Connect with us

International Law

Global Press Freedom Windowsill in 2019: Gasping for Nonconformity and Sustainable Media Pluralism

Published

on

Journalists and media actors perform a crucial role in modern societies, reporting news and disseminating and sharing information with the people that exposes the misdeeds of state agencies, bodies and make state institutions accountable and transparent. They contribute by creating more fair, peaceful, and inclusive societies. The press freedom and free media is the new independent organ of a democratic political set-up what I call ‘constitutional state’ beyond the conventional three-fold separation of power doctrine propounded by the Baron de Montesquieu in his work “The Spirit of the Laws” (1748) which states that “There can be no liberty where the legislative and executive powers are united in the same person or body of magistrates … [or] if the power of judging be not separated from the legislative and executive powers(sic).” Therefore, global press freedom and free media is an inalienable part of transformative constitutionalism that survives on the right of democracy to have the diversity of opinion, the right to independent journalism, and the right to think like a journalist within the constitutional mandate. However, around the world, journalists are confronting unprecedented fear and violence in their pursuit of truth and fairness, while media freedom has been gasping for liberal space.

The worldwide killing of journalists in 2019 has recorded a noteworthy downswing; however, the global press freedom crisis got aggravated to the new heights owing to the governments preferring to punish independent journalists everywhere. State-patronized-led (SLP) violence against media and journalists in the form of stigmatic campaigns, subjective news hounding, and legal persecution has been guzzling global press freedom. SLP violence has divested the freedom of the press of its core elements such as impartiality, independence, fairness, nonconformity, and self-determination. The International Press Institute (IPI) has recorded the coverage of global press freedom in 2019 that shows an incremental trend in SLP violence such as state enacting new draconian laws, state abusing the existing laws to curb media freedom, state threatening the independent journalists for harassment and incarceration and state creating new pliant and docile media indulging in peddling state-designed rhetoric and populist perception across the world.

IPI Executive Director Barbara Triofni opined that “2019 has witnessed a clear downswing in the number of journalists eliminated to the lowest level in 20 years, even as impunity remains a major challenge. We certainly welcome this development. However, we fear it may be a direct consequence of increased authoritarian tendencies in many countries, where alternative means of silencing the press, such as twisting the law to harass and jail critical journalists while smearing independent media, have been adopted to shield political leaders from scrutiny and criticism.”Further, 2019 has witnessed police raids and arrests of media persons and journalists worldwide while undermining the international media law.The 2019 World Press Freedom Index (WPFI) categorized the media climate in more than three-fourths of the 180 nation-states and territories researched as “problematic,” “difficult” or “very serious” and only 8% have a media climate regarded “good” (sic).

Suppression of Free Media Worldwide

An IPI Executive Board member, along with the founder of the online news outlet Rappler Maria Ressa was arrested twice in 2019 on cyber libel and other charges in February and March, respectively. The government of the Philippines has filed several cases against Maria and her media outlet Rappler due to its criticism of President Rodrigo Duterte and his ministerial colleagues. In Egypt, the government intensified its intimidation exercises like swooping news organizations, vandalizing free media houses, and arresting independent scribes. In November 2019, Egyptian security agencies raided the offices of the most important online news platform in Egypt known as Mada Masr that has been conferred upon with IPI-International Media Support (IMS) award for its courageous, responsible and investigative journalism. In total, more than 60 journalists have been rotting in Egyptian jails in extremely inhospitable conditions. Al Jazeera’s Mahmoud Hussein has been in detention for more than three years, and Ismail Alexandrani has served almost four years in prison.

In Turkey, about 115 journalists have been imprisoned for long as reported by the IPI-International Press Freedom Mission that recorded “no improvement” in press freedom in Turkey and pointed out the political subjugation of Turkish judiciary failing in protecting the rights of journalists. New waves of repressive measures such as re-arresting of released journalists who castigated the Turkish military invasion of Syria. In Australia, a police raid on the homes of journalists working with the Australian Broadcasting Corporation (ABC) was conducted due to ABC’s reporting of unlawful killings of Afghans by the Australian Special Forces in Afghanistan in 2017 that attracted international criticism and accentuated the inadequate safety measures for the free press in Australia.

In South Asia, with authoritarian state propaganda, disinformation, undeclared censorship, cyber-harassment, intimidation, and physical violence is the new normal. South Asiahas theworst record on the free press as reported by the Reporters Without Borders(RSF),and it is a region that is infested with all the problems that have overwhelmed press and independent journalism. The WPFI collected by RSF establishes that hatred to journalists has degenerated into violence and accelerating the threshold of fear and torture. The number of safe countries for journalists has been declining as SLP violence continues to strangulate the free media. As per WPFI rankings, the number of murdered journalists was extremely high in Afghanistan (121st), India (142nd), Maldives (98th),Pakistan(152nd),and Sri Lanka (156th).Consequently, the maneuvering of social networks in Myanmar that pandered to anti-Rohingya hate messages and imposition of the 7-year jail imprisonment of two Reuter’s journalists who tried to investigate the Rohingya genocide was a new normal.

There are many other dimensions to the suppression of free media like the Internet that is frequently subjected to shut-down and deliberate slowdown. In today’s world of technology, the Internet controls the free flow of information, freedom of the press, and free speech. In South Asia, the highest number of Internet shutdowns globally has been recorded, and India has earned the dubious distinction for the same. The Internet shutdowns are “any intentional disruption of the broadband or mobile Internet or Internet-based mobile apps, by an order of the authorities or threat of non-state party, to control communication or online content or slowing down the access to the general public (sic).” In many cases, the government gives the justification for the Internet shutdown is to “maintain law and order.”However, the majority of the shutdowns are either pre-emptive or reactive measures in the wake of mass or potential violent public protests.

Globally, national governments have been promulgating new laws in Nigeria, Cambodia, and Singapore on the pretext of national security, public order, and national integrity. The increasing influence of China is responsible for censorship in Singapore that ranked 151stand Cambodia143rd. In Poland, leading online media outlet, Gazeta Wyborcza has been beleaguered with libel cases filed by the Polish government officials while Bulgaria launched a criminal investigation against Bulgarian journalist Atanas Tchobanov and Assen Yordanov for their investigative journalism. In Africa, more than 20 journalists’detention in Uganda on 04 November 2019 and in Tanzania, a freelance journalist Erick Kabendera who was conferred with David Astor Award in 2009,has been arrested initially to investigate his citizenship credentials but subsequently, he has been booked under money laundering charges. In such a hostile atmosphere, the political ecosystem can fundamentally and adversely transform the environment for independent journalists and free press.

Delegitimization of Free Press Personnel

Primarily, authoritarian regimes are the first category of institutional structures that denigrates press freedom for their ulterior objectives, which cannot be achieved by constitutionally-driven channels. These state structures are manned by the politicians who have radically transformed the free social media to denigrate and hound free media platforms and bully independent journalists for their critical journalism. US President Donald Trump denigrating press freedom continuously and attributing journalists as enemies of the people and many like-minded politicians across the world are also following him. The framework of press freedom in the US has been tattered and debilitated by the political pillory of independent scribes in 2019. Media freedom has been confronting the criminalization of journalists covering protests, escalation in harassment, and denial of access to government-held information.

In Pakistan, editor of an English newspaper Dawn was threatened with death by the politicians associated with the incumbent government on social media due to his publishing a report on London stabbing attacks on 29 November 2019.In Brazil, Glenn Greenwald—co-founder of an online news outlet, The Intercept—faced a smear campaign of threats of violence, prosecution and deportation emanating from patronized politicians and blue-eyed boys of President Jair Bolsonaro after he published damaging revelations about the unethical behaviour and transgressions of power exercised by a former judge Sérgio Moro and now justice minister. In Hungary, since 2010, the government has been tempering systematically with media freedom and pluralism by twisting the media market and alienating journalistic community to achieve the maximum degree of media control unprecedented in an EU member state as highlighted in a report compiled by the IPI-led joint Press Freedom Mission in November 2019. The report has underscored a systematic delegitimization of free press personnel by calling them as political activists, foreign agents, and traitors.

Downswings in Violence against Press Personnel

The persecution of free press on legal grounds increased in 2019, but there is a significant decline in the killings of a journalist if compared to preceding years. Forty-seven journalists have been killed in 2019 as compared to 82 and 79 killings of journalists in 2017 and 2018, respectively. Out of 47 deaths in 2019, there were 30 targeted killings due to investigative journalism regarding crimes and corruption involving criminal syndicates. However, as many as 19 journalists were victims of targeted killings in the Americas consisting of 9 alone from Mexico. In Africa, one journalist got killed in 2019, and in Asia, 6 journalists were killed in targeted attacks. Reduction in violence and murder of journalists is a positive development but impunity and culpability for past killings of journalists remain pandemic and a multiplying challenge.

