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International Law

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

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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.

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

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International Law

Will COPUOS five-year mission produce a new “international governance instrument” for outer space resources?

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Introduction

During its 2022 session, the Legal Subcommittee (LSC) of the United Nation’s Committee on the Peaceful Uses of Outer Space (COPUOS) created a Working Group on the Legal Aspects of Space Resource Activity and gave it a five-year mandate to gather information, study the current legal framework, and “assess the benefits of further development of a framework for such activities, including by way of additional international governance instruments.” (emphasis added). A survey was sent to the LSC’s member states and official observers, with a response due by December 30.

Fifteen member states and five non-governmental official observers responded to the surveys. The responses were recently posted online by the United Nations Office on Outer Space Activities (UNOOSA), the parent body of COPUOS. This article will look at eight of them: three from states representing the range of international opinion, and all five of the observers, who represent part of “civil society”.

The Working Group Mandate: Address Unresolved Space Resource Issues

COPUOS-LSC gave its Working Group the following mandate (emphasis added):

The Working Group shall:

(a) Collect relevant information concerning activities in the exploration, exploitation and utilization of space resources, including with respect to scientific and technological developments and current practices, taking into account their innovative and evolving nature;

(b) Study the existing legal framework for such activities, in particular the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, and other applicable United Nations treaties, also taking into account other relevant instruments, as appropriate;

(c) Assess the benefits of further development of a framework for such activities, includingby way of additional international governance instruments;

(d) Develop a set of initial recommended principles for such activities, taking into account the need to ensure that they are carried out in accordance with international law and in a safe, sustainable, rational and peaceful manner, for the consideration of and consensus agreement by the Committee, followed by possible adoption by the General Assembly as a dedicated resolution or other action;

(e) Identify areas for further work of the Committee and recommend next steps, which may include the development of potential rules and/or norms, for activities in the exploration, exploitation and utilization of space resources, including with respect to related activities and benefit sharing.

The establishment of the Working Group and its mandate is significant. It represents a consensus acknowledgement that the Outer Space Treaty (OST) does not adequately address space resource activity and how the benefits of outer space are to be shared. It is also the first time since the 1970’s that member states of COPUOS have been willing to consider a new “international governance instrument” beyond non-binding principles and recommendations (e.g., the COPUOS long-term sustainability guidelines of 2019).

The Working Group has a five-year work plan. During initial setup in 2022, it was instructed to gather information from the members of the LSC to help establish the scope of its work. To that end, a survey was distributed to all member states and official observers, inviting a response to the following topics (emphasis added):

– The type of space resources that fall within the mandate and scope of the Working Group.

– The type of activities that fall within the mandate and scope of the Working Group.

– The type of information to be collected by the Working Group in accordance with its mandate.

– The views of States members regarding the existing legal framework for space resource activities.

– The current practices and challenges in the implementation of the existing legal framework for such activities.

– The benefits and challenges to the development of a framework for such activities.

– The relevant factors for the development of a set of initial recommended principles for such activities.

– The format, agenda, topics and other details of the dedicated conference (currently) scheduled for 2024.

Any other background or information paper, or any other views, that States members may wish to share.

Responses of Representative States: Luxembourg, Russia, and Australia

Luxembourg is a member of the European Space Agency and one of the first signers of the Artemis Accords. It is the second country (after the United States) to pass a national law authorizing its own nationals (including corporations headquartered there) to remove and take ownership of outer space resources. A sample from its response:

Luxembourg considers that the Artemis Accords, as well as the Building Blocks of the Hague Working Group, constitute a valuable contribution to the discussions in international fora, especially the UN COPUOS.

According to the Luxembourg legislator, space resources are now commonly defined as abiotic resources that are in situ in outer space and can be extracted. This notion includes, for example, mineral resources and water, but not orbital positions or frequencies.

Luxembourg ratified the Outer Space Treaty, the Liability Convention and the Registration Convention and is in the process of accessing the Rescue Agreement. Luxembourg has not signed the Moon Agreement. The international space treaties have not yet been tested with regard to the rights over resources found in space. Most of carried missions have taken place for scientific purposes. However, for the sustainability of future deep space exploration, for commercial space projects and space mining to be viable, future explorers and investors will need certainty regarding their rights to the materials they find.

