“Justice is a contract neither to do nor to suffer wrong.”-Plato, Republic
Abstract: This essay will focus upon current issues of insurgency, 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” 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.”
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. 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, an integral foundation of all codified and customary international law. 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.
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. 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.
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.
All combatants, including Palestinian insurgents allegedly fighting for “self-determination,” are bound by the law of war. This core requirement is found at Article 3, common to the four Geneva Conventions of 1949. 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. 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.
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. 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. 
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, 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.
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.”
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), 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.
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. 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 – 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.
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 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 and cosmopolitan thought.
 See also, Philus in Bk III, Sec. 5 of Cicero, DE REPUBLICA.
 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
 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,
 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”).
 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….”
 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).
 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.
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.
 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).
 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.
 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).
 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.
 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).
 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.
 See, by Professor Louis René Beres at Oxford University Press: https://blog.oup.com/2016/11/isis-security-ideology/
 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.
 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).
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/
 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
 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.'”).
 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.
 This phrase is taken from Albert Camus, Neither Victims nor Executioners (Dwight Mc Donald., ed., 1968)).
 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.”
 The permanent members of the UN Security Council would be an appropriate place to begin.
 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.
 According to Talmud: “The earth from which the first man was made was gathered in all the four corners of the world.”
The rise & rise of populist demagogues in democratic nations
The term dictators & demagogues are used interchangeably in various contexts but there’s a difference, the former rules over a totalitarian state where government is able to exercise a complete influence over every aspect of citizen’s life whereas the latter is a “wannabe dictator” but due to the system of checks & balance in place they’re are not fully capable to create police states.
In 21st century these flamboyant demagogues have adjusted their personality & politics in such a way that they successfully hide their intent & action in the shadows of democratic system so unlike Hitler’s Fascist regime or North Korea’s Communist dictatorship, it’s difficult to held them accountable because they’ll try to justify their hasty & unreasonable decision in the name of Constitution & larger public good.
There are some common qualities shared by populist demagogues in democratic countries that need to be checked in all seasons to protect the country & its people from potential benevolent dictators.
1.Compromised Constitutional Bodies
The rabble-rousers of the modern era have smartly learnt from their predecessors that to stay in power for eternity, it’s important to curb & limit the functions of Independent Institutions like Courts, Central Bank, Auditory Bodies, Investigation Agencies etc. For instance the President of Turkey Recep Erdogan has almost destroyed judicial independence in the country & with the recent news about the call of his political ally to shut down Turkey’s Constitutional Courts is not just alarming but also a cause of concern in a country where a record number of journalists are serving jail sentences under false charges & this decision if taken will not just compromise the press freedom which is already at its nadir in Turkey but it’ll also weaken the capacity of judicial system to guarantee the protection of people’s rights.
2.Unnecessary Focus on the revival of Glorious Past
Demagogues keep reminding us about the ancient prosperity & always pushing the narrative to portray their country as the leading force , it can be done via 2 ways, either promote the soft power like culture, tradition, civilization & spirituality or use even nasty tricks to pull out the blinded nationalism that includes portraying one’s country as the leading colonizer, telling people about invaders & portray them as protector of native civilization or use race theory to create a class divide in society like Hitler did by invoking the Aryan identity that made some people into believing that they are superior to others.
By inciting this false hope of regaining the past glory & branding slogans like “Make America Great Again”, “For us, Hungary First”, “Abki bar, Modi Sarkar” they deceit & manipulate people into voting for their parties without doing any substantive work on the ground.
3.No respect for Dissent & Human Rights
Dissent or criticism of the leader & its establishment is part of a healthy Democratic society where people are fundamentally free to express their views regarding the government’s policies. While delivering a lecture on the topic,” The Hues That Make India: From Plurality to Pluralism,” the Supreme Court Justice DY Chandrachud noted that ” Descent is the safety valve of a democracy” but sadly the Modern day Niro of India who ironically belongs to the same State where this lecture was being delivered has left no stone unturned to deliberately cut this valve into pieces.
Critics & Human Rights Activists are put behind bars for raising their voice against the atrocities & crime inflicted on tribals, minorities & other vulnerable sections of society. They are mercilessly beaten, tortured, thrashed & maimed in solitary confinements making no exceptions for maintaining basic human decency that is expected from the “World’s Largest Democracy”.
