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International Law

Legacy of the ICTY

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The International Court is the judicial body that brings to justice individuals accused of violation of the international law. The idea to create the court arose after the end of the World War II and it is based on the principle: all persons, including high-ranking state officials, accused of committing serious international crimes must be punished.

International criminal tribunals should not be considered in the same way as domestic or national courts. When people hear the words “court” and “law” – they immediately think it refers to national law, but they are wrong. There is distinction even between personnel that works in international and national courts, and much less in other characteristics.

The paper will put a special emphasis to the work of the ICTY, describing a number of positive as well as the negative sides of the Court.

The ICTY

The ICTY has been established at the proposal of the UN Secretary General on the basis of Resolution No. 827 of the UN Security Council of 25 May 1993. The territorial jurisdiction of the Court covers the territory of the former Socialist Federal Republic of Yugoslavia (hereinafter: the former Yugoslavia), including its land surface, airspace and territorial waters, while the temporal jurisdiction includes the period from 1 January 1991, without indicating when the temporal jurisdiction ends. However, the UN Security Council ordered to the Court to end its work by 2010, by Resolution No. 1503 of 2003 and the Resolution No. 1534 of 2004. Due to the abovementioned reasons, the Court was supposed to put an end to all investigations and filing all indictments by 2004; to end all trials by 2008 and to end all appeal proceeding by 2010. However, the year is 2015 and the ICTY has not ended its work. According to some estimations given in December 2014, three out of four appeal proceedings are expected to be completed during 2015, while the judgment in the case of Ratko Mladic is expected to be rendered in March 2017 or event after this date. However, addressing the UN Security Council on 10 December 2014, President of the ICTY Theodor Meron assured that these forecasts do not mean closure of the ICTY in 2017.

The ICTY is an ad hoc court based in The Hague. The Court can prosecute only individuals and not organizations or governments. The court can impose life imprisonment as maximum penalty. As a result, the Court signed an agreement with a number of countries, in order to enable enforcement of the penalties on their territories.

Huge role of the ICTY’s Trial Chamber significantly determines work of the ICTY and it implies wide powers of arbitrators and initiative relating to probative evidence. The basic principles that the Court follows in its work are: justice, rapidity and equality of arms.

The aim of establishment of the ICTY is to bring to justice persons responsible for serious violations of the international humanitarian law during conflict in the area of the former Yugoslavia. However, “although it was obvious that many actions of the conflicting sides, people who fought within their ranks or who joined them, represent serious crimes under domestic law or the international humanitarian law (the former Yugoslavia ratified all the Geneva Conventions of 1949 and their Protocols of 1977), almost none of the suspects for these crimes was charged and brought to the Court until 1993”.

All violations that are put under the jurisdiction of the ICTY and which represent violation of the international humanitarian law committed in the former Yugoslavia, are divided into:

  • Grave breaches of the Geneva Conventions of 1949;
  • Violations of the laws or customs of war;
  • Genocide;
  • Crimes against humanity.

The criminal defense of crime against humanity exists under the following conditions:

  • In case of an attack;
  • If the accused committed the crime as part of the attack;
  • If the attack was directed against any civilian population;
  • If the attack was widespread or systematic;
  • If the accused knows that his acts are part of a pattern of widespread or systematic crimes directed against a civilian population and if he knows that his act fit in the pattern.

Regardless of the rules that regulate work of the ICTY, its employees are faced with several challenges.

The first challenge certainly refers to a rule that an individual may be punished for grave breach of the Geneva Conventions under the Article 2 of the Statute, only if the crime for which he is charged, was committed against persons and property that are considered protected.

Another challenge is the Article 7, Paragraph 1 of the Statute, i.e. the Article 4 Paragraph 3 of the Statute. Namely, when the Court finds that the accused person had no genocidal intent, but he or she helped others to commit genocide, the question is which of these two provisions of the Statute of the Court should be applied. The first Article envisages responsibility for assisting in committing any criminal offense put under the jurisdiction of the Court, while the second Article envisages, inter alia, complicity in genocide. Furthermore, the Court has the jurisdiction to act in case of committing any of the criminal offenses listed in Article 5 of the Statute, but only if the crimes were committed in an armed conflict. Therefore, an armed conflict is a precondition for prosecution before the ICTY. At the same time, the only Article of the Statute that relates to penalties is the Article 24 that envisages the obligation of the Chamber when sentencing, to take into account gravity of the defense and individual circumstances of the perpetrator. However, the Article 2 of the Statute represents the biggest challenge and it envisages that every crime regulated by this Article, shall be committed in the context of the international armed conflict.

