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International Norms On Fair Hearing: The Case of US, UK and India

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Fair hearing and its elements have been a hotly contested issue in administrative law. The right to fair hearing has traditionally been an indispensable aspect of the rules of natural justice. Broadly, the right to a fair hearing contains of several elements including but not limited to the right to a free and fair public hearing, the right to an independent and impartial tribunal and the right to present at an oral hearing. However, while fair hearing norms originates in the Articles 14 and 21 of the constitution in India, USA and UK trace it back to the 5th Amendment of the US Constitution[1] and Section 6 of the European Convention on Human Rights[2] respectively. Thus, the elements of fair hearing in the United States of America, the United Kingdom and India differs owing to these constitutional variations. These differences then evolve owing to diverse judicial interpretations which are based on different factors including expense, time and the need to avoid unduly binding administrative law making.

Despite these differences, fair hearing remains an important requirement in the process of administrative adjudication and ensures that every person being affected by a decision is granted a hearing before he suffers detriment. Thus, it is important that fair hearing remains an internationally recognised civil right while leaving significant discretion to individual states to adopt different procedural norms for practical demand.

This paper aims to understand the elements of fair hearing in three jurisdictions, namely US, UK and India. Accordingly, it first briefly traces the origins of the concept of fair hearing in administrative law and then narrows it down to understanding the evolution of the right in the three countries. Second, the paper makes a detailed scrutiny of the different elements of fair hearing in US, UK and India, observing the similarities and the differences. This involves exploring the judgments and legislative norms laid down in the three countries in this regard. Lastly, it specifically examines the effectiveness of the Indian notion of fair hearing in addressing administrative issues and ponders over the need to borrow from US and UK jurisdictions in this regard.

It concludes by reemphasising the importance of the right to fair hearing and how the differences in the fair hearing frameworks of the three countries points to different administrative demands and patterns.

FAIR HEARING NORMS: ORIGIN AND EVOLUTION ACROSS NATIONS

The norms of natural justice were originally imposed in common law countries as minimum standards of fair decision making so as to ensure that bodies or persons ‘act judicially’. The natural justice norms were later differentiated into two rules: the rule against bias and the right to a fair hearing. However, while European nations focused more on non-procedural aspects such as jurisdiction and correct legal reasoning, the US Supreme Court insisted on understanding fair hearing norms as ‘the essence of the scheme of ordered liberty’[3]. This is difference is elaborated as follows-

The initial academic discussion on fair hearing in the US centred on due process norms. For instance, the courts in Crowell v. Benson[4] and Ohio Valley Water Co.[5] ensured that due process norms imposed traditional procedural restrictions as well as absolute limits on the powers of administrative bodies. On the other hand, the Human Rights Act 1998[6] in UK gives effect to the Article 6 of the European Convention on Human Rights which declares the norms for a fair hearing. The elements of fair hearing in UK originating from Article 6 of ECHR allow tribunals to have considerable discretion in conducting trials and admitting evidences. However, they are expected to uphold “natural justice” norms especially when taking decisions that directly affect the “legitimate expectations” of a government body[7].  

The Indian administrative law assumes audi alteram partem or the right not to be condemned unheard to be an essential constituent of natural justice norms. Accordingly, the right to fair hearing, although not explicitly legislated on, has been firmly grounded in Articles 14 and 21 of the Indian Constitution. Further, fair hearing norms involve several different rights recognised through various judicial precedents i.e. right to notice, right to present case and evidence, reasoned decision etc. The norms have also provided for certain exceptions in the administrative law which form legal grounds for avoiding the application of fair hearing norms. However, there is no straightjacket formula for its determination and it depends on the particular circumstances of an administrative law case[8].

Thus, it may be argued that the fair hearing norms of the three countries have had different origins thus different substantial outputs. For instance, while English and Indian laws do not have general due process requirements for all governmental action affecting private citizens, it is quite the contrary in the US law. Nonetheless, fair hearing maintains its universal applicability in ‘laying duty upon everyone who decides everything’. 

ELEMENTS OF FAIR HEARING IN US, UK & INDIA: VARIATIONS AND DIFFERENCES

Owing to different origins and administrative law advancements, the fair hearing norms of UK, US and India substantially differ from one another. For instance, the US norms demand that a party not only be given opportunity to present evidence, but allowed to know the claims of opposing party as well as meet them. Those who contest government claims in a quasi-judicial proceeding are expected to be informed of government proposals and heard on them before the final order[9]. Similarly, the US law does not guarantee a right to oral hearing under fair hearing norms and decides upon it on a case to case basis.

More importantly, the Constitution of the US, in its 5th Amendment, also does not guarantee a trial type hearing in every governmental infraction of private rights[10]. For these reasons, administrative bodies such as the Civil Rights Commission do not accord the right to confront or cross examine witnesses as they only serve as investigative bodies and make no adjudications.

The present norms on fair hearing in United Kingdom may be traced to the judgment in Ridge v. Baldwin[11] which abandoned analysing the administrative and adjudicatory roles of decision making bodies and turned to the precise content of the complainants’ rights. The judgment declared that the applicant in an administrative law case may rely on prior legitimate expectations that the law will fulfil in the absence of countervailing considerations. This expectation may arise out of any prior course of conduct by the executive bodies in regard to the applicant’s case. The adjudicatory body will then have to determine the exact content of the right through these legitimate expectations[12]. However, the ECHR which is the basis for the UK fair hearing norms lay down three participation principles that are to be necessarily complied with. These are the principle of respectful treatment, the ‘equality of arms’ norm and the adversarial principle.

In India, the concept of fair hearing is a fairly elastic one and may not be contained within any precise definition. Thus, there are no indispensable standards of reasonableness that have to be complied with except that the conscience of the court should be satisfied that the person who will be affected by a decision has had a fair chance of convincing the particular authority[13]. However, the Supreme Court of India has also clarified that the principles of natural justice demand that a minimum fair procedure be always followed. This minimum fair procedure is, however, for the court to determine based on the particular facts and circumstances of the case. Nonetheless, the court has through judgments such as Maneka Gandhi v. Union of India[14] espoused fairness jurisprudence in regard to the civil rights of a citizen. Accordingly, some liberal norms for fair hearing that the judiciary has laid down over the years include: decision maker to be above bias, need to state reasons etc.

