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Justice, Insurgency and the Gaza War: An International Law Perspective

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“Justice is a contract neither to do nor to suffer wrong.”-Plato, Republic[1]

Abstract: This essay will  focus upon current issues of insurgency,[2] counterterrorism and Humanitarian International Law in the Middle East. As Israel and Hamas now confront each other in another Gaza war, both should correctly identify and accept only proper criteria of jurisprudential assessment. Accordingly, the legal argument here will not be intentionally for or against any particular Arab or Israeli policies, but to underscore an unceasing global requirement to apply uniformly correct standards of pertinent international law. In the final analysis, following Plato, justice in this urgent matter must be a “contract” between parties “neither to do or to suffer wrong.”

It is time for candor. Former US President Donald J. Trump’s “Abraham Accords”[3] did nothing to confront the long-standing Palestinian insurgency against Israel. On the contrary, these contrived agreements were designed only for Trump’s domestic political benefit, and angered the Palestinians without providing either side tangible benefits. Jerusalem, therefore, must continue to defend itself against assorted charges of “disproportionality.” Now, more or less inevitably, there will emerge yet another unpredictable “cycle of violence.”[4]

               What does international law say about these rapidly dissembling circumstances? What are the legal requirements of “proportionality” under the Law of War or Humanitarian international Law.[5] Looking ahead, these requirements ought never to be ignored or disregarded. In essence, these concern not merely specific adversarial issues in an anarchic world politics, but core matters of a long-settled jurisprudence,

               In law, especially, words matter. The legally correct meaning of “proportionality” has nothing to do with maintaining equivalence in the use of military force. Under authoritative international law, especially the Law of War, the standard of proportionality is never just a consideration of intuition or “common sense.” Above all, it is a matter of Reason,[6] an integral foundation of all codified and customary international law.[7] Among other things, this standard seeks to ensure that every belligerent’s resort to armed force remain limited to what is “necessary” to meet appropriate military objectives.[8]

               In these times, though we still speak narrowly of “international law,” every identifiable belligerent includes not only states, but also insurgent and terrorist armed forces.[9] This means, inter alia, that even where an insurgency is presumptively lawful – that is, where it seemingly meets the criteria of a “just cause” – it must still satisfy all corollary expectations of “just means.” To the issue here at hand, even if Hamas and Palestinian Authority have a presumptive right to fight militarily against an Israeli “occupation,” that fight still needs to respect the legal limitations of “discrimination,” “proportionality” and “military necessity.” More precisely, deliberately firing rockets into Israeli civilian areas and/or placing military assets amid Palestinian civilian populations always represents a crime of war.

               In the second case, the pertinent crime is formally known as “perfidy.”

               There is more. Under no circumstances does the principle of proportionality suggest that either party to an ongoing conflict must impose only symmetrical harms upon the enemy. If that sort of “common sense” suggestion were actually correct, there would be no modern historical equivalent to America’s flagrantly “disproportionate” attacks on European and Japanese cities during World War II. By that standard, Dresden, Cologne, Hiroshima and Nagasaki would represent the documented nadir of inhumane belligerency. These US attacks would represent the modern world’s very worst violations of Humanitarian International Law.

               All too often, in the seemingly endless Palestinian belligerencyagainst Israel, background is merely glossed-over. Sometimes, Hamas, Fatah, Islamic Jihad and related terror groups, take verifiable steps to ensure that Israeli reprisals willkill or injure Arab noncombatants. To wit, by placing selected noncombatants in those areas from which Arab rockets are launched into Israeli homes, hospitals and schools, Palestinian leaders – not Israeli defenders – are violating the most fundamental expectations (more technically, “peremptory” or “jus cogens” expectations) of humanitarian international law.[10]

                 Any use of “human shields” represents substantially greater wrongdoing than simple immorality or cowardice. It expresses a starkly delineated and punishable crime.  Perfidy is identified as a “grave breach” at Article 147 of Geneva Convention IV. Deception can be legally acceptable in armed conflict, but The Hague Regulations specifically disallow any placement of military assets or personnel in populated civilian areas. Related prohibitions of perfidy can be found at Protocol I of 1977, additional to the Geneva Conventions of August 12, 1949.  These rules are also binding on the discrete but still-intersecting basis of customary international law, a jurisprudential source identified at Article 38 of the Statute of the International Court of Justice.[11]

               All combatants, including Palestinian insurgents allegedly fighting for “self-determination,”[12] are bound by the law of  war. This core requirement is found at Article 3, common to the four Geneva Conventions of 1949.[13] It cannot be suspended or abrogated.

               Some Palestinian terror groups, especially in the aftermath of a disregarded or imposed peace settlement, may seek to prepare for launching mega-terror attacks on Israel. Such aggressions, plausibly unprecedented and possibly in cooperation with variously allied non-Palestinian Jihadists, could include chemical and/or biological weapons of mass destruction. In the worst-case scenario, especially if Iran should agree to transfer portions of its expanding inventory of nuclear materials to proxy terror groups, Israel could sometime have to face Palestinian-directed nuclear terrorism.[14] Also possible, though presently still implausible, is that residual ISIS-type surrogates could displace a formal leadership cadre in “Palestine,” and that Israel (and relevant allies) could then have to face a more starkly insidious source of atomic terror.[15]

               What happens then, when combatants find themselves in extremis atomicum?

               There is more. Though former US President Donald Trump was likely correct that ISIS had already been effectively eliminated as an organization, the underlying Jihadist ideology was anything but removed or defeated.[16] To best predict possible outcomes, analysts and policy-makers will need to continuously refine their skills for capably dialectical reasoning.