The first trial before the ICTY started on 7 May 1996 and the first verdict was rendered on 29 November 1996. So far, a total of 161 persons have been indicted. Proceedings against 147 persons ended, while proceedings against 14 persons are still ongoing.

Legacy of the ICTY

The region of the former Yugoslavia welcomed the establishment of the ICTY with great suspicion, complaining that incompetent body has established the Tribunal (the Security Council), and that the Court cannot be an impartial judicial body, since it has been established as a subsidiary body to the executive authority (the Security Council). However, author of this paper shares the standpoint of Dr. Vojin Dimitrijevic, who says that „in a sea of such attacks (…) legitimate and legal reviews of critics about the way The Tribunal has been established, the advisability of some of the provisions of its Statute, the quality of the rules of procedure and so on, are lost (…)“. The author also shares Dimitrijevic’ stance that work and existence of the ICTY should be seen as a “unique judicial experience in the actual application of the international humanitarian law, its written and unwritten rules and the very Statute of the first international criminal Tribunal that, despite of the fact that it has been formed on temporary basis as an ad hoc court, has acted so long and prosecuted so many persons on various posts for so many crimes that are considered international crimes”.

There is no doubt that there are positive and negative aspects of the international criminal proceedings led before all courts. Positive sides of the proceedings before the ICTY are certainly higher level of impartiality, easier ways to collect evidence, uniformity in the application of the international law and greater preventive effect of international trials. Namely, it is logical that people who are not involved in a concrete dispute, i.e. judges who are not related to armed conflicts will be more objective to decide about the dispute. National courts are almost always insufficiently objective, and these courts are not interested enough to lead proceedings against its own nationals who have committed crimes against foreign nationals. At the same time, the fact that this is a proceeding led before an international court, proceedings related to these and all other conflicts in the international community are set to be uniform, with the continuity in application of law and decision-making process.

Although a proceeding before the ICTY does not fully meet all demands which the right to fair trial puts before the Court, its practice gives hope that the proceedings will get closer to the standards of the fair trial. The procedure led before the ICTY is complex, but it was inevitable because it has been established quickly as a reaction to the situation on the ground (for example, the states harmonized their stances about formation of the International Criminal Court for years). Principles like the ones from the Geneva Conventions of 1949 (ratified by most of the states in the world) would certainly remain only a dead letter, if it was no courts like the ICTY. Namely, such courts defined an armed conflict, defined when an armed conflict begins etc.

One of the important specifics that refer to international crimes is the existence of a large number of victims. The procedural status of victims and witnesses in criminal proceedings for these crimes is a particular problem in international judiciary, because of direct or indirect risk of intimidation, reprisal or retaliation against the victims. For these reasons, rules of the ICTY include adequate provisions on protection of victims and witnesses in the proceedings. Per example, such provisions are stipulated in the rule that the main hearing will be held without the presence of the public; the rule about the protection of identity of the victims, and the rule on formation of Department for Victims and Witnesses, as the body in charge to provide support and advices to victims and witnesses and propose measure for their protection.

The ICTY has contributed to clarification of some basic concepts that are of huge importance for the international criminal law and the international humanitarian law. For example, the rule on the obligation to distinguish civilians from combatants was clarified in the judgment in the cases of Tadic, Martic, and Kupreskic, while the rule to distinguish civilian from military facilities was clarified in the judgment in cases of Kupresic, Kordic and Cerkez, judgment in cases of Kunarac and Furundzija defined torture, etc. For the first time in the history, an international court found that rape (although prohibited by humanitarian law) may constitute torture. This is also the first international court which included sexual violence as a crime against humanity in its Statute. Besides, the Court also gave huge contribution to the interpretation of serious violations of the Geneva Conventions.

According to the current President of the ICTY Theodor Meron, the ICTY has demonstrated to the world that, after half a century of impunity, it is possible to lead complex trials at the international level, in accordance with the highest international standards. The ICTY has developed an influential body of jurisprudence concerning a large number of procedural issues and issues related to evidence and thus, created conditions for establishment of new international and mixed criminal courts. The support to strengthening of national judicial systems relating to war crimes trials is certainly one of the most positive things in the heritage of the ICTY.

Many criticize the ICTY for the reason that all the accused have not been convicted especially the ones who are accused of the crime of genocide. However, the Convention on the Prevention and Punishment of the Crime of Genocide of 1948 stipulates very strict conditions for proving genocide. The Genocide is a crime that does not have to be committed during armed conflicts: the crime can be committed in peacetime, during a war, against civilians and against combatants, with or without committing widespread or systematic attack. Under the Convention on the Prevention and Punishment of the Crime of Genocide of 1948, “(… genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.”