The United Kingdom, the United States and India all fall in the category of commonwealth nations. However, their legal regimes and fair hearing notions are marked by wide differences. For instance, while the UK law focuses on a limited arena of the norms of natural justice, the US law is embedded in the concept of procedural due process[15]. However, while US makes use of the right to notice and right to be heard to further the basic constitutional guarantees of the protection of life, liberty and property, UK also uses the ‘margin of appreciation’ in ECHR norms to guarantee the same rights[16].

Further, the right to fair hearing in UK is expressly limited by several factors ranging from merits of a case to morals and national security. On the other hand, although there exist no identifiable limits on due process and fair hearing norms in US, the identified purposes of procedural due process and rule of law serve as implicit limits[17].

On a comparison between Britain and India, while Britain has experimented with a right based approach before returning to the basic principle of fairness as a core constituent of fair hearing issues, India has merely made sporadic attempts to disregard statutory stipulations in order to preserve fairness and natural justice procedures.

Additionally, the Indian Supreme Court has stated that the notwithstanding any finality clauses in any act, Articles 136 and 226 allow the judiciary to review a law for violation of natural justice norms[18]. This is in contrast with US law which excludes certain congressional norms from the purview of due process requirements and judicial review. The US also has relaxed norms for attracting fair hearing norms as compared to India. For instance, while the US law allows for its non-application only in non-immediate matters or during subjective applications of the act, the Indian Supreme Court has insisted that audi alteram partem may only be used only in the instances of the violation of liberty or property causing grave injustices[19].

Therefore, it may be conclusively argued that the laws on fair hearing in the US, UK and India are based on entirely different perceptions and have evolved accordingly, thus the vast differences.

INTERNATIONAL FAIR HEARING NORMS AND COMMON LAW TRADITIONS

Notwithstanding the differences between the fair hearing norms in the US, UK and India, there are startling similarities owing to their similar common law origins. The fair hearing norms in all the three countries have constantly strengthened and have expanded the substantive idea of fairness so as to achieve fairer outcomes. This is largely because of the natural law entitlements of individuals that common law traditions have endowed upon the masses. Further, all common law jurisdictions share social policy, tradition and elaborated analogies in various forms. Thus, the right of a man to be given fair opportunity to be heard on what has been alleged against him is a universal principle in all common law jurisdictions and hence, in all three countries, namely US, UK and India[20].

Similarly, common law countries as well as nations falling under the jurisdiction of ECHR i.e. UK, allow quasi-judicial agencies to not completely comply with all the norms of procedural fairness if the affected person has any recourse to a further hearing or appeal. On the question of exceptions to the natural justice norms too, UK and India both use similar factors of time, place and apprehended danger etc. to ascertain their application. However, all the applicable exceptions are merely circumstantial and not conclusive[21].

Further, another common law norm adopted by all the three countries is the requirement for adjudicating bodies to provide reasons for the decisions they make. In India, duty to provide reasons as a requirement of fair hearing norms, even in the absence of statutory provisions, is a judge-made law[22]. In UK, the section 12 of the Tribunals and Inquiries Act, 1946 requires them to provide with reasons only when the parties ask for them. However, there is now a judicial trend for transparency that mandates the administrative authorities to provide reasons in all circumstances[23]. Finally, in US too, Section 8(b) of the Administrative Procedure Act, 1946 mandates administrative agencies to give reasons for their decisions.

Another important similarity between the fair hearing norms is the principle of ‘one who decides must hear’. Accordingly, UK’s House of Lords in Arlidge[24], the Indian judiciary in Nageshwar Rao[25] and the US Supreme Court in Morgan v. United States[26] have made clear that the duty to decide a case cannot be performed by someone who has not heard the arguments or evidence. Thus, unless it unduly complicates administrative proceedings, one administrative body should decide a case from the beginning to the end in all the three countries.

Additionally, the principle of post decisional hearing has been considered to be an exception in all common law jurisdictions, especially US and India. The Indian Supreme Court in H. L. Trehan[27] has clarified that post decisional hearing should not subserve the norms of natural justice and it may only be used in exceptions such as deprivation of life and liberty etc. Similarly, in US, due process requires that fear hearing is ensured with promptitude. Thus, post decisional hearing is allowed only in the case of extreme violations of public interest of impracticability and emergency.

Most importantly, in all three countries, principles of natural justice and fair hearing norms are meant to supplement and not alter the law. They are an integral part of the concept of good governance norms and hence, any claim to exclude any particular administrative hearing from the purview of fair hearing norms imposes the burden to prove so on the one demanding such exclusion[28].

Thus, it may be concluded that the UK, US and India respect certain elements of fair hearing as absolutely essential and have incorporated them into the law in different forms. The three countries owe these similarities to their common law origins which have retained some traditions and practices for many centuries.

FAIR HEARING IN THE INDIAN LAW AND THE NEED FOR CHANGE

In India, there is no statutory enactment on the minimum procedures that administrative agencies have to comply with. The vigilance of the judiciary has thus, become the best safeguard for fair hearing and procedural fairness in extremely complicated administrative law cases. This is accompanied by constitutional provisions in Article 311 of the Indian Constitution that provides the right to hearing of a civil servant when he is removed, dismissed or reduction in rank. Accordingly, the person affected by the violation of his civil rights may use constitutional provisions or the concerned statue to argue principles of natural justice without invoking any prejudice or civil consequence. Further, the constitutional affirmation of the natural justice norms by the judiciary has ensured that they are read into every administrative case, subject to exclusions. As the Indian administrative law is largely judge-made, the exclusions to natural justice norms i.e. confidentiality, impracticability etc., have also been developed through judicial precedents only[29].

Additionally, Indian courts have made clear their stance on the effect of any administrative law decision made in violation of the rule of bias. The aggrieved individual or body has the opportunity to accept such decision and it may not be necessarily void. This acceptance of the bias will be deemed to have been done if the party has the conscious knowledge of such a bias[30].