4. Polarisation for winning elections
The gruesome killing of George Floyd by White male police officer sparked a global outrage & protests against the racial inequality & hate crime that is at its highest level in more than a decade. People demanded accountability & change to stop the Institutionalised & Systemic racism against the people of color in the United States. Ex-president Trump instead of calling out & condemning white supremism (terrorism) has defended & even embraced this far right radical ideology of hate.
As per the report by V-Dem, there’s an upsurge in political polarisation in India since 2014 when BJP seize the power at Centre & this is evident by frequent incidents of mob-lynching, riots & attacks on minorities especially muslims & Dalits in India. This report further states that Freedom of Religion has seen a considerable decline under the current regime. The reason behind these precipitous decline is the rise of Hindutva Politics which was long gone, forgotten & buried in the coffin but the BJP has called out the jinn of hatred to sway elections after elections at the cost of people who want to live a peaceful life in a non-hostile environment.
5.Violate established rules of Political Conduct
Politics was always a dirty business but populist leaders in most democracies have stooped to a new low & ruined it further. They never shy away from using homophobic & sexiest slurs or passing derogatory remarks against their counterparts in other parties.
Take for instance Brazilian President Bolsonaro, a nutcase who revokes popular prejudices in his ugly campaign rhetoric by passing many offensive & utterly distasteful comments against women, gays, environmentalists & minorities.
The rise of retro-macho politics has left no space for political sobriety & if unchecked, the tumor of hypermasculinity will not be just limited to hate speeches & jibes but translate into formidable action against humanity.
That’s how Romanian dictator Ceaușescu turned his political rhetoric into dystopian reality, under his dictatorship, birth control was banned, abortion was outlawed & fetus was declared the “property of society”, so women were tested for pregnancy & monitored to make sure that they give birth, and punished if they failed.
6. Refusal to accept migrants from Impoverished & war-torn countries
This is the hypocrisy of Western States who for decades have waged war, supported regime change, imposed Economic sanctions & trade barriers, sold weapons to militants in Middle-eastern & African countries finally when refugees & immigrants are arriving at the European borders from these destabilized countries where anarchy has bolstered civil war & complete chaos after covering an extremely dangerous route & taking enormous risks such as relying on people-smugglers or using flimsy boats to cross rough seas, they were detained & locked up under inhumane conditions in shipping containers in Hungary at whims & fancies of Hungarian government headed by ultra-right wing Viktor Orbán but after the European Union Court ruling last year, Hungary has finally shut-down these illegal migrant transit zones situated on its border with Serbia, at the same time tightening rules which will effectively bar future migration prospects in EU member states.
7. Climate Change Deniers
Climate Change is the biggest threat to human existence in the 21st Century. Earth’s Climate is now changing faster than at any point in modern civilization, primarily as the result of human activities. It needs to be understood that Climate Change is not just a science issue but a policy issue as well. In most of the countries where demagogues are in-charge the policy seems to be more destructive, anti-science & discredit the scientific studies that show that effects of Climate Change are horrific & destructive for the Planet.
The environmental policies of Bolsonaro in Brazil have put the Amazon Rainforest on the verge of extinction. Regarded as the “lungs of the Earth”, the Amazon acts as a giant carbon sink & is also responsible for driving rain patterns across South America & Africa. Leaked documents revealed that Bolsonaro has cynical plans for Amazon Rainforest that includes hydroelectric plants, construction of bridges on Amazon river & a proposed highway through the dense forest to integrate Amazon basin with the rest of the National territory.
Under pressure from the Biden Government, Bolsonaro is now promising to make Brazil Carbon neutral by 2050 but his Environmental minister has asserted that his country is ready to cut 40 percent of deforestation in Amazon Forest only if the International Community will provide $1Billion as assistance. Though It is highly unlikely that the Brazilian government will take any steps against the influential farming lobby that played an important role in the victory of Bolsonaro in 2018 & to whom he has promised to dismantle existing environmental protections to make way for agricultural land expansion and intensified production.