As the aforementioned definition reads, it is a state of mind of the perpetrator of the crime of genocide that matters (that he committed the crime with intention to destroy, in whole or in part, a national, ethnical, racial or religious group). Therefore, certain group and not individuals in the group should be the main objective and likewise, the destruction should be physical or biological nature, not cultural. Proving responsibility for the crime of genocide is harder than proving responsibility for any other international crime. Murders and other prohibited acts must be committed with the intention to destroy, in whole or in part, a national, ethnical, racial or religious group (dolus specialis). If a prosecutor fails to prove that intention, it is considered a crime against humanity or a war crime – and the ICTY is not authorized to prosecute these crimes.

The latest criticisms directed against work of the ICTY are addressed to the President Theodor Meron, an experienced US (Israeli) lawyer and a judge. Many believe that he made terrible mistakes in individual trials which he chaired, especially in the cases of Gotovina and Markac, Stanisic and Simatovic and in a particularly interesting case from the legal point of few – case of Momcilo Perisic. The judgment in the case of Momcilo Perisic has established a new legal standard of command responsibility, providing amnesty to political leaders and military commanders in case of committing war crimes in the future period. Namely, the appeal judgment to Perisic has adopted the new specific direction criterion which has not existed in the international customary law. The question is whether court judgments discourage future threats against human civilization or the opposite? The UN Security Council has established the ICTY after some people endangered peace and security of the civilization and nowadays, some experts believe that the ICTY turned into its contradiction after Perisic’s acquittal, and its decisions jeopardize international peace, security and order.

When it comes to criticisms related to the impact of the Hague judgments to victims of the conflict, we must take into account that, when it comes to individual criminal responsibility, the ICTY is authorized to prosecute the crimes, but it has no option to adjudicate adequate compensation for victims of the crimes. Namely, primary role of the ICTY is retributive: the Court renders a judgment and defines whether someone is guilty for a certain crime or not, and orders an appropriate penalty for the crime. Of course, the ICTY also has a restorative function and it aims to ensure accountability, establish facts, bring justice for the victims and give them the right to speak, enhance the rule of law and pawing a way for reconciliation in the region. However, the ICTY is not established to be a mean for bringing complete justice to the victims and a mean to deal with the past.

Regardless of the aforementioned facts, the ICTY has taken away from us the ability to forget the past. The legacy of the ICTY is greater and more significant than occasional mistakes and judgments rendered without a legal explanation, while the Court will provide insight to future generations into judgments and facts about the atrocities.

Conclusion

The abovementioned text has led us to conclusion that, when it has established the ICTY, the international community has directly contributed to sanctioning of state policies and individuals responsible for initiation and conduct of armed conflicts at the territory of the former Yugoslavia. The paper also led us to conclusion that judgments rendered by the ICTY have clarified some theoretical parts of the international humanitarian law, international criminal law and the international human rights law.

Despite of many criticisms directed against the ICTY, the author of the paper believes that the ICTY has registered more positive than negative results. Unreasonably high expectations from work of the Court have been huge. At the end, when a conflict starts and when crimes happen, people say nowadays: “Send him to The Hague”, which was not the case a few years ago, when there was no court authorized to prosecute the perpetrators.

There is no doubt that existence of such a court is necessary and we could see it clearly in the case of Leipzig in 1921, when Germans were allowed to trial to themselves on their own. As a result, audience, judges, prosecutors greeted some people who were accused of crimes when they entered a courtroom, not to mention that all sanctions were minimal; two months, six months and four years of imprisonment. Therefore, author of the paper believes that foreign judges did not bring expertise in proceedings related to this territory, but impartiality.

Author of the paper considers the following facts as the greatest contributions of the ICTY:

  • The ICTY is a legal body that represents a basis for establishment of new judicial bodies;
  • The ICTY revealed limitations of trials;
  • The ICTY has left us legacy.

On the other hand, the fact that the ICTY has primarily focused on jurisprudence and its impact, without realizing how much it is important to reach out to the victims, is the main deficiency of this body.

International Law

OTT broadcast and its censorship: Whether a violation of freedom of speech and expression

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The whole world, owing to coronavirus pandemic, is enveloped in the darkness. It has wreaked havoc on almost all the aspect of human lives. The educational institutions, theaters and cinemas all have been shuttered. Public gatherings, to maintain the social distancing, have been firmly discouraged. Further, the pandemic has significantly modified the media and entertainment consumption patterns. Social lives ventured into digital environment as a result of people being cramped to their homes. People have switched to several sources of entertainment from the comfort of their own homes and over-the-top (“OTT”) platforms have proven to be a major source of entertainment.

