“For By Wise Counsel, Thou Shalt Make Thy War.”-Proverbs, 24 (6)
Under the protective tutelage of an American president, any American president, “We the People” should expect reasonable levels of safety in world politics. At a minimum, we should be able to assume that wide and predictably capable circles of public authority remain ready to thwart terrorist attacks. Most urgently, of course, such assurances should apply with special clarity to mega-terrorist attacks.
By definition, such mega or WMD aggressions would involve chemical, biological or nuclear elements.
Here, there are both legal and operational issues to be considered. In terms of United States law, the authoritative roots of any such presumptive assurances go back to Roman statesman Cicero (“The safety of the people shall be the highest law.”) and to seventeenth century English philosopher, Thomas Hobbes.  Though plainly unfamiliar to America’s current president, Hobbes’ Leviathan was central to the education of Thomas Jefferson and other Founders.
Notwithstanding far greater difficulties of literary access and convenience in the eighteenth century, the author of America’s Declaration was impressively well read. He cared, really cared, about serious and dignified learning. In stark contrast to Donald J. Trump’s current inversion of US policy-making priorities, which center on one conspicuous sort or other of “branding,” Jefferson believed in the primacy of intellectual “preparation.”
For Jefferson, erudition maintained an intrinsically serious meaning. It was never something to be used or exploited solely for private embellishment or public adornment.
For the nation’s third president, diplomacy and strategic bargaining were analytic responsibilities. Accordingly, they were always about variously disciplined calculations. They were never merely about shallow bluster or feigned “attitude.”
Looking ahead to continuously effective US counterterrorist preparations, America’s national security establishment must remain ready for absolutely all contingencies. This needed preparedness includes building the conceptual foundations for any future Abu Bakr al-Baghdadi or Osama Bin-Laden “elimination-type” operations. During the Obama years, one major targeted killing of a Jihadist terrorist was the September 2011 US drone-assassination of Anwar al -Awlaki in Yemen. That case was notably “special” in one frequently overlooked aspect: The Jihadist al-Awlaki was born in New Mexico, and was ipso facto a US citizen.
Despite the US Constitution’s Fifth Amendment protections concerning “due process,” al-Awlaki’s targeted killing represented a tactical option that could sometime need to be repeated.
There are other pertinent concerns. Regardless of clearly valid issues concerning legal permissibility, it is by no means certain that targeting terrorist leaders will prove continuously useful to supporting US national security objectives. What this means, in brief, is that the virulence and capacity of any relevant anti-American or anti-Western ideology (especially a Jihadist-type ideology) might not be removed or even meaningfully blunted by designated terrorist assassinations.
It is even conceivable, in these more-or-less singular matters, that the net security effect of any such “removal” could be markedly negative rather than reassuringly “cost effective.”
As a timely example, the recent elimination of al-Baghdadi could quickly or eventually bring to power in ISIS an even more capable and violent terrorist adversary. What then? In such an unexpected eventuality, the killing of al-Baghdadi will have produced various short-term political benefits for US President Donald Trump, but only at a significantly unacceptable national security cost.
There is more. For the United States, corollary legal issues must never be ignored. In relevant jurisprudential terms, we must already inquire: What explicit legal guidelines should we Americans expect our leadership to follow? To respond properly (among several other related and also intersecting concerns), Mr. Trump and his counselors would then need to ask: “Is it sufficiently legal to target and kill recognizable terrorists if verifiable linkages between prospective targets and discernible attack intentions can be reliably documented?”
To properly answer this fundamental or core question, it will first be necessary for Mr. Trump’s relevant national security officials to ask whether a proposed terrorist killing plan would be gainfully preemptive or just narrowly retributive. If the latter, a judgment wherein national self-defense was not in any way the genuinely underlying action-rationale, authoritative determinations of legality could become more and more problematic.
On occasion, matters could get even more complicated. After all, assassination is explicitly prohibited by US law. It is also generally a crime under international law, which, though not widely understood, remains a legitimate and integral part of American domestic law. Still, at least in certain more-or-less residual circumstances, the targeted killing of Jihadist terrorist leaders could be correctly excluded from certain ordinarily prohibited behaviors. Here, such peremptorily protective actions could be defended as a fully permissible expression of national law-enforcement.