It seems essential that the Working Group, especially when formulating the set of initial recommended principles, is driven by adaptive governance principle and focuses on the most pressing issues. The highest priority is the recognition of individual rights over space resources, mechanisms for avoiding harmful interference and for the establishment of safety zones.

Russia is a fully “spacefaring” country, with the capacity to launch payloads and humans into outer space and send probes to the Moon and planets. It has not signed the Artemis Accords nor passed a national law authorizing private ownership of space resources. From their response:

Space resources include celestial bodies, spaces and territories of celestial bodies, mineral resources, liquids and gases located on them, various types of radiation, orbital-frequency resource, and other objects. . . . Due to the fact that the necessary legal framework for research and study of certain types of space resources, such as solar energy and the orbital frequency resource is available or not required, it is advisable to exclude these types of resources from the scope of the Working Group while referring to them in the classification system.

An important task of the Working Group is also to develop a monitoring mechanism for activities related to the exploration and utilization of space resources, which may include:

– issues of establishing responsibility when implementing the said activities;

– monitoring compliance with established international standards regulating the extraction of space resources, as well as control over the lawfulness of such operations;

– control over the organization of licensing of activities related to the exploration, exploitation and utilization of space resources;

– an algorithm for resolving conflicts and disputes between actors engaged in the extraction and utilization of space resources, an algorithm for international consultations between states;

– a mechanism for informing the international community (including the obligation to inform the UN Secretary-General) of the nature, progress, locations, and results of such activities;

– consideration of the feasibility of establishing a special international body responsible for securing the regime of the utilization of space resources (by analogy with the ITU, the International Seabed Authority).

A space resource, even after its extraction (removal), does not lose its unique natural extraterrestrial origin, unlike a resource mined on Earth. The transformation of space resources, in particular their extraction and, as a result, the acquisition of a natural-anthropogenic nature, does not give rise to ownership of these resources. However, the national legislative initiatives of certain States vest their non-governmental persons, citizens and entities with the right to mine, appropriate, own, transport and sell the mineral resources of celestial bodies, including asteroids. But the national law of any State cannot extend to territories outside its jurisdiction.

Thus, it is necessary for the Working Group to determine a mechanism for prioritizing missions and the number of admissible missions in the light of the physical characteristics of the celestial body and to consider the issues of the avoidance of the depletion of extraterrestrial resources and conservation of the space environment, among other issues.

Australia is unique among the world’s space powers: it has ratified the Moon Agreement and signed the Artemis Accords. Steven Freeland of Australia has been named vice-chair of the Working Group (Andrzej Misztal of Poland is the chair). Here is part of its response as it tries to straddle two worlds:

Australia considers that the type of space resources and activities that fall within the mandate and scope of the Working Group may include:

– Activities contemplated by the five United Nations (UN) treaties on outer space;

– Activities and definitions contemplated by the Hague International Space Resources Governance Working Group on the Building Blocks for the Development of an International Framework on Space Resource Activities, including definitions for the terms ‘space resource’ and ‘space resource activities’;

– Activities contemplated by national agencies, including the Artemis program;

– Activities contemplated through States Members’ policies, including NASA’s Lunar Landing and Operations Policy Analysis and the European Space Agency’s Space Resources Strategy.

Australia is party to the five UN treaties on outer space and is committed to meeting its international obligations. Australia is also committed to contributing to the development of norms that ensure the long-term safety, stability and sustainability of the outer space environment. The activities of States in outer space are also guided by a number of non-binding instruments. Despite not holding the status of law, Australia recognises that these non-binding instruments indicate the intentions of signatory States as to their conduct in outer space.

Australia does not consider that Article II of the Outer Space Treaty prohibits ownership of resources extracted or removed from the Moon or other celestial bodies. However, ensuring compliance with Articles I and II of the Outer Space Treaty requires some understanding of the elements of those obligations or ways of satisfying them in the context of space resource activities, and the Working Group may like to give consideration to this issue.

In Australia’s view, the establishment of an international regime governing exploitation of the Moon’s natural resources consistently with Article 11(5) [of the Moon Agreement] would permit and facilitate space resource exploitation in a rational, safe and equitable manner, providing a means by which the exploration and use of outer space can be carried out for the benefit and in the interests of all countries.