Mexico turned out to be an extremely hostile country for the journalists and flopped in its responsibility to bring a single culprit to justice out of more than 100 murders of journalists since 2006, as highlighted in a report compiled and released by an international mission on 06 November 2019.This international mission was carried out by the representatives of 17 international press freedom organizations in response to Mexico’s crisis of journalist safety and impunity. However, Europe was the only region that has recorded a few positive developments in stopping impunity. In Slovakia, the murder of an investigative journalist Ján Kuciak and his fiancée Martina Kušnírová hogged the global limelight in 2018 and prosecutors in October 2019 initiated the charges against the accused Marian Kocner and three of his accomplices. In November 2019, the government of Malta charged a local business tycoon and high ranking officials of the Maltese government with the murder of an investigative journalist Daphne Caruana Galiziawho exposed the Panama papers’ corruption.

The Constitutional Court of Turkey (CCT) has adjudicated and ruled on the libel suit instituted by Ex-Ankara Metropolitan Mayor Melih Gökçek against journalist Hayko Bağdat and held that the penalization of journalist violated his right to freedom of expression protected under Article 26 of the Constitution of Turkey. The CCT opined that “it should not be forgotten that not only the protection of the essence of thought and knowledge but also the way of presenting the thought and knowledge are important in freedom of expression. Even though they are disturbing, the penalization of criticisms against politicians can serve as a deterrent factor and cause the different voices in public to be silenced out of fear of being penalized. It is an obstacle to the sustainability of a pluralist society (sic).”Thus, the methods used by many national governments around the world deviate from the core elements of the global rule of law and equality governance.

The Ecosystem of Sustainable Media Pluralism

The global press has been gasping for nonconformity and sustainable media pluralism worldwide. Free press and independent journalism are an inalienable element of the democratic framework of good governance. Omnipresent erosion of nonconformity and ubiquitous anti-media rhetoric are a deathblow to the ecosystem of sustainable media pluralism. The right to information of ordinary people emanates from the diversity of information; otherwise, it would be at the guillotine; however, in recent years, it has greatly empowered the journalists everywhere. It is important to address deliberate distortions in the name of the competition in the media market by expanding the gamut of fiscal support to independent investigative journalism. Sustainable democracy cannot be imagined without sustainable media freedom that requires a free media environment across the world. The concentration of media ownership has been perpetrated by the governments contrary to fair market competition that has badly affected the free press and media pluralism. National governments must review the availability and exploitation of state-owned resources and stop the practice of settling the multi-dimensional score with the independent media houses and rewarding pro-establishment media outlets.

It is expected that national governments ensure international norms of accountability, independence, and transparency while dealing with public broadcasting services. The administrative harassment and marginalization of the free press and independent media by the regulatory bodies of the state must be stopped. The protection of the independence of journalism, the safety of journalists, and other freelance media actors from discrimination in accessing the information and press meets. The inviolability of journalistic credentials and the ability of journalists to function and perform their role as an ombudsman in the reporting of Parliamentary working must be respected and appreciated. Any attack on independent journalists—online or offline—must be properly probed. Political intervention and influence in the media market have undermined the global free press that has exacerbated the ecosystem of sustainable media pluralism worldwide. The global community must profoundly cogitate upon the unprecedented sordid state of media freedom situation around the world and respond appropriately by taking measures in line with the principles and purposes of the UN Charter.

Where from here?

It is incumbent upon the national governments to emplace a robust normative framework on the safety of journalists. There are as many as twelve Resolutions and Decisions on the Safety of journalists adopted by the United Nations bodies such as the UN General Assembly, UN Security Council, UN Human Rights Council, and UNESCO since 2012. The safety of journalists under SDG 16.10.1 has been established as a measure to be accomplished as a part of the 2030 Agenda for Sustainable Development Goals, particularly public access to information and protection of fundamental freedoms. In 2013, UN General Assembly declared November 02 as “International Day to End Impunity for Crimes against Journalists,” and UNESCO has been leading all commemorations that have enhanced the understanding of the safety of journalists and impunity challenges. For achieving global free press and sustainable media pluralism, the challenges of media market distortions, discrimination in access to information, opaque implementation of media regulations, authoritarian public media broadcasting and de-legitimization of journalists must be addressed by revisiting the role of international media law. 

Ph. D., LL.M, Faculty of Legal Studies, South Asian University (SAARC)-New Delhi, Nafees Ahmad is an Indian national who holds a Doctorate (Ph.D.) in International Refugee Law and Human Rights. Author teaches and writes on International Forced Migrations, Climate Change Refugees & Human Displacement Refugee, Policy, Asylum, Durable Solutions and Extradition Issus. He conducted research on Internally Displaced Persons (IDPs) from Jammu & Kashmir and North-East Region in India and has worked with several research scholars from US, UK and India and consulted with several research institutions and NGO’s in the area of human displacement and forced migration. He has introduced a new Program called Comparative Constitutional Law of SAARC Nations for LLM along with International Human Rights, International Humanitarian Law and International Refugee Law & Forced Migration Studies. He has been serving since 2010 as Senior Visiting Faculty to World Learning (WL)-India under the India-Health and Human Rights Program organized by the World Learning, 1 Kipling Road, Brattleboro VT-05302, USA for Fall & Spring Semesters Batches of US Students by its School for International Training (SIT Study Abroad) in New Delhi-INDIA nafeestarana[at]gmail.com,drnafeesahmad[at]sau.ac.in

Continue Reading
Comments

International Law

Legal Implications of Sea Level Rise for Small Island States

Published

on

A new World Bank study examining the potential legal implications of sea-level rise on the maritime and legal rights of Pacific Island nations provides a pathbreaking review of the key legal questions and highlights that some international legal conventions may need to be reconsidered.

The new study, Legal Dimensions of Sea Level Rise: Pacific Perspectives, sets out the latest developments in international law to support policy considerations now underway in the Pacific and around the world. The report assesses how states would defend their existing territories and marine resources in accordance with international law when dealing with rising seas and land loss.

Furthermore, the report considers more existential questions for these countries such as whether statehood could continue if a nation were to become uninhabitable and legal rights and implications for citizen mobility if people are to be relocated.

Global mean sea-level will continue to rise throughout the 21st century due to the effects of climate change. In many areas, this will result in increased coastal flooding, storm surges, cyclones and even land loss. In small Pacific atoll nations, these impacts are expected to be more severe, with entire islands at risk of becoming uninhabitable. Along with the loss of homes and resources, the loss of land to rising seas would also have profound impacts on countries’ legal and maritime rights.

“The impacts of climate change are a global concern, however the loss of territory is a real and clear threat to the very existence of Pacific states, and particularly atoll nations,” said Benoit Bosquet, World Bank Regional Director for Sustainable Development in East Asia and the Pacific. “Such impacts would be unprecedented and create similarly unprecedented legal questions. We hope this work will provide useful analysis for Pacific nations and small island states facing these unique and challenging questions.”

The Pacific region has been a leader in considering policy and legal options in the face of sea-level rise, most recently with the Members of the Pacific Island Forum endorsing the Declaration on Preserving Maritime Zones in the Face of Climate Change Related Sea Level Rise in August 2021.

While the report highlights a range of legal and policy tools available to island states, a re-examination of the current paradigms of international law are also suggested. One example is clarifying how territorial and maritime entitlements – including to resources – can be preserved in the face of rising sea levels. Something the Pacific Islands Forum’s recent Declaration on Preserving Maritime Zones has just set out to do.

“As the impacts of climate change are being felt, it is clear that adaptation alone will not be sufficient for small island states such as the Marshall Islands,” said Acting RMI Chief Secretary, Catalino Kijiner. “This work will be helpful in informing government decision-making in the context of rising sea levels, and will help direct how the international community can best provide island and atoll nations with the support we need to address these unprecedented challenges.”

The study, authored by David Freestone and Duygu Cicek, has been developed as part of the World Bank’s work on Building Resilience in Pacific Atoll Island Countries with financing from the Global Facility for Disaster Reduction and Recovery (GFDRR).

The World Bank works in partnership with 12 countries across the Pacific supporting 87 projects totaling US$2.09 billion in commitments in sectors like agriculture, health, education and employment, climate resilience and adaptation, energy, fisheries, rural development, economic policy, macroeconomic management, aviation and transport, telecommunications, and tourism.

Continue Reading

International Law

Murderous Immortalities: Taliban Victory, Palestinian “Resistance” and Jihadi Terrorism

Published

on

afghanistan terrorism

An immortal person is a contradiction in terms.”-Emmanuel Levinas, God, Death and Time (2000)

Taliban Victory and Jihadi Terror: Strategic and Legal Connections

At the surface, there are no clear connections between Taliban victory in Afghanistan and wider Jihadi terrorism. Upon closer inspection, however, the Taliban triumph reflects more than Islamist success in just one country. Potentially, at least, strengthened Islamist governance in that perpetual battleground country will expand to other parts of the Middle East and North Africa.

               In all likelihood, this corrosive expansion will be soon and possibly sudden.