The rise of populist leaders in democratic countries is not sudden, before seizing power they boastfully promise to set their country free from corruption, crime & socio-economic inequality but after winning election they shift their goal post to achieve sinister objectives. Electoral political system in a democracy needs an urgent overhaul to include an educated perspective rather than simply representing the
will of majority which is no less than tyranny & this could only happen if people(voters) are aware about fascism among themselves & what does it take for a normal country to become a Nazi State that had turned itself on the path of ravage & destruction. The importance of self realisation & tumultuous past is aptly described in a quote by Ernest Hemingway in his classic book, For whom the Bell tolls “But are there not many fascists in your country?’ There are many who do not know they are fascists but will find it out when the time comes“.
OTT broadcast and its censorship: Whether a violation of freedom of speech and expression
The whole world, owing to coronavirus pandemic, is enveloped in the darkness. It has wreaked havoc on almost all the aspect of human lives. The educational institutions, theaters and cinemas all have been shuttered. Public gatherings, to maintain the social distancing, have been firmly discouraged. Further, the pandemic has significantly modified the media and entertainment consumption patterns. Social lives ventured into digital environment as a result of people being cramped to their homes. People have switched to several sources of entertainment from the comfort of their own homes and over-the-top (“OTT”) platforms have proven to be a major source of entertainment.
OTT platforms have grown exponentially and taken over the industry. OTT platforms expedites streaming of video content over the web. Several OTT platforms such as Netflix, Amazon, Disney Hotstar, Disney+, Apple TV+, Hulu, etc., have primarily ousted the traditional television service. The notification issued by the Central Government of India aimed at getting online media platforms and content on OTT platforms within the jurisdiction of the Ministry of Information and Broadcasting has been making the rounds in recent times. The cabinet Secretariat, on November 9, 2020, released a notification amending the Government of India (Allocation of Business) Rules, 1961. It has incorporated two new entries to the second schedule of the Rules namely Films and Audio-visual programmes provided by online service provider as well as News and Current Affairs. This action is attributed to the fact that there is large amount of an unrestricted content available on the web as well as lack of an adequate regulatory regime in place to protect its users.
Universal self-Regulation code
The Internet and Mobile Association of India (IAMAI) had come up with a Universal self-Regulation code (code) to administer the content available on OTT platforms. The code was primarily adopted by the fifteen OTT platforms namely zee 5, Viacom 18, Disney Hotstar, Amazon Prime Video, Netflix, MX Player, Jio Cinema, Eros Now, Alt Balaji, Arre, HoiChoi, Hungama, Shemaroo, Discovery Plus and Flickstree. SonyLIV and Lionsgate too have recently signed the code. It was manifestly stated in the code that The Information Technology Act, 2000 (IT Act) is the main governing framework when it comes to online content. The values enshrined in Article 19 of India’s Constitution, namely the Right to Freedom of Speech and Expression, direct the internet and material on the internet. A policy for the digital content sector has to be drafted in line with Article 19 of the Indian Constitution i.e. the Right to Freedom of Speech and Expression, and any constraints on the aforesaid right should be fall within the purview of constitutional restrictions set forth in Article 19(2) of the India’s Constitution.
Further, the code had delineated a mechanism pertaining to (i) Age Classification (the code had particularized the certain categories for standardized age classification namely All ages, 7+, 13+, 16+ and 18+) (ii) Appropriate content specification ( a content descriptor appropriate to each piece of content that demonstrates and tells the viewer about the essence of the content while also advising on viewer discretion) and (iii) Access control Tools( to regulate access to content, signatories to the Code may implement technological tools and measures for access control i.e. PIN/Password.) The code had also established the perspicuous grievance redressal and escalation process to lodge complaint regarding non-adherence to specified guidelines. The MIB, however, has repudiated the proposed code since it did not explicitly categorize the prohibited content. Further, there is no independent third-party oversight and a transparent code of ethics. The MIB instructed IAMAI to seek guidance from the Broadcasting Content Complaints Council (BCCC) and the News Broadcasting Standards Authority (NBSA) self-regulatory frameworks.
