Books and Research Materials

Nilgiri

Experienced member
Moderator
Aviation Specialist
Messages
9,450
Reactions
107 19,157
Nation of residence
Canada
Nation of origin
India
Do these guys even understand what president rule is?

The short answer is no, they are idiots.

Half or more of Indian politics and extreme-political-fans are goons indulging in worst undermining-oriented criminal thoughts+actions when out of power/favour or authoritarian power-tripping when in power/favour.

But its inevitable anywhere when you put politics/mobs/thugs/power before country and people.

Your actual analysis (as I am sure others are also making) will not be looked at much less understood by one iota of these types....but it was good read.

President rule was not declared for Gujarat 2002 (when clear dereliction of duty definitely had strong case for it)....and that was at least 2000 dead....this recent political thug violence claimed about a dozen or a score so far.

Anyway is institutional edifice that I am thankful that acts as check against centre govt pushing president rule at any whim/fancy. Now bhakt mobs are attacking BJP for it predictably. God help and save this country.
 

Afif

Experienced member
Moderator
Bangladesh Correspondent
DefenceHub Diplomat
Bangladesh Moderator
Messages
4,257
Reactions
68 7,931
Nation of residence
Bangladesh
Nation of origin
Bangladesh
Brother, I am not sure if this is best thread for me to explore my answer to this (w.r.t Jinnah specifically).

If you (or another mod etc) feel its too heavy/weighty...we can move it to a new thread in say hobby section under something like "Nilgiri philosophy/musings etc"...for maybe all my weighty replies in general for topics at this forum that come from time to time, because it has been many years and moments of deep musing/thought by me, combined with authors and archives I have read on such issues.

Let me first start by quoting @Joe Shearer take on the developments at large of that time (interested readers can hit the arrow to see the larger context of convo there)...that probably shook something inside of me (in sad nostalgic way) at that moment than he knew, but I did not really care to express myself on it back then:



Let me say in younger different years, I have read my fair share on Jinnah and all the history of that era.

I have had more than my fill on it...but given the overarching nature of the consequences today...I am also resigned that Joe, you and other worthies (both online and outside closer to me) bringing up such subject too.

i.e People I admire and respect, lighting the torch in that dark room from time to time...in ways known only to me. So I might as well try air out a few thoughts I have...before I let them cobweb up for good...for reasons more personal to me, I have little sustained interest to remember them as boldly as I once did.

I always ask people cognisant on this era on what is the exact breadth, depth and timing that Jinnah "took" on the British and help form mass movements/national cohesion against them.

The exact nature of the struggle, striving, facing prison time etc...within the limits of one that wants to be a well disciplined but commited revolutionary against injustice....in this case so those that were perpetrating such were shown our great Hindustani ethos and resolve to them being a long overstaying foreign oppressor... that is to be evicted from a place they have no reason being and doing what they were.

So far I have not found a good enough answer to hold him (jinnah) in a good light on it...and I doubt I ever will...and if anything can change it.

I am of course biased (who isn't?), but I feel it is unsettling to anyone if they look at him with as neutral eyes and enough context and understanding as possible.

I personally will always prefer and deeply respect the honest principled action of Gandhi.

As much as we can then debate those principles, he followed them honestly in a way it is near impossible to find another.... and it spurred a prolonged national stirring and consequential awakening like no other in history too.

In my near-final analysis, Gandhi was acting in good faith of Hindustan needing dignity, liberation, self-determination and national unity and pretty much start to finish once he developed his vision and platform.

It was and he was inevitably blemished with errors and faults, but it was and he was an overall edifice and example for eternity.

The identity was Hindustani nationalism, thats it...no other identity need colour and taint that for a very important reason (and this is what sub-identitarians, back then and today, don't grasp honestly and never will.

Jinnah and concoction of using religious faith (turning against many of his own asserted initial principles) convinced himself on a great folly to make some partitioned majoritarian setup on a sub-identity of Hindustan....and the region, world and humanity pays for it with great consequence.

This is why even though I may admire some parts of Jinnah's character, story and initial spirit... I can never like him as a whole or even close to that... given his mid stream change and final (deeply flawed) logic, conclusion and consequence of what he did.

I care not to much further explore what I exactly mean by "not liking"...especially what was and since has been wrought by this bubbled, elitist, dissonant idealism as to what is actually a worthy identity for national formation.

All the more given the state and predicament of the populace at the time (and today) that ought to be blindingly obvious to anyone with power and influence if they are well reasoned and honest (the two features that are of the ONLY consequence to me for any leader or person in general)

Filling society with this kind of irrational unprincipled basis that he and others did, given society having grossly imperfect temperament, condition and education (then and now) is unforgivable to me.

Ultimately it meant more spawning and establishment of properly abominable demagogues (who had far fewer redeeming qualities than Jinnah, and its obvious he did not account for this) and the entrenched negative displacement narrative that has led to half the country leaving it (with completely unnecessary further bloodshed of foulest kind) and now the remaining half atrophying as only @VCheng can best summarise with input and output design.

All because its elitists and demagogues needing to double down on this flawed identity complex that has taken new ungainly downstream proportions, with enough of the masses blindly believing them (then and now) or simply doing the "go along to get along" thing with them to earn their bread in some relative peace.

But the fact this extremely flawed narrative and all flawed counter-narratives (of which now India has it's particular supposedly newer toxic variant metastasizing) essentially seem to be the ones that have won and are winning more and more minds....seemingly again reminding us (or at least me) that it is the darkest parts of human nature that are most easily accessible to too many.

It is deeply repulsive to me to contemplate more than needed these days.

I prefer to be a small boat on surface on my merry way and not think of these undercurrents anymore.

I have long studied the history and psyche behind this globally when I had the interest and time for it, probably more than anyone else in this forum, with the likely exception of Joe.

It has scarred me for life...but also make me hold and appreciate that which is good and beautiful, ordered and rational in our species and in our world even more closer. But that does not sit well as sufficient silver lining for reasons unknown to me (maybe its because I get older and the shine on certain things I took for granted wears off)

Anyway to me, ultimately for this subcontinent, large portion of this dark undercurrent (at the levels of consequence in the modern more "enlightened" era i.e leadership) are traced back to Jinnah (and this late-stream involvement joe refers to, of which he was the spearhead), however well meaning he may or may not have been is known only to him and Him in the end.

To me, the way he went about doing what he did (stoking and doubling down on this psyche and narrative) while the congress leadership went full out in "quit India" against British during WW2 and got imprisoned/house arrested for it in stretches and thus were largely out of the picture to counter it in a crucial stretch of years....leaves a very unsettling thing to dwell on for me.

It reeks of an unprincipled unfair approach in bad faith. By the time they were out and about again, it was too late...the damage and I suppose destiny had set in.

It is subject I find sordid, it just puts me in a foul mood to think on it... as to the "could have beens" given what has now entrenched at great consequence and cost...further exacerbated by millions living in denial, ignorance or even some base, degenerate and perverse enjoyment at it.

I for one don't see any way out of it either, it now has gravity all on its own, just like the gravity I see in other regions of the world for matters the same and different.

All in just a tiny drop of time, just a few cohorts and fewer generations...demeaning all the great hopes and potential of their much longer lineage and heritage. That's all it takes to irreparably ruin all these lives, and so few (I find) are sufficiently attuned to that...not just in subcontinent, but the entire world.

It just saps me and crushes me, things like this (it being Christmas time and all)...the words, the reality vs hope.

For example, every word in the conclusion (at 43 minute mark to the very end of it though whole feature worth watching) feels like a cold, hard stone thrown in my face:


...and then I think in that time frame of that war, our boys and men that went to fight it for "king and country" that was not their own...did so for various reasons but often in the hope this would finally push a recognition by that "King and country" that we were equals deserving our political rights and ultimate right to express it as we chose to and work towards that goal...ready to sacrifice life if needed.

Those boys and men, those of which came from your neck of the woods (eg. Punjab regiments) and mine (eg. Madras Sappers), your very own forefathers and mine (And really not too long ago either).... would have known the names Hindustan, India and Bharat (while fighting and dieing in those foreign lands and foreign wars for that foreign King)....but not Pakistan. How is this circle squared by their descendants in all manner of ways? It takes it toll on lot of people thinking and action without them even realising it...the psyche deep down is a strange thing in our species.

So to me it is clear to see what happened and who the main agents were in perpetrating and exploiting some chosen rift of their fancy...going against their better, honest earlier judgement.

Easy to cleave, hard to build I suppose...no surprise the worst things we do involve the former and the best things we do involve the latter.

But the deep human spirit, our very souls know which one is easy and which is hard given we all deeply see a higher purpose in making effort for order, the order we seem to gleam in the universe around us and above us.

Thus I grow increasingly incensed when I see downstream effect of brother wars, knowing most people deep down must surely recognise and know this moral truth.

We were (and are) clearly brothers in the subcontinent...but all these hearts and minds poisoned against this is too much for me to dwell on anymore, especially at the 1st principles roots I see that did the most on creating this.

Simply I have been born into this poison, I have seen it all in my family too, the very people I love the most on this 3rd rock from the sun. I feel I likely only gained larger truth (on matters such as this) by distancing from all that.

I do not know whether to be happy or sad in doing that (distancing + reflection) nowadays. Maybe it was just better to stay "simpler" like them and less aware, keep certain things as black and white as possible...who knows.

For the more I push into the realm of complete honest morality, I just see more and more human failure in reality all around me.

It grinds and hurts my soul...I have to balance that now...I am not so young, ambitious and reckless like before, some reason my mind feels heavier now and needs to simply lose deadweight I feel is dragging it down.

I simply realise maybe 1 out of 100 people do or even attempt this good faith approach to some higher endeavour...so 99% of time I'm stuck like a sucker spouting what seems foolish platitudes and get left with short end of the stick....having pleased no one and maybe achieved worse in the end given everyone absolutely loves their echo chambers these days if they are even capable of seeing what those are in first place.

So in our region, the brother wars I see are the biggest stain...

Saare Jahan Se Accha, Hindositan Hamara...

Who wrote those words tells the story in how the brother war originates, spreads, establishes and lingers...

A most sad tragedy, given what the 1st partition entailed on innocent lives, what the 2nd partition in 1971 entailed again on innocent lives...and the entrenched emboldened narratives the brothers have formed on each other now that are merely taken to be default fact because its feels good and thus a number of (clear) deepest mistakes need justification or denial.

All when it could have been a pure crystallized focus on sons of the soil, the salt of the earth of a great land and civilisation, getting rid of oppressor from half the world away that had no right to be there...and then build bridges across whatever issues we have as Hindustanis.

What should have been the greatest triumph of unity, dignity and destiny... ended up being what we have now, founded on fears and lies (of a striking few) being stoked to grow, consume and persist...by simply knowing and exploiting (overtly or subconciously) that which is "downhill" vs "uphill" when it comes to human nature.

May God have mercy on our sins...may he punish every evil-doer and redeem every innocent lost..and judge all in-between.

All that does not happen down here by our free-will given our great egos we nurture and dark Babel towers we build at whatever cost to our fellow man

So much so that a brother will turn on a brother like this overnight, like Cain on Abel....after all that they have both been through....and it seems to be a rule rather than exception looking across time and space.

I have no words to describe this properly! I don't think any words exist at all for it. This only feels like a few drops of what lies in my heart on this predicament I see in mankind.

Only He knows best, only He knows the purpose of it all...I have to believe in this...that there is an absolute truth and justice somewhere....far away from the hands of men and mankind (man is not kind at all)....but a great reckoning for what they do with those hands with the precious little time allotted to them.


T

No it's fine here. This is books and research material right. This is conclusion of your research. I said people should read up on him and form their own opinions. I never said people should like even though I admire the man but brother ears have always been fought. For thousands of years. The very union under Guptas was the result of them making wars and wars are terrible. They were no friendly annexations. Brutal and of course even in the later years or medival period, this region and it's states have fought one another. So we cannot say that the current predicament is new or something unheard of. Infact I would say it was very common thing and I am not talking islamic. You can argue that something grand was being built that was unheard of in subcontinental history however as you so aptly put it that it takes two to clap and we also need to understand that jinnah may never have wanted this current inevitable situation. His ideal may have been based entirely on two states working and living together and I think this was a prevalent ideal amongst the leadership.

If we peruse the working of early congress leadership and early pakistan leadership then one thing becomes very clear that nobody thought this would be the most contested border in the world. Infact you read my book. You noticed how nehru felt about chinese incursions in both state of Hunza and aksai chin and his thinking was actually the last remnant thought of the old founding fathers that pakistan and india should work together to form a united front against chinese aggression and felt wronged when ayub signed the treaty with china rather than offering any united front. I have already highlighted the pragmatic nature of this decision but I use it to explain how early leadership never even imagined that pakistan and india would revert back to the base nature of the region.

Indian often say that the united india was the natural state of the region. It was not. United Hindustan was a radical idea. It was new and it was absolutely out of the box and I am guessing this is where you are basing the human ability to build or destroy but what you need for building is the mass will to build undeterred and from everyone but was that available? It was not. It was the lone solution but with the existence of the alternative, the will revealed itself hollow.


Anyhow we exist now so all we can do is make sure that we do not truly regress into the past and build a lasting future which is looking impossible in our lifetimes.

Nilgiri my friend, if the chapter hurts then there is no need to look into it. I myself have studied but have turned my back on two chapters. The partition and 1971.


T

I disagree, it wasn't given a proper chance with due reference to the inertia behind it...political expedience is what coloured and corrupted it...and in just a few short years. Rest was just "an idea who's time has come" by playing on people's fears....rather than anything else far more positive (but more difficult).