This analysis makes it clear that the Indian administrative law has various elements of fair hearing that are unique to the nation in different ways. There are little determinable standards on what fair hearing constitutes and judiciary has preferred to use higher standards in cases of more serious consequences. However, all the fair hearing norms are designed to prevent authorities from doing injustice[31].

The above analysis indicates that the Indian administrative law has its separate and unique needs and the judicial precedents on fair hearings are comprehensive enough to adequately address them. However, the judiciary needs to ensure it keeps certain important principles on fair hearing in mind. For instance, the inherent human dignity of persons before the tribunals be respected, they be entitled to consult and represented by a legal representative and provided adequate opportunity to present their case, among others. 

CONCLUSION

The elements of fair hearing in the United Kingdom, the United States and India have originated and evolved according to the individual administrative needs of the three nations. For instance, while US law solely insists on due process norms based in the 5th amendment, the UK and Indian laws are equally focused on technical administrative requirements such as the legal eligibility of a body to listen a case. The Indian administrative law is in its infant stage and thus has witnessed the judiciary espousing hitherto unused natural justice norms. However, these fair hearing norms have also been borrowed from and are a combination of the common law traditions which encompasses the US and UK law.

The common law origins of the three countries’ fair hearing norms have ensured that these reverenced certain principles irrespective of jurisdictional constraints. Thus, there is a stark similarity between them in terms of the post decisional hearings, the deciding body and the need to provide with adequate reasons in relation to the decision rendered. This, in turn, has ensured a consistency in terms of the importance given to the fair hearing norms and the application of administrative law in the three nations.  

Thus, it may be argued that the fair hearing norms in the three countries are marked by many similarities. However, the different nature of the jurisdictions under which the authority is usually conferred to the administrative bodies in the three nations is varied, thus leading to many differences as well. Therefore, it is important that while they respect the common law traditions that have been a part of their legal cultures, the judiciary of the three nations should render administrative decisions while taking into account the character of the rights of the person affected. This will allow the administrative law in these nations to progress as well as retain its core elements.


[1] The Constitution of the United States, 5th Amendment

[2] European Convention on Human Rights, 1953

[3] T. Koompans, ‘Natural Justice Rediviva? The Right to a fair hearing in European Law’ (1992) 39(1) NILR < : http://journals.cambridge.org/abstract_S0165070X00035440> accessed 7 May 2021

[4] Ohio Bell Tel. Co. v. Public Utils Commn, 301 U.S. 292 (1937)

[5] 253 U.S. 287 (1920)

[6] Human Rights Act, 1998

[7] H Davis, ‘The Right to a Fair Hearing’ (Bournemouth 2014) < http://eprints.bournemouth.ac.uk/31096/3/Chapter_7_Beginning_Human_Rights_Law_Author%27s_Text%20%281%29.pdf> accessed 13 May 2021

[8] D.D. Basu, Commentary on the Constitution of India (9th ed., vol 1, LexisNexis India 2014)

[9] Morgan v. United States, 304 U.S. 1 (1938)

[10] Cafeteria & Restaurant Workers v. McElroy367 U.S. 886 (1961)

[11] Ridge v. Baldwin [1964] AC 40

[12] Swati Jhaweri, ‘Right to a fair hearing in administrative law cases’, The Max Planck Encyclopedia of Comparative Constitutional Law (Oct 2016) < : https://ssrn.com/abstract=3175734> accessed 10 May 2021

[13] Ibid 5

[14] Maneka Gandhi v. Union of India, (1978) 1 SCC 248

[15] Nathaniel Nathanson, ‘The Right to Fair Hearing in Indian, English and American Administrative Law’ (1959) 4(1) JILI <https://www.jstor.org/stable/43949624> accessed 10 May 2021

[16] Ola Johan Settem, Applications of the Fair Hearing Norm in ECHR Article 6(1) Proceedings, (Springer International Publishing Switzerland 2016)

[17] Edward Rubin, ‘Due Process and the Administrative State’ (1984) 72(6) CLR < https://heinonline.org/HOL/LandingPage?handle=hein.journals/calr72&div=50&id=&page=> accessed 2 May 2021

[18] Lydia Kerketta, ‘Audi Alteram Partem: The right to a fair hearing’ (Legal Services India) <http://www.legalservicesindia.com/article/1860/Audi-Alterem-Partem-Right-to-fair-hearing.html> accessed 14 May 2021

[19] Ibid 5

[20] Ibid 9

[21] Ibid 12

[22] M.J. Sivani v. State of Karnataka, (1995) 6 SCC 289

[23] S A de Smith, ‘The Right to a Hearing in English Administrative Law’ (1955) 68 Harv L Rev 569

[24] Local Government Board v. Arlidge [1915] AC 120 [HL]

[25] Gullapalli Nageshwar Rao v. A.P. State Transport Corpn., 1959 Supp (1) SCR 319

[26] Ibid 6

[27] H.L. Trehan v. Union of India, (1989) 1 SCC 764

[28] I. P. Massey, Administrative Law (8th ed. Eastern Book Company, 2012)

[29] Ibid 5

[30] Ibid 25

[31] P. Leelakrishnan, Mini S. ‘Procedural Fairness in Administrative Decision Making’ (2017) 59(4) JILI < : https://www.jstor.org/stable/10.2307/26826613> accessed 6 May 2021

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International Law

The End of the West in Self-annihilation (Intentionality, Directionality and Outcome)

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A state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.-Definition of Health, Preamble of the World Health Organisation (WHO) Constitution, 1948

For months, many argue that our Covid (C-19) response is a planetary fiasco, whose size is yet to surface with its mounting disproportionate and enduring secondary effects, causing tremendous socio-economic, demographic and cross-generational, political and psychosomatic contractions and convulsions. However, worse than our response is our silence about it.