Response from Observers (“Civil Society”)

Six Observers responded to the survey. One of those, the European Space Agency, is an inter-governmental organization. The other five are non-profits, part of “civil society” (“any non-profit, voluntary citizens’ group which is organized on a local, national or international level”) that gives voice to stakeholders. Here is a sample of their responses, in alphabetical order:

For All Moonkind is focused almost exclusively on the preservation of historic/cultural landing sites from the early years of lunar exploration. Their position is that any resource agreement must include protection of such sites:

Culture is who we are, where we have been and where we are going. It is what shapes our identity as humans. In short, development cannot be sustainable without culture. Moreover, cultural heritage protection is a mainstay of intergenerational equity. The protection and preservation of human heritage recognizes those who came before us, protects the gains of our civilization and allows future generations to learn from both their processes and results.

As the Working Group considers the legal aspects of space resource activities, it must address the impact those activities will have on cultural heritage and use the universality of heritage to achieve consensus.

Zones could be established to manage, and hopefully prevent, conflict, starting with proposed heritage protection zones. For All Moonkind also suggests that the first Coordination Zones can be implemented immediately, to recognize and protect human heritage on other celestial bodies. We believe that international community will be more willing to reach agreement regarding the protection of a site of universal value, as opposed to the operative site of a State or private company.

The Moon Village Association is an umbrella organization that facilitates the work of many groups and individuals. Its response* highlights sharing the benefits of outer space exploration and development. Although it stopped short of calling for mandatory benefit sharing, it did call for consideration of benefit sharing at every level of decision-making:

It is the sense of this Working Group that benefit sharing as a desirable feature in the context of international and space law, is in the process of maturing into a more consequential working theme, whose consideration should be deemed mandatory at relevant legal and operational levels, in the same vein as all relevant factors reviewed in this recommendation should be considered mandatory.

This said, it is also the sense of this Working Group that no benefit sharing first principles and specific mechanisms may manifest unless access issues have been resolved in close concertation with key operators and strongly invested stakeholders.

Specific mechanisms need to be considered simultaneously to legal and operational clarification, in the context of space resources utilisation, of non-exclusionary forms of priority and property rights intended to enable investment and operations to proceed.

While remaining aware of the fact that without economic sustainability there is neither sustainability nor access to and sharing of benefits, it is nonetheless the sense of this Working Group that, without a broad and inclusive debate on measures to mitigate future inequalities that may result from lack of sufficient consideration of access and benefit sharing issues, it would become considerably more difficult to assert international legitimacy in defining above specific legal and operational mechanisms.

The National Space Society was formed in 1987 by a merger of the National Space Institute with the L-5 Society. It generally supports the private sector and discourages regulation:

Notably, there are four factors most relevant to the development of a set of initial recommended principles: 1) the mitigation of harmful impacts and interference; 2) the need for economic incentives and clarity in benefit-sharing; 3) recognition of resource rights regardless of domestic or international implementation; and 4) the dissemination of data.

First, the mitigation of harmful impacts and interference speaks to the impacts of ISRU [In Situ (in place) Resource Utilization] activities and external interference upon ISRU activities. The protection of international cultural heritage sites in outer space should be paramount regarding ISRU impacts. . . . As humanity transcends into the solar system, the protection of how we progressed is important historically, culturally, and inspirationally.

Second, the current void of governance has contributed to a lack of investment in ISRU because of uncertainty within the legal field and the calls for monetary benefit-sharing. The recommended principles should incentivize investment by clarifying that benefit-sharing ought not to be compulsory monetary benefit-sharing but rather encouragement of enabling and promoting the development of technology, capabilities, and education; particularly in developing countries. Benefit-sharing could also take the form of an international fund to assist in the above-mentioned actions and bolstering the ever-necessary UN SDGs [sustainable development guidelines]. Clarity with the intentions of benefit-sharing is likely to incentivize economic activity to develop ISRU further.

This leads into the third and fourth factors of resource rights and data dissemination. In order for ISRU to further the human experience to outer space, the right to utilization is necessary. Thus, legitimate resource rights provided through legal processes should be recognized regardless of their domestic or international implementation. This would also incentivize economic investment. Lastly, the dissemination of data related to the type and amount of resources discovered and/or extracted should be considered. This is significant because as data becomes available regarding the amount of resources in varying places, it can create clearer methods of governance.