You live in the downstream, so you cannot insert easily in the upstream. Where were the referenda of an educated people cognisant of their rights to express what the "natural state" was, and in a suitable position to express this.....over what politicians saw?...especially given developing the former naturally diminishes what a politician can exist in and exploit?

At an extreme, this can be expanded grossly to almost any situation that exists today or any event that happened in the past....simply for it transpiring.

That it was inevitable this and that happened in China, Europe, Americas, Persia, Africa...you name it. That Israel was an idea who's time had come clearly, simply by existing now, even though it had not existed for nearly 2 millenia as a political entity of any kind.

But I guess the word Israel, Jacob's own other name....has existed longer than those 2 millenia...you can find it in the good book itself.

But where is the name Pakistan in this world history, and why did it have to be invented in such a short time frame? That in itself speaks to what is natural, unnatural and what can be construed as "inevitable" simply because it happened.

I mean how far do we really want to go? That it was "inevitable" the NSDAP did what they did with the reins of political power and downward thinking.....merely because the existence of a foreign ethnicity within their country (and Europe in larger sense as it would become plainly clear) was an "unnatural" state?...as expressed by some politicians, elitists and leaders of the time...(that the population then fell behind lock step?)

W.r.t that population that did that and now hold culpability....where were the severe pogroms in Germany before that episode? List and names please of such happening in the unnatural 1000+ years existence there at the same intensity in periods...to clearly foretell what would come by "natural" expression at THAT magnitude?

The overall analysis (And conventional wisdom) at the time (early 20th century) preceding it was that anti-semitism turning into something bigger was likely to happen in two countries: Russia and France....given a number of factors (and actual mass scale sustained pogroms in the former)....but NEVER on that scale we saw.

So if we have no evidence of what happened during the partition itself happening regularly between salt-of-earth and sons-of-soil neighbours spread in often 50/50 way (when split by some sub-identity of many sub-identities in existence) in the border areas and interiors...given they shared so much and still share so much in what they do day to day that forms identities in first place.

Why is it the INC won elections in parts of pakistan barely a clock tick before the partition (even after Jinnah and ML did what they did in the final hours of the ball game)?

Why did the vast majority of muslims on the Indian side stay put?

Why is it I have been called a "P**i" by Goray a number of times, if this unnatural state was so complete and would extend surely to any removed eye for something like the bloodshed at partition to happen.

India holds together despite far greater heterogeneity on religion and just about any other metric and social friction potential than Pakistan. Pakistan notably didn't.

....even with the muslim-majoritarianism it achieved (and now inevitably needs some further definition or clarification from original claim and repackaging till the next stark political-salivating fissure pops up relative to status-quo ease or building toughness)

So there is nothing to illustrate that Hindustan would have fissured with the right set of political movements with the appropriate recognition of what the revolution of the time actually was and what the system needing to be built was to LATER harness from the public at large (any sentiments of further sub-nationhood) when they were actually in a state to do so (education, condition, knowledge of rights and issues) and had proper references to compare with how it was going under Hindustani polity and unity. There are multiple rational and intelligent ways to do this.

There is thus a final reality the wedge being identified and driven (at the time), was not what it genuinely claimed to be in some rational way from a 1st principle....but rather that it was merely big enough, easily accessible enough and saw an expedient fissure to get to work on....so that one set of politicians/elitists would always have their unchallenged, unrivalled scope on what most naturally comes to them...and other politicians/elitists downstream inevitably augmented or responded to this over time too...since its the reality they were born in shaped already.

Does not mean any of it was natural or inevitable with proper context and reference to the region and the history of the world at large on the exact same issues succeeding and failing with different realms of intensities and consequences.




No I might as well take opportunity to get this all out, its my decision...I came close to not answering but I wanted to see how it came out of me, because sometimes its different when you need to put words to something

....I am most interested to see what @VCheng and @Joe Shearer have to say as well.


T

I didnt say inevitable. The subcontinent was always home of nations that had formed their own states and many of those states had existed for hundreds of years only to be bulldozed by a foreign power. Many so far away that they neither spoke the same language nor the language style nor even shared the climate. These nations traded with each other, fought wars with each other but always existed as nations all over the world did. The united nature of this large region was indeed a radical idea. That does not mean that it was inevitable to fail yet it did. The region was not formed as one. The large region saw a good section refuse and formed their own polity.

You give example of historical names but refuse to acknowledge that Pakistan is an acronym of various states that have existed in the region. Punjab, Sindh, Afgahnia, Balochistan, Kashmir. Are we ignore these states? I asbolute disagree when people pick Pakistan and say where it is in history. Pakistan is a federation of these states that have existed and will always exist. Their own history and their own culture existed and will exist. How can we ignore this absolute evidence that these states have history of existence. True they were occupied as all states were once but that doesnt change the fact that these states have existed historically as their own polity and it is perfectly natural for these states to form a union which they did.

You give examples of Indian muslims but why ignore all the people of Pakistan who chose Pakistan. Do their choice not count. Hurrah for those Muslims that picked India and believed in Hindustan but we didnt. We neither wanted to nor wished to be part of that poltiy.
Pakistan was also a radical idea. A federation of states that had existed in the region for thousands of years and Pakistan is embracing its federation nature. You say Pakistan was never mentioned in history. I disagree. The states and people that encompass Pakistan are mentioned in history and rich history and to ignore that is a criminal act to the people of Pakistan. Do names mean that identity lies forgotten? who decided that? are we to only pick historical names to gain any sense of history? So that means that when people chose to become Pakistani, an acronym of their states, their history was taken from them? Absolutely not.

Pakistan and India were federations formed in 1947 but they derive their history from the states and the people that had existed for thousands of years to deny both that right is an unfair act.


T

That's like saying everyone that goes along to get along....were given a proper choice....anywhere and everywhere in history. Everything that exists is therefore accepted by all living under them downstream having been gaslit and reinfornced on whatever idea (and accepted as some huge "always truth" as long as they don't go all the way to some other intense revolution or mass violence to change that at the requisite scale again)

Crux of the issue lies on those forming and then selling them the "choices".

These are not the same set of people fundamentally...driven by the same goals and thoughts as those under them. Only some are true leaders and statesmen and revolutionaries of their time....the others just are politicians like the rest after....seeing a sub-issue out of whatever compulsion they originally had or developed. Humans are imperfect beings, so its just matter of scale....and that which I do not know, I simply try not to judge.

That's the Always has been, always is, always will be.

...and it is evidenced crystal clear by 1971 in the end in Pakistan's case.

That it was the idea-sellers rather than the idea itself that oriented and propelled the first setup....and that those idea-sellers remain in control with whatever level of inertia that has now developed aligned with a population (long born into it now) simply being downstream.



If it was formed in that guise (historical context of always existing)...it would make sense.

But it wasn't...and it was made abundantly clear on many episodes after it....1971 is just the largest one.

Nothing of that historical context precludes a larger national setup either... given the number of muslims in Bengal (which actually again joined original effort), UP and Bihar and many other places.

The muslims of subcontinent now are approximately 1/3rd in each (Pakistan, India and Bangladesh).

Where do you think @VCheng origins are originally?

You are telling me that would need no translocation if it was 1st principles "history and rich history" based equivalently all around with the right political dispensation to harness that?

The britsh shared no part of our great history, they were ripe to be ejected. I don't see any other political expression of enough intensity to say this or that have greater precedence in the greater hindustan nation.

I mean why pick religion and not language? Why not pick geography or some other criteria?

Why has India remained united at its current great size and diversity if its simply a Jinnah-equation at every level of identity needing majoritarianism to exist and feel secure?

What made this exactly only need to happen in the indus area and ganges delta specifically and only and with religion specifically and only........ until it needed to devolve some other way suddenly and overnight again with the ganges delta?

Why didn't Pakistan's leaders if they are so aligned to the concept at root, allow the further expression of majoritarianism to happen and be achieved peacefully in the Bengal region?

Or is the non-peaceful way it happened a reflection of the people of Pakistan at large?

I always argue in that case, its the politicians, regime, leadership propelling that whole distateful set of events.

So why would that suddenly change for partition earlier? We are then to make the argument it was the people's desires being genuinely voiced then?

Anyway rationally to me, first principles would have to be as expansive and inclusive as possible given everyone's basically a local...with ancestors all from same area of soil.

Then you build a system to have sub regional and sub identity expressions expressed (the whole idea of decentralised federal power with whatever optimisations needed), politically if needed and there are ways to set this up when a country has matured enough....but its highly irrational to conflate that stuff at that time with sub-identities when people were in such state of exploit and oppression and tumult (political liberation and genesis) given what it will inevitably discolour and leave bitter taste and blood.

Doesn't mean politicians and the way they sell ideas to people within earshot are rational. In fact the opposite, because fear comes easy. Bad things that come easy being extended to every human endeavour, well you can imagine that. But we make an exception for politics...and that is the big doom and folly.

A proper political evolvement during the freedom stuggle (as Jinnah originally was in) from start to end....is the largest factor on the best political set up at freedom itself...to then be worked upon.

It's not much to do with whatever concoction of identities there are to exploit by the same politicians. Those that do, become lesser people...and the areas that succumb to it (or are affected by it), become lesser than they could have been too...because of what needs to come downstream to prop up and shield the mistakes.

Downstream popularity and identity is forged (some contrary deadweight to it like East Bengal ejected I suppose)....that does not bear equivalence to upstream thoughts on the matter that politicians simply worked upon.

Otherwise if it were so extreme as being suggested, every Muslim would have migrated to Pakistan and there would be far far more severe pogroms occuring all the time non-stop through the centuries (where muslims were not 90% majoritarian)....if the assertion a nationhood to that severe degree among them always existed like Jinnah postulated. Effectively less people would have died in partition than without it (and all the ideas needed to sell it beforehand) in more brutal terms. I doubt that.



This is really good @Nilgiri Why didn’t you tag me here before?

let’s see if i can add my few humble observations on this later.
 

Saiyan0321

Contributor
Moderator
Think Tank Analyst
Messages
1,209
Reactions
100 1,891
Nation of residence
Pakistan
Nation of origin
Pakistan
I cant believe i didnt add this here.

Legalized Captivity; A Study of the Impact of Captivity on Animals and the Responsibility of The State to Ensure Their Wellbeing​


My research on the captivity of animals in zoos.

This research paper examines the condition of zoo animals in Pakistan and the role of the state in the protection of these animals in captivity. Zoo animals are often subjected to deplorable conditions and negligence by the zoo administration. Most zoos in Pakistan are funds deficit which leads to a lack of proper living spaces and food. The animals are cramped up in small cement cages without adequate water supply and cleanliness, in weather they might not be accustomed to. There is little to no training for zoo keepers. The realization of the sentience of animals is culturally absent which is then reflected in the ill-treatment of animals in zoos. The paper examines the high profile cases of animal cruelty like those of Kaavan and Noor Jehan, the public response to them, and subsequent debate regarding the existence of zoos and the state’s failure to legislate for the well-being of these animals. The only piece of legislation that exists is the colonial era “Prevention of Cruelty to Animals Act 1890” and a landmark judgment passed by Islamabad High Court Chief Justice Minallah. The paper also makes recommendations regarding the treatment of exotic animals and the responsibility of the state, legislature, and society.


 

Nilgiri

Experienced member
Moderator
Aviation Specialist
Messages
9,450
Reactions
107 19,157
Nation of residence
Canada
Nation of origin
India
I cant believe i didnt add this here.

Legalized Captivity; A Study of the Impact of Captivity on Animals and the Responsibility of The State to Ensure Their Wellbeing​


My research on the captivity of animals in zoos.

This research paper examines the condition of zoo animals in Pakistan and the role of the state in the protection of these animals in captivity. Zoo animals are often subjected to deplorable conditions and negligence by the zoo administration. Most zoos in Pakistan are funds deficit which leads to a lack of proper living spaces and food. The animals are cramped up in small cement cages without adequate water supply and cleanliness, in weather they might not be accustomed to. There is little to no training for zoo keepers. The realization of the sentience of animals is culturally absent which is then reflected in the ill-treatment of animals in zoos. The paper examines the high profile cases of animal cruelty like those of Kaavan and Noor Jehan, the public response to them, and subsequent debate regarding the existence of zoos and the state’s failure to legislate for the well-being of these animals. The only piece of legislation that exists is the colonial era “Prevention of Cruelty to Animals Act 1890” and a landmark judgment passed by Islamabad High Court Chief Justice Minallah. The paper also makes recommendations regarding the treatment of exotic animals and the responsibility of the state, legislature, and society.



I actually worked in a zoo for social work hours + summer job at same time during high school in Singapore. A ton of cleaning and prep work for animal feeding etc.

Even as developed as Singapore was and this was overall one of the best run zoos in the world and there are treasured moments I had with some of the animals (they had a baby manatee and its mom I had the pleasure of being able to feed a few times together).... I still felt really bad about it in the end because there are other moments that stick with you, things that feel out of place. The polar bears getting a green tinge in their fur because its the tropics and some kind of algae grows unlike in their natural habitat. One elephant kept aside, its starting to get some form of stress-dementia shaking its head and trunk in agitated way constantly. Gaunt expression of the malayan sun bears as they stand up when you come around, no jungle to explore for them as comfy as the enclosure was overall with its rocks, river grass and a few shrubs.

Later in life I did go to Toronto Zoo (with some friends who wanted to go), and they had a Gorilla enclosure and one female gorilla looked up at me with a tired sad expression. That was last time I have visited a zoo, I refuse to go to them anymore. These animals aren't meant to be there. Their freedom has been taken from them, it has affected them. Then things just get worse from there depending on the zoo like you describe, theres no real proper care in developing countries.