OTT platforms have grown exponentially and taken over the industry. OTT platforms expedites streaming of video content over the web. Several OTT platforms such as Netflix, Amazon, Disney Hotstar, Disney+, Apple TV+, Hulu, etc., have primarily ousted the traditional television service. The notification issued by the Central Government of India aimed at getting online media platforms and content on OTT platforms within the jurisdiction of the Ministry of Information and Broadcasting has been making the rounds in recent times. The cabinet Secretariat, on November 9, 2020, released a notification amending the Government of India (Allocation of Business) Rules, 1961. It has incorporated two new entries to the second schedule of the Rules namely Films and Audio-visual programmes provided by online service provider as well as News and Current Affairs. This action is attributed to the fact that there is large amount of an unrestricted content available on the web as well as lack of an adequate regulatory regime in place to protect its users.

Universal self-Regulation code

The Internet and Mobile Association of India (IAMAI) had come up with a Universal self-Regulation code (code) to administer the content available on OTT platforms. The code was primarily adopted by the fifteen OTT platforms namely zee 5, Viacom 18, Disney Hotstar, Amazon Prime Video, Netflix, MX Player, Jio Cinema, Eros Now, Alt Balaji, Arre, HoiChoi, Hungama, Shemaroo, Discovery Plus and Flickstree. SonyLIV and Lionsgate too have recently signed the code. It was manifestly stated in the code that The Information Technology Act, 2000 (IT Act) is the main governing framework when it comes to online content. The values enshrined in Article 19 of India’s Constitution, namely the Right to Freedom of Speech and Expression, direct the internet and material on the internet. A policy for the digital content sector has to be drafted in line with Article 19 of the Indian Constitution i.e. the Right to Freedom of Speech and Expression, and any constraints on the aforesaid right should be fall within the purview of constitutional restrictions set forth in Article 19(2) of the India’s Constitution.

Further, the code had delineated a mechanism pertaining to (i) Age Classification (the code had particularized the certain categories for standardized age classification namely All ages, 7+, 13+, 16+ and 18+) (ii) Appropriate content specification ( a content descriptor appropriate to each piece of content that demonstrates and tells the viewer about the essence of the content while also advising on viewer discretion) and (iii) Access control Tools( to regulate access to content, signatories to the Code may implement technological tools and measures for access control i.e. PIN/Password.) The code had also established the perspicuous grievance redressal and escalation process to lodge complaint regarding non-adherence to specified guidelines. The MIB, however, has repudiated the proposed code since it did not explicitly categorize the prohibited content. Further, there is no independent third-party oversight and a transparent code of ethics. The MIB instructed IAMAI to seek guidance from the Broadcasting Content Complaints Council (BCCC) and the News Broadcasting Standards Authority (NBSA) self-regulatory frameworks.

A public interest litigation was consolidated in October, 2018, before the hon’ble Delhi High court by Justice For Rights Foundation to draught certain guidelines for modulating the content available on OTT platforms. The MIB while filing the counter affidavit stated that digital platforms are not required to procure a license from them to exhibit their content and the same is not controlled by them. The Ministry of Electronics and Information Technology (MEITY) has also mentioned that they do not oversee internet content and there exists no mechanism for monitoring or licensing an agency or establishment that posts content on the internet. Nevertheless, it was claimed that the provisions concerning IT are applicable, and concerned legislative authority having jurisdiction under the aforesaid Act is authorized to take action using the power granted to them under section 69 of the Act which involves directives for interception, surveillance, or data encryption. Further, under Section 67 of the Act there are penalties pertaining to posting or disseminating obscene information in any digital form. Accordingly, the court while dismissing the petition opined that it cannot grant a mandamus for the creation of regulations when the IT Act already contains stringent restrictions and currently the foregoing petition is pending in the hon’ble supreme court.

Positions of the law in regards to film screenings

A film must be certified by the Central Board of Film Certification before it can be displayed or distributed in cinemas or on satellite, and the content is constrained by existing laws. The CBFC was established by the Cinematograph Act of 1952. When it was established, it was designated as the Board of Film Censors. It was amended in 1959 to give it the authority to certify a picture for mass consumption. The Cinematograph Act of 1952, the Cable Television Networks (Regulation) Act of 1995, and the Cable Television Networks Rules of 1994 are among the laws that govern the industry. However, there is no such particular legislation for regulating material on OTT platforms. The government by virtue of Article 19(2) of Indian constitution can impose restrictions on freedom of speech and expressions in the interest of sovereignty and integrity of India, security of state, friendly relations with foreign countries, public order, decency or morality and so on. Consequently, broadcasted content has often been a restricted matter. In K.A. Abbas v. Union of India and Another[1], the constitutionality of censorship was initially challenged. The hon’ble supreme court has upheld the constitutionality of censorship under Article 19(2) of the India’s constitution and stated that films must be viewed differently from any kind of art and expressions because a motion picture can elicit more intense emotional response than any other product of Art. However, such censorship should not be exercised to imposed an undue restriction on freedom of speech and expression.