The Open Lunar Foundation is “committed to enabling peaceful, cooperative lunar settlement for the benefit of all life.”

The recovery, exchange and use of natural resources have always been foundational to the development and maintenance of any human society. Yet history also shows that uncoordinated access can create conflict and unfettered development can grow to the detriment of people, places and intentions. As humanity seeks to establish new roots in the vastness of space, the technical, economical and legal ability to make use of available natural resources will thereby play a crucial role in determining our failure or success.

In polycentricity, a shared set of goals and institutions empowers local management by semi-autonomous decision makers. Polycentricity leverages localized synergies and deep system knowledge for high social-ecological and governance congruence. Through subsidiarity and diversity, polycentric governance enables institutional experimentation and exchange in uncertain and complex environments. In a polycentric lunar governance system, the different lunar resource systems can be managed locally and individually while conforming to universal norms and principles such as transparency, sustainability, peace, cooperation, and justice.

Create a Catalog of Scarce Resources: Not all space resources are equally accessible or exist in large quantities. Specific resources or regions may be affected by inherent conditions of scarcity, such as the “peaks of eternal light” at the lunar poles or the “radio quiet zone” on the far side of the Moon. To ensure appropriate management regimes, we recommend developing and updating a living list of resources and regions involving conditions of scarcity. States, operators and other interested stakeholders should involve themselves in this definitional process and publicly commit to recognizing and respecting the list.

Scaffolding Towards Shared Frameworks: Wishing to ensure that emerging lunar regulations truly enable a plurality of societies, parties and activities, while not over-specifying institutional structures based on past approaches, a foundational document could be adopted which focuses on guiding principles and shared agreements rather than specific resource management and coordination approaches. Such a document could emphasize commitment to peace, cooperation and accessibility while protecting the ability for adaptive learning and evolution.

The Space Generation Advisory Council submitted itsE.A.G.L.E. report from May 2021 in lieu of a specific survey response. The particulars of “Effective and Adaptive Governance for a Lunar Ecosystem” are too long to summarize (see list below). In general, it calls for a new international “charter”:

The regulatory tools devised in UNCOPUOS seemingly follow a life span of roughly 20 years. Treaties, principles, and guidelines each characterised two decades of international space diplomacy by providing a reference narrative for the community. After long reflection, we realised that the narrative of the next two decades could be captured by charters. With this term we refer to a legal document enacted to define the essential features and boundaries of a legal framework through the solemn commitment of its signatories. Examples of famous charters used in this sense include the Magna Carta Libertatum, the Charter of the United Nations and the Charter of Fundamental Rights of the European Union.

Suggested Topics for a Lunar Governance Charter

– Fundamental Principles of Space Law

– Guiding Principles for a Lunar Governance Charter

– Inclusiveness

– Interoperability

– Human Life Protection

– Heritage Preservation

– Science / Business Balance

– The Use of Lunar Resources

– Safety Zones

– Liability & Registration

– Minimum Coordination

– Conflict Resolution

At the E.A.G.L.E. Team, we value the ability to unite and converge above everything else. When we set foot to initiate the development of this document, our main goal was to provide a contribution that could simultaneously increase the value of all others by providing them with meaningful opportunities to be expressed. We wanted to inspire global actors and catalyse international discussions on the exploration and use of the Moon. With this purpose in mind, we birthed the idea of a Lunar Governance Charter as a shared narrative that could frame the global debate on lunar governance within pragmatic but also idealistic terms. Structured in the way presented in Section 3, we believe that a Lunar Governance Charter could constitute a useful reference framework for the evolution of adaptive governance.

Conclusion

The responses from member states and observers show a wide spectrum of opinion concerning “additional international governance instruments”. Some do not want any additional rules unless they confirm private property rights and protect space resource activities. Others would require any space resource activity to be approved by an international authority, like the International Seabed Authority in the UN Convention on the Law of the Seas. In between are those who do not want a new authority but do want a new international agreement that will protect essential public policies while providing legal support for private activity. That agreement might be a stand-alone treaty, like the other UN space treaties, or it might be part of the Moon Agreement as an Article 11 resource agreement.