                Always, however perilous a perceived threat, Israel has sought to keep its essential counterterrorism operations consistent with applicable law. For their part, however, Palestinian fighters remain in generally deliberate and persistent violation of virtually all recognizable rules of civilized military engagement. Significantly, terror-violence launched from Gaza accelerated immediately after Israel left the area in 2005, a “disengagement” that Jerusalem had expected (or hoped) to produce greater intercommoned harmony. [17]

               From the standpoint of international law, terrorism is more than just bad behavior. It is a distinct crime under international law. Such crime is neither minimized or exonerated by partisan intimations of “just cause.”

               Various manipulated expressions of jurisprudential reasoning notwithstanding, the Palestinian side must bear full legal responsibility for most Arab civilian casualties in Gaza. Arguably, absent their pre-meditated attacks on Israeli civilian populations, there would be no reciprocal Palestinian harms. Though Israeli military operations do kill and wound Arab noncombatants in every “cycle of violence,” these casualties are unavoidable and inadvertent. When Hamas rockets are launched against Israeli targets from Gaza, the acknowledged Palestinian intent is to kill and wound Israeli civilians.

               In law, all law, criminal intent or mens rea is singularly important.

               International law is not a suicide pact. Even amid long-enduring Westphalian anarchy,[18] it offers an authoritative body of rules and procedures that clearly permits a beleaguered state – any beleaguered state – to express an “inherent right of self-defense.” But when certain Arab terrorist organizations celebrate the explosive “martyrdom” of Palestinian civilians and when certain Palestinian leaders seek religious “redemption” through mass-murder of “unbelievers,” the wrongdoers have no residual legal claims to sanctuary.[19]

               There is more.Under international law, such criminals are called Hostes humani generis or “common enemies of humankind.”  Unambiguously, in law, this category of murderers must invite punishment wherever they are found. Concerning their required arrest and prosecution, jurisdiction is now termed, after Nuremberg (1945-46) “universal.” Also relevant is that the historic Nuremberg Tribunal strongly reaffirmed the ancient legal principle of Nullum crimen sine poena, or “No crime without a punishment.”[20]

               There is a manifestly non-legal but still significant point that remains germane to wrongful allegations of Israeli “disproportionality.” Many Palestinian commanders who control terror-mayhem against Israel cower unheroically in safe towns and cities. Prima facie, these commanders are not eager to become “martyrs” themselves.

               Few Americans have even glanced at the nation’s Constitution. Derivatively, many US critics of Israel remain determinedly unfamiliar with the laws of war of international law. Just as seriously, they fail to recognize that these laws represent an integral and incorporated part of the domestic or municipal law of the United States. The US Constitution, especially Article 6 (the so-called “Supremacy Clause”) and several corollary Supreme Court decisions, particularly the Paquete Habana (1900),[21] codify this authoritative incorporation.

               Inter alia, this means that consistent misuse of relevant international law represents a wrongful interpretation of American Constitutional law. It is especially vital that major political parties and leaders now become better acquainted with the governing laws of war, and conscientiously apply these basic rules with fairness to all instances of international armed conflict. In the final analysis, the core issue concerning Humanitarian International Law here is not about Israel and the Palestinians per se, but instead the willingness of all major states in world politics to sustain uniformly civilized standards of global military conduct. and conflict resolution.[22]

               There must be evident an ethical or humanitarian calculus in all these particular circumstances. Although an ideal world order would contain “neither victims nor executioners,” such an optimal arrangement of global power and authority is not yet on the horizon.[23] Confronting what he once called “our century of fear,” Camus asks his readers to be “neither victims nor executioners,” living not in a world in which killing has disappeared (“we are not so crazy as that”), but wherein killing has become per se illegitimate. This is certainly a fine expectation of philosophy, but not one that can be harmonized with strategic or jurisprudential realism.

               For the moment, Hamas and its allies continue to adhere to knowingly wrongful definitions of “proportionality,” that is, manipulative definitions calling for “equivalence.” At the same time, Israel continually alleges an inherent right to broad targeting strategies that is based on frequently unverified or unverifiable allegations of Palestinian “perfidy.” Though verifying instances of Hamas perfidy would better immunize Israel from legal responsibility for inadvertent IDF harms inflicted upon noncombatant Palestinian populations, such verification could also undermine tactical successes. In the best of all possible worlds, both Israel and Hamas would simply accept Plato’s rudimentary definition of justice “neither to do nor to suffer wrong,” but this “Westphalian” world is still based less on abstract considerations of law and justice than on crudely zero-sum competitions for power and advantage.

               What next? As long as states (e.g., Israel) and aspiring states (e.g., “Palestine”) exist in a world of international anarchy –  that is, in the decentralized system of international law originally bequeathed at the Peace of Westphalia in 1648[24] – conflicts such as the Israel-Hamas Gaza War will continue to be treated as adversarial. Until the world can finally progress meaningfully beyond such an inherently self-destructive ethos, the enforcement of international law will depend largely upon the cooperative interactions of several major states, especially the United States. In this connection, great responsibility will fall upon the American president and Congress to speak on behalf of a conspicuously more law-enforcing orientation to international law. In specific reference to Israel, Hamas and the Gaza War, this will mean an obligation to (1) abjure narrowly contrived definitions of “disproportionality;” and (2) acknowledge a broad Israeli right to self-defense against terror wherever Palestinian resort to “human shields” or perfidy can be suitably verified.