A public interest litigation was consolidated in October, 2018, before the hon’ble Delhi High court by Justice For Rights Foundation to draught certain guidelines for modulating the content available on OTT platforms. The MIB while filing the counter affidavit stated that digital platforms are not required to procure a license from them to exhibit their content and the same is not controlled by them. The Ministry of Electronics and Information Technology (MEITY) has also mentioned that they do not oversee internet content and there exists no mechanism for monitoring or licensing an agency or establishment that posts content on the internet. Nevertheless, it was claimed that the provisions concerning IT are applicable, and concerned legislative authority having jurisdiction under the aforesaid Act is authorized to take action using the power granted to them under section 69 of the Act which involves directives for interception, surveillance, or data encryption. Further, under Section 67 of the Act there are penalties pertaining to posting or disseminating obscene information in any digital form. Accordingly, the court while dismissing the petition opined that it cannot grant a mandamus for the creation of regulations when the IT Act already contains stringent restrictions and currently the foregoing petition is pending in the hon’ble supreme court.
Positions of the law in regards to film screenings
A film must be certified by the Central Board of Film Certification before it can be displayed or distributed in cinemas or on satellite, and the content is constrained by existing laws. The CBFC was established by the Cinematograph Act of 1952. When it was established, it was designated as the Board of Film Censors. It was amended in 1959 to give it the authority to certify a picture for mass consumption. The Cinematograph Act of 1952, the Cable Television Networks (Regulation) Act of 1995, and the Cable Television Networks Rules of 1994 are among the laws that govern the industry. However, there is no such particular legislation for regulating material on OTT platforms. The government by virtue of Article 19(2) of Indian constitution can impose restrictions on freedom of speech and expressions in the interest of sovereignty and integrity of India, security of state, friendly relations with foreign countries, public order, decency or morality and so on. Consequently, broadcasted content has often been a restricted matter. In K.A. Abbas v. Union of India and Another, the constitutionality of censorship was initially challenged. The hon’ble supreme court has upheld the constitutionality of censorship under Article 19(2) of the India’s constitution and stated that films must be viewed differently from any kind of art and expressions because a motion picture can elicit more intense emotional response than any other product of Art. However, such censorship should not be exercised to imposed an undue restriction on freedom of speech and expression.
The constitutionality of censorship was also disputed in S. Rangarajan v. P. Jagjivan Ram wherein the hon’ble supreme court has held that the board’s criterion for appraising the films must be that of an ordinary man with common sense and wisdom rather than that of a hypersensitive mind. The Moral values ought not to be compromised in the realm of any social change. The concept of “Dharam” should not be disrupted by the immoral norms or standards. However, it does not suggest that censors must embrace a conservative perspective. They should be resilient to social change and go with the topical environment. The film is the most legitimate and significant medium for addressing topics of public concern. The producer has the right to broadcast his own message, which others may or may not concur with. The state, regardless of how hostile to its policies, cannot suppress open debate and expression. The democracy is basically a government by the people based on open debate. The democratic form of administration necessitates citizens’ active and informed engagement in the societal issue.
Furthermore in, Phantom Films Pvt. Ltd. And Anr. V. The Central Board of Certification, it was said that we are governed in a democratic manner. We can’t expect everyone’s head and intellect to be the same in a democracy. Freedom to think and act in a different way is at the heart of democracy. The beauty of democracy is the diversity of viewpoints, ideas, and manifestations. It’s unrealistic to expect everyone to exhibit themselves in the same way. In the film business, new blood is being infused. This new blood is revved up and eager to get their feet wet in the industry. The film business and the general public have embraced such new blood. Their effort has been recognized and praised by the government. These works are predicated on a certain way of thinking that is unique to them. They have their own opinions and ideas on how the film business should operate, as well as how the medium altogether must be managed. Profanity, obscenity, and depravity do not shock human emotions. Such situations and discussions must be seen in their entirety. The narrative must be perused in its totality and thought upon. It is not appropriate to choose a few phrases, lines, conversations, or situations and venture into the board’s resolution. Certainly, the state, and notably the Central Board of Film Certification, cannot attempt to sculpt and dominate public opinion under the guise of purported public interest or audience preference. That would be terrible, as it would hit at the heart of democracy and civil liberty, which are held in such high regard by everybody. The goals of film certification, consequently, cannot be achieved by disregarding the Constitutionally guaranteed right or by fully undermining and disappointing it. A movie has to be watched on its own and judged accordingly. The plot, subject, background, and location in which it is created, the message it aims to express, and the entertainment, among other things, would all have to be assessed using section 5B’s standards.