There is also a spectrum concerning what public policies should be protected. Most would agree on protecting heritage sites, but does that include every track mark by every rover? To what extent do we share information and technology? As for protecting activities, how can safety zones or priority rights be structured so that they are not prohibited exclusive claims? In general, how can we maximize sharing the benefits of outer space while still establishing mechanisms that promote economic sustainability?

The next five years may well produce a new international agreement that will guide the nations of Earth as we begin to leave the home world. Without one, we might repeat the mistakes of the Age of Imperialism, when powerful countries battled for control of distant resources, causing centuries of war, suffering, and neglect. Humanity has a chance to start over, and the new COPUOS working group might be the best vehicle for doing so. For this year’s meeting dates and other information about COPUOS and the Legal Subcommittee, click here.

* MVA’s response was primarily written by Suyan Christina Malhadas and the Space Law and Policy Research Group of the Catholic University of Santos, Brazil, with contributions from members of MVA’s Adaptive Governance Working Group, including this author.

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International Law

Shaping a 21st-century world order amounts to a patchwork

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What do Moroccan arms sales to Ukraine, a transnational Russian Iranian transit corridor, and US assistance in developing a Saudi national strategy have in common?

Together with this week’s Russian-Iranian financial messaging agreement and Chinese President Xi Jinping’s December visit to Saudi Arabia, they are smaller and bigger fragments of a 21st-century world order in the making that is likely to be bi-polar and populated by multiple middle powers with significant agency and enhanced hedging capabilities.

So is the competition between rival US and Chinese technologies for which the jury is still out.

For the two likely dominant powers, the United States and China, the building blocks are efforts to line up their ducks in a bipolar world.

For Russia, they involve hanging on to its pre-Ukraine war status, in part by deploying its Wagner Group mercenaries to the Sahel; devising ways to circumvent sanctions; and hoping that time will work in its favour in what was supposed to be a blitzkrieg but has turned into a drawn-out slugging match.

For middle powers, the name of the game is carving out their own space, leveraging their enhanced influence, and seeking advantage where they can.

The result is that weaving the 21st century’s tapestry amounts to a patchwork in which some fragments will have long-term effects while others may not even register as a blip on the radar.

Take, for example, Morocco’s decision to give Ukraine some 20 refurbished Russian-made T-72B battle tanks. The deal made Morocco the first African, if not the first Global South nation, to militarily aid Ukraine.

The move, almost a year into the Ukraine war, is likely to have been motivated by short-term considerations, including Russia’s close ties to Morocco’s arch-rival Algeria and US recognition of Morocco’s claim to the formerly Spanish Western Sahara, rather than long-term 21st-century world order considerations.

Even so, Morocco’s breaking ranks with much of the Global South serves the US goal of sustaining the current world order in which it is the top dog, even if its power diminishes.

It doesn’t fundamentally affect China’s goal of rebalancing power in the existing order to ensure that it is bi- rather than unipolar.

The loser in the deal is Russia, which, like Iran, wants to see a new world order in which the United States is cut down to size.

The tank deal may not be a significant loss for Russia, but it does suggest that horse trading is a critical element in weaving the fabric of a new order.

So is mutual interest.

Like the arms sale, the agreement between Russia and Iran to create a financial messaging system that would allow their banks to transfer funds between one another and evade sanctions that block their access to the global SWIFT system is unlikely to have a major impact on the structure of the new world order.

Russian and Iranian efforts to link Europe with the Indian Ocean, centred on 3,000 kilometres of rail and sea and river shipping, are potentially far more significant.

The transport corridor would help reshape trade and supply networks in a world that seems set to divvy up into rival blocs. Moreover, it could shield Russia and Iran from US and European sanctions as they forge closer economic ties with fast-growing economies in Asia.

Russia and Iran are not just looking at India, which sits at one extreme of the corridor.

They also expect to capitalise on their links to China. All three are members of the Shanghai Cooperation Organisation (SCO), and China and Iran are close to becoming members of the Russia-dominated Eurasian Economic Union (EEU) free trade zone.

Of a similar potential impact on a future world order is US assistance in Saudi Arabia’s development of a first-time-ever long-term vision for the kingdom’s national security, an essential building block in Crown Prince Mohammed bin Salman’s effort to modernize his military.