A similar defense might sometimes be applied to the considered killing of terrorist “rank-and-file,” especially where such selective lethality had already become part of an ongoing pattern of US counter-terrorism. Earlier, the United States had widened the scope of permissible terrorist targeting in parts of Iraq, Afghanistan and Syria. In part, at least, such a widened operational arc of permissibility – one which now modifies the more stringent prior rules of engagement that had once required specific human target identifications – has been an inevitable byproduct of continuously developing technologies.
Most obvious among these emergent technologies is the growing US reliance upon drone-based assassinations, and also on other related forms of long-range or long-distance killing.
In the best of all possible worlds, there would be no need for any such decentralized or “vigilante” expressions of international justice. But we don’t yet live in such an ideal world. Instead, enduring uneasily in our present and still-broadly anarchic legal order – a context that we international law professors usually prefer to call “Westphalian” – the only real alternative to precise self-defense actions against terrorists is likely to be certain steadily worsening “in-theatre” instabilities.
Ultimately, such expanding hyper-instabilities could include more flagrant and consequential escalations of Jihadist terror-violence. Such escalations could be unaffected or encouraged by future US targeted killings. This is to be expected even where “retributive justice” appeared as both reasonable and legal.
At some indeterminable point, terror-violence escalations could lead to major or even unprecedented instances of chemical, biological or nuclear attack. Plausibly, these attacks might be undertaken by assorted sub-state adversaries or instead, by particular “hybrid” combinations of state and sub-state foes.
At the most basic level of any such issues and calculations, the very idea of assassination or targeted killing as remediation could seem paradoxical, almost an oxymoron. Seemingly, at least, this understandably objectionable idea must preclude the input of all the more usual “due processes of law” consideration. Yet, since the current or “Westphalian” state system’s original inception in the seventeenth century, international relations have never been governable by the same civil protections that are potentially available within democratic states.
In this persistently anarchic and prospectively chaotic world legal system, one which still lacks any duly-constituted and effective supra-national authority, assorted Jihadist leaders (ISIS, Hamas, Hezbollah, Islamic Jihad, al-Qaeda, etc) are already responsible for the mass killing of noncombatant men, women, and children of different nationalities. It follows, in at least some still-imaginable circumstances, that where such leaders are not suitably “terminated” by the United States or by any of America’s key allies (e.g., Israel, in the tumultuous Middle East), incrementally egregious terror crimes could continue to multiply and also to remain unpunished.
Jurisprudentially, at least, any such predictable de facto impunity would be inconsistent with the universal legal obligation to punish international crimes, a jus cogens or peremptory obligation reaffirmed at the original 1945-46 Nuremberg Tribunal and subsequently in the 1946 and 1950 Nuremberg Principles.
More formally, this lex talionis obligation, which comes to us from both ancient Roman law and the Hebrew Bible, is known correctly as Nullum crimen sine poena, or “No crime without a punishment.”
Inevitably, complex considerations of law and tactics must inter-penetrate. In this particular connection, the glaring indiscriminacy of most jihadist operations is rarely if ever the result of enemy inadvertence. Rather, it is typically the intentional outcome of violent terrorist inclinations, unambiguously murderous ideals that lay deeply embedded in the Jihadist terrorist leader’s operative view of insurgency.
For Jihadists, there can never be any meaningful distinction between civilians and non-civilians, between innocents and non-innocents. For these active or latent terrorist murderers, all that really matters are certain unassailably immutable distinctions distinguishing between Muslims, “apostates” and “unbelievers.”
As for the apostates and unbelievers, it is all quite simple. Their lives, believe the Jihadists, have literally no value. Prima facie, that is, they have no immunizing sanctity.
In law, recalling Cicero, every government has both the right and the obligation to protect its citizens against external harms. In certain circumstances, this coincident right and obligation may extend derivatively to targeted killing. Actually, this point has long been understood (though also sometimes abused) in Washington, where every president in recent memory has given nodding or direct approval to “high value” assassination/targeted killing operations.
Certifiably, assassination is generally a tangible crime under international law. But in our essentially decentralized system of world law, self-help by individual states still remains altogether necessary, and is more-then-occasionally the only tangible alternative to suffering terrorist crimes. In the absence of particular targeted killings, terrorists could continue to create havoc against defenseless civilians almost anywhere, and do so with more-or-less complete impunity.
A very specific difficulty here is this: Jihadist terror criminals are usually immune to the more orthodox legal expectations of extradition and prosecution (Aut dedere, aut judicare). This is not to suggest that the targeted assassination of terrorists will always “work” in tactical terms – indeed, there is literally nothing to support the logic of any such suggestion – but only that disallowing such targeted killing ex ante could not be operationally gainful or legally just.