Should OTT platforms be governed by a code of self-regulation?
Self-regulation is presently the only option available to such platforms in order to maintain the ability to broadcast material without undue censorship. Because unreasonable restriction would impede the creative flexibility of OTT platforms. It will assist platforms in conducting themselves in an ethical and fair manner while also safeguarding the interests of their users. It would protect content producers’ artistic freedom by promoting creativity and upholding an individual’s right to free speech and expression. The general public desires to view the content in its original and untainted state. They strive to understand artwork in its most primitive sense. The fundamental role of government agency is to maintain the fair field, not to inhibit innovation and ingenuity by placing limitations in a tech industry.
Self-regulators’ competence allows them to adjust their regulations more quickly than government agencies in reaction to technological advancement. More significantly, independent of any technological change, the self-regulator is better equipped to decide when a rule should be modified to improve compliance. Self-regulation has the ability to make compliance more appealing. It develops regulations based on an expert’s level of understanding, customized to the specific sector. These rules are viewed by regulated entities as more “reasonable” from the inception owing to their involvement.
The MIB by virtue of the amendment has now can regulate and draught policies regarding digital media and online streaming on OTT platforms. However, such governmental intervention can considerably jeopardize the constitutional right to freedom of speech and expression. The suppression of freedom of speech and expression is what censorships is all about. The freedom of speech and expression suggests that right to manifest one’s thought via words of mouth, writing, picture and any other means. The freedom of speech is one of the most well-known and fiercely protected civil rights against government encroachment. In modern democratic societies, it is generally considered as an essential notion. Every citizen of a democratic nation has the freedom to express his or her opinions on various issues. Thousands of viewpoints are disseminated around the country via various channels. A film director has the freedom to manifest himself and gives effect to his thoughts, even though others may not concur with him. An exhibition of films as well as documentaries cannot be prohibited for purely speculative reasons since prohibiting motion pictures is tantamount to suppressing the right to freedom of expression and speech. Restrictions upon Individual’s freedom of speech and expression must only be permitted if they are required to avert severe harm from being perpetrated. It is critical to have a healthy and extensive amount of free expression in order to assert a thriving and well- functioning democracy. Democracy, otherwise, is obsolete and akin to a totalitarian dictatorship. It should be up to the public to determine what they want to see and what they don’t want to watch. Thus, the cornerstone to safeguarding artistic freedom is a sustainable self-governance paradigm.
 K.A. Abbas v. Union of India and Another (1970) 2 S.C.C. 780
 S. Rangarajan v. P. Jagjivan Ram (1989) 2 S.C.C. 574
 Phantom Films Pvt. Ltd. And Anr. V. The Central Board of Certification 2016 S.C.C. online Bom 3862: (2016) 4 AIR Bom R 593: AIR 2017 (NOC 62) 29
 Id. at 13
 Subhradipta Sarkar, RIGHT TO FREE SPEECH IN A CENSORED DEMOCRACY, UNIVERSITY OF DENVER SPORTS
AND ENTERTAINMENT LAW JOURNAL 62, 84 ,89 (2009)
What Determines Taliban Government’s Legitimacy?
With the fall of Kabul, and the evasion of President Ashraf Ghani, the Taliban has taken over the reins of Afghanistan. States like Pakistan and China have already expressed their willingness to “work with the Taliban” thereby legitimizing the Taliban government, whereas India has refused to recognize this “reign of terror”. The jurisprudential question of legitimacy arises here because the transfer of power in Afghanistan was through a coup d’etat which constitutes an extra-constitutional means of formation of government. Governments desire legitimacy because it gives them the right to rule and an acceptance on the international and domestic levels.
The most accepted theory in this regard is Hans Kelsen’s Pure Theory of Law. Kelsen, a positivist, claimed that law was contaminated by sociological impurities and morality, and focussed his theory on law alone. He based the legitimacy of the new order of government on its efficacy, and a rule was said to be efficacious when individuals regulated by it “behave, by and large, in conformity” with it. When the new order was efficacious, the coup was said to be successful, and the new government was held to be a legitimate one. Kelsen’s theory was widely accepted to uphold governments after coups such as in The State v. Dosso (Pakistan; 1958), Madzimbamuto v. Lardner-Burke (Southern Rhodesia; 1968), and Uganda v. Commissioner of Prisons (Uganda; 1966), among others. Since Kelsen tries to purify laws from the socio-political aspects, he contends that that it is irrelevant why people comply with the law and it could even be out of pure fear. Thus, a rogue government such as the Taliban which is efficacious as it receives compliance out of coercion and not out of consent, would be a legitimate one from a Kelsenian perspective.