The constitutionality of censorship was also disputed in S. Rangarajan v. P. Jagjivan Ram [2]wherein the hon’ble supreme court has held that the board’s criterion for appraising the films must be that of an ordinary man with common sense and wisdom rather than that of a hypersensitive mind. The Moral values ought not to be compromised in the realm of any social change. The concept of “Dharam” should not be disrupted by the immoral norms or standards. However, it does not suggest that censors must embrace a conservative perspective. They should be resilient to social change and go with the topical environment. The film is the most legitimate and significant medium for addressing topics of public concern. The producer has the right to broadcast his own message, which others may or may not concur with. The state, regardless of how hostile to its policies, cannot suppress open debate and expression. The democracy is basically a government by the people based on open debate. The democratic form of administration necessitates citizens’ active and informed engagement in the societal issue.

Furthermore in, Phantom Films Pvt. Ltd. And Anr. V. The Central Board of Certification[3], it was said that we are governed in a democratic manner. We can’t expect everyone’s head and intellect to be the same in a democracy. Freedom to think and act in a different way is at the heart of democracy. The beauty of democracy is the diversity of viewpoints, ideas, and manifestations. It’s unrealistic to expect everyone to exhibit themselves in the same way. In the film business, new blood is being infused. This new blood is revved up and eager to get their feet wet in the industry. The film business and the general public have embraced such new blood. Their effort has been recognized and praised by the government. These works are predicated on a certain way of thinking that is unique to them. They have their own opinions and ideas on how the film business should operate, as well as how the medium altogether must be managed. Profanity, obscenity, and depravity do not shock human emotions. Such situations and discussions must be seen in their entirety. The narrative must be perused in its totality and thought upon. It is not appropriate to choose a few phrases, lines, conversations, or situations and venture into the board’s resolution. Certainly, the state, and notably the Central Board of Film Certification, cannot attempt to sculpt and dominate public opinion under the guise of purported public interest or audience preference. That would be terrible, as it would hit at the heart of democracy and civil liberty, which are held in such high regard by everybody. The goals of film certification, consequently, cannot be achieved by disregarding the Constitutionally guaranteed right or by fully undermining and disappointing it. A movie has to be watched on its own and judged accordingly. The plot, subject, background, and location in which it is created, the message it aims to express, and the entertainment, among other things, would all have to be assessed using section 5B’s standards.

Should OTT platforms be governed by a code of self-regulation?

Self-regulation is presently the only option available to such platforms in order to maintain the ability to broadcast material without undue censorship. Because unreasonable restriction would impede the creative flexibility of OTT platforms. It will assist platforms in conducting themselves in an ethical and fair manner while also safeguarding the interests of their users. It would protect content producers’ artistic freedom by promoting creativity and upholding an individual’s right to free speech and expression. The general public desires to view the content in its original and untainted state. They strive to understand artwork in its most primitive sense. The fundamental role of government agency is to maintain the fair field, not to inhibit innovation and ingenuity by placing limitations in a tech industry.

Self-regulators’ competence allows them to adjust their regulations more quickly than government agencies in reaction to technological advancement. More significantly, independent of any technological change, the self-regulator is better equipped to decide when a rule should be modified to improve compliance. Self-regulation has the ability to make compliance more appealing. It develops regulations based on an expert’s level of understanding, customized to the specific sector. These rules are viewed by regulated entities as more “reasonable” from the inception owing to their involvement[4].

Conclusion

The MIB by virtue of the amendment has now can regulate and draught policies regarding digital media and online streaming on OTT platforms. However, such governmental intervention can considerably jeopardize the constitutional right to freedom of speech and expression. The suppression of freedom of speech and expression is what censorships is all about. The freedom of speech and expression suggests that right to manifest one’s thought via words of mouth, writing, picture and any other means. The freedom of speech is one of the most well-known and fiercely protected civil rights against government encroachment. In modern democratic societies, it is generally considered as an essential notion. Every citizen of a democratic nation has the freedom to express his or her opinions on various issues. Thousands of viewpoints are disseminated around the country via various channels. A film director has the freedom to manifest himself and gives effect to his thoughts, even though others may not concur with him. An exhibition of films as well as documentaries cannot be prohibited for purely speculative reasons since prohibiting motion pictures is tantamount to suppressing the right to freedom of expression and speech. Restrictions upon Individual’s freedom of speech and expression must only be permitted if they are required to avert severe harm from being perpetrated. It is critical to have a healthy and extensive amount of free expression in order to assert a thriving and well- functioning democracy. Democracy, otherwise, is obsolete and akin to a totalitarian dictatorship[5]. It should be up to the public to determine what they want to see and what they don’t want to watch. Thus, the cornerstone to safeguarding artistic freedom is a sustainable self-governance paradigm.