               Truth is exculpatory. This is not yet the best of all possible worlds, but it is assuredly the right time to make a refined start in that direction. Deliberate Hamas rocket attacks on Israeli civilians are always unlawful and never pardonable. Reciprocally, measured Israeli bombings of Gaza structures harboring Hamas terrorists or weapons are always lawful and law-enforcing, but only in those cases where Jerusalem can supply convincing evidence of Palestinian “perfidy.” Though meeting such a legal obligation to gather verifiable evidence of Palestinian perfidy during an ongoing belligerency is ipso facto problematic, dispensing with this obligation altogether could leave Israel suspended under a perpetual cloud of generalized suspicion and disbelief.[25]

               What is to be done now? Whatever the differences between them, all sides to this still-escalating conflict have a coinciding and interdependent obligation to support Humanitarian International Law. Among other things, it is the de facto and de jure responsibility of the United States and other world powers[26] to insist that both Israel and the pertinent Palestinian organizations meet this overriding obligation. In the end, such a complex task would represent not “only” matters of ethical and dignified behavior, but also ones of seriously intellectual[27] and cosmopolitan[28] thought.


[1] See also, Philus in Bk III, Sec. 5 of Cicero, DE REPUBLICA.

[2] 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

[3] https://www.state.gov/the-abraham-accords/

[4] In the past, such cycles have been widely described as “cycles of violence in the Middle East.” See, by this writer, Louis René Beres, https://www.israelnationalnews.com/Articles/Article.aspx/19415; and at Harvard Law School,

[5] The principle of proportionality is contained in both the rules governing the resort to armed conflict (jus ad bellum) and in the rules governing the actual conduct of hostilities (jus in bello).  In the former, proportionality relates to self-defense.  In the latter, it relates to conduct of belligerency. Proportionality is itself derivative from the more basic principle that belligerent rights are not unlimited (See notably Hague Convention No. IV (1907), Annex to the Convention, Section II (Hostilities), Art. 22: “The right of belligerents to adopt means of injuring the enemy is not unlimited”).

[6] The primal importance of reason to legal judgment was prefigured in ancient Israel.  Jewish theory of law, insofar as it displays the influence of Natural Law, offers 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….”

[7] 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 a 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).

[8] The related 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.” See: United States, Department of the Navy, jointly with Headquarters, U.S. Marine Corps; and Department of Transportation, U.S. Coast Guard, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M, Norfolk, Virginia, October 1995, p. 5-1.

[9]Applying the laws of war to insurgent participants dates to the four Geneva Conventions of 1949. As more than codified treaties and conventions comprise the law of war, it is plain that the authoritative 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 bind all categories of belligerents. Additionally, 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 still obtain and govern all belligerency.

[10] 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).

[11] On the main corpus of jus in bello or humanitarian international law, see:  Convention No. IV Respecting the Laws and Customs of War on Land, With Annex of Regulations, October 18, 1907.  36 Stat. 2277, T.S. No. 539, 1 Bevans 631 (known commonly as the “Hague Regulations:); Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field.  Done at Geneva, Aug. 12, 1949.  Entered into force, Oct. 21, 1950.  6 U.S.T. 3114, T.I.A.S. No. 3362, 75 U.N.T.S. 31; Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea.  Done at Geneva, Aug. 12, 1949.  Entered into force, Oct. 21, 1950. 6 U.S.T. 3217, T.I.A.S. No. 3363, 75 U.N.T.S. 85; Convention Relative to the Treatment of Prisoners of War.  Done at Geneva, Aug. 12, 1949.  Entered into force, Oct. 21, 1950.  6 U.S.T. 3316, T.I.A.S. No. 3364, 75 U.N.T.S. 135; Convention Relative to the Protection of Civilian Persons in Time of War.  Done at Geneva, Aug. 12, 1949.  Entered into force, Oct. 21, 1950.  6 U.S.T. 3516, T.I.A.S. No. 3365, 75 U.N.T.S. 287.

[12] Doctrinally, Palestinian hostility to Israel is oriented to removal of the Jewish State by attrition and annihilation. This unhidden orientation has its foundations in the PLO’s “Phased Plan” of June 9, 1974. In its 12th Session, the PLO’s highest deliberative body, the Palestinian National Council, reiterated the PLO aim as being “to achieve their rights to return, and to self-determination on the whole of their homeland.” The proposed sequence of violence is expressed as follows:  FIRST, “to establish a combatant national authority over every part of Palestinian territory that is liberated” (Art. 2); SECOND, “to use that territory to continue the fight against Israel” (Art. 4); and THIRD, “to start a Pan-Arab War to complete the liberation of the all-Palestinian territory, i.e., to eliminate Israel” (Art. 8).

[13] 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.

[14] Professor Louis René Beres is author of one of the earliest books on the subject of nuclear terrorism: Terrorism and Global Security: The Nuclear Threat (Boulder, Colorado: Westview Press, 1979). For assessments of nuclear war consequences by this same author, see: Louis René Beres, Surviving Amid Chaos: Israel’s Nuclear Strategy (Rowman & Littlefield, 2016; 2nd. ed., 2018); 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 MA:  Lexington Books, 1983); Louis René Beres, Reason and Realpolitik: US Foreign Policy and World Order (Lexington MA; Lexington Books, 1984); and Louis René Beres, ed.,  Security or Armageddon: Israel’s Nuclear Strategy (Lexington MA:  Lexington Books, 1986).