The primary criticism that arises to Kelsen’s separability thesis is that he fails to distinguish between validity of law and its legitimacy. Critics have argued that while validity of law concerns with its authoritativeness, legitimacy depends on the virtue of justness and is contingent upon socio-political and moral factors. The issue lies with attaching legitimacy to the performance of the government. Instead, legitimacy should involve the questions of whether the government has the ability to demand the obligations out of voluntary conviction, provide for public goods such as the rule of law, protection of fundamental rights, etc., and function in a manner such that the society is generally benefitted. A study on legitimacy in seventy-two countries concludes that more the citizens are treated as rightful holders of political power, more legitimacy the government derives. This means that the virtue of legitimacy must flow from the citizens and the society and not from a coercive power that the top-down approach provides.
In the light of this, when the Taliban government is examined, it is realised that with its extremist ideology and terror activities in the past, it can hardly fulfil this criteria.While the ‘good Taliban’ has claimed that it will protect the freedom of press and not discriminate against women while allowing for their participation in the society within framework of Islamic law, these assurances will pacify only those who are unfamiliar with its history. Under the rule of Taliban in the years between 1996 and 2001, human rights were suspended, and political killings, rape, torture, amputation, and public executions were common place. A Taliban 2.0 which has emerged victorious against one of the major superpowers of the world, and has external support is unlikely to reform. Ideologically, they still remain the same movement committed to a puritan interpretation of Islam and this is evidenced by the fact that the barbaric Sharia law is in place once again. These baseless claims should be perceived as a political strategy to appease states into granting them de jure legitimacy because despite the jurisprudence of legitimacy developed, there is nothing in the international law that bars states like China, Russia, Pakistan or others from recognizing the rogue state of Islamic Emirate of Afghanistan. Therefore, the future of the Taliban and Afghanistan rests in the interplay of international actors.
COVID vaccines: Widening inequality and millions vulnerable
Health leaders agree that a world without COVID-19 will not be possible until everyone has equal access to vaccines. More...
Moscow electronic school — the future of education
The Moscow Electronic School (“MES”) project is a cloud-based Internet platform launched in 2016 that unites all educational institutions in...
Economy Contradicts Democracy: Russian Markets Boom Amid Political Sabotage
The political game plan laid by the Russian premier Vladimir Putin has proven effective for the past two decades. Apart...
Over 50 Companies Reporting on Stakeholder Capitalism Metrics as International Support Grows
The World Economic Forum announces today the continued growth of the coalition of companies supporting the Stakeholder Capitalism Metrics initiative....
Japanese firms’ slow and steady exit is sounding alarm bells in Beijing
Last year in March, former Prime Minister Shinzo Abe had indicated Japan would initiate measures to reduce the country heavily...
Bringing People Together with Easy to make Russian Comfort Food
Russia has a long history of droughts and famines. Although there have been no famines since 1947, the former Soviet...
UNGA76: Giant eco-friendly artwork set to inspire world leaders
A new 11,000 square metre ‘ephemeral fresco’ created by Swiss artist Saype, has set the stage at UN Headquarters in New...
Economy4 days ago
Russia, China and EU are pushing towards de-dollarization: Will India follow?
Middle East2 days ago
Turkey’s Destruction of Cultural Heritage in Cyprus, Turkey, Artsakh
South Asia4 days ago
Panjshir – the last stronghold of democracy in Afghanistan
Defense4 days ago
Developments on Korean Peninsula risk accelerating regional arms race
Economy4 days ago
Today’s World Demands Sustainability
Americas3 days ago
Was Trump better for the world than Biden, after all?
South Asia3 days ago
Opposing Hindutava: US conference raises troubling questions
East Asia3 days ago
How China Exacerbates Global Fragility and What Can be Done to Bolster Democratic Resilience to Confront It