It is an established fact that the quintessence of Nazism was not Hitler and the circle of darkness around him. It was rather a commonly shared ‘banality of crime’ atmosphere: Benevolent acceptance of ordinary village people living next to Auschwitz, Mauthausen, Dachau that the nation must be ‘purified’ …

The day when questioning stops and silent acceptance (especially among the well informed, well mobilised and educated ones) becomes a ‘new normal’ is a day when fascism walks in a big time. Of course, today we have a diagnosis for it: manufacturing consent through choice architecture. It is done via fear-imprisoned and media infantilised (returned to the pre-Oedipal phase) psychology of the de-socialised and alienated, an atomised one.

Hostage crisis: Appinion disguised as opinion – Who is really in charge?

There is no political or economic crisis. There is neither energy crisis, nor health, nor environmental crisis. Every crisis is just a deficit of cognitive mind that comes to the same; a moral crisis.

Ecological Globalistan, Political Terroristan, the author

Did we really forget basic teaching of our history: Every time when the power was unchecked, it degenerated into the obscure brutality; ritualising its force with a stamp on or under our skin to visualise and immortalise the twilight of reason?

So, our C-19 response and its widespread synchronicity (of measures and its timing) illustrates – the argument goes – nothing else but a social pathology of hostage crisis: the non-transparent concentration of power, and our overall democracy recession – further bolstering the management of apathy via surveillance and social control systems. All that as lasting consequences of cutbacks, environmental holocaust, deintellectualisation, liberticide, privatisation (or PPP-ization) of key intergovernmental and vital national institutions, ill-aimed globalisation as well as of the fixation on overly allopathic, mandated (not a repurposed, but usually novel expensive and inadequately tested) drugs-centred healthcare, and lack of public data commons. Public health or private wealth? Pandemic or plundermic …   

Urban communities of developed countries are especially hit hard. Within these groups, the vulnerable categories like pre- and early- school children, and elderly suffer the most. People there wonder if they are (aggressively) coerced to participate in something they fear from the beginning is a lie. No wonder that the trust in and support to governmental and intergovernmental institutions is rapidly deteriorating.

Ever larger number of citizens do not see the mainstream media (or pop culture celebrities) at service for the population, but as a cartel that follows a special interest. Dialogue and opinion is discouraged and silenced, if not, even sanctioned. Our western, ‘modern’ medicine still falls short of consensus on a fundamental question: Is illness contracted (from outside) or created (conditions within our body). Hence, the faith in western medicine is in a free fall. Compromised generational contract and thinning social consensus are challenging our fabrics like never before in recorded history.

The first real stress-test since the end of the WWII, the United Nations (UN) clearly did not pass. Many feel deeply disappointed with and disfranchised by the universal organisation and its global Agencies for their steady self-marginalisation (and reduction onto self-seeking entities).[1] Is our cohesion irreversibly destroyed?

Early lockdowns, mid-March 2020, were justified by a need to flatten the curve of the ‘sudden’ virus (harmfulness, mortality and transmissibility) impact, since there were not enough hospital beds. In the meantime, the lockdowns were extended and widened, curves not arguably altered. Still, for the past 12 months, there is hardly any new hospital built in the EU although the non-essential medical services, at most cases, were suspended.[2] Neither there was nor is any massive investment into general health prevention. The only visible infrastructure growth is in 5/6G network expansion. 

Following a simple ratio that the one’s state of health is genetic expression of life-style choices made, it is no surprise that there are also growing speculations if the lockdown – as the most notorious expression of monofocal perspective and rejection to any scientifically contested, debate-based integrated judgment – is invasion or protection:

  • And, if is there any back-to-normal exit from the crisis, or this disaster ‘turned into planetary terror, through global coup d’état’ will be exploited to further something already pre-designed (with a fear, not as a side-effect, but rather as a tool manufactured to gain control). Simply, is all that more related to the biotronics and demographics (IoT and Internet of Bodies) – ‘epsteinisation en masse’, than to health and economics or any common social purpose?

Undeniably, nature of politics also changed: Political parties – main agents of political life of any society – have amorphized from giant membership organisation to fundraising machines. Thus, Le Monde Diplomatique – while examining the possible merger between tech/pharma oligopoly and political monopoly – claimed from a very beginning of this crisis that: “Political decisions have been central in shaping this tragedy — from the destruction of animal habitats, to the asymmetric funding of medical research, to the management of the crisis itself. They will also determine the world into which we emerge into after the worst is over.”

Over the past 30 years, every critical juncture had a similar epilogue: pardon and enhancement for the capital, a burden and suppression for the labour. The C-19 is no exception to it: Ever since early lockdowns of March 2020, the capital flows unhindered while the labour, ideas and humans are under the house arrest.[3] The XXI century frontline is the right to health (incl. body integrity and informed consent) and labour, privacy and other fundamental human rights and liberties. (LMD, IV20)

Is the political, economic or moral triumph of the West still possible past this crisis?

Every crisis since Westphalia until the so-called financial crisis of 2008-09, political West exited in (what was seen as) moral triumph. What is in front of us? If the world is flat, will it become one big pharma Banana Republic – as many fear?

Earth provides enough to satisfy everyone’s needs, but not for a single man’s greed

The rate of profit does not, like rent and wages, rise with the prosperity, and fall with the declension, of the society. On the contrary, it is naturally low in rich, and high in poor countries, and it is always highest in the countries which are going fastest to ruin.

The Wealth of Nations, Adam Smith

Still to be precise, the WHO- decreed virus pandemic brought nothing truly new to the already overheated conduct of, and increasingly binarized, world affairs. It only amplified and accelerated what was present for quite some time – a rift between alienated power centres, each on its side of Pacific, and the rest. No wonder that the work on and dispatch of the C-19 -related injection (vaccine) is more an arms race than it is a collaborative humanity plan. Look at its geography and conditionalities.