Saudi Arabia expects to disclose its strategy later this year. It would codify “the kingdom’s strategic vision for national security and regional security,” according to Gen. Michael “Erik” Kurilla, the top commander of US forces in the Middle East, who is advising his Saudi counterparts.

Shaping Saudi strategy as well as military modernization may be the United States’ best bet to imbue at least some of its values and complicate the establishment of similar defense ties with China or Russia. Moreover, it would enhance the kingdom’s ability to absorb and utilize US weapons systems.

“The Saudis, under MBS’s (Mohammed bin Salman’s) leadership, now recognize (their) deficiencies and seem, for the first time, determined to address them in partnership with the United States and to a degree with the United Kingdom,” said political-military analyst and former Pentagon official Bilal Y. Saab.

That will undoubtedly register on the geopolitical chessboard, even if small moves also count for something.

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International Law

Undemocratic United Nations and Global Peace

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War is not the solution to any problem rather war is a problem itself. Many countries believe in diplomacy and peaceful means of problem-solving and conflict resolution. But, unfortunately, many nations still seek solutions of problems and continuity of politics in wars.

If we look at any newspaper, we find too many armed conflicts going on around the globe. To name a few would include a catastrophic war between Russian Federation and Ukraine which has caused tens of thousands of casualties, with millions displaced. Decades-long civil wars and subsequent US-led NATO intervention and withdrawal has brought Afghanistan to the brink of famine and hunger. The whole Middle Eastern region is unstable and striving with civil wars for long. The Arab -Israel conflict and Kashmir Dispute have been there for more than seven decades.

Above-mentioned and many others examples of armed conflicts prove that there is no durable peace in the world. Here one thing that needs to be noted is that conflict is always inevitable among individuals, societies and nations, because the interests of individuals, societies and nations do not always converge. When there is divergence of interests, conflict arises.

What is needed to be done is the resolution of these conflicts. There are two ways to resolve conflicts: one is violent way (use of force) and the other is peaceful way (diplomacy and negotiations). More than seven decades ago, after World War 2, nations realized that war is not solution to any problem and they established United Nations Organization (UNO). Primary objective of UN was and is the maintenance of peace and security in the world.

But, if we look at history, it seems the UN has failed to achieve international peace and security. UN may have had role in preventing the outbreak of another world war, but it could not stop a series of conflicts from Korea, Vietnam to Afghanistan (during Cold War), and from Africa, Middle East to ongoing Russian-Ukraine conflict.

This is a question mark on the credibility of UN, that why the UN despite being guardian of international peace and security cannot stop wars.

UN has six principal organs and many Specialized Agencies and Funds for different tasks.  Among them Security Council is the most powerful Organ and is mandated with enforcing international peace and security. UNSC uses two tools to enforce its decisions, one is applications of sanctions and the other is use of force (intervention).

However the concentration of power in the hands of five permanent states of Security Council, namely the United States, United Kingdom, France, China and Russia have been problematic. These five countries use veto power whenever they perceive any resolution to be against their national interest or against the interests of their allies. Throughout the Cold War, US and USSR had paralyzed UN by vetoing resolutions. Same happened with any other conflict including when US drafted a resolution to stop the war in Ukraine.

So, it is crystal clear that if UN (specifically Security Council) is not reformed, UN can not achieve its primary goal i.e. maintenance of peace and security. UN members and experts have talked about reform in Security Council. Experts have also given suggestions and proposals to make UN more democratic and representative. One of those proposals is abandoning veto and doubling the size of SC members. This can make UN more democratic and representative to some extent. But this is not an easy job. Firstly, because P5 are reluctant to abandon this privileged position (veto power). Secondly, countries hoping for permanent membership are opposed by other countries. For example, many European countries object Germany’s membership. Pakistan objects to India’s membership.

 Experts believe the solutions could be the democratization of UN system (particularly UNSC). This is done by involving General Assembly in the decision making regarding international peace and security. General Assembly is a symbol of democracy, representing almost all the states on the globe. Simple or two-third majority must be mandatory to make any decision regarding international peace and security. This could stop any powerful state to use UN as a tool for its own vested national interest , and the decision of majority will prevail. All the states, big and small, powerful and weak will have equal say in the UN. Otherwise the possibility of wars, violence, genocide and injustice will further increase.

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