               Further details are necessary. The Taliban’s rapid re-conquest of Afghanistan reenergized global jihad’s determined war against the “unbeliever,” especially the United States and Israel. Among other things, dramatic submission of the world’s principal superpower (the evident head of a “Zionist-Crusader alliance”) to Koran-directed “true believers” is being regarded by Islamist loyalists as an auspicious omen for “holy war.” For tangible example, the future of Palestinian “resistance” groups such as Hamas now appears substantially brighter. In this connection, though Hamas is a Sunni organization, it is still supported by Shiite Iran. Both Hamas and Palestinian Islamic Jihad regard the US defeat in Afghanistan as a premonition of eventual operational success and as proof of divine guidance.[1]

               These are not exclusively military or religious issues. There are also various legal or judicial consequences to be considered.[2] To begin, the Palestinian insurgency is generally identified as “terrorism” by Israel and much of the West.[3] Even if assorted Palestinian fighting organizations could be granted “just cause” for their stated political objectives, the means they have chosen are often patently unjust.[4]

               Under authoritative law, the oft-repeated assertion that “One man’s terrorist is another man’s freedom fighter” is no more than an empty witticism. Under international law, insurgent resorts to force, even those with a presumptive just cause, become terrorism ipso facto when they are applied indiscriminately to targeted populations.[5] In essence, indictments of Palestinian armed force as terroristic are fully justified whenever insurgent fighters act against the codified[6] or customary rules of “proportionality,”[7] “discrimination” (“distinction”) and/or “military necessity.”[8]

               Under binding international law, which is always an integral part of United States domestic/municipal law,[9] even the “sacred” rights of insurgency must always exclude any deliberate targeting of civilians or resorts to force intended to inflict gratuitous suffering. Shallow political witticisms aside, no insurgent force can ever assert a right to employ “any means necessary.” Though such clichéd revolutionary slogans may prove useful in mobilizing popular Palestinian support against Israel, they have no valid jurisprudential content.[10]

Explicit Legal Standards

                Prima facie, the pertinent normative rules are unambiguous. In world law, any insurgency that intentionally blurs the lines between combatant and non-combatant populations is impermissible. Irrespective of any “just cause,” such insurgency is “terrorism.”[11] Moreover, in these easily recognizable matters, there can be  no proper legal exceptions and no legal defense arguments based on purportedly reciprocal wrongs.

               “Rights cannot derive from wrongs” remains a peremptory expectation of all international law.[12] Similarly, there can be no valid legal claims based on “the other side’s” alleged wrongdoing.

               In proper legal terminology, tu quoque, an argument that the “other side’s” transgressions justify “any means necessary,” has long been formally discredited. Under international law, any argument for tu quoque is inherently invalid after the landmark judgments handed down at Nuremberg (Germany) in 1945-46 and at the  later Far East (Japan)  ad hoc criminal tribunal.[13]

               For both Israeli (IDF) and Palestinian insurgent forces, the usual right to armed force[14] can never supplant the peremptory rules of humanitarian international law. Such primary or jus cogens rules (norms that permit “no derogation”[15]) are also correctly referenced as the law of armed conflict orthe law of war. Inter alia, attentiveness to this basic law must remain an integral part of any armed force’s military operations. This immutable law has evident doctrinal roots in the Hebrew Bible, the Law of Athens and in Roman Law (most notably Emperor Justinian’s Institutes).

               During Israel’s last Gaza war, diversionary legal manipulations by Hamas and its supporters were de rigeur. Again and again, without any legal basis, supporters of Palestinian terror-violence against Israeli noncombatants insisted that “the ends justify the means.” Leaving aside the ordinary ethical standards by which any such argument must always be characterized as indecent, the law is similarly plain: In any insurgency, even the most allegedly noble cause (ends) can neverjustify openly inhumane effects (means).

               In law, such matters are not complicated. For more than two thousand years, core legal principles have specified unequivocally that intentional violence against the innocent isprohibited. Always.

               In ongoing matters of terrorism and counter-terrorism, legal reasoning ought never be disregarded.[16] Clichés do not make sensible policies, nor do they make  authoritative law. In contemporary jurisprudence, one person’s terrorist can never be another’s “freedom-fighter.” Even presumptively allowable resorts to insurgent force must always conform to long-settled laws of war.

               The message is clear. International law cannot be invented and reinvented according to particular situations. It maintains very specific and determinable form and content. It cannot be defined and redefined by insurgent groups or by insurgent patrons. This is especially the case when insurgent violence intentionally targets a designated victim state’s most vulnerable civilian populations.

               In these cases, ipso facto, insurgent violenceis terror-violence.

               Sometimes we hear insurgent groups referenced as “national liberation movements.” Nonetheless, when such groups fail to meet the test of just means, they can never be protected as lawful or legitimate. Even if “compelling law” (“peremptory” or jus cogens rules) were to accept the factually questionable argument that certain terror groups had fulfilled broadly accepted criteria of “national liberation,” (e.g., Palestinian Hamas), they would still not satisfy the equally germane legal standards of discrimination, proportionality, and military necessity.

               Significantly, these core standards are not reserved to national armies. They are expressly applied to insurgent or sub-state armed forces by the common Article 3 of the four Geneva Conventions of 1949 and by the two 1977 Protocols to these Conventions.

               There is more. In law, all war[17] and insurgency is governed by ascertainably common standards of “humanity.”[18] These overarching criteria are binding upon all combatants by virtue of comprehensive customary and conventional international law, including Article 1 of the Preamble to the Fourth Hague Convention of 1907. This foundational rule is generally called the “Martens Clause;” it makes all persons responsible for upholding the “laws of humanity” and the associated “dictates of public conscience.”

The Obligations of Comity

                World law requires continuous international cooperation, an obligation made most conspicuously famous by Emmerich de Vattel’s Law of Nations (1758) and William Blackstone’s Commentaries on the Laws of England (1765-1769). Though probably unknown to a majority of practicing lawyers in the United States, Commentaries represent the literal foundation of United States domestic law.  

               Under an always-compulsory international law, terrorist crimes mandate universal cooperation in apprehension and punishment. As punishers of “grave breaches” under international law,[19] all states are expected to search out and prosecute (or extradite) individual terrorists. In no conceivable circumstances, and whatever the presumed expectations of religious faith, are states permitted to identify terrorist “martyrs” as “freedom fighters.”

               In law, we have seen, rights can never stem from wrongs.[20] Even if certain populations continue to insist on treating the most recalcitrant jihadist insurgents as “martyrs,” such treatment can have no exculpatory or mitigating effect on punishing attendant terror-crimes. Despite any alleged justness of cause, and this includes frequently-cited Palestinian references to “sovereignty” and “self-determination,” nothing in international law can justify the deliberate targeting of non-combatant Israeli populations.[21]

                There are certain notable jurisprudential ironies. During the last Gaza War, such targeting killed and injured not only Palestinians working in Israel, but also Thai agricultural laborers whose only reason for working in Israel was to support indigent families back home. “Credo quia absurdum,” said the ancient philosopher Tertullian. “I believe because it is absurd.”

                Several years back, Mohammed Deif, then leader of Hamas’ military wing, the Izzedine al-Qassam Brigades, summed up his organization’s raison d’etre: “Our soldiers yearn for death, the way the Zionist soldiers yearn for life.” Though this succinct summary was more than just a bit misleading – after all, Hamas terrorists “yearn for death” only because they associate “martyrdom” with personal immortality – a consuming ambiance of death is still their preferred geostrategic orientation.[22]

Palestinian Insurgency Beginnings

                In some ways, at least for Hamas and other Palestinian insurgents,[23] those earlier days represent a sort of Dickensian “best of times.” Then, under a more broadly welcoming insurgent canopy, Palestinian “diversity” was able to emerge and strengthen. At that moment, even atheistic and Marxist elements were allowed to make some collaborative cause with Islamists, a phenomenon that would be unheard of today.

               There is more. Then, in deference to variously fundamental emphases on operational collaboration, no particular ideology was encouraged to become a singularly hegemonic orientation. This apparent largesse was evident even inside Yasser Arafat’s Palestine Liberation Organization (PLO), the umbrella terror group first formed in 1964. That seminal formation took place three years prior to the Six Day War; this means three years before there were any “Israel Occupied Territories.”

               What exactly was the PLO seeking to “liberate” during those years? This is not a difficult question. The answer was and remains all of Israel, the entire micro-state that is still identified on both Palestinian Authority (PA) and Hamas maps as “Occupied Palestine.”.

               Now, after America’s defeat in Afghanistan, only identifiable Jihadists – those who are properly versed in Ribat (religious conflict fighting for “Islamic land”) – will be invited to participate in the Jihadist’s “divinely-mandated” armed struggle. Overall, the Palestinian fight will continue to change from being a preeminently secular and tactical conflict to one that may wittingly ignore all more ordinary and usual strategic/legal imperatives. Still, this all-consuming “struggle” remains founded upon unwavering commitments to “sacred violence.”  At its conceptual heart, such struggle reveals present-day expressions of “religious sacrifice.”[24]

Violence and the Sacred

                For the Palestinian terror movement against Israel, violence and the sacred remain deeply interpenetrating and inherently inseparable. Though it maintains various more-or-less legitimate claims of “self-determination,” religious sacrifice is what Jihadi Palestinian insurgency is ultimately all about. To finally understand this key point represents a sine qua non of successful counter-terrorism. Without a deeper understanding of such primal content, neither Israel nor the United States could ever mount systematically effective counter-terrorism operations in the Middle East or North Africa.