The topic of the zoo actually was one of the first debates (no matter what we personally believe, we were allotted a side to prepare and argue for etc) we had in science class in middle school too. Wow, one girl was able to bring tears to our teachers eyes at the end...rest of class was in stunned silence....it was same thing about freedom and true happiness.
 

Saiyan0321

Contributor
Moderator
Think Tank Analyst
Messages
1,209
Reactions
100 1,891
Nation of residence
Pakistan
Nation of origin
Pakistan

The Paranoid Doctrine​


The term paranoid defines an individual psyche wherein the individual is suspicious of other’s intentions, often finding oneself in a siege mentality - with the thought that everybody is out to inflict harm and that everything must be done within their power to deter such an attempt. Modern nation-states are no different, as they often exhibit a mindset corresponding to the national psyche. Whether this corresponding phenomenon happens because the state warps the mind of the individual to its psyche or vice versa is irrelevant.

As I mentioned in my article “A Less Secure World,” international precedents forming international customs have the largest impact on international law. The accepted actions of the state by the international community, and their lack of punishment for said actions cement those actions as legal international law, which could then be used by other states to justify their actions. One such case study is Israel, which was established on the 14th of May 1948 within the British Mandate of Palestine, with the region supposed to be divided into the Arab state and the Jewish state. The next day began the Arab-Israeli war, with Israel capturing 60% of the newly divided territory of the Arab State.

What began from there was a country that exhibited extreme paranoia as it repeatedly aired its fears of aggression from its Muslim neighbors, and thus used this paranoia to not only justify a military buildup, but also annex regions that were not allotted to it within the partition plan. The international community not only ignored this paranoia, but also enhanced it by supporting the Israeli government in expanding this narrative - giving it support to become militarily aggressive. This was exhibited when Israeli Prime Minister Ben-Gurion ordered military operations into sovereign neighboring nations in retaliation to terror attacks absent any restraint or negotiation, a paranoid and aggressive posture of power politics even by the relatively lax standards of the the pre-modern era. In his own words, “…. We do not have power to ensure that the water pipe lines won't be exploded or that the trees won't be uprooted. We do not have the power to prevent the murders of orchard workers or families while they are asleep, but we have the power to set a high price for our blood, a price which would be too high for the Arab communities, the Arab armies and the Arab governments to bear…”

Rather than condemning Israel for taking such a military offensive absent any attempted negotiation, deescalation or absolute provocation, the world defended these actions and cemented that a siege mindset is justification for hostile and provocative operations.
UN Truce Observers such as Lt-Gen E. L. M. Burns criticized this policy as extremely provocative, but the world acquiesced. This was further displayed when an Israeli armored thrust, supported by France and the British occupied Sinai, a territory three times the size of the country for five months. It would annex said territory for 15 years after the Six-Day War of 1967 till the Egyptian Army fought a war in 1973 for the return of the territory. The world did not condemn this abhorrent action, but defended it as justified against hostile neighbors whose territory Israel was violating repeatedly. The paranoia of the state went one step further when Israel launched a massive military strike against Egyptian, Syrian, Jordanian and Iraqi airfields as a pre-emptive attack, thus cementing another militarily aggressive international custom called the pre-emptive doctrine, which would go on to deteriorate the security of the world.

Rather than condemning Israel for taking such a military offensive absent any attempted negotiation, deescalation or absolute provocation, the world defended these actions and cemented that a siege mindset is justification for hostile and provocative operations. The victory in the Six-Day War was hailed by the international community and the losing nations were condemned as the aggressors. This support for the paranoid narrative that Israel received allowed said paranoia to grow and for it to become even more hostile as it repeatedly violated the sovereignty of its neighbors through raids in Karameh, repeated raids into Egyptian territory in the Gulf of Suez, raids into Egypt and then outright invasions into Lebanon among other violations. All these actions received little international condemnation and were often supported by the international community as justified legal customs.

If a state functions in a siege mentality, exhibiting a paranoid mindset and using such paranoia as justification for their actions, then the acceptance of these actions will create a precedent and at this point, it is clear that the mollycoddling of Israel and the constant justification for its illegal actions have formed a legal doctrine that stems from paranoia and affirmed that for a state, it is justified to showcase aggressive military hostility if such state feels that it is under a state of siege by its neighbors. Russian invasions into Crimea and Ukraine are another example of the Paranoid Doctrine, where Russia annexed sovereign territories and invaded a sovereign nation to mitigate NATO influence.

There is no doubt that we are standing at the crossroads of international law and the path the world will take will determine the birth of new doctrines. The Paranoid Doctrine being cemented as an international custom is just one of those instances.
Israel has used this doctrine repeatedly to justify their actions and as the international community provided Israel with this international custom, emboldened, the state further started committing excesses against civilians, treating them as military targets. What is currently happening in Gaza is the culmination of this doctrine. The genocide where a conservative estimate places 20,000 dead and more than 37,000 injured being committed by a paranoid state that feels it must display absolute horror to deter any action is the crowning moment of the Paranoid Doctrine. A paranoid state can now partake in such genocide and use the Israeli case study as its international defense.

There is no doubt that we are standing at the crossroads of international law and the path the world will take will determine the birth of new doctrines. The Paranoid Doctrine being cemented as an international custom is just one of those instances. As Russia batters Ukraine, Israel commits genocide in Gaza and the Arab Nations bomb Yemen, it is clear that paranoia is being used to justify extreme military actions to violate the sovereignty of nations with the Western nations watching helplessly. They can’t mobilize nor take action since the excuses used by these nations were previously used by the West and their allies.

The international community cannot allow this to go unchecked any longer. It must stand together and condemn the Israeli actions in Gaza and penalize the state for its military response to highlight that paranoia is no longer an excuse to violate and subvert international humanitarian law. The line must be drawn from here and extended further so that such aggressive doctrines find no place in international law.

A colleague of mine stated that international law is dead with the invasion of Gaza. I responded, “No. what is happening in Gaza is the culmination of the doctrine and customs supported by the international community. It is the ugly side of international law.”


The article received two comments from indians who were pissed. 🥳🥳


This was an article i had written on the formation of a new doctrine which i fear will slowly become a tool in international law. To further explain this doctrine, i am writing a research and also wrote an explanatory note for some of my friends to answer their questions.

Answer to the following questions

Will this doctrine apply to all countries? Can Kantian Universalism apply here or can it be an example of exceptionalism?

The Doctrine relationship to Pre-emptive Defense and whether they are synonymous or not?

Israel is claiming defense against an entity it has illegally occupied? Do guards of an illegal prison have a right to defend themselves against the prisoners who are not there because of due process? Can this relationship between occupier and occupied be used as precedent for interstate relations or conflict?


Hmmm These are very important questions to answer and I will try to answer each the best I could.

I will start with the Pre-emptive doctrine and then work on the first and second question due to their similarity aka can it be used as a precedent between conflict or as interstate relations or is there a form of exceptionalism applying here?

So first of how this doctrine differs from the Pre-emptive defense. The doctrine highlights the international custom of providing legal justification to established illegal actions committed by a state who assert that they are in a state of constant siege against a perceived threat. Rather than the state being penalized for such actions, justifications are provided and explicit and implicit acceptance is given to the actions of the state.

Pre-emptive defense doctrine also known as anticipatory strike is the military combatting doctrine where a pre-emptive action is declared as legally justified against another nation when said nation has mobilized its military force to strike against the striking nation. Now pre-emptive doctrine defines this moment to be imminent meaning that a state cannot, in a state of paranoia simply start striking all its neighbors simply because there is some buildup on the border. There must be proper evidence that a military operation was about to be undertaken and there was no other option available. I will go a little more deeper into this to better explain the Anticipatory strike doctrine. This way, we can understand the difference between the two doctrines.

ANTICIPATORY DOCTRINE

There are two schools that argue on whether Article 51 of the UN Charter actually contains provisions for anticipatory strike. The restrictive school and the expansionist school. We will discuss both these schools in detail in the coming chapter. The expansionist school argues that the Article actually contains provisions for anticipatory strike and they utilize a broader interpretation. In analyzing the concept of anticipatory self-defense under Article 51 it is important to remember the provision of Article 31(1) of the 1969 Vienna Convention on the Law of Treaties:

"A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”

In interpreting the provision of Article 51 of the UN Charter we must look at it from the whole perspective of the treaty. In perspective, Article 51 is tied to Article 2(4) which states that:

"All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations."

Article 2(4) creates a total ban on the threat or use of force in inter-state relations. States cannot use force or the threat of force to settle their disputes. However, the question to study is whether the provisions in Article 2(4) creates a blanket ban on military conflict. In Chapter 1, we discussed on Article 51 is interpreted and cannot claim sole existence on Law of War and includes within itself the customary right of self-defense which means that when discussing the right of self-defense, the Article alone cannot be read in isolation. Article 2(4) does prohibit ‘threat or use of force’ but a careful reading helps us understand that the prohibition is not concerning self-defense or customary self-defense but solely concerning aggressive designs of nations against each other. To understand a law, we must look into the minds of the legislator and the environment where the law was passed. WWII had just ended, a major global conflict where ‘threat or use of force’ was used repeatedly for aggressive designs and while both sides partook in such for their own ends most notable being the Allied plans to invade Sweden and Norway in 1940[1], two neutral countries, and the German threats to South Eastern Europe. During this period, the global community was well aware that soon another conflict would arise and aggressive and expansionist designs had not ended in the world. It was also during this period, that the nations decided that war must be regulated and legalized. Article 2(4) which explains threat or use of force, cannot be used as a measure to determine whether it restricted self-defense or not. The Article and its language clearly point to aggressive designs of a nation and does not concern itself with self-defense otherwise it would have mentioned it explicitly. Infact even the broadest of explanation provided to Article 2(4) cannot have it include self-defense within the meaning of ‘threats or use of force’. We cannot link the said Article to Article 51 and declare that Article 51 is the exception to the set rule that all forms of force are now Illegal since, as discussed in Chapter 1, the history of Article 51 includes the customary law of war and if it includes customary law of war then we can safely assume that the framers did not mean to include all forms of ‘force’ in Article 2(4) just like Article 51 which does not include all forms of self-defense. However, that does not mean that the right of self-defense is an unregulated right and can be used to abuse military power and as a pretext to launch large scale invasions.

As I discussed above that if Article 51 was read as the sole governing law in Law of War then it is simply too vague as it does not answer many questions most notably being the question related to the caliber and proportionality of the response. For this we look into customary law and have to accept that Article 51 is not restrictive and even if our objective is to declare the law of self-defense to be restrictive, we must look into the expansionist explanation of Article 51. Let us look into the law of reprisal for this.

In the preamble to the General Assembly Resolution 2625[2], the General Assembly confirmed the principle that States shall refrain in their international relations from the threat or use of force. States have a duty to refrain from acts of reprisals involving the use of force. The provisions of the UN Charter relating to the peaceful settlement of disputes and non-resort to the use of force are universally regarded as prohibiting reprisals that involve the use of force. This shows that while the definition under Article 51 is expansive however it is not absent limitations and these limitations curtail the abuse of the law of self-defense. Reprisals are acts adopted by one State in retaliation for the commission of an earlier illegal act by another State. Reprisals are unlawful acts that become lawful self-defense in that they constitute a reaction to an illegal act by another State. If the State against which reprisals are taken had not in fact breached international rules, the State resorting to reprisals can be held responsible for a violation of international law. This can be well understood from the following case.

The Special Arbitral Tribunal in the Naulilaa Case determined the notion of reprisals. The origin was the killing of two German officers in the Portuguese post of Naulilaa. German troops were sent to destroy Portuguese posts and kill Portuguese soldiers as a reprisal. The Special Arbitral Tribunal determined in 1928 that reprisals comprise acts that would normally be illegal but are rendered lawful by the fact that they constitute a reaction to an international delinquency. They must be ´limited by consideration of humanity and the rules of good faith applicable in the relations between States`. They must not be excessive, although they need not to be strictly proportionate to the offence. They must be preceded by a request for a peaceful settlement and ´seek to impose on the offending State reparation for the offence, the return to legality and the avoidance of new offences`. The Tribunal held that Germany had violated international law since the killing of the German officers was not a willful incident. The Germans had not requested for a peaceful settlement and the force used, was excessive and not proportionate. This customary law governs the law of reprisal and here we can see that not only was the nature of self-defense supposed to be proportional but also must follow attempts for a peaceful settlement and it is from this governing customary law that we can form limitations to anticipatory strike as the strike must be proportional to the threat meaning that evidence of mere cross border raid cannot be justified with a massive air strike. In the case above, we also witnessed that the International tribunal held that the German reprisal was not justified since the action was not willful and the same principle can be applied to the anticipatory strike that there must be willful action that mandates a strike and it cannot be done based on apprehension or absent proper evidence to display the guilty mind of the party. It must be done under assured circumstanced where the strike to happen is eminent and there exists no other method but to make this proportional anticipatory strike to save itself from destructive damage. Arguing deeper on the terms of destructive damage I would go further to highlight the conditions where anticipatory strike is used as a justification.. and jurists have condoned anticipatory strike on a few conditions and when we peruse these conditions then we can understand that this customary law places chains on the concept of anticipatory strike and sets preconditions which must be met thus making sure that the right of anticipatory defense is not abused to launch large scale military adventures that can threaten the world peace and bring forth devastation.

There is a lot of debate on this condition but it shall be mentioned here since the UN has entertained the idea of such in terms of anticipatory strike.