In principle, if carried out with aptly due regard for pertinent “rules,” assassinating terrorist leaders could remain suitably consistent with the ancient legal principle of Nullum crimen sine poena, “No crime without a punishment.” Earlier, this original principle of justice had been cited as a dominant jurisprudential rationale for both the Tokyo and Nuremberg war crime tribunals. It was subsequently incorporated into customary international law, an authoritative legal source identified inter alia at Article 38 of the Statute of the International Court of Justice.
By both the codified and customary standards of contemporary international law, all terrorists are Hostes humani generis, or “Common enemies of humankind.” In the fashion of pirates, who were to be hanged by the first persons into whose hands they fell, terrorists are considered international outlaws who fall within the scope of “universal jurisdiction.” But choosing precisely which terrorists ought to be targeted remains a largely ideological rather than jurisprudential matter.
Logically, in some current circumstances, tyrannicide could be seen as the “flip side” of American counter-terrorism. Historically, limited support for expressing assassination as a form of tyrannicide is not hard to discover. It can be found, for example, in the classical philosophical writings of Aristotle and Plutarch as well as Cicero.
Overall, in his consideration of assassination or targeted-killing as counter-terrorism, President Donald Trump (or more realistically his designated counselors) should consider the clarifying position of Swiss scholar Emmerich de Vattel in his most famous work, The Law of Nations, or the Principles of Natural Law (1758): “The safest plan is to prevent evil where that is possible. A Nation has the right to resist the injury another seeks to inflict upon it, and to use force and every other just means of resistance against the aggressor.”
Earlier, a similar view had been presented by Samuel Pufendorf in his seminal text, On the Duty of Man and Citizen According to Natural Law (1682): “Where it is quite clear that he is engaged in planning violence against me, even though he has not fully revealed his design, I shall be justified in immediately initiating self-defence by force, and in seizing the initiative against him, while he is still making preparations…..The aggressor will be taken to be the party which first conceived the intention to harm the other….To have the name of defender, it is not necessary to suffer the first blow, or merely to elude and repel the blows aimed at one.”
Even earlier, the right of self-defense by forestalling an attack had been established by the foundational Dutch scholar, Hugo Grotius, in Book II of The Law of War and Peace (1625). Recognizing the need for what later jurisprudence would reference as threatening international behavior that is “imminent in point of time” (See The Caroline Case, 1837), Grotius indicated that self-defense must be permitted not only after an attack has already been suffered, but also in advance, wherever “the deed may be anticipated.”
Further on, in the same chapter, Grotius summarized : “It be lawful to kill him who is preparing to kill.”
Interestingly, Vattel, Pufendorf and Grotius were all taken into primary account by Thomas Jefferson in his critical fashioning of the American Declaration of Independence.
There is more. In all these matters, one must assume rational calculation. If the expected costs of a considered assassination should appear lower than the expected costs of alternative resorts to military force, assassination could emerge as the distinctly gainful and moral choice. However odious it might appear in isolation, assassination or targeted killing in certain circumstances could still represent a security-seeking state’s best overall option.
Assassination will always elicit indignation, even by those who could find large-scale warfare appropriate. But the civilizational promise of some more genuinely centralized worldwide security is far from being realized, and existentially imperiled states could sometime still need to confront critical choices between employing assassination in measurably limited circumstances or renouncing such tactics at the foreseeable expense of national survival. In facing such inherently difficult choices, these states will inevitably discover that all viable alternatives to the assassination option could also include large-scale violence, and these these alternatives are apt to exact a substantially larger toll in human life and suffering.
Naturally, in a presumptively better world than this one, assassination could have no defensible place as counterterrorism, either as a preemptive measure or ex post facto, that is, as a permissible retribution. But, as if anyone should still need a reminder, we do not yet live in the best of all possible worlds, and the obviously negative aspects of targeted killing should never be evaluated apart from the foreseeable costs of other still-available options. More precisely, such aspects should always be closely compared to what could reasonably be expected of plausible alternative choices.
International law is not a suicide pact. Ubi cessat remedium ordinarium, ibi decurritur ad extraordinarium; “Where the ordinary remedy fails, recourse must be had to an extraordinary one.”
President Trump is correctly expected to comply with the rules and procedures of humanitarian international law; yet, he must also continue to bear in mind that Jihadist enemies will remain unaffected by these or any other jurisprudential expectations. Assassination and other still broader forms of preemption may sometimes be not only allowable under binding international law, but also indispensable. Conversely, there are occasions when strategies of assassination or targeted killing could be determinedly legal but remain operationally ineffectual.