               Foundational links between religious sacrifice and violent insurgency have a long and potentially instructive history. To acknowledge and gain useful insight from this chronology, planners and policy-makers may look back to ancient Greece, specifically, to Plutarch. Ideas of Palestinian-Islamic religious sacrifice are ferociously adversarial and explicitly Islamist, but they are not unprecedented.

                The first century biographer’s Sayings of Spartan Mothers can speak to current issues. Plutarch recognizes the honorable female parent as one who deliberately rears her sons for civic sacrifice. Always, such a venerated Greek mother was relieved to learn that her son had died “in a manner worthy of his self, his country and his ancestors.” On the other hand, “unworthy” Spartan sons who failed to live up to this enviably bold standard of sacrifice were singled out for severe reprimand, and extensive public humiliation.

               One woman, we may learn from Plutarch, whose son had been the sole survivor of a disastrous military engagement, killed him brutally with a tile. Culturally, it seems, this killing was the only fitting punishment for the son’s unpardonable cowardice. Later, the eighteenth-century Swiss (Genevan) philosopher, Jean Jacques Rousseau, citing to Plutarch, described another citizen-mother’s tale as follows: “A Spartan woman had five sons in the army and was awaiting news of the battle.  A Helot (slave) arrives trembling; she asks him for the news. `Your five sons were killed.’  `Base slave, did I ask you that?’ The slave responds: `We won the victory.’  The mother runs to the temple, and gives enthusiastic thanks to the gods.”  

                There are serious lessons here for both Israel and the United States. Even now, and plausibly more so after Afghanistan, it is impossible to deny that the deepest roots of Jihadist terror originate from cultures that display similar views of religious sacrifice. Always, the key purpose of such ritualistic violence extends beyond any presumed expectations of civic necessity. Always, this rationale goes directly to the heart of individual human fear; that is, to the palpable font of existential dread.[25]

               Though bitterly ironic, any such primal fear of death is linked with martyr-centered terrorism, even today. For Palestinian terrorists, there are multiple accepted paths to immortality. Back in 2009, Palestinian-American terrorist, U.S. Army Major Nidal Hasan, actively sought the death sentence for his murder spree at Fort Hood back on November 5 of that year. Per his explanation in open court, “If I die by lethal injection, I would still be a martyr.”

               What could be clearer? What earthly promise could possibly be more gratifying to this mass killer than a religiously pledged conferral of eternal life? Significant connections between existential dread and Jihadi terrorism are conspicuous and potentially insidious.

               At his or her existential core, the Hamas fighter is not primarily interested in land or equality or justice. This terrorist wittingly kills himself or herself, together with various innocent others, to ensure a personal life that will literally never end. Accordingly, the so-called “death” that he or she actually expects to suffer in consequence of this “sacrificial “suicide” is really nothing more than a momentary inconvenience. In the final tally, it represents just a vaguely minor distraction.

               In such matters, truth may emerge through paradox. Hamas and otherPalestinian “martyrs” kill themselves as “suicides” in order not to die. There is no more central truth to Jihadi terror that is so consistently ignored or widely misunderstood.

               There is more. While seemingly irrational, the Jihadi martyr, the Shahid, can still calculate rationally that his/her intended suicide will be “cost-effective. This hero-fighter, after all, is embarked on what is presumed to be a divinely-guided trajectory. He/she has chosen a gloriously fiery path to life immortality. For him or her, there can be no more perfect path.

Martyrdom and Jihad

               In Islam, “martyrdom” has always been closely associated with Jihad. Unequivocal and celebratory invocations for such sacrificial killing can be found in the Koran (9:111) and, more explicitly, in the canonical hadith. “Do not consider those who are slain in the cause of Allah as dead,” instructs the Koran, “for they are living by their Lord.” For Hamas, such obligatory aspects of sacrificial terror ought never be overlooked by Israel or the United States. The two-sided nature of terror/sacrifice – the sacrifice of the victim and reciprocal death of “the Martyr” – is codified in the Charter of Hamas:  “The Palestinian problem is a religious one, to be dealt with on this premise…`I swear by that (sic.) who holds in His Hands, the Soul of Muhammad! I indeed wish to go to war for the sake of Allah! I will assault and kill, assault and kill, assault and kill.’”

               Today, post-Afghanistan implications of this Islamist decisional calculus warrant intensive study in both Jerusalem and Washington. Convinced that Shahada (“Death for Allah”) violence against the Israel will lead to a glorious martyrdom, the true Jihadist can never be effectively deterred solely by ordinary threats of armed reprisal. Among other pertinent ironies, such one-dimensiomnal threats could sometimes become an incentive to additional and/or enlarged terrorism.

               Credo quia absurdum, said the ancient philosopher Tertullian. “I believe because it is absurd.”

                For Israel, especially after Afghanistan, there exists no expectedly tolerable “Two-State Solution.” For the most part, the Islamic world recognizes only one state in this tiny part of the Middle East, and this state is not Israel. On 29 November 2012, the UN General Assembly upgraded the Palestinian Authority’s formal status to Nonmember Observer State,  This upgrade allows “Palestine” to bring complaints against Israelis before the International Criminal Court (ICC), but not as a state.[26]

               In specifically juridical terms, Palestine has limited “legal personality,” but not as a fully sovereign state.

                Israel and its Islamist terrorist enemies maintain very different orientations to “peace.” This stark asymmetry puts Israel at a disadvantage in virtually any “peace process.” While Israel’s Islamist enemies dutifully manifest their “positive” expectations for immortality, individual and collective, via the doctrinal slaughter of “heathen,” Israel’s leaders flatly reject their foes’ faith-based and annihilatory decisional calculus.

                Among other relevant perils, Israel now confronts a real and still-expanding threat of both unconventional war and unconventional terrorism.  Faced with opponents who are not only willing to die, but who actively seek their own ecstatic “deaths,” Jerusalem should better understand the critical operational limits of ordinary warfare, national homeland defense and “mainstream” strategic deterrence. In the end, power over death could trump every tangible form of power, including forms that are based upon aircraft carriers, missiles or technologically advanced weapon systems. The core cause of this expectation lies at the heart of what it means to be human.

                In all world politics, any deeply felt promise of immortality must be of distinctly “transcendent importance.”[27]This signifies, among other things, that the primary Israeli/American  orientation to wage prudent battle in counter-terrorism operations should focus on “mind over mind,” and not just “mind over matter.” Whenever insurgent enemies assign absolute primacy to the words “I believe,” it should be a signal to Jerusalem that the best Israeli response must be undertaken at a recognizably intellectual level.[28] Though intangible and not easily understood by ordinary politicians or planners, an enemy search for power over death could sometimes prove decisive,  overriding even the perils of ordinary military harms.

Quo Vadis

               What next? To dismiss such a distressingly complex reality will be tempting for Israel and also the United States, but such blithe dismissal could prove catastrophic.[29] When a determined enemy is driven by presumptively existential notions of “I believe,”[30] the aggregated arsenal of plausible counter-measures must become correspondingly flexible. This compelling analytic imperative would become even more obvious should that enemy become endowed (directly or indirectly) with nuclear[31] or other weapons of mass-destruction.[32]

               In the longer term, after Afghanistan, Israeli and US strategic policy planners should bear in mind that acts of nuclear terrorism need not require authentic nuclear weapons;  they could involve “only” conventional rocket attacks on Israel’s Dimona reactor.[33] In the final analysis, Israeli and American  deterrence postures will have to function as a seamless web,[34] allowing decision-makers to choose rationally from an already-available range of cost-effective policy options.

               Such fateful choice could sometime concern insurgent foes who seek not “merely’ sovereignty and self-determination,[35] but also “power over death.”

Summing Up: Perils and Remedies

               For Israel and the United States, the current Jihadi terrorist danger lies at two discrete but still interrelated levels. First, it exists at the level of the individual Islamist individual, the “chosen one” who seeks “martyrdom” through a deliberate path of insurgent violence. Second, it exists at the level of Islamist states, sovereign-actors which may sometime decide to represent, in institutionalized macrocosm, certain human “self-sacrificers.”

               Someday, and more-or-less plausibly, these states may choose collective “self-sacrifice” through the initiation of chemical, biological or nuclear war.  Such a conflict might be fought not for any traditional military reasons, but instead for the “liquidation” of “infidels.” On its face, any such grim determination would represent the unholiest of possible “marriages” between aggressive war and genocide, two mega-crimes identified under codified and customary international law.[36] In any such conflict, the defining Jihadist playbook would not be the classical military theories of Sun-Tzu or von Clausewitz, but rather the presumptively gratuitous destructiveness of de Sade.

               The root problem to understand here is Jihadistdeath fear, and the consequent dread-based compulsion to sacrifice variously despised “others.” This compulsion, in turn, stems from a widespread and doctrinal Islamist belief that killing unbelievers and being killed by unbelievers represents the most direct path to personal immortality. In very briefest summation, Jihadist terrorist unwillingness to accept personal death may lead to the killing of “others” in order to escape this presumptively unbearable fate.