[15] Such sources could include a non-nuclear terrorist attack on the Israeli reactor at Dimona. There is a documented history of enemy attempts against this Israeli plutonium-production reactor, both by a state (Iraq) in 1991, and by a Palestinian terror group (Hamas) in 2014. Neither attack was successful, but relevant precedents were established. For more on the specific threat to Israel’s nuclear reactor facilities, 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. See also, by the same author: Bennett Ramberg, “The Next Chernobyl May Be Intentional,” Reuters, April 26, 2016.

[16] See, by Professor Louis René Beres at Oxford University Press:  https://blog.oup.com/2016/11/isis-security-ideology/

[17] It would be similarly unrealistic for Israeli planners to count on some form of Palestinian – state “demilitarization.”  See, by Professor Beres, “Demilitarizing Palestine,” at Oxford Yearbook of International Law, Oxford University Press, 2018, pp. 191-206. See also, with Israeli Ambassador Zalman Shoval: 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 Zalman Shoval, “On Demilitarizing a Palestinian `Entity’ and the Golan Heights: An International Law Perspective,” Vanderbilt Journal of Transnational Law, Vol. 28, No. 5, November 1995, pp. 959-972.

[18] This de facto condition of Westphalian anarchy stands in contrast to the jurisprudential assumption of solidarity between states. This law-based assumption concerns a presumptively common legal struggle against both aggression and terrorism. Such a “peremptory” expectation, known formally in law as a jus cogens assumption, was already mentioned in Justinian, Corpus Juris Civilis (533 CE); Hugo Grotius, 2 De Jure Belli ac Pacis Libri Tres, Ch. 20 (Francis W. Kesey., tr, Clarendon Press, 1925) (1690); and Emmerich de Vattel, 1 Le Droit Des Gens, Ch. 19 (1758).

[19]In the Arab Middle East, where theological doctrine divides carefully into the dar al-Islam (world of Islam) and the dar al-harb (world of war), acts of terror against unbelievers have long been taken as an exemplary expression of sacredness. Here, individual sacrifice derives, in large part, from a fervidly hoped-for conquest of personal death. By adopting such atavistic practice, the Jihadist terrorist expects to realize an otherwise unattainable immortality, not to mention other substantially seductive and corollary benefits. For Hamas, which ultimately seeks power in a new state of Palestine, there are certain obligatory aspects of sacrificial terror that must never be overlooked. These aspects, underscoring the two-sided nature of terror/sacrifice – that is, the sacrifice of “The Jew,” and the reciprocal sacrifice of “The Martyr” – is explicitly codified within the Charter of Hamas, as a “religious” problem.” See, by this author, Louis René Beres: https://scholarlycommons.law.case.edu/jil/vol39/iss3/2/

[20] This is 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

[21] 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.'”).

[22] Such standards may have to be assessed not only in the context of a long-standing Westphalian anarchy, but also in a conceivably emerging chaos. Nonetheless, there are still places wherein chaos is seen as much as a source of potential human betterment as one of declension. In the Hebrew Bible, for relevant example, chaos is regarded as that condition which prepares the world for all things, both peaceful and violent, both sacred and profane. Moreover, as its core etymology reveals, chaos represents the yawning gulf or gap wherein nothing is as yet, but also where civilizational opportunity must inevitably originate. The German poet Holderlin observed accordingly: “There is a desert, sacred and chaotic, which stands at the roots of the things and which prepares all things.” Even in the ancient pagan world, the Greeks regarded such a desert as logos, which indicates to us that it was then presumed to be anything but starkly random or without conceivable merit.

[23] This phrase is taken from Albert Camus, Neither Victims nor Executioners (Dwight Mc Donald., ed., 1968)).

[24] The historic Peace of Westphalia (1648) concluded the Thirty Years War and created the still-existing state system. 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.”

[25] To Wit: See: https://www.yahoo.com/news/ap-top-editor-calls-probe-163811444.html

[26] The permanent members of the UN Security Council would be an appropriate place to begin.

[27] In the 17th century, French philosopher Blaise Pascal remarked prophetically in Pensées: “All our dignity consists in thought. It is upon this that we must depend…Let us labor then to think well: this is the foundation of morality.” Similar reasoning characterizes the writings of Baruch Spinoza, Pascal’s 17th-century contemporary. In Book II of Ethics, Spinoza considers the human mind or “intellectual attributes,” and drawing from René Descartes defines a comprehensive theory of human learning.

[28] According to Talmud: “The earth from which the first man was made was gathered in all the four corners of the world.”

LOUIS RENÉ BERES (Ph.D., Princeton, 1971) is Emeritus Professor of International Law at Purdue. His twelfth and most recent book is Surviving Amid Chaos: Israel's Nuclear Strategy (2016) (2nd ed., 2018) https://paw.princeton.edu/new-books/surviving-amid-chaos-israel%E2%80%99s-nuclear-strategy Some of his principal strategic writings have appeared in Harvard National Security Journal (Harvard Law School); International Security (Harvard University); Yale Global Online (Yale University); Oxford University Press (Oxford University); Oxford Yearbook of International Law (Oxford University Press); Parameters: Journal of the US Army War College (Pentagon); Special Warfare (Pentagon); Modern War Institute (Pentagon); The War Room (Pentagon); World Politics (Princeton); INSS (The Institute for National Security Studies)(Tel Aviv); Israel Defense (Tel Aviv); BESA Perspectives (Israel); International Journal of Intelligence and Counterintelligence; The Atlantic; The New York Times and the Bulletin of the Atomic Scientists.