Would all this be – in its epilogue – about the expansion of (the 4th industrial revolution caused) techno-totalitarian model of government as an alternative to liberal democracy (from one-party democracy to one-party autocracy)? Devolutionary singularisation into techno-feudalism as the highest stage of capitalism? Is now a time to return to the nation-state, a great moment for all dictators-in-waiting to finally build a cult of personality? Hence, will our democracy be electro-magnetised and vaccinated for a greater good (or greedier ‘god’)? Is the decolonisation (and deprivatisation) of global health a failed attempt?[4] Will we (ever) be allowed to exit the year of 2020?[5]

Turning human body into an (purposely unoptimized) operative system that needs constant updates and antivirus programs is a dangerous thought. The entire scientific community considers the attempt to mandate the experimental biological agent of unchecked reproductive toxicity and other side effects (while calling it the C-19 vaccine) as very troubling. Having these calls chiefly advocated and aggressively promoted by the handful of self-interest driven private companies – all accompanied with a contradictory and confusing governmental stance which is siding up with the industry it was supposed to regulate – is highly disturbing.[6] No surprise that ever-larger societal segments perceive it as liberticidal warfare, not an enhancing welfare. The world that for over a century portrayed itself as Kantian is rapidly turning into a dark Hobbesian (immuno-apartheid) place. Is now anarchy just one step away?[7]

One is certain, confronting the long-term interests of stakeholders with the short-term interests of shareholders, the private sector from both sides of Atlantic exercises disproportionate power in the technological share (infrastructure and data). It also largely benefits from the massive public research funds – especially in the fields such as bioinformatics, AI, nanorobotics, or geophysics engineering – while in return paying dismal, negotiable tax if any at all.[8]

Far too often it comes with the nondisclosure agreements, liability outsourcing/ protections and other unilaterally beneficial legal instruments as well as with the close ties between the private sector, intelligence agencies and media.[9]

The same applies to a big Pharma which – through pornography of (decontextualized) numbers over the widening fields of misery – increasingly dictates a non-preventive, monofocal approach to medicine and research, and controls reporting about it – not always in the name of our public health.

Therefore, the above represents the largest underreported (or ignored) threat to our democracy and future societal conduct.

Conclusively, bioinformatics (including the synthetic biology and data-to-genes sequestration for data storage or data mining purpose) – as much as the geoengineering itself – is a dual-use technology. Past its formative age (with a digital infrastructure near completion), it has today a huge weaponization potential for at home and abroad, be it for state or non-state actors.

Consequently and urgently, this necessitates a comprehensive legislation which builds up on the Universal Charter of Human Rights and Nuremberg Code, and rests on its effective enforcement (with the monitoring of compliance mechanisms as set for the IAEA, OPCW, RC-BTWC and the Nagoya protocol),[10] nationally and internationality, and for all actors.[11]

Threat of Otherness: Criminalisation of different opinion

All state authority is derived from the people (XX 2) … All Germans shall have the right to resist any person seeking to abolish this constitutional order, if no other remedy is available. (XX 4)

Civil disobedience as the Constitutional Right[12]

By many accounts, 2020-21 – time of astonishing synchronicity, when distancing became social[13] – will be remembered as the worst period in living memory (since 1939). Some would say; C-19 stopped history, as it locked down our dialogues and atrophied political instincts of masses. All this with too many cases of arbitrary censorship streaming almost in a form of neuro-linguistic programming from the privately owned social platforms. Still, 2020-21 only quarantined and halted us, while in fact it accelerated history. This especially refers to the ‘Old Continent’.

People have the right to know what those in power are doing, especially in times of crisis. Therefore, Europe’s eldest and the most comprehensive multilateral mechanism – Council of Europe, promulgated Convention on Access to Official Documents more than ten years ago in Tromsø, Norway (entering in force on 01 December 2020). This Charter is the first binding international legal instrument to recognise a general right of access to official documents held by public authorities.[14]

As this author noted back in spring 2020: “It is amply clear from the C-19 event that the right to health is an issue for all. The search for a reliable cure for pandemics control is not a matter of private business, but of fundamental individual rights situated on higher levels of sociableness, as embedded in the UN and EU Charters, and being obligatory for each of the UN Specialized Agencies or EU bodies to comply with. (Not a fear-based manufactured giving-in, but the right for informed consent as an inseparable segment of the constitutionally endorsed right to health.)

Even if the vaccine becomes the agreed or preferred option, it must be made available patent-free for all, and locally manufactured. However, binarization of debate onto a pro-and-con vaccine represents a dangerous reductionism and waste of planetary energy critically needed for a holistic and novel approach. There is no silver bullet for the European or world problems. Consequently, there is no solution in one-directional medical research in response to any pandemic, and in a single-blended (or centrally manufactured, hastily introduced) and mandated experimental medication for all. This especially refers to the genoccine.[15] (Dogma is based on a blind belief; science necessitates constant multidimensional exploration. Science, especially a medical one, holds no single or absolute truth: The closest it can get is to the least wrong answer – which must be contested constantly, literally every single day.)

Proportionality of our (current and future) responses in Europe is another key issue. Hence, what presents itself as an imperative is the universal participation through intergovernmental mechanisms and popular control to it. That rule applies for at home and for abroad, as the Union has to comply with (and set example to) it urgently.

Growing particularisms in Brussels quarters, where (on taxpayers’ money and public trust), it is more and more the particular – be it individual, regional, national, lobby-groups driven – interest that prevails over the solid all-European project of our common presence purpose and future.[16]  Europe or EU Rope? 

Past the Brexit, the Union has to be extra cautious about its chronic democracy-deficit, apparatchik alienation of Brussels,[17] as well as the brewing concerns that the EU without UK becomes yet another greater Germany.[18]

Of Paper Tiger and its Talking Heads

The one-year score (March 2020 – March 2021) of the Union is highly disturbing:[19]

  1. [20]
  2. [21]
  3. [22]

After all, the truth is plain to see; countries with the highly (deregulated and) privatised health sector are the C-19 worst offs (eg. USA) – as measured by the fatalities, overall socio-economic cost (incl. the long-term health prospects, or redistribution and inequalities), damage to the social consensus (safety and security), and the speed of recovery. Countries of the centralised health sector which resides strictly in public hands and is under popular control did and are still making it far better. Those among them that keep high respect for individual rights, liberties and freedoms (eg. Sweden) are by far the best achievers.

How the issues of health will be balanced with the human rights – as these two are not excluding but are complementing each other – is the fundamental issue for the future.