                For many Islamist terrorist enemies, both individuals and states, killing Jews and “crusaders” offers optimal “immunization” against personal death and disintegration. Conceptualized in expressly psychological categories of analysis, the death fear of the Islamist enemy “ego” is lessened by the killing, the sacrifice, of the “other.” Among psychologists and sociologists,, this complex idea was famously captured by Ernest Becker’s vivid paraphrase of Elias Canetti: “Each organism raises its head over a field of corpses, smiles into the sun, and declares life good.”[37]

               There is more. The Jihadist enemies of Israel and the United States do not intend to do evil.[38]  Rather, they commit to the killing of Jews, Americans and other “infidels” with undisguised religious conviction, with limitless “purity of heart.” Perversely “sanctified” killers, these relentless enemies will continue to generate an incessant search for more and more victims. Though mired in blood, this terrorizing search will usually remain tranquil and self-assured for the perpetrators, a twisted disposition born of conspicuous self-delusion. This is that the terrorist violence against “unbelievers” is properly “sacrificial.”

               It is never infamous or shameful.

Confronting a Hydra

               Not merely by accident, the military wing of Fatah, allegedly the more moderate and secular exponent of Palestinian terror, is named the Al-Aqsa MartyrsBrigade. In roughly the same fashion as Palestinian Hamas and Palestinian Islamic Jihad, Fatah’s “Brigade” remains oriented toward more than “armed struggle.” It remains dedicated to certain coinciding principles of religious sacrifice. This all-consuming commitment promises its followers not just military victory over the “Zionist occupiers” and their American patrons, but immunity from death.

               By definition, these are incomparably potent promises.

               Palestinian terrorism is prospectively more dangerous today, after Afghanistan, than it was previously. In Israel’s early days, there werealready Fedayeen (“self-sacrificers”) adversaries, but their dominant motives were explicitly nationalistic and only derivatively “Islamic.” Today, Jerusalem must learn to think in terms of “desacralizing” this relentless adversary, of convincing Jihadists that the ritualized murders of “Jews” or “Zionists” will lead not to any promised paradise, but to insufferable “terrors of the grave.” Above all else, this counter-terrorist effort must become an intellectual task, not just a narrowly political or propagandistic one.

               Now there are associated operational questions. To wit, should Israel and the United States continue to target Jihadist terrorist leaders, a controversial strategy of political killing that could arguably preclude any need for wider wars? While the benefits of getting rid of specific terrorist masterminds without mounting any full-scale war are temptingly meaningful and perhaps even self-evident, it is also true that the Jihadi terror threat now confronting Israel and the United States resembles the mythic Hydra. This creature was a monster of many heads, one which was impossible to kill. Each time a single head was “successfully” excised by Hercules, as analysts may recall, two new ones grew in its place.

               For Israel and America, this is not an encouraging metaphor.

               There are also some wider lessons to acknowledge. In world politics and international law, the ultimate acquisition of power is never really about land or treasure or conquest or some other traditionally reassuring evidence of national primacy. Rather, it is presumed victory over death, a personal triumph associated by German philosopher Heinrich von Treitschke with the always-special prerogatives of national sovereignty.[39]

               Though contrived, the relevant reasoning here is nonetheless straightforward. When my state is powerful, goes the basic argument, so too am I. At some point, moreover, when my state seems ready to prevail and to prevail indefinitely, I too am granted a personal life that will be gloriously unending. Stated more succinctly: An “immortal” state creates (either as citizen or subject) the “immortal” person.[40]

In a world that always craves simple explanations, such abstract ideas can prove bewildering for scholars and decision-makers.  Still, to decipher such causal notions at a meaningful level, analysts could do well to recall certain familiar images of mid-1930s Nazi party rallies at Nuremberg. Leni Riefenstahl’s monumental film celebration of Der Fuhrer, The Triumph of the Will, may say it best. Reminding the German people of philosopher Hegel’s famous aphorism, the legendary film underscores something of prospectively incomparable insight:

An individual nation-state can become much more than a mere juristic person.

 It can become the “march of God in the world.”

Looking ahead, in a warning apt to both Jerusalem and Washington,  Islamist terrorist strategies will fare best whenever it can be made persuasive to Jihadists that “God is on our side.”[41]

Final Strategies

               Some final questions surface. In the dissembling aftermath of Afghanistan, what is the best overall counter-terrorist strategy for Israel and the United States? To begin, Israeli and American strategic/ intelligence communities will need to identify new and more promising ways of deterring non-rational adversaries.[42]

               Simultaneously, especially as Palestinian statehood may now more likely be validated by variously steady increments of recognition in the U.N. General Assembly, these communities will need to avoid a potentially lethal fallacy. This is the probable error of accepting Palestinian statehood on the strength of ostensibly binding assurances to “demilitarize.” [43] To be sure, no international legal agreements can be self-enforcing.

               Though former Israeli Prime Minister Benjamin Netanyahu had cited Palestinian demilitarization as a condition of negotiating Palestinian statehood (a citation presented as evidence of his particular foresight and prudence), it could never actually have had such an intended effect. Jurisprudentially, at least, the reason for such doubt is clear and essentially incontestable: Every state maintains an “inherent” right of self-defense.[44] This “peremptory”prerogative can never be casually challenged or taken away. This truth obtains even if the new state itself should explicitly agree to certain firm limitations on its “jus cogens” right.[45]

                By ignoring core roots of Jihadi terrorism, Middle East peace programs could continuously detour Israel and the United States with starkly contrived “Two-State Solutions.” Should Israeli Prime Minister Bennet yield to any assorted pressures exerted by Jihadist terrorist patron states, he will have overlooked or underestimated the doctrinal origins of Israel’s most recalcitrant enemies. Should he choose, instead, to reject such dangerous pressures, the Prime Minister will have understood that Israel’s ongoing struggles with Palestinian terrorism have always been about much more than “land,” “settlements,” or “self-determination.”[46]

               For Israel – now facing a more determined struggle for Palestinian statehood after the conclusive US defeat in Afghanistan – this key fact can be disregarded only at considerable collective peril. Looking ahead, should Jerusalem commit various critical errors in securing itself against Iran and “Palestine” simultaneously (these complex perils are both mutually reinforcing and force-multiplying[47]), the consequences would also reverberate in the United States.[48] Although an immortal person is a “contradiction in terms,”[49] the Jihadi terrorist still presumes that a protracted “holy war” against Israel, America and other enemy states can confer power over death.

               In essence, therefore, what these Jihadists so enthusiastically embrace is “murderous immortalities.”


[1] In commending the Taliban on August 17, 2021, Hamas leader Ismail Haniyeh observed: “The demise of the US occupation of Afghanistan is a prelude to the demise of the Israeli occupation of the land of Palestine.” See “The Taliban’s Palestinian Partners: Implications for the Middle East Peace Process,” a report of the Jerusalem Center for Public Affairs, No. 652, September 5, 2021.

[2] International law remains a “Westphalian” or “vigilante” system. Reference here is to the Peace of Westphalia (1648), which concluded the Thirty Years War and created the now still-existing decentralized or self-help state system of world politics. See: Treaty of Peace of Munster, Oct. 1648, 1 Consol. T.S. 271; and Treaty of Peace of Osnabruck, Oct. 1648, 1., Consol. T.S. 119, Together, these two treaties comprise the Peace of Westphalia.

[3] For a discussion of authoritative criteria to distinguish permissible insurgencies from impermissible ones, see: Louis René Beres, “The Legal Meaning of Terrorism for the Military Commander,” CONNECTICUT JOURNAL OF INTERNATIONAL LAW, Vol. 11., No. 1., Fall 1995, pp. 1-27

[4] See earlier, by this writer: Louis René Beres, https://moderndiplomacy.eu/2021/05/19/justice-insurgency-and-the-gaza-war-an-international-law-perspective/

[5] According to the rules of international law, every use of force must be judged twice:  once with regard to the right to wage war (jus ad bellum), and once with regard to the means used in conducting war (jus in bello).  Today, in the aftermath of the Kellogg-Briand Pact of 1928, and the United Nations Charter, all right to aggressive war has been abolished.  However, the long-standing customary right of self-defense remains, codified at Article 51 of the Charter.  Similarly, subject to conformance, inter alia, with jus in bello criteria, certain instances of humanitarian intervention and collective security operations may also be consistent with jus ad bellum.  The laws of war, the rules of jus in bello, comprise (1) laws on weapons; (2) laws on warfare; and (3) humanitarian rules.  Codified primarily at The Hague and Geneva Conventions (and known thereby as the law of The Hague and the law of Geneva), these rules attempt to bring considerations of discrimination, proportionality and military necessity into belligerent calculations.

[6] According to the Vienna Convention on the Law of Treaties, a treaty is always an international agreement “concluded between States….” See Vienna Convention on the Law of Treaties, Done at Vienna, May 23, 1969. Entered into force, Jan. 27, 1980. U.N. Doc. A/CONF. 39/27 at 289 (1969, 1155 U.N.T.S. 331, reprinted in 8 I.L.M., 679 (1969).