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International Law

Psychology of Political Power : Does Power Corrupt or is Magnetic to the Most Corruptible?

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Last week I attended a conference on ‘Political Power, Morality and Corruption’. A Socratic dialogue with fellow scholars led me back to one question that epistemologically haunts political theory and philosophy to date – Does power corrupt or is magnetic to the most corruptible? The cornerstone that this question posits on is antithetical to the idea of power duality as malefic or benefic. Instead, this problem statement is trying to explore and exact the fundamentals of political power. While the former part of the question is striving to deconstruct the soma of power itself, the latter construct of the question is focussing on the agency of an individual with political power.

Now, if you have read Frank Herbert’s Chapterhouse Dune, Missionaria Protectiva US science fiction novelist (1920 – 1986), he writes, “All governments suffer a recurring problem: Power attracts pathological personalities. It is not that power corrupts but that it is magnetic to the corruptible. Such people have a tendency to become drunk on violence, a condition to which they are quickly addicted”. Rather than saying absolute power corrupts absolutely, Herbert reveals a common metaphysical denominator: corruptibility,  that fundamentally connects all those with political power. However, his sematic interpretation gives birth to more questions than answers. Suppose we take Herbert’s argument in consideration and assume that the most corruptible are indeed attracted to power. In that case, the global political infrastructure as we know today, is then built on the building block of corruption by its very virtue. For example, the 4th edition of the Global Corruption Index (GCI 2021) covered 196 countries and territories, and provided a comprehensive overview of the state of corruption around the world based on 43 variables. This extensive data revealed that only 52 countries have a low corruption index, with Finland and Norway leading the way. On the other hand, the rest 144 countries are suffering from profane corruption. Using Herbert’s interpretation of power and corruption, should we conclude that political corruption which is about privatization of average citizen and the use of public sphere to promote private interests, is the foundational political infrastructure of these 144 countries? And if this assertion is true, does it mean that every government representative of these 144 countries are fundamentally corrupt? Herbert’s simplistic interpretation of the problem statement creates a moral conundrum of either this or that, rather than exploring the connection between the two variables – power and corruption.

Power does not corrupt. It amplifies and reveals a leader’s predispositioned traits.

For decades, social psychologists were convinced that power corrupts. One of the key demonstrations of this assertion was the classic Stanford Prison Simulation Experiment (Zimbardo, 1971), where volunteers were randomly assigned to play the role of prisoners or prison guards. As the day passed by, it was observed that the students who were given the role of prison guards became sadistic and exercised their power to subjugate prisoners by taking away their clothes and forcing them to sleep on concrete floors. This subduing was absolute barbaric and callous in nature. The results were shocking. However, the Stanford Prison Experiment failed to explore one crucial variable –  the behavioural and cognitive pattern of students who willingly participated and were recruited to be a part of ‘study of prison life’. So, Thomas Carnahan and Sam McFarland (2007) conducted an experiment on Revisiting the Stanford Prison Experiment: Could Participant Self-Selection Have Led to the Cruelty?. They wanted to studywhat kind of people participate and are drawn to the likes of Stanford Prison Experiment. The research revealed that “ volunteers for the prison study scored significantly higher on measures of the abuse-related dispositions of aggressiveness, authoritarianism, Machiavellianism, narcissism, and social dominance and lower on empathy and altruism, two qualities inversely related to aggressive abuse”.

What Carnahan and McFarland’s experiment revealed was that power doesn’t corrupt, but it is a phenomenon that is monopolized by the agency of an individual. Power amplifies and exposes cognitive and behavioral predispositions that already exists within you. It merely reveals your innate tendencies, but it does not corrupt. Let’s take another example of a democratic statesman who wants to introduce a new healthcare bill for his people, is unexpectedly confronted with an ethical conundrum – he can either strengthen his political power and wealth by collaborating with pharmaceutical giants and increase the prices of the medicines in concern (demand-supply chain) , or he can metamorphosize his proposed bill into reality and benefit his subjects. What will he do? Since he already has procured political power and is deliberating on actualizing his healthcare bill to empower people, power here has not corrupted him. In fact, the argument that power corrupts collapses because if power indeed corrupts, this democratic statesman would not have proposed a healthcare bill for the welfare of his people to begin with. However, if he decides to enact the bill in favor of pharmaceutical moguls to increase his wealth and political status quo, it would be due to his predispositioned behavioral and cognitive schema for corruptibility. How he responds to this ethical conundrum will mirror his political psyche. It has nothing to do with power being essentially corruptible. Power only amplifies and exposes a leader’s predispositioned traits. 

Friedrich Hayek makes a similar point in his chapter ‘Why the worst get on top’ in The Road to Serfdom (1943), where he highlights that individuals who rise to the top in the government are those who want to wield power and those who are most ruthless in using power. He writes, “Neither the government administration of a concentration camp nor the Ministry of Propaganda is suitable places for the exercise of humanitarian feelings. Yet, positions like these create a totalitarian state. So, when a distinguished American economist concludes that the probability of people in power disliking the possession and exercise of power is low, is similar to falsely assuming that the probability of an extremely tender-hearted person to desire a position of an whipping-master in a slave plantation is high.”