Additionally, how (geno and pheno) data are generated, stored and governed, and ultimately used will be the second defining issue of global public health (and planetary support to or conflict over it) in the coming decades. That very much includes a dubious imposition of exclusionary digital bio surveillance grid that some circles advocate as a presumptive recommendation to restore ‘normalcy’.   

All in all, the one-year score (March 2020 – October 2021) is highly disturbing;

Not only the socio-economic one, but every aspects of Western vitality is also vanishing rapidly, making the prospect of triumph of its model (or its demographic relevance) less likely with every passing day. Hight time to accuse the silence?

Beyond the disputes about possible initial intentionality (allegedly inspired by the sectarian, class, demographic, environmental or any other drive), let us close this text by displaying the probable epilogue: An ever-larger number of military strategists see (unfolding of) the C-19 event as a (techno-)biological warfare.

Here comes the powerful reminder that history gives us: decisions to go to war were never based on facts but on perceptions.[23] Therefore, make no mistake; the end game to any further continuation or escalation (of attempt to singularise the biological, chemo-electric and digital, and to centrally control it) is the nuclear holocaust which none of us will escape.

Post Scriptum:

Reducing the human integrity on a bodily space (and freely harvestable biodata) to which (an early capitalism territorial raw grab) business model should apply – is truly diabolic idea. Moreover, it is a suicidal idea – a last outcry before the ultimate self-destruction. (Imperialism, as the highest stage of capitalism, manifests through the Nazification of question of space. As always, an expansion over the limits of physics and society leads to a fast contraction and ultimate death).

Thus, invading human body on the same principle as the colonization of the west followed the age of so-called Grand Discoveries. (Interestingly, then in XV century – almost as now in XXI – Chinese were the first to explore and circumvent, while the western peripheries of than global civilization only brutally followed and accelerated.)

Finally, monetizing this newly acquired space in the absence of expanding anywhere else: Treating human health like a business model and invading unconsented humans through the hijacked medicine. (Actually, what we consider as ‘medicine’ is also a political construct. There is a western medicine – which we falsely label as ‘medicine’. But, over half of this planet follows the Vedic, Chinese, Shaman, and several other traditional medicines in their approach towards life health and nature.)

But to extend the context:

History of (what we, humans, describe as) technology is a story about primordial (survival-driven) fear far too often turned into a long line of violence towards all organic and inorganic systems on our planet. Too many times our technological breakthroughs were linked to destruction (with violence against nature and societies as means to introduce it), instead of being coupled with or supportive to creation. Otherwise, our millenniums-long technological march would have brought us to the Gates of Triumph in self-realisation of human race.

If historically our technological advancements (by its motive and method of introduction) only managed to accelerate frequency and severity of (disharmony and) alienating aggression on this planet, while repeatedly falling short to bring about everlasting self-realization of humans – than this anthropotechnic is based on confrontation (coercive introduction) and not on cooperation (support and inclusion). Then both, its intensity and direction – corrosive, polarizing, disruptive and reductionistic; must be thoroughly re-examined.

No wonder that our technology (or to say: ‘’technology’) is seen by many as the developmental dead end. Cosmos means balance/perfect order, chaos is absence of it.[24]


[1] The UN Secretary-General, Antonio Guterres is well aware of it: Addressing the Organisation’s General Assembly at the 75th anniversary (September 2020) he admitted: “… people continue to lose trust in political establishments. … widespread protests against inequality, discrimination, corruption and lack of opportunities all over the world – grievances that still need to be addressed, including with a renewed social contract.”

[2] In fact, in Germany and several other EU member states the number of hospital beds in the intensive care units is even reduced for up to 20% compared to its pre-C-19 capacities. Additional (politically polarising) controversy are millions of euros spent on diagnoses tests which are scientifically contested.

[3] In the formally neutral and peace-loving Austria – following the provisions of a strict autumn 2020 – spring 2021 lockdown – only the basic supplies shops were opened. However, besides the grocery stores, mobile phone shops and pharmacies, it also included the guns shops, while the schools, theatres, libraries and museums remained closed.

[4] There is an observable trend that – for the past few decades – our public health has been at first globalized, than centralized, with the ongoing privatization and its monopolization as the final phase.

[5] The year of 2020 recorded unprecedented planetary contractions and nearly a free-fall recession. Of course, it is misleadingly ascribed to the pandemic instead of being attributed to the C-19-related measures. Among the countries of the G-7 + G-20 group only China had scored growth. Cross-sectoral picture is the same – deep recession. Only the big tech and big pharma scored surpluses in 2020. (World Bank Report 2020)

[6] The extraordinary measures introduced in spring 2020 were and still are more administrative/political than they are scientific based. That starts with the very definition of pandemic (infection percentage threshold); goes on with the diagnostics tools and protocols as well as the way to proclaim someone infected or ill (PRC tests and number of cycles applied, or medical doctor thorough examination), and finally it culminates with a diagnosis of death (mandatory autopsy or not). Therefore, it is safe to say that the C-19 has – in its manifestation – far more political than the health elements.

[7] Talks about ‘vax-passports’ falls under the same category. Not only that it is contrary to the ruling of the Council of Europe – conditioning freedom of movement with an exposure of personal medical record is contradicting any notion of Human Rights and every of its Charters. Liberties and freedoms are fundamental inalienable rights, not privileges (to be administratively or arbitrarily taken, given, conditioned or dosed).