[7] The law of armed conflict is largely concerned with the principle of proportionality, which has its jurisprudential and philosophic origins in the Biblical Lex Talionis, the law of exact retaliation. The “eye for eye, tooth for tooth” can be found in three separate passages of the Jewish Torah, or Biblical Pentateuch. These Torah rules are likely related to the Code of Hammurabi (c. 1728- expression 1686 BCE) – the first written evidence of penalizing wrongdoing with exact retaliation. In matters concerning personal injury, the code prescribes an eye for an eye (# 196), breaking bone for bone (#197), and extracting tooth for tooth (#199). Among the ancient Hebrews, we must speak not of the Lex Talionis, but of several. The Lex Talionis appears in only three passages of the Torah. In their sequence of probable antiquity, they are as follows: Exodus 21: 22-25; Deuteronomy 19: 19-21; and Leviticus 24: 17-21. All have similarities to various other Near Eastern legal codes. These three passages address specific concerns: hurting a pregnant woman, perjury, and guarding Yahweh’s altar against defilement. See Marvin Henberg, Retribution: Evil for Evil in Ethics, Law and Literature, 59-186 (1990). In contemporary international law, the principle of proportionality can be found in the traditional view that a state offended by another state’s use of force, if the offending state refuses to make amends, “is then entitled to take `proportionate’ reprisals.” See Ingrid Detter De Lupis, The Law of War, 75 (1987). Evidence for the rule of proportionality can also be found in the International Covenant on Civil and Political Rights (1966) at Art. 4. Similarly, the American Convention on Human Rights allows at Art. 27(1) such derogations “in time of war, public danger or other emergency which threaten the independence or security of a party” on “condition of proportionality.” The military principle of proportionality requires that the amount of destruction permitted must be proportionate to the importance of the objective. In contrast, the political principle of proportionality states “a war cannot be just unless the evil that can reasonably be expected to ensure from the war is less than the evil that can reasonably be expected to ensue if the war is not fought.” See Douglas P. Lackey, THE ETHICS OF WAR A ND PEACE, 40 (1989).

[8] The principle of military necessity is defined authoritatively as follows: “Only that degree and kind of force, not otherwise prohibited by the law of armed conflict, required for the partial or complete submission of the enemy with a minimum expenditure of time, life and physical resources may be applied.” ADAM ROBERTS & RICHARD GUELFF, DOCUMENTS ON THE LAWS OF WAR 10 (3rd ed. 2000) (quoting U.S. DEP’T OF THE NAVY ET AL., THE COMMANDER’S HANDBOOK ON THE LAW OF NAVAL OPERATIONS, NWP 1-14M, 6.2.6.4.2, (July 2007)). The term “military necessity” is found, inter alia, in the 1946 Judgment of the International Military Tribunal at Nuremberg: Extracts on Crimes Against International Law, in ADAM ROBERTS & RICHARD GUELFF, DOCUMENTS ON THE LAWS OF WAR 155 (1989). 

[9] The US Neutrality Act, 18 U.S.C. Sec. 960 (originally Sec. 25) (1794) was enacted in order for the new American republic to implement the Law of Nations. Pertinent Congressional authority derived specifically from article 1, Section 8, clause 10 of the U.S. Constitution. See also Talbot v. Jansen, 3 U.S. (3 Dall.) 133, 156 (1795) (Paterson, J).

[10] Specific applications of the law of war to insurgents (non-state combatants) dates to the four Geneva Conventions of 1949. As more than codified treaties and conventions must comprise the law of war, it is plain that the obligations of jus in bello (justice in war) are part of “the general principles of law recognized by civilized nations” (from Art. 38 of the Statute of the International Court of Justice) and thereby bind all categories of belligerents. (See Statute of the International Court of Justice, art. 38, June 29, 1945, 59 Stat. 1031, T.S. 993).  Further, Hague Convention IV of 1907 declares that even in the absence of a precisely published set of guidelines regarding “unforeseen cases,” the operative pre-conventional sources of humanitarian international law obtain and still govern all belligerency. The related Martens Clause is included in the Preamble of the 1899 Hague Conventions, International Convention with Respect to the Laws and Customs of War by Land, July 29, 1899, 187 Consol. T.S. 429, 430.

[11] Under international law, terrorist movements are always Hostes humani generis, or “Common enemies of mankind.” See: Research in International Law: Draft Convention on Jurisdiction with Respect to Crime, 29 AM J. INT’L L. (Supp 1935) 435, 566 (quoting King v. Marsh (1615), 3 Bulstr. 27, 81 Eng. Rep 23 (1615) (“a pirate est Hostes humani generis”)).

[12] Ex injuria jus non oritur.

[13] The criminal responsibility of leaders under international law is not limited to direct personal action or to official position.  On the pertinent 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.

[14] This right must always be understood in terms of the continuously decentralized system of international law bequeathed at Westphalia in 1648. See: op cit., Treaty of Peace of Munster, Oct. 1648, 1 Consol. T.S. 271; and Treaty of Peace of Osnabruck, Oct. 1648, 1., Consol. T.S. 119. Together, these two treaties comprise the Peace of Westphalia.

[15] According to Article 53 of the Vienna Convention on the Law of Treaties: “…a peremptory norm of general international law is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” See: Vienna Convention on the Law of Treaties, Done at Vienna, May 23, 1969. Entered into force, Jan. 27, 1980. U.N. Doc. A/CONF. 39/27 at 289 (1969), 1155 U.N.T.S. 331, reprinted in 8 I.L.M.  679 (1969).

[16] The primal importance of reason to legal judgment was prefigured in ancient Israel.  Jewish theories of law, insofar as they display influences of Natural Law, offer a transcending order revealed by the divine word as interpreted by human reason.  In the words of Ecclesiastics 32.23, 37.16, 13-14:  “Let reason go before every enterprise and counsel before any action…And let the counsel of thine own heart stand…For a man’s mind is sometimes wont to tell him more than seven watchmen that sit above in a high tower….”

[17] Under international law, the question of whether or not a “state of war” exists between states is generally ambiguous. Traditionally, it was held that a formal declaration of war was necessary before a true state of war could be said to exist. Hugo Grotius even divided wars into declared wars, which were legal, and undeclared wars, which were not. (See Hugo Grotius, The Law of War and Peace, Bk. III, Chas. III, IV, and XI.) By the start of the twentieth century, the position that war obtains only after a conclusive declaration of war by one of the parties was codified by Hague Convention III. This treaty stipulated that hostilities must never commence without a “previous and explicit warning” in the form of a declaration of war or an ultimatum. (See Hague Convention III Relative to the Opening of Hostilities, 1907, 3 NRGT, 3 series, 437, article 1.) Currently, declarations of war may be tantamount to admissions of international criminality, because of the express criminalization of aggression by authoritative international law, and it could therefore represent a clear jurisprudential absurdity to tie any true state of war to formal and prior declarations of belligerency. It follows that a state of war may now exist without any formal declarations, but only if there exists an actual armed conflict between two or more states, and/or at least one of these affected states considers itself “at war.”

[18]Underlying these common standards is a unifying concept of human “oneness.”  The history of western philosophy and jurisprudence contains many illustrious examples of such welcome cosmopolitanism. Most notable are Voltaire and Goethe. We need only recall Voltaire’s biting satire in the early chapters of Candide and Goethe’s oft-repeated comment linking the contrived hatreds of belligerent nationalism to declining stages of human civilization. We may also note Samuel Johnson’s famously expressed conviction that patriotism “is the last refuge of a scoundrel;” William Lloyd Garrison’s observation that “We cannot acknowledge allegiance to any human government…. Our country is the world, our countryman is all mankind;” and Thorsten Veblen (“The patriotic spirit is at cross-purposes with modern life.”) Of course, there are similar sentiments discoverable in Nietzsche’s Human, all too Human and in Fichte’s Die Grundzűge des gegenwartigen Zeitalters.” Finally, let the reader recall Santayana’s coalescing remark in Reason and Society: “A man’s feet must be planted in his country, but his eyes should survey the world.” The ultimate point of all these cosmopolitan remarks is that narrow-minded patriotism is inevitably “unpatriotic,” at least in the sense that it is not in the genuine long-term interests of citizens or subjects.

[19].The term “Grave Breaches” applies to certain serious infractions of the Geneva Conventions of 1949 and Protocol I of 1977. The actions defined, as “Grave Breaches” in the four Conventions must be performed willfully or intentionally, and against the different groups of “protected person” identified by each Convention. The High Contracting Parties to the Geneva Conventions are under obligation “to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed,” a grave breach of the Convention. As defined at Art. 147 of Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (6 U.S.T. 3516, signed on Aug. 12 1949, at Geneva), Grave Breaches  “shall be those involving any of the following acts, if committed against persons or property protected by the present Convention:  willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or willfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly. Reference to Grave Breaches can also be found in the INTERIM REPORT OF THE COMMISSION OF EXPERTS, UNITED NATIONS DOCUMENT, S/25274, and January 2, 1993, at Sec. 3., Art. 47.

[20] Op Cit, Ex injuria jus non oritur.

