware, particularly in the EU following the PEGA Report. And while it’s hard to call AI an “undercovered” topic in 2023, some of the ways in which it intersects with security policy – from borders in Europe to social media monitoring in the United States – merit more attention for the questions they raise about how the AI age will shape national security policy and rights.
Democratic Backsliding—But Glimmers of Hope
“Democratic backsliding” has been a recent watchword, describing a global slide toward democracies that are less robust, elections that are less competitive, and civil space that is less free. But with so many national systems to track, specific elections – including in countries considered bellwethers for democratic backsliding – sometimes fly under the radar in the global press. Democracy watchers expressed concern about election outcomes in Turkey and Zimbabwe, among others, while in Guatemala, the surprise victory of a progressive, anti-corruption campaigner was initially cause for celebration – until it was followed by a backlash, still ongoing, that observers fear may interfere with the president-elect’s ability to take office.
But not all the news was bad for democracy: in Poland, a pro-rule of law coalition government was elected, overcoming structural barriers created by the far-right party that had been consolidating power since 2015. Now comes the work of “get[ting] the country back on track with a restoration of the rule of law, particularly judicial independence,” Jasmine Cameron, Judge Dariusz Mazur, and Anna Wójcik recently wrote, which “will be neither easy nor quick.” Overall, the forecast remains mixed. The World Justice Program’s annual rule of law index found that the spread of authoritarianism had slowed in 2023, although it also noted rising stress on many countries’ judicial systems and rule of law challenges, including in the United States.
FISA Section 702
Section 702 of the Foreign Intelligence Surveillance Act (FISA), which authorizes U.S. government surveillance of certain non-U.S. persons abroad, was set to expire in 2023 unless reauthorized by Congress. Ultimately, however, Congress extended the sunset provision for an additional four months, with the debate about reauthorization and reform — a range of voices from which were featured on our pages — now slated to continue in 2024. Supporters, including the Biden administration, maintain that Section 702 advances vital national security aims and should be reauthorized as-is, while opponents argue that the overwhelming privacy and civil liberty concerns mean it must be substantially reformed if it is to survive.
Chief among the debates to follow in 2024: whether to reform Section 702 to require a warrant for conducting U.S. person queries to retrieve previously-collected information, which was among the proposals put forth in the Government Surveillance Reform Act brought to the floor by Sen. Ron Wyden (D-OR) and co-sponsors in December.
More than 21 years on, U.S. detention at Guántanamo Bay continues. Earlier this year, longtime detainee Majid Khan was released, but 30 other detainees, including at least 16 cleared for release, remain in custody; many suffer from health problems, including from the effects of torture. Efforts to secure plea deals in the remaining cases – which many 9/11 victims’ families advocate for as the best remaining path to justice – hit a roadblock in September, when the Biden administration rejected proposed deal terms, although negotiations remain ongoing.
Meanwhile, a landmark U.N. special rapporteur visit to Guántanamo found that the combination of previous treatment and ongoing conditions amounted to cruel, inhuman, and degrading treatment, and “may also meet the legal threshold for torture.” Chair of the Senate Judiciary Committee Sen. Dick Durbin (D-IL), writing in Just Security in July, called on the Biden administration to take action in response to the special rapporteur’s report: “Rather than perpetuating the injustices that the Biden administration inherited, the administration should address the ongoing violations found by the special rapporteur and redouble its efforts to end this dark chapter of American history. This will entail transferring the men who have been cleared for release from Guantanamo and securing guilty pleas for those who have been charged with a crime.”
International Court Cases
While global conflicts grab headlines in their moment, post-conflict accountability efforts in courtrooms – many of which bear fruit only years later – often fall off the front pages. Some less-covered developments that we were watching toward the end of 2023: a case against Syria at the International Court of Justice (ICJ) and a separate case against a Syrian regime official in the Netherlands’ domestic courts, both of which explore innovative procedural pathways for international human rights litigation (erga omnes obligations at the ICJ and universal jurisdiction in the Netherlands); the use of administration of justice, or contempt, cases in the Kosovo Specialist Chambers; and, most recently, Ireland’s initiation of an inter-State case against the United Kingdom under the European Convention on Human Rights in response to UK legislation limiting investigations related to the conflict in Northern Ireland.
Several recent developments in outer space – including increasing commercial activity and the use of space-based weapons in Russia’s war against Ukraine – have prompted conversations about what laws govern the final frontier. The starting point is the Cold War-era Outer Space Treaty, which assigns States international responsibility for any national activity, including commercial activity by non-State actors, carried out in outer space; in practice, the existence of multiple domestic legal regimes can create complex and sometimes contradictory regulatory patchworks as well as a step – or more – behind new technologies.
Among the issues to watch in 2024: the application of international humanitarian law to space-based warfare; how countries, including the United States, will seek to regulate increased commercial activity in space; and whether there may be movement toward international norms around certain emerging technologies, such as remote sensing.
“Less than 20 years after the Darfur genocide unfolded, history is repeating itself,” Mutasim Ali and Yonah Diamond wrote earlier this month, reflecting on an open letter in which more than 100 experts warned the international community of an “imminent risk of genocide” unfolding in the new war in Sudan. The war’s potential far-reaching consequences include the devastating human cost, forced displacements straining the region’s refugee systems, a generational crisis in the making, and significant geopolitical implications.
The Biden administration did impose targeted sanctions in June, but otherwise the U.S. response has been fairly muted, particularly in comparison to prior engagement in Sudan, which was once a major focus for senior diplomats across U.S. administrations. In contrast, U.S. policy on Darfur this time around, Alex de Waal recently wrote, “remains solely in the hands of the State Department Africa Bureau, and the de facto position of the White House is, ‘do not disturb us.’”