[8] “The pandemic has also reviled how imbalanced the relationship between the public and the private sector has become. In the US, the National Institutes of Health (NIH) invests some$40 billion a year on medical research and has been a key funder of the R&D of C-19 treatments and vaccines. But pharmaceutical companies are under no obligation to make the final product affordable to Americans, whose tax money is subsidising them in the first place. … It was a typical move for Big Pharma. … Even so, US drug prices are the highest in the world. Pharmaceutical companies also act against the public interest by abusing the patient process. … Equally bad deals have been made with Big Tech. In many ways, Silicon Valley is a product of the US government’s investments in the development of high-risk technologies. The National Science Foundation funded the research behind the search algorithm that made Google famous. The US Navy did the same for the GPS technology that Uber depends on. And the Defence Advanced Research Project Agency, part of the Pentagon, backed the development of the Internet, touchscreen technology, Siri, and every other key component in the iPhone. Taxpayers took risks when they invested in these technologies, yet most of the technology companies that have benefited failed to pay their fair share of taxes. Then they have the audacity to fight against regulations that would protect the privacy rights of the public. … the power of AI and other technologies being developed in Silicon Valley, a closer look shows that in these cases, too, it was high-risk public investment that laid the foundations” – states prof. Mazzucato (FAM 99/6/20)

[9] See, eg. the EU Pandemic Accelerator Act (April 2020) or the July 15th 2020 Suspension of the EU GMO-related legislation (the so-called EU Council adoption of the Commission’s proposal to accelerate clinical trials and the supply of medical product containing the GMOs) – all promulgated speed-track without a prior investigative scientific reports, hearings or debate (as if it is a Capitulation Agreement). These are now submitted to the European Court of Justice for a legality and impartiality judgment. In the same fashion the recently adopted European Democracy Action Plan (EDAP) leaves many ambiguities, while also massively contradicting the European Convention on Human Rights.   

[10] All four belonging to the United Nations system: International Atomic Energy Agency (IAEA), Organisation for the Prohibition of Chemical Weapons (OPCW), Review Conference to the Biological Weapons Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction (RC-BTWC), the Nagoya Protocol to the Biological Diversity Convention on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilisation (NP).

[11] The US Foreign Corrupt Practice Act of 1977 could be used as a model for the universally binding instrument to internationally prosecute and punish any corporation that pay bribes to foreign officials.

[12] German Constitution (Art. 20). Similar provisions are encapsulated in most of the national constitutions in Europe and beyond. It rests on a notion that the state and people are bound by the social contract within any given society, and that in case of a breach of confidence, citizenry has an inalienable natural right to disobedience.   

[13] The face covering coupled with distancing hinders our most basic functions of all – since humans are genuinely social animals. Social interaction for us is both a frame and content, an evolutionary constant. Physical distancing which is named a social, cloth ribbon which is named a mask and rnk-messenger appliance which is named a vaccine – all three error in objecto trigger confusions, and spark increasing mistrust and growing disobedience. Eg. it is crucial to differentiate the physical from a social distancing. Physical one is a preventive (punitive or medical) measure while the so-called social distancing is a century-old concept of (empathy charge and) social engineering. To this end, see works of the US sociologists Park, Hall and Bogardus (scale of social distancing), and Simmel’s ‘theory of the stranger’ – Simmelian social geometry (Germany 1908).

[14] During times of crisis national security arguments are often evoked to deny information to be requested and accessed. However, it is exactly at such times that a timely and trustworthy information from official sources is most needed. Informational transparency in accordance with the principles set out in the Tromsø Convention prior to the C-19 pandemic could have helped to avoid the ‘infodemic’ and a subsequent massive public distrust.

[15] Analysing the specifications indicated by the manufacturers themselves, the genoccine seems more accurate name for the experimental (thoroughly untested), new, RNK/DNK modified, nanotechnology-based tri-injecting solution that is currently advocated for the C-19. Some critics even reject to call it vaccine, arguing that it is in fact a GMO implant/hacking device or geno-therapy (which needs to be administered periodically, while vaccine is a onetime shot). Such claims are ignored, but not refuted yet.

[16] See: “World on Autopilot: The UNSC should urgently address C-19”, New Europe Brussels (Bajrektarevic-Agam, 10 APR 20); “Contributing to a Safer, Healthier and Prosperous World”, Diplomat Magazine Hague (Bajrektarevic-Goutali, 12 MAY 20); ”Return of Global Stewardship: the UNSC should urgently address C-19 – addendum” (Bajrektarevic-Agam, 25 May 20), ModernDiplomacy Athens/ Brussels; “Democracy Vaccinated, – The post-Corona epilogue of Sino-American relations”, (Bajrektarevic), L’Europe Unie Intl. Journal, Revue d’études européenne, Paris, France 2020 (15) 2.  

[17] Interestingly one of the very first works on the so-called New Age Normal (and European integration) originates from an unexpected place and unexpected times: A war time Nazi Minister for Economic Affairs and Head of the Reichsbank, Walther Funk, in his 1943 The Economic Face of the New Europe propagated ideas on the creation of a European economic area controlled by the New Germany.

[18] On December 18th 2020, the UN General Assembly (UNGA) adopted Resolution against glorification of Nazism, neo-Nazism and other practices that encourage modern forms of racism and xenophobia. 60 UN members co-sponsored resolution, while only 2 states casted negative vote. Rather strikingly and disturbingly, Germany refrained from voting in favour (abstained). The UN GA recommends states “to take appropriate concrete measures, including legislative and educational ones, in accordance with international human rights obligations, in order to prevent revisionism in respect of the Second World War and the denial of the crimes against humanity and war crimes committed during the WWII.”

[19] Soon we are going to retrospect on all what is happening today. What will we conclude? Dr. Robert Malone, inventor of the mRNA vaccine technology, claims the following: “… There’ve been times when as a culture facing major crisis – war, famine, and the like – decisions have been made to cross ethical lines. (Sadly enough, Europeans are rich of such history, rem. aut.) It is convenient in fogs of war to rush on judgement calls where we say that the benefits merit compromising some of our core ethical principles. Invariably, in retrospect we always end up saying that was a grave mistake.”  

[20] Detailed account about the Conflict of interests affecting judges of the European Court of Justice (ECHR) has been produced by the European Center for Law and Justice (May 30th 2021)– claiming that at least 20% of all judges might have had a troubling and long-lasting links with the non-European non-state sector. /see: One year after the report on NGOs and Judges of the ECHR: Overview (eclj.org) /  

[21] While the EU officially insists on anti-Chinese narrative, deeds are telling contrary: Practically all prescribed face masks within the Union are manufactured in and shipped from China. Diagnostic kits for C-19 testing are also largely from China (in many Member states there are – contrary to the clear health regulations – available in pharmacies but without any inscription written in the language of that EU country). This sends disturbing image about inconstancy and inauthenticity of the EU rhetoric, as well as about the inability and incompetence of the Union to re-start production even of the low-tech items such as cloth masks. Finally, the largest and ‘most successful block in history of mankind’ was unable to insist on the existing cheap, safe and effective drugs, or to produce its own medicine related to the C-19. Only one of the (emergency use) approved vaccines in the EU is partially made in the EU (Sweden), but even that one fundamentally borrowed from the external research (Russian virology solutions).        