In similar vein, the Atomic Energy Commission suggested in its First Report in December 1946 that preparation for atomic warfare in breach of a multilateral treaty or convention would, in view of the devastating power of the weapon, have to be treated as an "armed attack" within Article 51 of the U.N. Charter. [3]

More specifically, the AEC made the following recommendations to the Security Council about the control of nuclear energy and nuclear weapons:

"The development and use of atomic energy are not essentially matters of domestic concern of the individual nations, but rather have predominantly international implications and repercussions….effective system for the control of atomic energy must be international, and must be established by an enforceable multilateral treaty or convention which in turn must be administered and operated by an international organ or agency within the United Nations.”

Whenever a state violates the terms of this multilateral treaty or convention, the AEC stated that

"it should.., be borne in mind that a violation might be so grave a character as to give rise to the inherent right of self-defense recognized in Article 51 of the Charter of the United Nations."

This statement implies that the AEC recognized a right of anticipatory self-defense when faced with an imminent nuclear strike. The representative of the United States made the importance of self-defense clear in a memorandum, submitted in response to a request of the Chairman of the AEC. The memorandum read that it is impossible to treat atomic energy and atomic weapons without reference to Article 51 of the U.N. Charter. According to the representative of the United States, it was clear that an armed attack under Article 51:

“is now something entirely different from what it was prior to the discovery of atomic weapons. It would therefore seem to be both important and appropriate under present conditions that the treaty define 'armed attack' in a manner appropriate to atomic weapons and include in the definition not simply the actual dropping of an atomic bomb, but also certain steps in themselves preliminary to such action.”[4]

This very clearly shows that the devastation caused by a nuclear attack was well understood to be an international concern and it is justified for a nation to immediately take preventive measures to make sure the strike does not happen.

Moving to the second condition which is also home to variant opinion is whether anticipatory strike can be utilized when the UN mandate fails to deter the hostile nation or simply does not function or fails to function in accordance with its responsibilities in the UN charter. What option would a state have which is about to face military hostility and all diplomatic avenues have been utilized and fails. Here we are talking about the breakdown of International norms. It has been argued that when there exists obstruction or delayed or inadequate UN response then self-defense and with it anticipatory strike cannot be curtailed and the state made to wait to satisfy vague Articles of International Law. The precondition for such is that the state, about to face military hostility has utilized all doors of diplomacy and has warned that continuance of such an action would result in a military backlash. The hostile state continues its militaristic design which, without a shadow of a doubt, are meant to military attack the nation in question. In face of indolence, jurists have argued that inherent rights can be used.

Third condition is when there is an absolute necessity to undertake an anticipatory strike. The state threatened with an imminent attack must not, in the particular circumstances, have had any means of halting the attack other than recourse to armed force. There must be clear and present danger of an imminent attack, and not mere general preparations by the enemy. If a state "had been able to achieve the same result by measures not involving the use of armed force, it would have no justification for adopting conduct which contravened the general prohibition against the use of armed force."[5] The decision to use force in anticipatory self-defense is generally a conditioned reflex to stress and in international law the Arab-Israeli war of 1967 is perhaps the best case study for this which as I mentioned in the Article is used as the best modern example for the International custom of anticipatory strike and may have played the largest role for the legalization of anticipatory strike.



To be continued
 

Saiyan0321

Contributor
Moderator
Think Tank Analyst
Messages
1,209
Reactions
100 1,891
Nation of residence
Pakistan
Nation of origin
Pakistan
With the above we can understand what anticipatory strike is and what conditions are needed for its legalization. Paranoid doctrine is different. Anticipatory strike doctrine is related to the Paranoid doctrine but both are their own legal doctrines. Whereas anticipatory strike deals with Initial military strike against an absolute imminent threat, Paranoid doctrine is not just merely the custom of legal justification of initial military strike but the disregard of settled international law such as occupations, annexations, surgical strikes against targets, open political and military interference in state affairs and intervention for creation of pliable regimes in perceived hostile states by the paranoid state and human rights violations. It is the form of internal and external policy to internationally justify a siege mentality. International Law does not cover just relationships between state but also between the state and the people where we get the vast international humanitarian law and paranoid doctrine is applicable here as well where the siege mentality, the paranoia of the state is used to justify human rights violations by the violating state and the international community. Israel is used as an example in the article because it is a great case study as it has, since 1948 justified repeated violations of international law through a perception of hostility that finds no other example in conflict doctrines, even within the evolving anticipatory doctrines and this was not only accepted but supported by the International Community. That itself allows it to become a new custom. As I said, Like the 1967 Arab-Israeli war Operation Focus has played a very important role in the evolution of modern anticipatory defense, it is not the sole case study of anticipatory defense. There are other cases available to study as well and similarly the paranoid doctrine is not limited to Israel although Israel has played the most role in its evolution, yet there are other cases as well where states have used paranoia as a justification for their illegal actions and have received acceptance for their actions. This becomes even more expansive in a bipolar world where states find more allies for their illegal actions. One such case study is Russia and their recent hostile actions in Ukraine and eastern Europe. Another example is the Arab military intervention in Yemen and arm support to terror groups in Syria and Iraq to decrease Iranian influence. Another case study is Pakistan. Pakistan has committed multiple human rights violations which were either ignored or given accepted. To usman’s question of relationship between an occupier and occupied, Pakistan is a good case study. Pakistan is a good case study and india is a good case study for the happenings of the future in such terms. Pakistan took control of Kashmir by the end of 1948 after the first Kashmir war and it divided the region into two areas. The Azad Kashmir and the Gilgit Baltistan and since that day, it has ran the functions of those areas in a colonial fashion. We can agree that Colonialism is illegal in International Law and occupying a region and placing your own guards and your own warden and your own laws without consulting the local population is the definition of colonialism and any form of protest or rebellion is crushed in a brutal fashion. Azad Kashmir was no different. Its founding father Sardar Ibrahim fought a year long conflict with Pakistan and the result was that Pakistan burned down areas of Rawalakot and Poonch and passed legislation from Islamabad that basically made it a security state and we haven’t even touched what Pakistan did in Gilgit Baltistan in the 70s as it removed all legislations barring non-locals from purchasing property allowing many individuals to purchase property in GB, creating and supporting a strong sunni non-local base against the largely Shia local population. The world knew but remained silent and allowed Pakistan to do what it wanted because a paranoid Pakistan, fearing Iranian revolution and anti-Pakistan influence in a sensitive location that is considered as its red line, simply because it is paranoid and considers Kashmir as the red line. India has started to follow suit at a grander scale at the valley as it has resorted to brutal occupation in the vale with human rights violations and looking to legalize settler occupation into the vale and the world remains silent and if we take a further view, we can see that India has actually started expanding its foreign policy on the paranoid doctrine based on power politics both internally and externally. It has repeatedly looked to project power among its neighbors, it has started highlight to its domestic population as well as the international world that it is under a siege by the actions of its neighbors and its power projection, even violation of territorial sovereignty as justified action against hostility. The difference between the Israeli case study and the Indian case study is that unlike Israel, Indian neighbors are militarily strong and nuclear nations. It cannot break as many inter state international laws as it would like to break but the way India is shaping itself, if this power disparity comes to a greater level then we cannot discount a greater military and power projection. For now, it is setting the ground for other violations and looking to justify them within the paranoia. Lets take further example of Pakistan. Pakistan’s insane obsession of not fighting a two front war on its eastern and western border has seen it repeatedly intervene in the affairs of another nation to such an extent that at the time of its civil war, it has sent its military officials into said country because once again the country was displaying its paranoia of India and weakened state unity and declared it as its red line. After for 60 years it committed overt and covert support to groups that destabilized another country and allies of Pakistan, barely penalized it for what could be considered as one of the most heinous policy actions of the modern world. For 60 years you destroyed the very fabric of a country and radicalized your own because you feared that India would push you to a two front war. Like Operation chengiz Khan of 1971 is a case study for anticipatory defense but not its evolvers, so is the aforementioned case studies for paranoid doctrine.

Since I am giving these examples, I will come to the question of Kantian Universalism which will also contain two answers to the questions whether American exceptionalism principle can be applied here and whether it could be used in inter state relations in terms of this. So first of all Kantian Universalism is a very vast topic in itself and its implementation as a moral law in social norm is up for debate but I am guessing what kalyan meant it as its definition where one should "act only in accordance with that maxim through which you can at the same time will that it become a universal law.” meaning that if you do an action, then everyone else should also be able to do it.

Now we know that there is no International Body that passes International Law. We don’t have a International Parliament. So we have sources of Law with Primary sources being International Customs and Treaties aka the accepted actions committed by states or between states and then we have secondary sources such as decisions of the ICJ or the writings of Jurists… So it can be determined that if an act is given International acceptance, whether explicit or tacit, then it becomes Custom as it is recognized a legal principle. International Law is unique in this sense from municipal law since in municipal law you have a parliamentary security to declare something as legal or illegal thus if a custom in a society has to be removed, then parliament can remove it even if said custom is the principle norm within the population whereas International Law does not have that security of the parliament. It is unique because it is a legal system that determines its legal principles from the actions of the nation states. Dejure recognition of territorial sovereignty is a great example of a legal system formed from the agreement of states. Non-refoulment principle of humanitarian law is another example of it an act becoming international based on agreement of nation states. In its uniqueness, it is one of the rare legal systems where juristic writings could be presented as a source of law. So this is how International Law functions.

Now going with the Israel case study, can the Paranoia be determined as Israeli exceptionalism? Now the Bush Doctrine was the Intervention into Iraq and Afghanistan and previously the anticipatory strike principle was utilized through the principle lens of the Caroline doctrine which was given the modern evolution through Operation Focus. So for better understanding brief summary of the caroline doctrine During the 1837 Canadian insurrection, rebels made preparations in U.S. territory for subversive action against the British Authorities. In particular, rebels looted a U.S. arsenal in Buffalo to obtain arms. The United States acted properly in taking measures against the organization of armed forces upon its soil so that no breach of duty could be alleged against its authorities. However, the steamer Caroline was reinforcing and provisioning the rebels in Upper Canada from ports in the United States. While the vessel was anchored on the United States' side of the border of the Niagara River, an armed band under the command of a British officer crossed the river, set fire to the vessel, and cut it loose to float over the Niagara Falls. The United States was understandably upset that the British raided and destroyed an American ship in U.S. territory. In response to American protests, Great Britain offered self-defense as a justification for the destruction of the vessel. There was a lot of political and legal back forth but all in all, the Caroline incident became the legal doctrine for anticipatory strike and is considered as an important legal doctrine for the expansionist school of thought. The US did not support the rebels and acted against them and the individuals on Caroline were Americans and the British conceded, after a few years, that they should have offered the US an apology and some form of explanation. The doctrine itself created limitations as can be seen above in the words of the secretary of the state on how the threat should be immediate, overwhelming and left no time for deliberation. International courts have utilized these limitations when discussing anticipatory strike. Moreover, the preconditions set in the Caroline case have been extended to the right of self-defense in general, which is quite logical, as the right of anticipatory self-defense is only a form of the more general customary right of self-defense, and the conditions for the application of both rights have to be more or less the same.

Roberto Ago came to a similar conclusion as Secretary of State Daniel Webster when he wrote that the essential preconditions of "self-defense in general" are "necessity," "proportionality" and "immediacy."' These principles are moreover followed by the ICJ, when it held that

"There is a specific rule whereby self-defense would warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule well established in customary international law.”[6]

However, it seems reasonable to add two more conditions: first, an act of anticipatory self-defense will only be justified if the U.N. Security Council has not yet been able to take affirmative action, and second, the state against which the right of anticipatory self-defense is being exercised has to be in breach of international law. This was the caroline doctrine. The Bush doctrine was different legally and this is where it differs The Bush doctrine is covered under the law of precautionary self-defense which is perhaps the broadest interpretation of anticipatory defense. Precautionary self-defense (rünnaku ohtu välistav enesekaitse) is to denote an allegedly legitimate use of armed force which responds only to a possible danger of armed attack while there is no further data on the attack whether that attack is imminent or ‘leaves no space for deliberation’ is of no concern within this doctrine. According to Michael Byers, such a right of use of armed force was referred to in the George W. Bush Doctrine of preemptive self-defense which also departed from the rather broad criteria of the Caroline Case into an even broader category of self-defense. As Byers notes, Bush did not speak in favor of self-defense preventing the attack (preventive self-defense) but of self-defense preventing the danger of attack (precautionary self-defense), a solution which differs radically from the existing interpretations of law.[7]

The history of the Bush doctrine is based on two military invasions on the basis of a form of threat. The invasions of Iraq and Afghanistan, resulting in the deaths of countless can be considered as utilizing the laws of self-defense by leaving the principles set by the Caroline doctrine and the inherent laws of Article 51. Indeed considering the nature of the retaliation in Afghanistan to the 9/11 attacks and the invasion of Iraq, it would not be inaccurate to state that the Bush doctrine utilized principles of olden days when empires would embark on disproportionate (in relation to the incidents used to justify wars[8]) invasions and occupations.