[21]Some supporters of a Palestinian state argue that its prospective harms to Israel could be reduced or eliminated by ensuring the new Arab state’s immediate “demilitarization.” For informed reasoning against this argument, see: Louis René Beres and (Ambassador) Zalman Shoval, “Why a Demilitarized Palestinian State Would Not Remain Demilitarized: A View Under International Law,” Temple International and Comparative Law Journal, Winter 1998, pp. 347-363; and Louis René Beres and Ambassador Shoval, “On Demilitarizing a Palestinian `Entity’ and the Golan Heights: An International Law Perspective,” Vanderbilt Journal of Transnational Law, Vo. 28., No.5., November 1995, pp. 959-972.

[22] In science-based studies of world politics, rationality and irrationality have now taken on very precise meanings. In this regard, a state or terror group is presumed to be rational to the extent that its leadership always values national survival/group survival more highly than any other conceivable preference or combination of preferences. Conversely, an irrational state or terror group is one that would not always display such a markedly specific preference ordering. On pragmatic or operational grounds, ascertaining whether a particular state adversary such as Iran would be rational or irrational could become a problematic and daunting task. Regarding Jihadi terror groups, on the other hand, it is plain by definition that they are inherently prone to irrational decision-making.

[23] Israel must now be increasingly wary that Hamas could move forcefully against PA in the West Bank (Judea/Samaria) and render that territory similar to Gaza. See, on this cautionary note, Ehud Eilam: https://www.jpost.com/opinion/dont-allow-israels-west-bank-to-become-afghanistan-opinion-679073

[24] For a classic scholarly book with this revealing title: See: René Girard, Violence and the Sacred (1977).

[25] In the Middle East, where theological doctrine divides into the dar al-Islam (world of Islam) and the dar al-harb (world of war), acts of terror against unbelievers have generally been accepted as expressions of sacredness. In turn, individual sacrifice derives, in large part, from a very conspicuously hoped-for power over death. By adopting atavistic practice, the Jihadist terrorist expects to realize an otherwise unattainable immortality. For Hamas, which seeks secular power as a new sovereign state of Palestine, certain obligatory aspects of sacrificial terror must never be overlooked. These aspects, underscoring the two-sided nature of terror/sacrifice – that is, the sacrifice of “The Unbeliever” (or “Apostate”) and reciprocal sacrifice of “The Martyr” – is codified within the Charter of Hamas as a “religious” problem.” For authoritative details of the Hamas Charter, see:  Louis René Beres: https://scholarlycommons.law.case.edu/jil/vol39/iss3/2/

[26] See: Louis René Beres (Israel): https://besacenter.org/israel-palestine-threat/

[27] See Alfred North Whitehead’s Religion in the Making (1926).

[28] In prophetic words of poet Guillaume Apollinaire (The New Spirit and the Poets, 1917): “It must not be forgotten that it is perhaps more dangerous for a nation to allow itself to be conquered intellectually than by arms.”

[29] This brings to mind the closing query of Agamemnon in The Oresteia by Aeschylus: “Where will it end? When will it all be lulled back into sleep, and cease, the bloody hatreds, the destruction”?

[30] “`I believe,'” says Oswald Spengler, “is the great word against metaphysical fear, and at the same time it is an avowal of love.'” See: The Decline of the West, Spengler’s Chapter on “Pythagoras, Mohammed, Cromwell.”

[31]No state, including Israel, is under any per se legal obligation to renounce access to nuclear weapons; in certain distinctly residual circumstances, moreover, even the actual resort to such weapons could be construed as lawful. See generally The Legality of the Threat or Use of Force of Nuclear Weapons, Advisory Opinion, 1997 I.C.J. (July 8). The final paragraph of this Opinion, concludes, inter alia: “The threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law. However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defense, in which the very survival of a State would be at stake.”

[32] For earlier looks at the expected consequences of specifically nuclear attacks, 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); and Louis René Beres, Security or Armageddon: Israel’s Nuclear Strategy (Lexington, Mass: Lexington Books, 1986). 

[33]Hamas fired rockets at Dimona back in 2014. Earlier, Saddam Hussein launched Scud-B rockets toward Israel during the 1991 Gulf War.  For an early and informed consideration of reactor attack effects, see:  Bennett Ramberg, Destruction of Nuclear Energy Facilities in War (Lexington MA:  Lexington Books, 1980); and Bennett Ramberg, “Attacks on Nuclear Reactors: The Implications of Israel’s Strike on Osiraq,” Political Science Quarterly, Winter 1982-83; pp. 653 – 669. More recently, see: Bennett Ramberg, “Should Israel Close Dimona? The Radiological Consequences of a Military Strike on Israel’s Plutonium-Production Reactor,”Arms Control Today,May 2008, pp. 6-13.

[34]See, by this author and former Israeli Ambassador Zalman Shoval, at West Point, Pentagon: https://mwi.usma.edu/creating-seamless-strategic-deterrent-israel-case-study/

[35]On this choice, ancient philosophy can be helpful. More precisely, Plato’s theory, offered in the fourth century B.C.E, seeks to explain all political choice in terms of epiphenomena, an unstable realm of half-truths and distorted perceptions.  In contrast to the uniformly stable realm of immaterial Forms, a realm from which all genuine knowledge must be derived, the political arena is dominated by myriad contradictions of the reflected world, contradictions that inevitably fail to account for “metaphysical fear.”

[36] 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.” The essential significance of any norm’s customary character is that the norms bind even those states that are not parties to the pertinent codification. Even where a customary norm and a norm restated in treaty form are apparently identical, these norms are treated as jurisprudentially discrete. During the merits phase of MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST NICARAGUA, the International Court of Justice (ICJ) stated: “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 IN AND AGAINST NICARAGUA, Nicar. V. US., Merits, 1986 ICJ, Rep. 14 (Judgment of 27 June).

[37] See Ernest Becker, Escape from Evil (1975).

[38] In this connection, for relevant generic understandings, see Michael Polanyi’s discussion of the “moral appeal of immorality” in the philosopher’s Personal Knowledge: Towards a Post-Critical Philosophy (1958).

[39] See Louis René Beres, “Self-Determination, International Law and Survival on Planet Earth,” Arizona Journal of International and Comparative Law, Vol. 11, No.1., pp. 1-26. On these special prerogatives, see also French political theorist Bertrand de Jouvenal, Sovereignty: An Inquiry into the Political Good (The University of Chicago Press, 1957).

[40] In scientific terms, of course, such “logic” is literal nonsense. Apropos of this point, see: Emmanuel Levinas, “An immortal person is a contradiction in terms.”  (God, Death and Time; 2000).

[41]Through the ages, with “God on our Side,” conflicting states and religions have asserted that personal immortality can sometimes be achieved at the sacrificial expense of certain despised “others,” of “heathen,” “blasphemers,” “apostates.” When he painted The Triumph of Death in 1562, Peter Bruegel drew upon his direct personal experience with both religious war and disease plague.  In the sixteenth century, he already understood that any intersection of these horrors (one man-made, the other natural) could be ill-fated, force-multiplying and even synergistic. This last term describes results wherein the “whole” calculable outcome exceeds the sum of all constituent “parts.”

[42] This post-Afghanistan strategic imperative extends to assorted state enemies of Israel, especially a potentially nuclear Iran. See, in this connection, Louis René Beres and General John T. Chain, “Could Israel Safely deter a Nuclear Iran? The Atlantic, August 2012; and Professor Louis René Beres and General John T. Chain, “Israel; and Iran at the Eleventh Hour,” Oxford University Press (OUP Blog), February 23, 2012. General Chain was Commander-in-Chief, U.S. Strategic Air Command (CINCSAC).

[43] See, op cit., Louis René Beres and (Ambassador) Zalman Shoval, “Why a Demilitarized Palestinian State Would Not Remain Demilitarized: A View Under International Law,” Temple International and Comparative Law Journal, Winter 1998, pp. 347-363; and Louis René Beres and Ambassador Shoval, “On Demilitarizing a Palestinian `Entity’ and the Golan Heights: An International Law Perspective,” Vanderbilt Journal of Transnational Law, Vo. 28., No.5., November 1995, pp. 959-972.

[44] In principle, this right may extend to defensive first-strikes or preemption. The origins of the right to anticipatory self-defense in international law lie in customary law, in the Caroline. This was a case that concerned the unsuccessful rebellion of 1837 in Upper Canada against British rule. Following this case, the serious threat of armed attack has generally justified certain militarily defensive actions. In an exchange of diplomatic notes between the governments of the United States and Great Britain, then U.S. Secretary of State Daniel Webster outlined a framework for self-defense that did not require an antecedent attack. Here, the jurisprudential framework permitted a military response to a threat so long as the danger posed was “instant, overwhelming, leaving no choice of means, and no moment for deliberation.” See: Beth M. Polebaum, “National Self-defense in International Law: An Emerging Standard for a Nuclear Age,” 59 N.Y.U.L. Rev. 187, 190-91 (1984) (noting that the Caroline case had transformed the right of self-defense from an excuse for armed intervention into a legal doctrine). Still earlier, see: Hugo Grotius, Of the Causes of War, and First of Self-Defense, and Defense of Our Property, reprinted in 2 Classics of International Law, 168-75 (Carnegie Endowment Trust, 1925) (1625); and Emmerich de Vattel, The Right of Self-Protection and the Effects of the Sovereignty and Independence of Nations, reprinted in 3 Classics of International Law, 130 (Carnegie Endowment Trust, 1916) (1758). Also, Samuel Pufendorf, The Two Books on the Duty of Man and Citizen According to Natural Law, 32 (Frank Gardner Moore., tr., 1927 (1682).