Recently, psychologists have re-investigated this phenomenon and theorised that rather than being a corrupting influence, power amplifies leaders’ innate tendencies. For example, extensive research on ‘Leader corruption depends on power and testosterone’ by Bendahan, Zehnder, Pralong and Antonaki used incentivized experimental games to manipulate leaders in power. Here, leaders had complete freedom to decide monthly pay-outs for themselves and their followers. Now, leaders could have made a prosocial decision to benefit the public good. However, they chose to abuse their power by invoking antisocial decisions, which reduced the total pay-outs of their followers but boosted the leaders’ earnings with a high margin. The researchers write, “In Study 1 (N = 478), we found that both amount of followers and discretionary choices independently predicted leader corruption. Study 2 (N = 240) examined how power and individual differences (e.g., personality, hormones) affected leader corruption over time; power interacted with endogenous testosterone in predicting corruption, which was highest when the leader power and baseline testosterone were both high. Honesty predicted initial level of leader’s antisocial decisions; however, honesty did not shield leaders from the corruptive effect of power.” 

Concluding with Caligula – The Mad Roman Emperor!

After years of witnessing the most barbaric purges, treason laws, exiles, execution, and corruption of all time during Tiberius’s rule, Caligula (37 – 41 AD) was seen as a breath of fresh air when he took the throne. After going through despondent years of constant fear, Caligula’s initiation was perceived as a hope for a flourishing Roman republic. At first, Caligula lived up to the expectations of the roman people. He brought back many people exiled by Tiberius and ceremoniously burned the records of the infamous Treason Trails held by Sejanus under the order of Tiberius. This act was celebrated and made Caligula popular and well-liked among the Senate. He then took a step further and eliminated unpopular hefty taxes, initiated constructions of harbors that created massive employment opportunities for Roman citizens, and staged lavish events like chariot races, gladiator shows, and theatre plays to entertain his people. He was indeed a breath of fresh air after Tiberius. 

But, after seven months of his rule, things changed for the worst. Caligula started to use and abuse his political powers so dauntlessly that it pushed Rome into a dark age of political and economic instability. He went on a rampage of committing murder, adultery, and acts of debauchery. His eccentricities became more murderous, including restating the very Treason Trials that he had ended. Dressed in silk robes and covered in jewels, Caligula pretended he was a god. He made it mandatory for his senators to grovel and kiss his feet and seduced their wives at lavish dinner parties. He wanted his statue to be erected in the temple at Jerusalem, which at the point, would have been highly controversial in a region that was already prone to revolt against the Romans. Luckily, Herod Agrippa, who ruled Palestine then, convinced him not to do so. Additionally, since Caligula was spending vast amount of money on his lavish lifestyle, he emptied Rome’s treasury. To reverse this damage, he started blackmailing roman leaders and senates, and confiscated their properties and wealth. 

There is no denying that there was a method to Caligula’s political madness but power didn’t corrupt him. If it did, the first initial seven months of ruling Rome after Tiberius, Roman republic would not have experienced economic, political and culture growth. However, power certainly did amplify and expose his innate characteristics of corruptibility and debauchery. Caligula’s madness of abusing political power and tyrannical reign grew out of control. An assassination plot for structured against him and he was murdered after being stabbed over 30 times by a cabal of Praetorian guards in 41 A.D. This reminds me of what Robert Caro mentioned in his book The Passage of PowerThe Years of Lyndon Johnson(2012), “Power always reveals. When a man is climbing, trying to persuade others to give him power, concealment is necessary. But, as soon as the man obtains more power, camouflage becomes less necessary.” To conclude, it is not that the power corrupts or is magnetic to the most corruptible. The truth is – power only reveals who you truly are.

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International Law

Omicron and Vaccine Nationalism: How Rich Countries Have Contributed to Pandemic’s Longevity

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In a global pandemic, “Nobody is safe until everyone is safe”, – it is more of true with respect to the current globalized world system. It is said that crisis strikes the conscience and forces the ‘commonality of purpose’ on one another- and a major one in magnanimous scale. But the current Covid-19 crisis seems to have emerged in oddity with this very axiom, of course, due to self-serving, in WHO’s words- ‘self-defeating’ and ‘immoral’, approaches to dealing the pandemic by wealthy countries.

 A new and potentially more transmissible variant of Covid-19 virus, named Omicron by WHO, has been detected in South Africa. With scientists yet to be confirmed about new variant’s epicenter and its likely implication on human immune system, the emergence of Omicron has brought the long-warned case of ‘vaccine nationalism’– a phenomenon in which each nation prioritizes securing ample doses without considering impact on poor ones- to light.

Unheeded to the repeated warnings by scientists and pandemic specialists, many of the world’s richest countries had embarked on a vaccine-acquisition frenzy and hoarded jabs more than their requirements. Some countries have even gone to the extent that they had acquired up to four times what their population needed. Thereby, it has left majority of poor and developing countries, particularly those in global south, unvaccinated, with further risk of the virus being muted into more virulent variants, as in the case of Omicron.

A simple numerical data over vaccination rate across the world exposes the grotesques picture of pandemic recovery divide among the countries and immoral hoarding and hedging efforts on vaccine supplies by wealthy countries. As of now, whereas only 3% of people in low income countries have fully been vaccinated, the figure exceeds 60% in both high-income and upper-middle –income countries. In Africa, the most under-vaccinated and the epicenter of ominous Omicron, only some 7% of its 1.3 billion people are fully immunized.

Given the 9.1bn vaccines already manufactured and 12bn expected by the end of this year, the question is- why does vaccination effort remain so discriminatory and dividing across the regions? The answer, in most part, lies in the ‘pervasive economic inequity’ inherent in initial vaccine-acquisition process. With their enormous capacity to pay out, rich countries, even before pandemic took devastating hold, had pursued a ‘portfolio-approach’ in investing on vaccine development research by pharmaceutical companies- simultaneous investment on multiple ones. In exchange, those countries stroke bilateral deal with each drag company to secure enough prospective vaccine doses to inoculate their respective population several times over.