[1] K.A. Abbas v. Union of India and Another (1970) 2 S.C.C. 780

[2] S. Rangarajan v. P. Jagjivan Ram (1989) 2 S.C.C. 574

[3] Phantom Films Pvt. Ltd. And Anr. V. The Central Board of Certification 2016 S.C.C. online Bom 3862: (2016) 4 AIR Bom R 593: AIR 2017 (NOC 62) 29

[4] Id. at 13

[5] Subhradipta Sarkar, RIGHT TO FREE SPEECH IN A CENSORED DEMOCRACY, UNIVERSITY OF DENVER SPORTS

 AND ENTERTAINMENT LAW JOURNAL 62, 84 ,89 (2009)

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International Law

What Determines Taliban Government’s Legitimacy?

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Photo Credit: Wikimedia Commons

With the fall of Kabul, and the evasion of President Ashraf Ghani, the Taliban has taken over the reins of Afghanistan. States like Pakistan and China have already expressed their willingness to “work with the Taliban”  thereby legitimizing the Taliban government, whereas India has refused to recognize this “reign of terror”. The jurisprudential question of legitimacy arises here because the transfer of power in Afghanistan was through a coup d’etat which constitutes an extra-constitutional means of formation of government. Governments desire legitimacy because it gives them the right to rule and an acceptance on the international and domestic levels.

The most accepted theory in this regard is Hans Kelsen’s Pure Theory of Law. Kelsen, a positivist, claimed that law was contaminated by sociological impurities and morality, and focussed his theory on law alone. He based the legitimacy of the new order of government on its efficacy, and a rule was said to be efficacious when individuals regulated by it “behave, by and large, in conformity” with it. When the new order was efficacious, the coup was said to be successful, and the new government was held to be a legitimate one. Kelsen’s theory was widely accepted to uphold governments after coups such as in The State v. Dosso (Pakistan; 1958), Madzimbamuto v. Lardner-Burke (Southern Rhodesia; 1968), and Uganda v. Commissioner of Prisons (Uganda; 1966), among others. Since Kelsen tries to purify laws from the socio-political aspects, he contends that that it is irrelevant why people comply with the law and it could even be out of pure fear. Thus, a rogue government such as the Taliban which is efficacious as it receives compliance out of coercion and not out of consent, would be a legitimate one from a Kelsenian perspective.

The primary criticism that arises to Kelsen’s separability thesis is that he fails to distinguish between validity of law and its legitimacy. Critics have argued that while validity of law concerns with its authoritativeness, legitimacy depends on the virtue of justness and is contingent upon socio-political and moral factors. The issue lies with attaching legitimacy to the performance of the government. Instead, legitimacy should involve the questions of whether the government has the ability to demand the obligations out of voluntary conviction, provide for public goods such as the rule of law, protection of fundamental rights, etc., and function in a manner such that the society is generally benefitted. A study on legitimacy in seventy-two countries concludes that more the citizens are treated as rightful holders of political power, more legitimacy the government derives. This means that the virtue of legitimacy must flow from the citizens and the society and not from a coercive power that the top-down approach provides.

In the light of this, when the Taliban government is examined, it is realised that with its extremist ideology and terror activities in the past, it can hardly fulfil this criteria.While the ‘good Taliban’ has claimed that it will protect the freedom of press and not discriminate against women while allowing for their participation in the society within framework of Islamic law, these assurances will pacify only those who are unfamiliar with its history. Under the rule of Taliban in the years between 1996 and 2001, human rights were suspended, and political killings, rape, torture, amputation, and public executions were common place. A Taliban 2.0 which has emerged victorious against one of the major superpowers of the world, and has external support is unlikely to reform. Ideologically, they still remain the same movement committed to a puritan interpretation of Islam and this is evidenced by the fact that the barbaric Sharia law is in place once again. These baseless claims should be perceived as a political strategy to appease states into granting them de jure legitimacy because despite the jurisprudence of legitimacy developed, there is nothing in the international law that bars states like China, Russia, Pakistan or others from recognizing the rogue state of Islamic Emirate of Afghanistan. Therefore, the future of the Taliban and Afghanistan rests in the interplay of international actors.