Now American exceptionalism with the bush doctrine comes that it is the prerogative of America as defender of International Law and Human rights and Democracy to partake in invasions to defend the aforementioned. It was highlighted by Bush repeatedly in his speeches and was further made part of national security policy United States, National Security Strategy of the United States of America, Chapter V (September 2002) and was further given credence in the research by Nicholar J wheeler in 2004 where he argued that the Bush Doctrine does not wish to alter the anticipatory defense doctrine but is a separate doctrine within American exceptionalism and this is a very good example on how, despite claims, of it being an exception, it did not become one. Bush doctrine legalized further evolved the defense doctrine which was later abused by nations to provide legal justifications for illegal actions. Balakot Strikes are an example of this and the fact that Pakistan did not try to rally the International Community against India for violating its sovereignty for a military strike gives credence to the evolved doctrine and the tacit approval of the world to not take India to task for such violations is another approval to the evolved doctrine. The bush doctrine, no matter how much exceptionalism is claimed, it had an impact on anticipatory defense similarly Israeli exceptionalism can be claimed or even announced but that holds little water because we saw with the impact of the bush doctrine on anticipatory defense, we can deduce that exceptionalism cannot curtail the formation or evolution of international doctrines. Nation states can and will use the precedents to justify their actions and in a multi-polar or bipolar world, this becomes even more complicated because you can always find allies forming a community and giving your actions further justification. Similarly the justification of Israeli actions based on Paranoia or siege mentality by the International community can form its own custom or doctrine and further events within the world can help it evolve as I am sure we will see within 30-50 years as many states will shift their policies to a more paranoid state to justify the breaking of International Law. India and Russia will be a great studies for the future. Israel as well because what is happening is that it will further enhance the Paranoia Doctrine and will pave the way for other nation states to determine what is allowed if it can get an International Community to support it which is again very important in a bipolar or multipolar world. Pakistan as well because we can research the case study of Paranoid Doctrine concerning a state where the paranoia remains but it no longer has that international community acceptance. So we can determine that exceptionalism principle is not applicable in International Law and the actions approved by the International Community cannot be hindered from becoming a Custom.

Lastly we have the question on whether the Paranoid Doctrine can be used between Inter-state relations. Yes it can and it has been used as I defined that the Paranoid Doctrine is International Acceptance of the justification provided by a Paranoid State regarding its Illegal actions against Perceived Hostility and it puts away doctrines of equivalent response, imminent danger, valid evidence, human law etc etc. This can be used as a relationship between state and Israel has used it repeatedly not just between states but between third party states as well. Pakistan is an example here as well. The Arab Nations Relations with Pakistan through the lens of Iran is another example and as time goes by, States which will look to bypass International Law and justify their display of power, will utilize the Paranoid doctrine within the example of Israel as well as other case studies, as inter-state and intra-state relations so there can be no doubt that we will see more evolution in the future of this doctrine which will not help the global security at all.


So I hope this was a satisfactory answer to the queries of both Kalyan and Usman. Please forgive any grammar mistakes. I think I have written in great detail about anticipatory defense but since most of the questions related to anticipatory defense, I felt I needed to explain it thoroughly to highlight the differences



[1] Plan R4 was the allied plan to invade Sweden and Norway to seize the iron ore mines to starve German military industry and flank the Eastern offensive and block the German navy. The plan was preceded with multiple diplomatic notes which threatened both countries if they didn’t cease providing Germany the ore and aid the allied in whatever way possible.
[2] UN General Assembly Resolution 2625 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, UN Doc. A/5217 at 121, 24 October 1970
[3] The international control of atomic energy: the first report of the United Nations atomic energy commission to the Security Council 19 (u.s. & u.n. report series no. 8, 1946).
[4] The First Report of the Atomic Energy Commission to the Security Council, U.N. SCOR, 2d Sess., Special Supp., Annex 4, at 109-10, U.N. Doc. 5/Supplements (1946).
[5] DINSTEIN, (stating that the defending state should be certain that negotiating a reasonable
settlement is not possible before resorting to war).
[6] Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, 94 (June 27).
[7] “Bush made no suggestion of waiting for a “necessity of self-defense” that is “instant, overwhelming, leaving no choice of means, and no moment for deliberation.” He was advocating precautionary rather than preemptive self-defense – on its face a radical departure from any understanding of the pre-existing law.” Michael Byers, “Preemptive Self-Defense: Hegemony, Equality and Strategies of Legal Change”, 11 The Journal of Political Philosophy (2003)
[8] Notable examples include the Mongol invasion of the Khwarazm Empire when the Shah broke the peace treaty by killing the trade caravan of Genghis and then the killing of three of his diplomats. What resulted was a two year conflict which left millions dead. More modern examples would include the invasion by Austro-Hungarian Empire by attacking Serbia for its mere refusal of a single Austro-Hungarian demand whilst accepting the rest. While the justification was self-defense, the reason was to make sure the Serbian state would be no threat to the integrity of the empire which was home to a sizeable Serbian population.
 

Saiyan0321

Contributor
Moderator
Think Tank Analyst
Messages
1,209
Reactions
100 1,891
Nation of residence
Pakistan
Nation of origin
Pakistan
I am think of writing something on the bush doctrine as well so i may post some initial drafts here to put some info out there. :D
 

Nilgiri

Experienced member
Moderator
Aviation Specialist
Messages
9,450
Reactions
107 19,157
Nation of residence
Canada
Nation of origin
India

The Paranoid Doctrine​


The term paranoid defines an individual psyche wherein the individual is suspicious of other’s intentions, often finding oneself in a siege mentality - with the thought that everybody is out to inflict harm and that everything must be done within their power to deter such an attempt. Modern nation-states are no different, as they often exhibit a mindset corresponding to the national psyche. Whether this corresponding phenomenon happens because the state warps the mind of the individual to its psyche or vice versa is irrelevant.

As I mentioned in my article “A Less Secure World,” international precedents forming international customs have the largest impact on international law. The accepted actions of the state by the international community, and their lack of punishment for said actions cement those actions as legal international law, which could then be used by other states to justify their actions. One such case study is Israel, which was established on the 14th of May 1948 within the British Mandate of Palestine, with the region supposed to be divided into the Arab state and the Jewish state. The next day began the Arab-Israeli war, with Israel capturing 60% of the newly divided territory of the Arab State.

What began from there was a country that exhibited extreme paranoia as it repeatedly aired its fears of aggression from its Muslim neighbors, and thus used this paranoia to not only justify a military buildup, but also annex regions that were not allotted to it within the partition plan. The international community not only ignored this paranoia, but also enhanced it by supporting the Israeli government in expanding this narrative - giving it support to become militarily aggressive. This was exhibited when Israeli Prime Minister Ben-Gurion ordered military operations into sovereign neighboring nations in retaliation to terror attacks absent any restraint or negotiation, a paranoid and aggressive posture of power politics even by the relatively lax standards of the the pre-modern era. In his own words, “…. We do not have power to ensure that the water pipe lines won't be exploded or that the trees won't be uprooted. We do not have the power to prevent the murders of orchard workers or families while they are asleep, but we have the power to set a high price for our blood, a price which would be too high for the Arab communities, the Arab armies and the Arab governments to bear…”


UN Truce Observers such as Lt-Gen E. L. M. Burns criticized this policy as extremely provocative, but the world acquiesced. This was further displayed when an Israeli armored thrust, supported by France and the British occupied Sinai, a territory three times the size of the country for five months. It would annex said territory for 15 years after the Six-Day War of 1967 till the Egyptian Army fought a war in 1973 for the return of the territory. The world did not condemn this abhorrent action, but defended it as justified against hostile neighbors whose territory Israel was violating repeatedly. The paranoia of the state went one step further when Israel launched a massive military strike against Egyptian, Syrian, Jordanian and Iraqi airfields as a pre-emptive attack, thus cementing another militarily aggressive international custom called the pre-emptive doctrine, which would go on to deteriorate the security of the world.

Rather than condemning Israel for taking such a military offensive absent any attempted negotiation, deescalation or absolute provocation, the world defended these actions and cemented that a siege mindset is justification for hostile and provocative operations. The victory in the Six-Day War was hailed by the international community and the losing nations were condemned as the aggressors. This support for the paranoid narrative that Israel received allowed said paranoia to grow and for it to become even more hostile as it repeatedly violated the sovereignty of its neighbors through raids in Karameh, repeated raids into Egyptian territory in the Gulf of Suez, raids into Egypt and then outright invasions into Lebanon among other violations. All these actions received little international condemnation and were often supported by the international community as justified legal customs.

If a state functions in a siege mentality, exhibiting a paranoid mindset and using such paranoia as justification for their actions, then the acceptance of these actions will create a precedent and at this point, it is clear that the mollycoddling of Israel and the constant justification for its illegal actions have formed a legal doctrine that stems from paranoia and affirmed that for a state, it is justified to showcase aggressive military hostility if such state feels that it is under a state of siege by its neighbors. Russian invasions into Crimea and Ukraine are another example of the Paranoid Doctrine, where Russia annexed sovereign territories and invaded a sovereign nation to mitigate NATO influence.


Israel has used this doctrine repeatedly to justify their actions and as the international community provided Israel with this international custom, emboldened, the state further started committing excesses against civilians, treating them as military targets. What is currently happening in Gaza is the culmination of this doctrine. The genocide where a conservative estimate places 20,000 dead and more than 37,000 injured being committed by a paranoid state that feels it must display absolute horror to deter any action is the crowning moment of the Paranoid Doctrine. A paranoid state can now partake in such genocide and use the Israeli case study as its international defense.

There is no doubt that we are standing at the crossroads of international law and the path the world will take will determine the birth of new doctrines. The Paranoid Doctrine being cemented as an international custom is just one of those instances. As Russia batters Ukraine, Israel commits genocide in Gaza and the Arab Nations bomb Yemen, it is clear that paranoia is being used to justify extreme military actions to violate the sovereignty of nations with the Western nations watching helplessly. They can’t mobilize nor take action since the excuses used by these nations were previously used by the West and their allies.

The international community cannot allow this to go unchecked any longer. It must stand together and condemn the Israeli actions in Gaza and penalize the state for its military response to highlight that paranoia is no longer an excuse to violate and subvert international humanitarian law. The line must be drawn from here and extended further so that such aggressive doctrines find no place in international law.

A colleague of mine stated that international law is dead with the invasion of Gaza. I responded, “No. what is happening in Gaza is the culmination of the doctrine and customs supported by the international community. It is the ugly side of international law.”


The article received two comments from indians who were pissed. 🥳🥳


This was an article i had written on the formation of a new doctrine which i fear will slowly become a tool in international law. To further explain this doctrine, i am writing a research and also wrote an explanatory note for some of my friends to answer their questions.

Answer to the following questions

Will this doctrine apply to all countries? Can Kantian Universalism apply here or can it be an example of exceptionalism?

The Doctrine relationship to Pre-emptive Defense and whether they are synonymous or not?

Israel is claiming defense against an entity it has illegally occupied? Do guards of an illegal prison have a right to defend themselves against the prisoners who are not there because of due process? Can this relationship between occupier and occupied be used as precedent for interstate relations or conflict?


Hmmm These are very important questions to answer and I will try to answer each the best I could.

I will start with the Pre-emptive doctrine and then work on the first and second question due to their similarity aka can it be used as a precedent between conflict or as interstate relations or is there a form of exceptionalism applying here?

So first of how this doctrine differs from the Pre-emptive defense. The doctrine highlights the international custom of providing legal justification to established illegal actions committed by a state who assert that they are in a state of constant siege against a perceived threat. Rather than the state being penalized for such actions, justifications are provided and explicit and implicit acceptance is given to the actions of the state.

Pre-emptive defense doctrine also known as anticipatory strike is the military combatting doctrine where a pre-emptive action is declared as legally justified against another nation when said nation has mobilized its military force to strike against the striking nation. Now pre-emptive doctrine defines this moment to be imminent meaning that a state cannot, in a state of paranoia simply start striking all its neighbors simply because there is some buildup on the border. There must be proper evidence that a military operation was about to be undertaken and there was no other option available. I will go a little more deeper into this to better explain the Anticipatory strike doctrine. This way, we can understand the difference between the two doctrines.

ANTICIPATORY DOCTRINE

There are two schools that argue on whether Article 51 of the UN Charter actually contains provisions for anticipatory strike. The restrictive school and the expansionist school. We will discuss both these schools in detail in the coming chapter. The expansionist school argues that the Article actually contains provisions for anticipatory strike and they utilize a broader interpretation. In analyzing the concept of anticipatory self-defense under Article 51 it is important to remember the provision of Article 31(1) of the 1969 Vienna Convention on the Law of Treaties:

"A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”

In interpreting the provision of Article 51 of the UN Charter we must look at it from the whole perspective of the treaty. In perspective, Article 51 is tied to Article 2(4) which states that:

"All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations."

Article 2(4) creates a total ban on the threat or use of force in inter-state relations. States cannot use force or the threat of force to settle their disputes. However, the question to study is whether the provisions in Article 2(4) creates a blanket ban on military conflict. In Chapter 1, we discussed on Article 51 is interpreted and cannot claim sole existence on Law of War and includes within itself the customary right of self-defense which means that when discussing the right of self-defense, the Article alone cannot be read in isolation. Article 2(4) does prohibit ‘threat or use of force’ but a careful reading helps us understand that the prohibition is not concerning self-defense or customary self-defense but solely concerning aggressive designs of nations against each other. To understand a law, we must look into the minds of the legislator and the environment where the law was passed. WWII had just ended, a major global conflict where ‘threat or use of force’ was used repeatedly for aggressive designs and while both sides partook in such for their own ends most notable being the Allied plans to invade Sweden and Norway in 1940[1], two neutral countries, and the German threats to South Eastern Europe. During this period, the global community was well aware that soon another conflict would arise and aggressive and expansionist designs had not ended in the world. It was also during this period, that the nations decided that war must be regulated and legalized. Article 2(4) which explains threat or use of force, cannot be used as a measure to determine whether it restricted self-defense or not. The Article and its language clearly point to aggressive designs of a nation and does not concern itself with self-defense otherwise it would have mentioned it explicitly. Infact even the broadest of explanation provided to Article 2(4) cannot have it include self-defense within the meaning of ‘threats or use of force’. We cannot link the said Article to Article 51 and declare that Article 51 is the exception to the set rule that all forms of force are now Illegal since, as discussed in Chapter 1, the history of Article 51 includes the customary law of war and if it includes customary law of war then we can safely assume that the framers did not mean to include all forms of ‘force’ in Article 2(4) just like Article 51 which does not include all forms of self-defense. However, that does not mean that the right of self-defense is an unregulated right and can be used to abuse military power and as a pretext to launch large scale invasions.