Now, recalling the close connections between international law and US law – connections that extend to direct and literal forms of legal “incorporation” – an American president can never choose to dismiss the law of war on grounds that it is “merely” international. Always, President Trump should consider aptly decipherable connections between assassination, counter-terrorism and United States Constitutional Law. Unexpectedly or not, the targeted killing of Anwar al-Awlaki had been approved by US President Barack Obama and also by a secret committee of advisors allegedly based within the US Department of Justice.
Under US law, we are now bound to inquire, should an American president ever be authorized to order the extra-judicial killing of a United States citizen – even one deemed an “enemy combatant” – without any at least perfunctory reference to “due process of law?” On its face, any affirmative response to this necessary query would be difficult to defend under the US Constitution.
Of necessity, such presidential approval would need to be based upon a reasonably presumed high urgency of terror threat posed by the prospective victim. Any such “authorized” targeted killing of US citizens would express a potentially irremediable tension between theoretically indissoluble individual citizen rights and the increasingly peremptory requirements of national public safety.
Always, US policy on assassination or targeted killing will have to reflect a very delicate balance. Most important, in any such equilibrating calculation, will be the protection of civilian populations from Jihadist terror-inflicted harms. In those fearful circumstances where such harms would involve unconventional weapons of any sort – chemical, biological or nuclear – the legal propriety of targeting Jihadist terrorists could become patently obvious and also “beyond reasonable doubt.”
Nonetheless, such proper legal assessments ought never be undertaken apart from various corresponding operational expectations. This means, inter alia, that before any “extraordinary remedies” should be applied, those presumptive remedies should appear to be not only legal, but also tactically and strategically sound. In this connection, it would make elementary good sense to extrapolate from classical Prussian strategist’s Carl von Clausewitz’s enduring mantra in On War.
Assassination, like war, should always be “…a continuation of political relations by other means.”
More specifically, the targeted killing of terrorist leaders should always be assessed against a determinable and pre-existing “political object.”
In the absence of tangible “congruence” in any such assessment, there could be no valid reason to proceed with a considered force-based operation. This is the case even where the contemplated targeting would be presumptively lawful and/or where it could expect to produce positive military outcomes.
In his Utopia, published in 1516, Thomas More offered a curious but clarifying juxtaposition of foreign policy stratagems and objectives. Although the Utopians are expected to be generous toward other states, they also offer (in Book II) tangible rewards for the assassination of enemy leaders. This is not because Thomas More wished in any way to appear barbarous, but because he was a fully realistic “utopian.” Sharing with St. Augustine (whose City of God had been the subject of More’s 1501 lectures) a fundamentally dark assessment of human political arrangements, he constructed a “lesser evil” philosophy that favored a distinctly pragmatic and still plausible kind of morality.
Inter alia, Sir Thomas More understood
that the truly tragic element of politics is constituted of certain conscious
choices of evil for the sake of a greater good. With regard to our ongoing scholarly
investigation of US national security and counter-terrorism,, this suggests
that assassination must always remain disagreeable in the “best of all possible
worlds” (for example, the Leibnizian world satirized by Voltaire in Candide), but that it may also represent a
necessary expedient in a world that must remain irremediably imperfect. In any
event, these are matters that need to be treated in broadly intellectual and
historical terms, and not as seat-of-the-pants decisions based on momentary
presidential whim or embarrassingly empty witticisms.
 On the plausible consequences of a full-scale nuclear war, by this author, see: Louis René Beres, Apocalypse: Nuclear Catastrophe in World Politics (Chicago: University of Chicago Press, 1980); Louis René Beres, Mimicking Sisyphus: America’s Countervailing Nuclear Strategy (Lexington, Mass., Lexington Books, 1983); Louis René Beres, Reason and Realpolitik: U.S. Foreign Policy and World Order (Lexington, Mass., Lexington Books, 1984); Louis René Beres, Security or Armageddon: Israel’s Nuclear Strategy (Lexington, Mass., Lexington Books, 1986); and Louis René Beres, Surviving Amid Chaos: Israel’s Nuclear Strategy (Rowman & Littlefield, 2016; 2nd ed., 2018).