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International Law

Artificial Intelligence and International Refugee Law

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Refugee rights are cosmological, binding, blended, co-dependent, and interconnected and constitute the basic structure of international custom [BASIC] encapsulating the national jurisdictions across the world. BASIC thrives on dignity; therefore, the word “refugee rights” can be delineated and defined in a single word–as per my understanding–called “dignity,” as it is the issue of human dignity that we address in refugee rights. Therefore, refugee rights mean dignity, but the same has been further convoluted with the ascendance of Artificial Intelligence (AI) has presented new challenges to human equality in all walks of life. AI has reduced humanity in algorithmic calculations contrary to global human rights norms. AI does not recognize the significance of humanitarianism in its current form. It has envisioned a world of dynamic numerals that do not protect humanity and mitigate human sufferings in the Refugee Status Determination (RSD) procedures.  Algorithmic humanitarianism is an idea suffering from the mechanical, technocratic, and scientific acclimatization of human existence devoid of ethics, justice, and morality. Machine-controlled calculations exclusively adjudicate the RSD procedures and immigration decisions. But the application of AI has also raised a host of issues relating to the data privacy, confidentiality, and use and misuse of data information collected by the governments, organizations, RSD officials, and immigration authorities from the refugees and asylum-seekers migrants, and stateless (RAMS). Such data may be exploited, employed, and maneuvered for geostrategic, geopolitical, geo-engineering, medico-research, socio-economic, and demographical purposes by the global, regional, and domestic institutions and governments. In human rights protection, refugee rights, and immigration decisions, AI has been adversely impacting RSD procedures and immigration judgments across the world.

Algorithmic Humanitarianism

Therefore, algorithmic humanitarianism has presented a compendium of questions than answers. Hence, AI lacks anthropogenic sensitivity, critical thinking, human subjectivity, and objectivity thresholds needed to appreciate the degrees of persecution and discrimination in RSD procedures and immigration decisions in violation of global human rights norms of refugee protection. Thus, there is a need to rummage and ruminate upon these issues by examining AI’s application and assessing the impact thereof on the global human rights norms that sustain humanity and make human existence humane beyond the insight of algorithmic intelligence and discernment. There has to be a human-centric primacy of AI application while positioning refugee equalizers in the ADM Technologies Framework (ATF) for RSD Procedures viz-a-viz international human rights law (IHRL) challenges with the human rights-based approach (HRBA). Further, the equality framework of AI must constitute and advocate that algorithmic humanitarianism must be reprogrammed with new AI technologies impregnated with global human rights norms for sustainable artificial intelligence.

Peremptory acceptance of AI technologies and greater dependence upon AI by both national governments and the private sector and actors have led to growing apprehension regarding the potential adverse repercussions for the core principles of democratic societies like human dignity in diversity, ethical governance, democratic transparency, multicultural accountability, and pluralistic inclusivism. Therefore, there is an indispensable requirement for a framework of global governance to address the full range of societal challenges concomitant with AI inter-alia intimidations to the right to privacy, the right to access to information, the right to equal protection of the law, and the right to non-discrimination during immigration and repositioning of refugees consistent with the existing global human rights framework. Because the emergence of AI is a reality and it has penetrated in the universal institutional life of nation-states, also providing an opportunity for the human mind to utilize it in a manner that conforms and complements global human rights norms while taking into account the Limits of AI Reception, Laxities of AI Recantation, & Luxuries of AI Repercussion.  In the future, artificial intelligence technologies might well substitute humans in the workplace altogether. But at least for the foreseeable future, businesses will derive far more value using AI to augment and enhance existing capabilities than automate away human jobs. All nation-states should establish an independent, empowered body to address all aspects of management and review for all types of ADM technologies employed by the national governments worldwide and put all existing and future AI models in the public domain for their scrutiny.

AI and Refugee Rights Equalizers

The free expression of ideas and opinions, freedom of association, the right to privacy and the right to access to information are digital equalizers for refugee rights in an age of AI propounded and protected within the ambit of IHRL framework such as Universal Declaration of Human Rights (UDHR), UN Covenant on Civil and Political Rights-1966 (ICCPR), UN Covenant on Economic, Social and Cultural Rights-1966 (ICESCR) along with Sub-international Human Rights instruments like AU’s African Charter on Human and Peoples’ Rights. But, unfortunately, these rights have become the pawns of online state surveillance and transgressions facilitated by the gigantic deployment of AI technologies. States have been using AI software against refugee rights defenders, peace activists, human rights journalists, civil society advocates, etc. The speed of technological development empowers individuals globally to utilize novel models of information and communication technologies to elevate the capability of governance structures, commercial establishments and civil society individuals to embark on data surveillance, collection, and an interception. Such steps in a digital age allow the circumvention and abuse of human rights enunciated in Article 12 of the UDHR and Article 17 of the ICCPR that have put a question mark on the future of the right to privacy of individuals, the rights of women, the rights of children, and the rights RAMS.