This absolutist vaccine-acquisition drive of wealthy nations had substantially thwarted the holistic approach taken up by World Health Organization(WHO) under the platform of COVAX, a vaccine sharing program. With the aim of reducing the delay in vaccine allocation to poor and developing countries, and thus ensuring vaccine equity, the multilateral platform didn’t get enough incentives from wealthy ones, since started its journey in April 2020. Both investment and acquisition by well-off countries, having bypassed the COVAX, kept them into the front of manufacturing line, thereby, contributed to the distributional injustice.

‘What starts wrong ends wrong’- initial absolutist approaches in vaccine acquisition started to be manifested in discriminatory distribution of vaccines. Thereby, an amazing scientific breakthrough, development of vaccine in record time, has been offset by awful political policy. In mid-2021, when one portion of world were almost on the track of carefree normalcy, people in bigger portion were struggling to breath. Today, problem is not in production of vaccines, as 2 billion doses of vaccines are being manufactured in every month, rather in the ‘unfairness of distribution’.

Early monopolistic exercise by G20 on acquisition and subsequent stockpile of vaccines has resulted in such galling situation that they have commandeered over 89% of vaccines already produced and over 71% of future deliveries. Consequently, the global inoculation drive, since started, is so unjust that for every vaccine delivered to the poorest countries, six times as many doses are being administered as third and booster vaccines in the richest countries. Adding further to the crisis being escalated, while more than 100 countries, for past one year, have desperately demanded emergency waiver on TRIPs related regulatory restriction on Technologies crucial to pandemic recovery, it has repeatedly been blocked by UK and EU.

Picture is not all-about gloomy with respect to vaccine collaboration but it is quite tiny to the scale of requirements. Rich countries could not deliver on the commitments they did to help poor countries immunize their population. For instance, WHO’s target of having 40% of global population vaccinated by end of this year, through COVAX, seems certainly to fall short largely due to the rich countries failing to deliver on their promise to use their surplus vaccines to immunize the under-vaccinated countries. Far from near, the G7 countries had drastically failed to deliver on their promises made on G7 summit in June. As of last week, USA has delivered only 25%, with further embarrassing arithmetic of EU only 19%, UK 11% and Canada just 5%.

Given the frightening predictions from WHO that another 5 million could be added to the already 5 million death tolls across the world, in the next year or more, it is high time starting a collective endeavor with herculean efforts to inoculate large swaths of unvaccinated people in un-protected areas. Keeping large portion out of vaccination will only make the pandemic endure with no time to end, as virus continues to persist through mutating in un-protected area into a more menacing variant. If so, then again someone else may say, after next the worst wave-We were forewarned- and yet here we are.             

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International Law

The Nuclear Weapons Ban Treaty (TPNW): Wishful daydream or historic milestone?

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The Treaty on the Prohibition of Nuclear Weapons (TPNW), adopted in 2017, has entered into force on the 22nd of January of this year and the number of ratifying states continues to grow, with Mongolia being the latest to announce its accession. This positive trend is certainly welcomed with enthusiasm by the Civil Society campaigners and growing number of supporters of this treaty that represents a huge step forward for the global movement to draw attention to the catastrophic humanitarian consequences of any use of nuclear weapons. It would certainly be dishonest to ignore the fact that this new international legal instrument remains controversial, to say the least, for most of the members of the so-called nuclear deterrence community. As preparations are ongoing for the first Meeting of States Parties, scheduled to take place in Vienna on 22-24 March 2022, it is useful to address some of the main doubts and arguments against the treaty.

In this regard, the main criticism is that it makes no sense to support a treaty on nuclear weapons if those states that possess them have not joined nor any intention to join it.  

In order to address this claim, it may be useful to recall that in the case of the Mine Ban and the Cluster Munition treaties, its main promoters and supporters were also states that did not possess those weapons, and that those international instruments also received some harsh criticism for this reason. Despite of this, there is no doubt now that both of those treaties have become remarkable success stories, not only by achieving the goal of approaching universalization, but also by consolidating a general moral condemnation of those categories of weapons. Therefore, the argument that a treaty necessarily needs to be joined by the possessors of the weapons can easily be rebutted. Despite of the current position of the nuclear weapons states, each new ratification of the treaty is not meaningless: on the contrary, it provides the treaty more authority and contributes to the growing pressure on nuclear weapons states to adopt further steps towards nuclear disarmament.

The other major contribution of the TPNW is that it facilitates the process of delegitimisation of nuclear weapons, necessary to finally amend the well-established foundations of nuclear deterrence doctrines. The humanitarian principles that are underlying the treaty are totally incompatible with those doctrines, and therefore are having an impact on them by highlighting the inherent immorality and illegitimacy of nuclear weapons.   

Another argument for the case of ratification is that it provides states the opportunity to support the process of democratization of the global debate on nuclear weapons, as this new treaty has been the result of a very open discussion with active engagement of delegations from all geographic regions and, in particular, of representatives of Civil Society. This is not a minor aspect of this process, but a key element. Indeed, unlike in negotiations of previous international legal instruments, in this era of growing complexity and interlinkages, the main challenges faced by humankind are being addressed by a diverse group of citizens, from all walks of life and regions. Traditional diplomacy is certainly not enough, and in the case of the TPNW, the positive results would clearly not have been possible without the decisive boost provided by the International Campaign to Abolish Nuclear Weapons (ICAN), which was able to mobilize Civil Society and likeminded governments towards the goal of negotiating a nuclear weapons ban treaty. 