 Hobbes argued convincingly that the international state of nature is “less intolerable” than that same condition among individuals in nature because, in the latter, the “weakest has strength enough to kill the strongest.” Significantly, with the spread of nuclear weapons, this difference is disappearing. Interestingly, in the pre-nuclear age, jurist Samuel Pufendorf, like Hobbes, was persuaded that the state of nations “…lacks those inconveniences which are attendant upon a pure state of nature….” Similarly, Spinoza suggested that “…a commonwealth can guard itself against being subjugated by another, as a man in the state of nature cannot do.” (See: Louis René Beres, The Management of World Power: A Theoretical Analysis, University of Denver, Monograph Series in World Affairs, Vol. 10, No.3., 1972-73, p. 65.)
 See Louis René Beres, “The Killing of Osama Bin Laden,” Crimes of War, Crimes of War Project, August 2011, http://www.crimesofwar.org/commentary/the-killing-of-osama-bin-laden/; Louis René Beres, “Assassinating Terrorist Leaders: A Matter of International Law,” OUP Blog, Oxford University Press, May 4, 2011; and Louis René Beres, “After Osama Bin Laden: Assassination, Terrorism, War, and International Law,” Case Western Reserve Journal of International Law, 44 Case W. Res, J. Int’l 93 (2011).
 Although “assassination” and “targeted killing” are often used interchangeably, there are meaningfully core distinctions to be made. Using the precise scholarly criteria offered by Amos Guiora, an assassination is always an expressly political killing that involves treachery or perfidy, and is not directed toward any suspected terrorist. A targeted killing, on the other hand, is a violent and person-specific expression of preemptive self-defense, and is always oriented to preventing some future act of terrorism. Always, inter alia, the targeted individual must be presumptively involved in the planning and execution of new terrorist assaults. See Amos. Guiora, Legitimate Target: A Criteria-Based Approach to Targeted Killing (New York, Oxford University Press, 2013).
 In the U.S. Constitution, Amendments IV, V, VI and VIII comprise a “Bill of Rights” for accused persons, and the phrase “due process of law” derives from Chapter 29 of Magna Carta (1215), wherein the King promises that “no free man (nullus liber homo) shall be taken or imprisoned or deprived of his freehold or his liberties or free customs, or outlawed or exiled, or in any manner destroyed, nor shall we come upon him or send against him, except by a legal judgment of his peers or by the law of the land (per legem terrae).” See Coke, Institutes, Part 2: 50-51, 1669; cited by E.S. Corwin, The Constitution and What It Means Today (New York: Atheneum, 1963): 217.
 In this connection, it was surely not in overall US security interests for the American president to comment publicly about al-Baghdadi that he “died like a dog….whimpering….like a coward.” Such inflammatory language was gratuitous at best, and could plausibly even incentivize future anti-American terrorism from various ISIS-related groups. Moreover, the language must assuredly have been invented by Trump.
 Here we must recall that criminal responsibility of leaders under international law is not limited to direct personal action nor is it limited by official position. On the principle of command responsibility, or respondeat superior, see: In re Yamashita, 327 U.S. 1 (1945); The High Command Case (The Trial of Wilhelm von Leeb), 12 Law Reports Of Trials Of War Criminals 1 (United Nations War Crimes Commission Comp., 1949); see Parks, Command Responsibility For War Crimes, 62 MIL.L. REV. 1 (1973); O’Brien, The Law Of War, Command Responsibility And Vietnam, 60 GEO. L.J. 605 (1972); U.S. Dept Of The Army, Army Subject Schedule No. 27 – 1 (Geneva Conventions of 1949 and Hague Convention No. IV of 1907), 10 (1970). The direct individual responsibility of leaders is also unambiguous in view of the London Agreement, which denies defendants the protection of the act of state defense. See AGREEMENT FOR THE PROSECUTION AND PUNISHMENT OF THE MAJOR WAR CRIMINALS OF THE EUROPEAN AXIS, Aug. 8, 1945, 59 Stat. 1544, E.A.S. No. 472, 82 U.N.T.S. 279, art. 7.
 See Exec. Order No. 12333, 3 C.F.R. 200 (1988), reprinted in 50 U.S.C. Sec. 401 (1988).
 The authoritative sources of international law are listed comprehensively (and can be most conveniently found) at art. 38 of the Statute of the International Court of Justice.