Moreover, the digital rights and the right to privacy prompted by AI technologies application become more sensitive in the case of the RAMS, particularly if the impact of AI might lead to the detention and deportation of RAMS to their homelands which might put their life at persecution. AI technologies have posed legal, ethical, and social implications for the international community of nation-states to deliberate upon positioning the potential refugee equalizers in the ADM technologies framework for RSD procedures. However, the impact of AI on RAMS and protection regime underscores the risks that AI, algorithms, machine learning, and related technologies may pose to the rights of RAMS, also acknowledging the openings AI technologies offer to augment the accessibility of the rights envisioned in the UDHR and UNCSR. But few questions remain to be answered: What are the positive and negative impacts, risks, and threats of AI technologies for RAMS and their protection rights? What is the legal framework that guarantees RAMS to have access to the Internet and Digital Rights? How does the current legal framework protect the rights of RAMS to access the Internet and their online privacy rights? How can AI enhance the welfare of the RAMS? How could AI make sure RAMS’ access to education? How could AI ethics and policies protect and accommodate RAMS’ rights and mitigate the risks they might face? And what are the predicaments that AI could be abused to circumvent internationally granted rights of RAMS?

The geopolitical ramifications make the challenges associated with Internet sensitive that paved the way for enhanced censorship on social media and other OTT platforms. By banning the websites or resorting to state censorship, the biggest casualty is free speech and privacy. Under such state censorship, online human rights defenders face prosecution and endure persecution at the same time. Unfortunately, IRL instruments do not envisage any reference to the digital or information rights of refugees. However, AI has massive potential to uphold and promote the rights of RAMS; conversely, it can also suppress them. For example, facial recognition technology can be impregnated with AI software to pinpoint and target the RAMS who challenge the repressive asylum regime in host countries and oppose the regime in their countries of origin. AI prognostic propensities might be subject RAMS to arbitrary detention and deportation.

IHRL Obligations

All nation-states must create a special task force (STF) to convene and assemble all ADM scientists & developers, national policy-makers, crucial stakeholders, prominent civil society institutions, educational institutions, and non-governmental organizations to adequately appreciate the actual and potential impacts of ADM technologies on global human right norms. Such steps would lay down the foundations for ethical, moral, and value-oriented dimensions to AI and its application while preserving human rights in RSD and immigration decisions. International refugee law and immigration is a realistic prism that provides a methodology to assess state practices, border control security apparatus and checking measures, global migration governance regime, worldwide criminalization of migration, and surging xenophobia. The RSD and immigration law operate at the intersection of municipal and international law and ensnares global human rights norms and international law. In Genesis, “And God said, let us make man in our image, after our likeness: and let them have dominion over the fish of the sea, and over the fowl of the air, and over the cattle, and overall the earth, and over every creeping thing that creepeth upon the earth. So God created man in his image, in the image of God created he him; male and female created he them.”  Therefore, in the current world order, nation-states have a constitutional scheme to respect international human rights obligations, internet governance with algorithmic transparency in the wake of invoking ADM technologies and their utilization.

ADM Companies and Beyond

Thus, most ADM companies contend with working independently without coordination and collaboration of their initiatives and productivities. It is incumbent upon the UN to lead and bring these companies to one platform while calibrating and coordinating their endeavours in confronting the challenges posed by AI governance. These ADM technology companies must work collectively to ensure that human rights are firmly entrenched in developing, designing, and deploying AI systems worldwide. As ADM technologies evolve and develop, innovative AI governance models have also become crucial for centrally positioning human rights obligations in the AI governance’s operational trajectory. However, it is aptly impressive that all stakeholders and parties privy to the development, employment, and management of ADM technologies must have holistic and critical scrutiny of the actual impacts of AI application and its implications and repercussions on humanity.

Besides regulation, public procurement and standardization should also include human rights principles and rules, thus shaping AI’s future. Public bodies and authorities should require that suppliers respect human rights while designing, developing, and deploying AI technologies that they intend to supply. Finally, AI protocols should be based on technical standards incorporating human rights rules and principles. These standards should be set forth by a collective body with global reach and representing the different sectors of society, including industry, states, civil society, international organizations, and academia.

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