[45]This also a “Higher Law” or “Natural Law” principle. In his DE OFFICIIS, Cicero wrote:  “There is in fact a true law namely right reason, which is in accordance with nature, applies to all men and is unchangeable and eternal…. It will not lay down one rule at Rome and another at Athens, nor will it be one rule today and another tomorrow.  But there will be one law eternal and unchangeable binding at all times and upon all peoples.”  See also DE LEGIBUS, Bk. i, c, vii.  Blackstone’s COMMENTARIES expressly recognize that all law “results from those principles of natural justice, in which all the learned of every nation agree….”  See William Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND, adapted by Robert Malcolm Kerr (Boston; Beacon Press, 1962), Book IV, “Of Public Wrongs,” p. 62 (Chapter V., “Of Offenses Against the Law of Nations.”). Thomas Aquinas recalls Augustine as follows:  “St. Augustine says: `There is no law unless it be just.’ So the validity of law depends upon its justice.  But in human affairs a thing is said to be just when it accords aright with the rule of reason: and as we have already seen, the first rule of reason is the Natural Law.  Thus all humanly enacted laws are in accord with reason to the extent that they derive from the Natural law.  And if a human law is at variance in any particular with the Natural law, it is no longer legal, but rather a corruption of law.” See SUMMA THEOLOGICA, 1a 2ae, 95, 2; cited by D’ Entreves, supra, pp. 42 – 43

[46] Philosopher Jose Ortega y’Gasset had understood these superficially political issues at much deeper and generic levels. Ultimately, the seminal Spanish thinker understood, these issues have been about the continuous human struggle against death. Always, therefore, they have been about God and personal immortality.

[47] This notion of “force-multiplying” resembles the concept of “synergy,” an interaction or intersection whereby the resultant “whole” is always greater than the additive sum of its “parts.”

[48] More specifically, Israel’s nuclear strategy could have certain meaningful implications for U.S. national security. On these generally ignored connections, see Louis René Beres and (General/USA/ret.) Barry McCaffrey, ISRAEL’S NUCLEAR STRATEGY AND AMERICA’S NATIONAL SECURITY, Tel-Aviv University and Israel Institute for Strategic Studies, Tel-Aviv, December 2016: https://sectech.tau.ac.il/sites/sectech.tau.ac.il/files/PalmBeachBook.pdf

[49] See epigraph, above, by philosopher Emmanuel Levinas.

Continue Reading

International Law

South China Sea: The Equation of a New Cold War

Published

on

China is an emerging power in the current world. China has come a long way from its former position to its current one. The Chinese Communist Party came to power in 1949 by defeating Chiang Kai-shek’s Kuomintang party, and under Mao Zedong, China’s economic growth continued. China is currently the second largest economy in the world. The Cold War is currently raging between the superpowers America and China. International experts have dubbed it the “New Cold War”. China has disputes with the United States over the Hong Kong-Taiwan issue, the South China Sea, the East China Sea, the Sino-US trade crisis, and so on. At present, there is tension over the South China Sea in this superpower. The United States has already formed “quads” with India, Japan and Australia to reduce China’s growing influence in South Asia and the Indo-Pacific region.

The South China Sea issue is an important issue in international politics. But there are reasons why this tension is growing.

 During World War II, Japan occupied the islands in the South China Sea. After the defeat of Japan, the Cairo and Potsdam Declarations of 1943 and 1945 recognized the rights of the Republic of China to the islands in the South China Sea. In 1947, the then nationalist Chinese government formally annexed 159 islands, islands and shelf states.

Various historical events from the time of World War II to the present day have turned the South China Sea into the center of tension in the world today. The South China Sea is very important in international geopolitics. The South China Sea is an important international shipping lane. But over the years, numerous small islands in the sea, many of which have been claiming ownership of coral islands, coral reefs and islands, have been the focus of controversy in the region for some time. Has become more and more vocal. The country claims the disputed area has been part of China for centuries and China has gradually strengthened its military presence there in support of their claim.

Under UN maritime law, an independent state can claim maritime territory up to 12 nautical miles from its coast. Moreover, the area up to 200 nautical miles is called ‘Exclusive Economic Zone’. In this region they can enjoy freedom of natural resources, aquatic animals or fish, construction of artificial islands, etc.

But according to China’s Nine Dash Line, they are claiming about 2,000 kilometers of maritime territory from the mainland. There are several islands in this region. Such as- Spratly Islands, Scarborough Shoal Area, Paracel Islands and several coral islands. And that has created controversy and tension, which has also involved countries in Asia and the Pacific on the issue.

Geographically, the South China Sea is an important strategic region of the world. In the heart of this sea is a huge amount of natural resources. The region is rich in mineral oil and natural gas. Many people depend on fish and seafood for their livelihood. More than a third of the world’s ships pass through this region. More than  40 trillion is traded this year. The South China Sea is one of the most important regions for world trade. One-third of the world’s cargo ships ply this route. As a result, it is natural for China to try to maintain its dominance in the region. The South China Sea is one of the most important and busy maritime regions in the world. The region is connecting Africa and Europe with Asia. In addition, the South China Sea is rich in resources. The region is rich in marine fish as well as a huge amount of natural resources. There are huge reserves of natural gas and mineral resources. According to the Council on Foreign Relations (CFR), the South China Sea dispute is caused by 11 billion barrels of oil and 190 trillion cubic feet of natural gas below 8. Countries in the region that claim huge natural resources include Indonesia, Brunei, Malaysia, the Philippines, Taiwan and Vietnam, which have sparked conflicts with China. More than  40 trillion is traded this year. Which

 One-third of global maritime trade.

The question now is how much China will benefit if it can take full control of the South China Sea.

 This waterway is essential for China to have a global and regional impact. Because, eighty percent of China’s transportation is this way. Even 55 to 60 percent of India’s trade depends on this sea route. The other country has to get permission from China for shipping and pay the revenue. This will increase China’s economic growth, increase the importance of geopolitics. By exploiting huge amounts of natural resources, China will be able to make its economy more dynamic and increase military spending. The dominance of the United States and India will diminish. In South Asia and global politics, China will be able to increase its dominance in the economy. The implementation of China’s mega project Belt and Road Initiative will be accelerated, the world’s communication with China will be easier, trade will expand.

But the rise of China cannot be accepted by the United States and its allies. They have increased military influence at sea and are constantly increasing tensions. By maintaining good relations with India and exploiting allies the Philippines and Taiwan, the United States is seeking to dominate the South China Sea. It is true that maintaining dominance over the South China Sea is important for the United States to deal with China. Free Taiwan, Japan and South Korea from Chinese aggression

 To do so, the United States needs to control the South China Sea. Also attacking mainland China as a pre-zero system, suppressing China’s mega project Belt and Road Initiative.

International and regional powers are also working in the South China Sea to bring about a shift in the balance of power and polarization in international politics in the wake of the Taliban’s victory in Afghanistan and China’s gains. As a result, tensions have often risen in the South China Sea. Moreover, the South China Sea waterway is very important for the United States.

Continue Reading

Publications

Latest

city business city business
Reports2 hours ago

Capabilities fit is a winning formula for M&A: PwC’s “Doing the right deals” study

Ensuring there is a capabilities fit between buyer and target is key to delivering a high-performing deal, according to a...

Intelligence4 hours ago

A More Diverse Force: The Need for Diversity in the U.S. Intelligence Community

As part of a hiring initiative meant to attract new and diverse hires, the Central Intelligence Agency (CIA) released a...

Tourism6 hours ago

UNWTO and NEOM Launch ‘Tourism Experiences of the Future’ Challenge

The ‘Tourism Experiences of the Future’ challenge will source innovative ideas and disruptive business models related to the tourism needs...

East Asia8 hours ago

Shared Territorial Concern, Opposition to US Intervention Prompt Russia’s Support to China on Taiwan Question

The situation around the island of Taiwan is raising concerns not only in Chinese mainland, Taiwan island or in the...

New Social Compact10 hours ago

KP’s Education Reforms – Heading Towards Right Path

The first word revealed in the holy Quran was “Iqra” which means “to read”. This first verse of Holy Quran...

EU Politics12 hours ago

EU and Qatar sign landmark aviation agreement

The European Union and the State of Qatar today signed a comprehensive air transport agreement, upgrading rules and standards for...

EU Politics14 hours ago

Sakharov Prize 2021: the finalists

The 2021 finalists for the European Parliament’s Sakharov Prize for Freedom of Thought are Afghan women, Jeanine Áñez and Alexei...

Trending