As I discussed above that if Article 51 was read as the sole governing law in Law of War then it is simply too vague as it does not answer many questions most notably being the question related to the caliber and proportionality of the response. For this we look into customary law and have to accept that Article 51 is not restrictive and even if our objective is to declare the law of self-defense to be restrictive, we must look into the expansionist explanation of Article 51. Let us look into the law of reprisal for this.

In the preamble to the General Assembly Resolution 2625[2], the General Assembly confirmed the principle that States shall refrain in their international relations from the threat or use of force. States have a duty to refrain from acts of reprisals involving the use of force. The provisions of the UN Charter relating to the peaceful settlement of disputes and non-resort to the use of force are universally regarded as prohibiting reprisals that involve the use of force. This shows that while the definition under Article 51 is expansive however it is not absent limitations and these limitations curtail the abuse of the law of self-defense. Reprisals are acts adopted by one State in retaliation for the commission of an earlier illegal act by another State. Reprisals are unlawful acts that become lawful self-defense in that they constitute a reaction to an illegal act by another State. If the State against which reprisals are taken had not in fact breached international rules, the State resorting to reprisals can be held responsible for a violation of international law. This can be well understood from the following case.

The Special Arbitral Tribunal in the Naulilaa Case determined the notion of reprisals. The origin was the killing of two German officers in the Portuguese post of Naulilaa. German troops were sent to destroy Portuguese posts and kill Portuguese soldiers as a reprisal. The Special Arbitral Tribunal determined in 1928 that reprisals comprise acts that would normally be illegal but are rendered lawful by the fact that they constitute a reaction to an international delinquency. They must be ´limited by consideration of humanity and the rules of good faith applicable in the relations between States`. They must not be excessive, although they need not to be strictly proportionate to the offence. They must be preceded by a request for a peaceful settlement and ´seek to impose on the offending State reparation for the offence, the return to legality and the avoidance of new offences`. The Tribunal held that Germany had violated international law since the killing of the German officers was not a willful incident. The Germans had not requested for a peaceful settlement and the force used, was excessive and not proportionate. This customary law governs the law of reprisal and here we can see that not only was the nature of self-defense supposed to be proportional but also must follow attempts for a peaceful settlement and it is from this governing customary law that we can form limitations to anticipatory strike as the strike must be proportional to the threat meaning that evidence of mere cross border raid cannot be justified with a massive air strike. In the case above, we also witnessed that the International tribunal held that the German reprisal was not justified since the action was not willful and the same principle can be applied to the anticipatory strike that there must be willful action that mandates a strike and it cannot be done based on apprehension or absent proper evidence to display the guilty mind of the party. It must be done under assured circumstanced where the strike to happen is eminent and there exists no other method but to make this proportional anticipatory strike to save itself from destructive damage. Arguing deeper on the terms of destructive damage I would go further to highlight the conditions where anticipatory strike is used as a justification.. and jurists have condoned anticipatory strike on a few conditions and when we peruse these conditions then we can understand that this customary law places chains on the concept of anticipatory strike and sets preconditions which must be met thus making sure that the right of anticipatory defense is not abused to launch large scale military adventures that can threaten the world peace and bring forth devastation.

There is a lot of debate on this condition but it shall be mentioned here since the UN has entertained the idea of such in terms of anticipatory strike.

In similar vein, the Atomic Energy Commission suggested in its First Report in December 1946 that preparation for atomic warfare in breach of a multilateral treaty or convention would, in view of the devastating power of the weapon, have to be treated as an "armed attack" within Article 51 of the U.N. Charter. [3]

More specifically, the AEC made the following recommendations to the Security Council about the control of nuclear energy and nuclear weapons:

"The development and use of atomic energy are not essentially matters of domestic concern of the individual nations, but rather have predominantly international implications and repercussions….effective system for the control of atomic energy must be international, and must be established by an enforceable multilateral treaty or convention which in turn must be administered and operated by an international organ or agency within the United Nations.”

Whenever a state violates the terms of this multilateral treaty or convention, the AEC stated that

"it should.., be borne in mind that a violation might be so grave a character as to give rise to the inherent right of self-defense recognized in Article 51 of the Charter of the United Nations."

This statement implies that the AEC recognized a right of anticipatory self-defense when faced with an imminent nuclear strike. The representative of the United States made the importance of self-defense clear in a memorandum, submitted in response to a request of the Chairman of the AEC. The memorandum read that it is impossible to treat atomic energy and atomic weapons without reference to Article 51 of the U.N. Charter. According to the representative of the United States, it was clear that an armed attack under Article 51:

“is now something entirely different from what it was prior to the discovery of atomic weapons. It would therefore seem to be both important and appropriate under present conditions that the treaty define 'armed attack' in a manner appropriate to atomic weapons and include in the definition not simply the actual dropping of an atomic bomb, but also certain steps in themselves preliminary to such action.”[4]

This very clearly shows that the devastation caused by a nuclear attack was well understood to be an international concern and it is justified for a nation to immediately take preventive measures to make sure the strike does not happen.

Moving to the second condition which is also home to variant opinion is whether anticipatory strike can be utilized when the UN mandate fails to deter the hostile nation or simply does not function or fails to function in accordance with its responsibilities in the UN charter. What option would a state have which is about to face military hostility and all diplomatic avenues have been utilized and fails. Here we are talking about the breakdown of International norms. It has been argued that when there exists obstruction or delayed or inadequate UN response then self-defense and with it anticipatory strike cannot be curtailed and the state made to wait to satisfy vague Articles of International Law. The precondition for such is that the state, about to face military hostility has utilized all doors of diplomacy and has warned that continuance of such an action would result in a military backlash. The hostile state continues its militaristic design which, without a shadow of a doubt, are meant to military attack the nation in question. In face of indolence, jurists have argued that inherent rights can be used.

Third condition is when there is an absolute necessity to undertake an anticipatory strike. The state threatened with an imminent attack must not, in the particular circumstances, have had any means of halting the attack other than recourse to armed force. There must be clear and present danger of an imminent attack, and not mere general preparations by the enemy. If a state "had been able to achieve the same result by measures not involving the use of armed force, it would have no justification for adopting conduct which contravened the general prohibition against the use of armed force."[5] The decision to use force in anticipatory self-defense is generally a conditioned reflex to stress and in international law the Arab-Israeli war of 1967 is perhaps the best case study for this which as I mentioned in the Article is used as the best modern example for the International custom of anticipatory strike and may have played the largest role for the legalization of anticipatory strike.



To be continued

Putting a bookmark here and will get to some specific thoughts I have a bit later.
 

Saiyan0321

Contributor
Moderator
Think Tank Analyst
Messages
1,209
Reactions
100 1,891
Nation of residence
Pakistan
Nation of origin
Pakistan
Putting a bookmark here and will get to some specific thoughts I have a bit later.

Cool.

I am also holding a Law Seminar on Law of FIR in its practical application. Will try to post a video here if i can get a clear copy of it.

WhatsApp Image 2023-12-08 at 8.13.33 PM.jpeg
 

Fatman17

Committed member
Messages
280
Reactions
9 553
Nation of residence
Pakistan
Nation of origin
Pakistan
Lots of expert comments on Pakistan different trysts with democracy and communism and Islamic socialism but in the end the country is basically a Security State as the mil-establishment now controls everything overtly or covertly.
 

Fatman17

Committed member
Messages
280
Reactions
9 553
Nation of residence
Pakistan
Nation of origin
Pakistan
Take our new army chief. He wants to fix the economy and also use the army assets in agriculture production. Herein lies the problem. People doing other peoples jobs and ignoring their own.
 

Saiyan0321

Contributor
Moderator
Think Tank Analyst
Messages
1,209
Reactions
100 1,891
Nation of residence
Pakistan
Nation of origin
Pakistan
Lots of expert comments on Pakistan different trysts with democracy and communism and Islamic socialism but in the end the country is basically a Security State as the mil-establishment now controls everything overtly or covertly.
They have always controlled everything. There was never a period of time where control wasnt with them. It shifted from absolute control to semi-absolute but they always had control. They have always acted in such an arbitrary manner whenever they felt any semblance of control slipping. Imran was not the first and he will not be the last.
The hold and control of establishment in Pakistan is not just on the top sectors or politicians but the very social structure of Pakistan makes it that it can never leave the circle. The wheel is too perfect and it will either isolate or crush anybody that does not adhere to it.
Take our new army chief. He wants to fix the economy and also use the army assets in agriculture production. Herein lies the problem. People doing other peoples jobs and ignoring their own.
 

Saiyan0321

Contributor
Moderator
Think Tank Analyst
Messages
1,209
Reactions
100 1,891
Nation of residence
Pakistan
Nation of origin
Pakistan
Adding a note i had written on the Ukraine Crisis from the viewpoint of International View. The long article takes a different outlook to the crisis and points out how conscious weaknesses in International Law and deliberate deformation of the law has contributed to this crisis and it will bring more in the future.

The Ukraine crisis and the Russian invasion has raised many questions but none more so than the question as to why International Law was not able to act as a proper deterrent to stop the Russian Invasion of Ukraine? For the last 70+ years, the International Law has evolved in a drastic manner where we have seen states being assured that their Dejure recognition of territory means that no other state can annex their land nor can any breakaway state be so easily recognized and their territorial integrity shall always be secured. We saw the law of war improve to such length where aggressive designs were not only discouraged but often led to heavily penalization for aggressive states as war was simply not made profitable and the international response was made deadlier and deadlier with coalition armies often intervening against aggressive states and displaying that this world will not tolerate any expansionist designs. This came to such a fruition that powerful and proud nations fell and paid heavy price for their expansion or aggression. In 1979, USSR entered into Afghanistan and faced condemnation, sanctions and a hostile conflict where the aggressor was condemned and the victim supported and USSR found the international world hostile and the country isolated. A decade later, it would return defeated to a broken country that would eventually lose all. Its example was made to the world as a design that all that stand against the International Legal System would face such consequences as states would interfere to ensure stability and punish the aggressor. So what compelled a nation that witnessed such a hammer to, 50 years later, annex crimea, a sovereign part of another state and later on invade that very state and the world looks into this re-emergence of that very victim, we are left to wonder, what went wrong in this 50 years that the international world looks like a lawless landscape. Where the world is slowly turning towards might of a nation. Where the victim nation stands alone, finding only support in the commendation of its fight against an aggressor rather than in the security of the Law and the United Nations.





When the invasion started, it was interesting to note that the Russian diplomat refused to acknowledge the word “War” and stated that this entire conflict was a preventive measure against a would-be aggression aka a form of anticipatory strike or defense against military build-up which could be used for aggression and this reason is often used in legal history of anticipatory defense yet we have went from military strike in anticipation of an imminent to attack to a full fledge invasion. Where did the International Law go wrong and why did it fail to stop this invasion? The reason can be deduced from history of anticipatory defense. After WWII, it was becoming clear that aggressive expansions would bring the might of the world against you and annexations were simply not desirable and states participating in such exercise would be condemned however International Law is not Law as we experience it within the domains of our state since the municipal law is at the behest of a sovereign authority that has monopoly over violence and can use absolute authority to implement the law its legislative passes and if any individual goes on the contrary then said state, with its monopoly over violence, can use said violence against the rebelling individual. However International Law is the law of customs. Whilst it has existed for centuries, its modern form was largely interpreted to be based on the consenting existence of all nations and if acquiescence was found, then it is possible for an act to become custom and morph the very formation of the law itself and this is what has happened in with anticipatory defense and the hydra we are dealing with right now. IF we study the evolution of Law of Self-defense, then we can come to see that the UN authorities and jurists have condoned anticipatory strike on a few conditions

and when we peruse these conditions then we can understand that this customary law places chains on the concept of anticipatory strike and sets preconditions which must be met thus making sure that the right of anticipatory defense is not abused to launch large scale military adventures that can threaten the world peace and bring forth devastation

There is a lot of debate on this condition but it shall be mentioned here since the UN has entertained the idea of such in terms of anticipatory strike.

military technology is advancing rapidly and with the advent of nuclear bombs (Fat Man, the bomb dropped at Nagasaki was 21kt TNT whereas modern nuclear bombs average somewhere between 500kt to 2200kt), it is perfectly understandable that no state wishes to be annihilated simply to utilize the right of self-defense. That is not only absurd but downright foolish. In similar vein, the Atomic Energy Commission suggested in its First Report in December 1946 that preparation for atomic warfare in breach of a multilateral treaty or convention would, in view of the devastating power of the weapon, have to be treated as an "armed attack" within Article 51 of the U.N. Charter.

More specifically, the AEC made the following recommendations to the Security Council about the control of nuclear energy and nuclear weapons:

"The development and use of atomic energy are not essentially matters of domestic concern of the individual nations, but rather have predominantly international implications and repercussions….effective system for the control of atomic energy must be international, and must be established by an enforceable multilateral treaty or convention which in turn must be administered and operated by an international organ or agency within the United Nations.”