 In the words used by the U.S. Supreme Court in The Paquete Habana, “International law is part of our law, and must be ascertained by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations.” See The Paquete Habana, 175 U.S. 677, 678-79 (1900). See also: The Lola, 175 U.S. 677 (1900); Tel-Oren v. Libyan Arab Republic, 726 F. 2d 774, 781, 788 (D.C. Cir. 1984)(per curiam)(Edwards, J. concurring)(dismissing the action, but making several references to domestic jurisdiction over extraterritorial offenses), cert. denied, 470 U.S. 1003 (1985)(“concept of extraordinary judicial jurisdiction over acts in violation of significant international standards…embodied in the principle of `universal violations of international law.'”).
 After the seventeenth century (1648) Peace of Westphalia, which ended the Thirty Years’ War and created the present conflictual system of independent states. See: Treaty of Peace of Munster, Oct. 1648, 1 Consol. T.S. 271; Treaty of Peace of Osnabruck, Oct. 1648, 1, Consol. T.S. 119. Together, these two agreements comprise the Peace of Westphalia. Thomas Hobbes’ Leviathan was first published in 1651, just three years after the Peace of Westphalia. It is at Chapter XIII that Hobbes famously references the “state of nature” as an anarchic situation characterized by “continuall feare; and danger of violent death….”
 Nullum crimen sine poena is the principle that distinguishes between criminal and civil law. Without punishment there can be no distinction between a penal statute and any other statute. (See Redding v. State, 85 N.W. 2d 647, 652; Neb. 1957)(concluding that a criminal statute without a penalty clause is of no force and effect). The earliest statements of Nullum crimen sine poena can be found in the Code of Hammurabi (c. 1728-1686 B.C.); the Laws of Eshnunna (c. 2000 B.C.); the even-earlier Code of Ur-Nammu (c. 2100 B.C.) and of course the Lex Talionis or law of exact retaliation presented in three separate passages of the Jewish Torah or biblical Pentateuch. At Nuremberg, the words used by the Court, “So far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished,” represented an unambiguous reaffirmation of Nullum crimen sine poena. For the Court statement, see: A.P. d’Entreves, NATURAL LAW (London: Hutchinson University Library, 1964), p. 110.
 The extradite or prosecute formula of international criminal law is deducible from Nullum crimen sine poena. Existing since antiquity, it is an expectation with roots in both natural law (especially Jean Bodin, Hugo Grotius, and Emmerich de Vattel) and in positive law. See also: Resolution on Principles of International Cooperation in the Detection, Arrest, Extradition and Punishment of Persons Guilty of War Crimes and Crimes Against Humanity, G.A. Res. 3074, 28 U.N. GAOR, Supp. No.30 at 78, U.N. Doc. A/9030, 1973; G.A. Res. 2840, 26 U.N. GAOR Supp. No. 29 at 88, U.N. Doc. A/8429, 1971; G.A. Res. 96, U.N. Doc. A/64 at 188, 1946; Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, adopted and opened for signature, ratification and accession by General Assembly Resolution 2391 (XXIII) of 26 November 1968, entered into force, 11 November 1970.
 Article 38(1)(b) of the Statute of the International Court of Justice describes international custom as “evidence of a general practice accepted as law.” 59 Stat. 1031, T.S. No. 993 (June 26, 1945). Norms of customary international law bind all states irrespective of whether a State has ratified the pertinent codifying instrument or convention. International law compartmentalizes apparently identical rights and obligations arising both out of customary law and treaty law. “Even if two norms belonging to two sources of international law appear identical in content, and even if the states in question are bound by these rules both on the level of treaty-law and on that of customary international law, these norms retain a separate existence.” See Military and Paramilitary Activities (Nicaragua v. U.S.), 1986 I.C.J. Rep. 14, para. 178 (June 27).
 .On the concept of “common enemy of mankind,” see: Robert Alfert Jr., “Hostes Humani Generis: An Expanded Notion of U.S. Counterterrorist Legislation,” EMORY INTERNATIONAL LAW REVIEW, Vol. 6, No. 1, Spring 1992, pp. 171-214.
OTT broadcast and its censorship: Whether a violation of freedom of speech and expression
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, 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 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, 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.
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. 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.
 K.A. Abbas v. Union of India and Another (1970) 2 S.C.C. 780
 S. Rangarajan v. P. Jagjivan Ram (1989) 2 S.C.C. 574
 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
 Id. at 13
 Subhradipta Sarkar, RIGHT TO FREE SPEECH IN A CENSORED DEMOCRACY, UNIVERSITY OF DENVER SPORTS
AND ENTERTAINMENT LAW JOURNAL 62, 84 ,89 (2009)
What Determines Taliban Government’s Legitimacy?
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.
Artificial Intelligence and International Refugee Law
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.
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.
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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