While it would be naïve to expect the establishment of the nuclear weapons states to be convinced by the humanitarian narrative and in a foreseeable future to amend its defence and security policies base on nuclear deterrence, the TPNW and its focus on the security of the human being instead of the traditional notion of the security of the state, are already having an impact on the academic and public debates in those states.

The second argument used by its critics is that the TPNW weakens the Non-Proliferation Treaty (NPT).  Actually, this is not only incorrect, the opposite is true. In fact, the TPNW can serve as an initiative to help implement article VI of the NPT, by which parties are committed to undertake to “pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament”. This is of vital importance as the treaty clearly attaches a key role to all parties, and not only to those states that possess nuclear weapons. This commitment has also been reflected in the Final Document of the 2010 NPT Review Conference, and the TPNW can be understood as a reflection of that obligation to contribute to nuclear disarmament by non-nuclear weapons states.

Another common point is that the nuclear weapons industry is too strong and well consolidated and that it would be naïve to pretend that this treaty could actually have an impact on investment decisions.

This pessimism has also been proven wrong. In fact, in 2021, more than one hundred financial institutions are reported to have decided to stop investing in companies related to nuclear weapons production. As a result, the nuclear weapons industry is experiencing a considerable reduction and the trend towards the exclusion of this sector from investment targets is growing steadily. This is not only the consequence from the legal obligations that emanate from the TPNW but a reflection of the devaluation of the public image associated to these industries. As this public image continues to deteriorate, it is likely that this trend will continue and that the moral condemnation of these weapons of mass destruction will be absorbed into the mainstream of society.

Another common misinterpretation is that the TPNW should be understood as an instrument that is only designed to be joined exclusively by non-nuclear weapons states.

In fact, even though the treaty was developed by non-nuclear weapons states, it has been drafted and negotiated with the goal of universal adherence, including, someday, those states that still include nuclear deterrence in their national security doctrines. In particular, the TPNW establishes a clear set of steps for nuclear weapons states in order to eliminate their arsenals of nuclear weapons. Specifically, within 60 days after the entry into force of the treaty for a state party that possesses nuclear weapons, that state must submit a plan for the complete elimination of its nuclear weapons to a competent international authority that has been specially designated by states parties. The treaty also includes a process to designate a competent international authority to verify the elimination of nuclear weapons by a state before acceding to the treaty, and a process for states parties that maintain nuclear weapons in their territories for the removal of these weapons and report this action to the United Nations Secretary General.

It is also noteworthy that this treaty obliges states parties to provide adequate assistance to victims affected by the use or by testing of nuclear weapons, and to take the necessary measures for environmental rehabilitation in areas contaminated under its control. This dimension of the treaty constitutes an important contribution both to the protection of human rights of victims and to the now inescapable obligation to protect the environment, which are aspects that are not covered by the Comprehensive Nuclear Test Ban Treaty (CTBT). This certainly does not affect the value and vital role of this key instrument of the nuclear disarmament and non-proliferation regime but complements it by addressing the fundamental issue of environmental reparation.

The main challenge now is now not only to achieve a wider universality of the TPNW, but to engage more stakeholders and create awareness on the urgency of bringing pressure on the nuclear weapons states to finally move toward nuclear disarmament. In this regard, Civil Society initiatives have been promoting engagement of members of grassroots, parliament, the media and city governments, particularly in nuclear weapons states, which has had impressive results, with hundreds of local governments expressing support for the treaty and generating discussion among the population. These initiatives serve the purpose of putting pressure on politicians and especially, to facilitate a discussion within democratic societies about the sustainability and risks involved in the possession and harboring of nuclear weapons.

Indeed, the TPNW has a long way to go and overcome many obstacles to achieve its objective, but in its first year of entry into force, it has already had an undeniable impact on the nuclear disarmament and non-proliferation debate, despite the expected skeptics and efforts to ignore its existence stemming from the still powerful nuclear deterrence establishment. Most of its technical experts, academics and government officials honestly believe that nuclear weapons have helped to guarantee peace and stability to the world and therefore should continue as the foundation of international security doctrines. These well-established ideas have been based on the questionable assumption that the deployment of these weapons have avoided war and can guarantee permanent peace for all nations. This has served as a sort of dogmatic idea for many decades, but recent research results have shown that the risks involved are significantly higher and that the humanitarian consequences would be catastrophic for every citizen of the planet. The humanitarian impact paradigm, which underlies the process that has inspired the TPNW, has provoked a tectonic shift in the nuclear disarmament and non-proliferation debate, which had been limited to the NPT review conferences with its often-frustrating results. Certainly, the persistence of the different approaches needs to be addressed in a more constructive discussion among the supporters of this treaty and the deterrence community.

Finally, the fact that the first meeting of states parties of the TPNW will take place in Vienna is very meaningful as Austria has been one of the leading nations in this process, particularly in drafting the Humanitarian Pledge to fill the legal gap for the prohibition of nuclear weapons, which has been a decisive step towards the treaty that has already fulfilled that commitment. Despite of all the difficulties and the persistence of significant resistance, the active and committed participation of diplomats and Civil Society representatives, under the leadership of Austria, allow to envisage that this first meeting will help to strengthen the treaty and move forward in the long and burdensome road to the final objective of achieving a world free of nuclear weapons.

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