Whenever a state violates the terms of this multilateral treaty or convention, the AEC stated that

"it should.., be borne in mind that a violation might be so grave a character as to give rise to the inherent right of self-defense recognized in Article 51 of the Charter of the United Nations."

This statement implies that the AEC recognized a right of anticipatory self-defense when faced with an imminent nuclear strike. Moving to the second condition which is also home to variant opinion is whether anticipatory strike can be utilized when the UN mandate fails to deter the hostile nation or simply does not function or fails to function in accordance with its responsibilities in the UN charter. What option would a state have which is about to face military hostility and all diplomatic avenues have been utilized and fails. Here we are talking about the breakdown of International norms. It has been argued

that when there exists obstruction or delayed or inadequate UN response then self-defense and with it anticipatory strike cannot be curtailed and the state made to wait to satisfy vague Articles of International Law. The precondition for such is that the state, about to face military hostility has utilized all doors of diplomacy and has warned that continuance of such an action would result in a military backlash. The hostile state continues its militaristic design which, without a shadow of a doubt, are meant to military attack the nation in question. In face of indolence, jurists have argued that inherent rights can be used.

Third condition is when there is an absolute necessity to undertake an anticipatory strike. The state threatened with an imminent attack must not, in the particular circumstances, have had any means of halting the attack other than recourse to armed force. There must be clear and present danger of an imminent attack, and not mere general preparations by the enemy. If a state "had been able to achieve the same result by measures not involving the use of armed force, it would have no justification for adopting conduct which contravened the general prohibition against the use of armed force."

Fourth condition, which has been much argued in modern International Law, is conducting an anticipatory strike against terror organizations or terrorists while violating the host states sovereignty. This anticipatory strike is seen to be in anticipation of a terror attack that may happen if said strike is not conducted or the individual in target is so dangerous that such a strike is not only important but if not conducted then the figurehead could play an important role in future attacks. These are the conditions or chains that can be observed to be placed on anticipatory defense and it has been many times that anything beyond, even the fourth condition is also questionable in its own way, is aggressive. However, as I stated before that International law is the law of customs and acquiescence can make something a custom and hence an act that could be repeated or even enhanced upon. Some of the most recent changes have allowed this new form of defense to morph into offensive doctrine which has evolved to unmitigated offensive doctrine. Notable case studies include the targeting of General Soleimani, targeting of Osama Bin Laden in Abbottabad and numerous drone strikes by the United States in multiple countries. In all these cases, we saw the power violate the sovereignty of states and defended their action as anticipatory strike against future attacks. Many argued that if anticipatory strike, a very controversial part of law of self-defense, is mandated only when there is imminent danger of an attack to the country and can only be conducted when there exists no other avenue, then how a strike can be declared legal if it is based on the belief of a future attack. After all the same principle can be used between two hostile states like Pakistan and India, who can justify a crippling military strike on each other simply based on the eventuality of conflict that may happen. Even simple military buildups then can be used as a justification for an anticipatory strike if the reasoning

behind strikes against terror targets without state permission can be used as a justification. The UN supported the US in the Abbottabad raid thus setting a precedent that the sovereignty of the state could be besmirched to target a high profile target and the same could be interpreted to justify the targeting of terror groups as they pose a similar level of threats. In face of such, the UN expert argument against the Soleimani strike, thus struggles in face of UN custom that the organization itself had condoned.

Jurists have argued that it expands the chained anticipatory strike to whole new proportions and can lead to military confrontations especially if such strikes happen between rival states.

It is absolutely clear that there exists a right to anticipatory strike and for better or worse, customary international law has validated anticipatory strike and made it part of both peacetime law and wartime law. The reason I mention peacetime is that there was no armed conflict ongoing in Pakistan in 2011 at a large scale and

Pakistan held sovereign control over the said territory where the strike was conducted. Pakistan, embarrassed by the incident, also did not press into the legality of the strike thus providing implied acquiescence which has only solidified the principle (Subsequent opposition based on vague declaration rather than specific condemnation and declaration of the legality of the strike, would create a bar on future strike but would still imply acquiescence). Precedents form customary law and while we argue where anticipatory strike begins and where it ends, precedents tell us that such and such is acceptable and these are the precedents that have created the legal conditions for Russia to invade Ukraine. I am not going to go deep into the history of the law itself as it will make this long post 10 times larger however I will highlight that International Law dealt with anticipatory defense very carefully containing the meaning of the doctrine and making sure that the law is not abused to initiate offensive wars and through this we witnessed with the Caroline Doctrine which governed this law since 1841 till 2001 wherein we discovered the birth of a new doctrine. The Bush Doctrine. The Bush doctrine is covered under the law of precautionary self-defense which is perhaps the broadest interpretation of anticipatory defense. Precautionary self-defense (rünnaku ohtu välistav enesekaitse) is to denote an allegedly legitimate use of armed force which responds only to a possible danger of armed attack while there is no further data on the attack whether that attack is imminent or ‘leaves no space for deliberation’ is of no concern within this doctrine. According to Michael Byers, such a right of use of armed force was referred to in the George W. Bush Doctrine of preemptive self-defense which also departed from the rather broad criteria of the Caroline Case into an even broader category of self-defense. As Byers notes, Bush did not speak in favor of self-defense preventing the attack (preventive self-defense) but of self-defense preventing the danger of attack (precautionary self-defense), a solution which differs radically from the existing interpretations of law.

The history of the Bush doctrine is based on two military invasions on the basis of a form of threat. The invasions of Iraq and Afghanistan, resulting in the deaths of countless can be considered as utilizing the laws of self-defense by leaving the principles set by the Caroline doctrine and the inherent laws of Article 51. Indeed considering the nature of the retaliation in Afghanistan to the 9/11 attacks and the invasion of Iraq, it would not be inaccurate to state that the Bush doctrine utilized principles of olden days when empires would embark on disproportionate (in relation to the incidents used to justify wars) invasions and occupations.

On 4th October, the British government released a study showing the close links between al Qaeda and the government of Afghanistan. Even though the US and the UK opted for the right of individual and collective self-defense, they cited its right to self-defense to the community of states and the UN before targeting Afghanistan. In a speech on 20 September 2001, President Bush requested every nation in every region to make a decision

´Either you are with us, or with the terrorists `.

This was the first time a state making a case for self-defense, threatened the world to either support their self-defense or become part of their anticipatory strike. This action itself should have raised many legal concerns but considering the charged atmosphere most states agreed that the countermeasures constituted by Operation Enduring Freedom, launched against Afghanistan on 7 October 2001, were in accordance with international law. The Bush doctrine was now officially implemented and rather than targeting the individual, or a proportionate response, the new doctrine followed a massive retaliation that resulted in a 20 year civil war with not end and over 220,000 dead with countless injured and millions displaced. This consensus was underlined by the governing body of NATO, the North Atlantic Council. On 12 September, the Council agreed that:

“…if it is determined that this attack was directed from abroad against the United States, it shall be regarded as an action covered by Article 5 of the Washington Treaty, which states that an armed attack against one or more of the Allies in Europe or North America shall be considered an attack against them all.”

An important thing to understand here is that the US did not take authorization for the invasion of Afghanistan and utilized Article 51 as its right to defense but it was done without UNSC consent. Infact there is ample evidence that the UNSC would have permitted the attack. During September, the Security Council adopted two Resolutions and condemned the terrorist attacks by the strongest. The Security Council would probably have permitted the use of force under UN Charter Chapter VII, as they expressed its ´readiness to take all necessary steps to respond to the terrorist attacks` in accordance with its responsibilities under the UN Charter. Another indication that they would have permitted the use of force is the decision for states to, inter alia, act preventive and deny safe havens to those who are involved with terrorism. Yet here is the difference. International Law and its norms clearly point that UNSC option must be exhausted before taking any action unless the threat is immediate and gives no space for deliberation. The US was under no such immediate threat. Now the important distinction here to understand is the impact this had on the Bush doctrine. An invasion not approved yet by the UN was now made part of the doctrine by holding even in absence of immediacy, a state can provide a disproportionate response in an act of self-defense and does not require the mandate of the UNSC thus relegating the UNSC as a powerless institution in the Law of War. If the US had waited for the approval of the UNSC, which was sure to be given, then the doctrine would have held that awaiting UNSC approval is central for the law of self-defense and the disproportionate response would have been justified as well since the approval of such was given the legal institution of the International community. The day after the military invasion of Afghanistan, the Security Council declared that ´the members of the Council were appreciative of the presentation made by the United States and the United Kingdom`.This would pave the way for another abuse of the law of self-defense and the solidification of the doctrine as one being of the bygone era rather than a legitimate legal doctrine that looks to provide evolution to the law of self-defense.

The invasion of Iraq in 2003 by the US and its coalition has its origin in the early '90s when Iraq invaded Kuwait on 2 August 1990. The Security Council adopted Resolution 660 where it condemned the invasion and regarded it as a breach of international peace and security. It demanded Iraq to withdraw all its forces and to negotiate with Kuwait. Despite all efforts by the UN, Iraq refused to comply with the obligation outlined in Resolution 660. The Security Council gave Iraq one final opportunity as a pause of goodwill, to comply fully with the previous resolutions. They also gave authority to Member States to use all necessary means to uphold and implement Resolution 660, if Iraq did not fully implemented its obligations before 15 January 1991. In April 1991, the Security Council was aware of the use by Iraq of ballistic missiles in unprovoked attacks and indications that Iraq had attempted to acquire materials for a nuclear weapons program. The Security Council decided that Iraq should, under international supervision, unconditionally accept the destruction, removal, or render harmless all chemical weapons, all stocks of agents and all related subsystems and components. All ballistic missiles with a range greater than 150 kilometers and related major parts, should also be destroyed. Because of Iraq`s non-compliance with earlier resolutions, the Security Council adopted Resolution 1441 on 8 November 2002 where they gave Iraq ‘a final opportunity to comply with its disarmaments obligations under relevant resolutions’.

Iraq was obliged to cooperate fully in every respect with UNMOVIC (United Nations Monitoring, Verification and Inspection Commission) and IAEA (International Atomic Energy Agency). UN inspectors were allowed to Iraq by Saddam Hussein in November 2002 to investigate alleged chemical and biological facilities, but did not find any weapons of mass destruction. The Security Council did not give any explicit authorization to use force, but the US President Bush interpreted Resolution 1441 to give authority to move without any second resolution. He also stated that the strategic view of the US changed after 11 September, now they had to ´deal with threats before they hurt the American people again` and would encompass absolute anticipatory war as part of the Bush doctrine. This was the negative impact of the UN supporting what was procedurally an illegal invasion in 2001 and the lack of condemnation began another conflict that would burn the entire region and would lead to the rise of terror groups like ISIS. Perhaps it is best understood in the speech the President of the United States delivered on 1st June 2002 where he announced to the graduating class of the United States Military Academy at West Point, and to the world at large, that his Government will continue the fight against threats of the security and will use pre-emptive war if necessary. President Bush said:

“For much of the last century, America's defense relied on the Cold War doctrines of deterrence and containment. In some cases, those strategies still apply. But new threats also require new thinking. Deterrence -- the promise of massive retaliation against nations -- means nothing against shadowy terrorist networks with no nation or citizens to defend. Containment is not possible when unbalanced dictators with weapons of mass destruction can deliver those weapons on missiles or secretly provide them to terrorist allies. We cannot defend America and our friends by hoping for the best. We cannot put our faith in the word of tyrants, who solemnly sign non-proliferation treaties, and then systemically break them. If we wait for threats to fully materialize, we will have waited too long. (…) Our security will require transforming the military you will lead -- a military that must be ready to strike at a moment's notice in any dark corner of the world. And our security will require all Americans to be forward-looking and resolute, to be ready for preemptive action when necessary to defend our liberty and to defend our lives.”

And with the following changes in National Security Strategy:

“For centuries, international law recognized that nations need not suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack. Legal scholars and international jurists often conditioned the legitimacy of preemption on the existence of an imminent threat—most often a visible mobilization of armies, navies, and air forces preparing to attack. We must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries. Rogue states and terrorists do not seek to attack us using conventional means. They know such attacks would fail. Instead, they rely on acts of terror and, potentially, the use of weapons of mass destruction—weapons that can be easily concealed, delivered covertly, and used without warning. The United States has long maintained the option of preemptive actions to counter a sufficient threat to our national security. The greater the threat, the greater is the risk of inaction-and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy`s attack. To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act pre-emptively. The United States will not use force in all cases to pre-empt emerging threats, nor should nations use pre-emption as a pretext for aggression. Yet in an age where the enemies of civilization openly and actively seek the world`s most destructive technologies, the United States cannot remain idle while dangers gather.”