[22] The European Union summit on Urgent response in May 2020 (May 07th) was hastily allocating billions of tax-payers’ money on the irrationally lionized, single-mandated, yet unseen, future medication – all that in a rather opaque and nontransparent way. However, what finally triggered enormous public outcry and further disfranchising was an euphoric closure of that summit by the Commission President Ursula von der Leyen (unelected Brussels’ top official). By many accounts, her final words told with a delight “Thank you Bill for your leadership” acknowledging and praising a lead role of the non-state actor who is not even European (and who was – not giving but – receiving lavish funds) was an all-time low of the European house and its representatives – ever since the Commission and other institutions of the Union exist.  

[23] Although initially representing the asymmetric workings of the non-state actor, the so-called Sarajevo assassination of 1914 triggered the WWI – a gigantic trans-continental conflict between all major powers of that time (and a rapid demise of many of them, in just few years’ time). This self-destruction lasted for 4 years with all unconventional (biological and chemical) means than at disposal used. What has happened? The non-state actor from Bosnia assaulted the Head of State in-making of the major power (Heir to the Habsbourg Empire). Now comes the most disturbing part: Asymmetric confrontation between the state and non-state actor in one corner of Europe (southeast) triggered a direct armed conflict and the immense bloodshed – but only months later and via spill over from the other corner of Europe. Militarily, the German attack on the Belgian Ardennes (northwest of Europe) marked the beginning of the total destruction – WWI. In summer 1945, Soviets were rushing through Korean peninsula to get a stake in forthcoming occupation of Japan. As a consequence, Americans repeatedly nuked that country’s inland. That much about controllability of (non-)intentionality and about mastering the outcome. Overconfidence (that easily turns into arrogance and ignorance and yet into miscalculation), is another (mass) killer. Just to recall but few history chapters by naming their chief protagonists: Darius III, Hannibal, Napoleon, Hitler, or places such as Điện Biên Phủ.

[24] For more on the topic see: Fukuyama’s defensive modernization, or author’s definition of anthropotechnique in his ‘Geopolitics of Quantum Buddhism’.

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International Law

Legal Implications of Sea Level Rise for Small Island States

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

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

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

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

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

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

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

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

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

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

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International Law

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

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afghanistan terrorism

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

Taliban Victory and Jihadi Terror: Strategic and Legal Connections

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

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

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

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

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

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

Explicit Legal Standards

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

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

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

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

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

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

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

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

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

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

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

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

The Obligations of Comity

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

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

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

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

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

Palestinian Insurgency Beginnings

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

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

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

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

Violence and the Sacred

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

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

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

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

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

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

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

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

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

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

Martyrdom and Jihad

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

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

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

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

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

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

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

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

Quo Vadis

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

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

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

Summing Up: Perils and Remedies

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

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

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

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

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

               It is never infamous or shameful.

Confronting a Hydra

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

               By definition, these are incomparably potent promises.

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

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

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

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

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

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

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

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

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

Final Strategies

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

[12] Ex injuria jus non oritur.

[13] The criminal responsibility of leaders under international law is not limited to direct personal action or to official position.  On the pertinent principle of command responsibility, or respondeat superior, see:  In re Yamashita, 327 U.S. 1 (1945); The High Command Case (The Trial of Wilhelm von Leeb), 12 LAW REPORTS OF TRIALS OF WAR CRIMINALS 1 (United Nations War Crimes Commission Comp., 1949); see Parks, COMMAND RESPONSIBILITY FOR WAR CRIMES, 62 MIL.L. REV. 1 (1973); O’Brien, THE LAW OF WAR, COMMAND RESPONSIBILITY AND VIETNAM, 60 GEO. L.J.  605 (1972); U S DEPT OF THE ARMY, ARMY SUBJECT SCHEDULE No. 27 – 1 (Geneva Conventions of 1949 and Hague Convention No. IV of 1907), 10 (1970).  The direct individual responsibility of leaders is also unambiguous in view of the London Agreement, which denies defendants the protection of the act of state defense.  See AGREEMENT FOR THE PROSECUTION AND PUNISHMENT OF THE MAJOR WAR CRIMINALS OF THE EUROPEAN AXIS, Aug. 8, 1945, 59 Stat.  1544, E.A.S.  No.472, 82 U.N.T.S.  279, art.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[32] For earlier looks at the expected consequences of specifically nuclear attacks, by this author, see: Louis René Beres, Apocalypse: Nuclear Catastrophe in World Politics (Chicago: University of Chicago Press, 1980); Louis René Beres, Mimicking Sisyphus: America’s Countervailing Nuclear Strategy (Lexington, Mass: Lexington Books, 1983); Louis René Beres, Reason and Realpolitik: U.S. Foreign Policy and World Order (Lexington, Mass: Lexington Books, 1984); and Louis René Beres, Security or Armageddon: Israel’s Nuclear Strategy (Lexington, Mass: Lexington Books, 1986). 

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

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

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

[36] Article 38(1)(b) of the STATUTE OF THE INTERNATIONAL COURT OF JUSTICE describes international custom as “evidence of a general practice accepted as law.” The essential significance of any norm’s customary character is that the norms bind even those states that are not parties to the pertinent codification. Even where a customary norm and a norm restated in treaty form are apparently identical, these norms are treated as jurisprudentially discrete. During the merits phase of MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST NICARAGUA, the International Court of Justice (ICJ) stated: “Even if two norms belonging to two sources of international law appear identical in content, and even if the States in question are bound by these rules both on the level of treaty-law and on that of customary international law, these norms retain a separate existence.” See: MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST NICARAGUA, Nicar. V. US., Merits, 1986 ICJ, Rep. 14 (Judgment of 27 June).

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

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

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

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

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

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

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

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

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

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

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

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

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

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