The War in Iraq produced a new wave of criticism of the "Bush Doctrine". Some forwarded arguments that notions of self-defense and will to "help the Iraqi" people served as a cover-up for less noble operations to control the oil resources of Iraq, to consolidate the US domination of the Middle East by enlarging its military presence there, by enhancing security for Israel and all those goals cannot be considered as self-defense but aggressive designs of an imperialistic power. The position of the "Bush doctrine" among international law scholars was weakened also by the fact that the US failed to provide tangible empirical evidence that Iraq possessed weapons of mass destruction, thus that it posed an "imminent" threat to the US. Nevertheless, a number of jurists, while maintaining that military intervention in Iraq was wrong, argue that the use of force might have been justifiable if the US had proven these two facts beyond doubt. This viewpoint has been largely rejected by the majority of jurists who have held that even in the presence of nuclear weapons, there was no justification for the attack since anticipatory strike requires immediate threat leaving no room for deliberation. Ignoring UNSC is no justification for the invasion since even in the event of nuclear disarmament of a country. UN approval is an absolute necessity and this was discussed in Chapter 2 of Part I when the preconditions for anticipatory strike were discussed. UN mandate was needed irrespective of whether Iraq had Nuclear capability or not. Yet the invasion of Iraq happened and it was largely due to the UN inability to condemn the invasion of Afghanistan. The UN condemned the action but the Bush doctrine was now a part of the law of self-defense and although the "Bush doctrine" was mostly unwelcomed by the world community and international law specialists, it initiated political changes in the world, which could lead to a new era in the concept of anticipatory self-defense. Throughout history, the behavior of the powerful has exerted a major impact on whether prevailing international norms were permissive or restrictive. Thus, the Washington response to global terrorism has an enormous influence on the behavior of others most notably being the recent intervention by Saudi Arabia into Yemen which justified its action as being supported by the legitimate stakeholder in power (For Afghanistan it was the Northern Alliance) and to stop terror groups from attacking and thus utilized the Bush doctrine to create one of the worst humanitarian crisis in the modern world and conservatives and nationalists all over the world justify any action they take or wish to undertake through the destructive Bush doctrine. Even when discussing counter-insurgency, the Bush doctrine, promises to only create conditions for more military incidents.



Many jurists have highlighted that the constant meddling through the usage of the Bush Doctrine as well as the legal acquiescence of the 1967 doctrine (Annexation of lands by Israel) and the Begin doctrine (Israel strikes against nuclear installations which kick started strikes against military installments to weaken any military buildup). The operation was an attack on the Syrian Nuclear facility located at the Alkibar site on 6th September 2007. Prime Minister Ehud Olmert decided to adhere to the Begin doctrine and unilaterally, without international approval, decided to strike the facility. The attack was neither condemned by the International community nor was Israel penalized. Most notable was the synchronized silence of the Arab world that ignored the incident thus providing legitimacy to the Begin doctrine.

The IAEA's Mohamed ElBaradei criticized the raid, saying that

"To bomb first and then ask questions later...undermines the system and it doesn't lead to any solution to any suspicion."

President Bush, staying true to his own aggressive doctrine, held that Israel had the right to self-defense and if the nuclear program was for peaceful purpose then, “Syrian President Assad would have been screaming at the Israelis on the floor of the United Nations"

The lack of condemnation from the International Community and the UNSC not only strengthened the Israeli doctrine but also provided justification for other states to violate the sovereignty under the garb of self-defense, most notable example is the Turkish operations in Syria and Iraq and the creation of the buffer zone.

Whether you agree or not, these doctrines weakened the binding force of the International Law and the acquiescence of the nations made it customary law to now fight a war using anticipatory defense as a pretext. Jurists have been trying to highlight that the law of self-defense is perhaps the sharpest tool in the shed of nations to wage war against each other as they attack first and ask questions later and justify their actions. I would like to highlight ‘Micheal Glennon’ and his view on how this doctrine, which by all means should have diminished, has now become an integral part of the modern law of self-defense.

"Twenty-first-century security needs are different from those imagined at the founding of the United Nations.

First the intended safeguard against unlawful threats of force - a vigilant and muscular Security Council – never materialized....

Second, modem methods of intelligence collection, such as satellite imagery and communications intercepts, now make it unnecessary to sit out an actual armed attack to await convincing proof of a state's hostile intent.

Third, with the advent of weapons of mass destruction and their availability to international terrorists, the first blow can be devastating - far more devastating than the pinprick attacks on which the old rules were premised.

Fourth, terrorist organizations "of global reach" were unknown when Article 51 was drafted. To flourish, they need to conduct training, raise money, and develop and stockpile weaponry - which in turn requires communications equipment, camps, technology, staffing, and offices. All this requires a sanctuary, which only states can provide - and which only states can take away.

Fifth, the danger of catalytic war erupting from the use of pre-emptive force has lessened with the end of the Cold War. It made sense to hew to Article 51 during the [Cold War] .... It makes less sense today, when safe-haven states and terrorist organizations are not themselves possessed of pre-emptive capabilities.”


As highlighted by the respected jurist that the Security Council never truly evolved into a force that could be relied upon in a conflict. For most of the Cold Era, the Council found itself torn between two Superpowers locked in a conflict. The council would be balancing the interests of both sides and would face multiple instances where International Law was repeatedly disregarded for the political interest of the power in question. Most states wanted to deal with their own problems whereas others sought the refuge of the Right of Veto, held by powers. With the advent of modern weaponry and threats of nuclear annihilation, the concept of anticipatory strike has grown even more whereas some radicals have even argued that the state may not approach the UNSC for anticipatory strike lest the state preparing for an armed attack be made aware of and takes precautionary measures, diminishing the strike itself. While modern weaponry is indeed dangerous but it has also contributed to self-defense that does not demand a massive pre-emptive strike. The advancing technology in Anti-Ballistic Missile Systems promise survival of states in event of most surprise armed attacks and while the aforementioned highlights that the rise of satellite imagery, make it easy for the state to not wait for an armed attack, but it also creates an obligation for that said state to immediately take those pieces of evidence to the UN as proof of hostile designs. Using those proofs as a means to strike pre-emptively is the very act of flouting International Law. Furthermore, when discussing terrorist networks, it must be stated that the International Community must crackdown severely on states that house and support non-state actors and provide them shelter and support. The victim state should bring forth all evidence to the UN and the UNSC for them to take action which could range from crippling economic sanctions to be followed by all states lest their inaction be declared as support for a state supporter of terrorism, to a unified UN response against terror sanctuaries mandated and approved by the UN and the same only used as a last resort when all forms of diplomacy and non-violent actions have failed. This should promise to contain conflict around the world and allow for the UN to become a proper institution that could solve international issues and curtail individual actions of the state.

International Law evolves with the actions committed by states and if an illegal action takes place, and it is not properly condemned nor penalized then the same can become part of International Law through customary law thus it is imperative that the solution to modern growing conflicts and rising disregard for the law of self-defense, be immediately found through consensus and states be warned that if the same is disregarded then the International Community will take action.

Today we discuss the action of Putin but we fail to see how International Law was mutilated for self-interests which led to the conditions that right now, states after states are looking to their neighbors for expanding of borders and wondering whether military actions against such neighbors is justified, after all since the world has repeatedly supported such violations, then why should be not support the same violation once more. If the world truly wants to stand with Ukraine then it is for all Members of the UN to immediately condemn retrospective actions that were in contravention to International Law and declare that the doctrines formed from those actions are illegal. Through this, we can look to bring some balance to a law that has entered into a quagmire and looks to bring back the olden days of absolute conflict that the UN Charter looked to prohibit and then move against Russia to highlight that no nation, no matter what its stature, can be allowed to stand in contravention to International Law and if the same cannot be done then all we will accomplish is the absolute deformation of the International Law which will negatively impact the security of the world itself.
 

Saiyan0321

Contributor
Moderator
Think Tank Analyst
Messages
1,209
Reactions
100 1,891
Nation of residence
Pakistan
Nation of origin
Pakistan
Now in terms of government employees, one of the most common situations that some departmental employees find themselves facing is when the department takes an arbitrary action against such employee due to any criminal proceeding having been done against said employee. Often office politics plays an important role in this regard. It is important to note that there is a distinction in and accused and a convict. An accused is an individual who is named as having committed a crime by the complainant or the police and a convict is an individual against whom a conviction has been passed by a competent court of law. An accused has a chance to prove his innocence whereas a convict is an individual who is guilty. In Pakistan, the inherent concept is that filing of an F.I.R, first information report is the end of all proceedings and in a criminal case is considered as the last information report. Often any individual who is facing an FIR is deemed a convicted felon rather than an accused especially in the manner that governs Pakistan’s Law of FIR. Thus to protect individuals against unfair departmental proceedings, Pakistan law recognizes the exceptions to its principle of Mutual Exclusivity and set forth several elements to define how these exceptions to the doctrine will be implemented in departmental cases especially if the individual was acquitted of charges and how if an individual was declared innocent in a criminal case then the ongoing departmental proceedings would cease to exist.

Exceptions to the general principles is an important part of law and the doctrine of mutual exclusivity is no different. Perusal of various cases has shown that there exists three exceptions to the said principle.

  • That the departmental proceeding was solely based on the same charge as that of the criminal proceeding was. Acquittal in this case would void the proceedings.
  • That the departmental proceeding malafidely used the criminal proceeding.
  • That the acquittal was ‘honourable’.
  • That the court sees it to be within the ends of justice.
When we discuss acquittal, I would like to highlight that the courts have often utilized the general principle but have pointed out that an acquittal in the criminal proceeding should be considered in the departmental proceeding if that proceeding had contained the charge on whose basis the criminal proceeding had been formed.

To understand these exceptions, we must peruse the judgments of superior courts.

In the most recent case the court actually provided for the fourth exception where the court highlighted the general principle but pointed out that for the advancement of what is fair and what is just, the court may declare even an untenable order just.

2021 S C M R 420

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Qazi Muhammad Amin Ahmed, JJ

The DISTRICT POLICE OFFICER, MIANWALI and 2 others---Petitioners

Versus

AMIR ABDUL MAJID---Respondent


FACTS:

Facts of the case are that in the wake of his nomination as one of the accused in a case of homicide, Amir Abdul Majid, respondent, a police constable, was dismissed from service; his attempts for reinstatement on the departmental side failed, however, the Punjab Service Tribunal, Lahore, vide judgment dated 26.02.2019 set aside the dismissal and re-inducted him in the service……The learned Additional Advocate General Punjab referred to the law declared by the superior Court to argue that respondent's acquittal in the criminal trial, received by the Service Tribunal as a justification, for his reinstatement in the disciplined force warranted interference; he particularly took exception to the following paragraph in the impugned judgment: "It is well settled preposition of law that once civil servant is acquitted in criminal case, then on this very charge he cannot be awarded any punishment by the department, because acquittal is for all future purposes."

Decision;

The court declared that the general principles was indeed true however

“The learned trial Judge took stock of inherent discrepancies qua the respondent and held the charge against him as preposterous. In the above backdrop, respondent's acquittal from the charge, not only vindicated his claim of being subsequently hounded on a trump up charge but also left nothing in the field to conscionably view in its aftermaths his presence as detrimental or non-conducive to good order in the department wherein he otherwise boosted an unblemished career. The Court may decline in its discretion to interfere with an order, otherwise untenably contoured, nonetheless, found to be within the remit of equity and fairness tending to advance good, therefore, notwithstanding the error of approach by the Service Tribunal, we do not feel inclined to interfere with the impugned judgment in order to avoid futility of an avoidable detour. Civil petition fails.”

In the above case the court held the tribunal order, despite its contrarian nature to the general principle, to be just since it advanced forward the rule of justice.


P L D 2010 Supreme Court 695

Present: Tassaduq Hussain Jillani and Asif Saeed Khan Khosa, JJ

CHAIRMAN AGRICULTURAL DEVELOPMENT BANK OF PAKISTAN and another---

Appellants

Versus

MUMTAZ KHAN---Respondent


Facts;

Mumtaz Khan respondent was implicated in a case of murder through F.I.R. No.327 registered at Police Station Naurang, District Lakki Marwat on 8-9-1991 in respect of an offence under section 302, P.P.C. read with section 34, P.P.C. As a result of trial of that criminal case the respondent was convicted and the respondent had not challenged his conviction and sentence and after a few months of the decision of his appeal an application had been submitted by him before the learned Sessions Judge, Lakki Marwat seeking his acquittal on the basis of a compromise arrived at between him and the heirs of the deceased. hat application submitted by the respondent was allowed by the learned Sessions Judge, Lakki Marwat on 22-9-1998 and the respondent was acquitted of the charge on the basis of compromise. On the departmental side, the respondent was served with a show cause notice on 22-1-1996 as by then he had already been convicted and sentenced by the criminal Court on the charge of murder and the respondent submitted a reply thereto on 28-1-1996. In view of the respondent's already recorded conviction on the charge of murder by the criminal Court the respondent was removed from service on 3-3-1996. After earning his acquittal from the criminal Court on the basis of compromise the respondent filed a departmental appeal on 12-10-1998 seeking his reinstatement in service but that appeal dismissed. He sought appeal to Federal Tribunal which was accepted.


Decision;

The court held

“It is admitted at all hands that no allegation had been levelled against the respondent in the present case regarding any illegality, irregularity or impropriety committed by him in relation to his service and his acquittal in the case of murder had removed the only blemish cast upon him. His conviction in the case of murder was the only ground on which he had been removed from service and the said ground had subsequently disappeared through his acquittal, making him re-emerge as a fit and proper person entitled to continue with his service. Appeal dismissed”


A similar stance was taken by the superior court in 2012 SCMR 165


P L D 2003 Supreme Court 187

Present: Rana Bhaghwandas, Abdul Hameed Dogar and Khalil‑ur‑Rehman Ramday, JJ

SHAMAS‑UD‑DIN KHAWAJA‑‑‑Petitioner

Versus

GOVERNMENT OF PAKISTAN through Secretary Establishment, Islamabad and 2

others‑‑‑Respondents


Facts;

The petitioner Shamas‑ud‑Din Khawaja was serving as A.S.‑I. in the Intelligence Bureau, Islamabad. An FIR was filed against the petitioner, post which a showcause notice was issued to the petitioner. Petitioner submitted reply and contested the position but was eventually penalized by the department. Petitioner filed departmental appeal and tribunal appeal, both of whom were dismissed.


Decision;

The court accepted the appeal and held;

“For imposing major penalty there must be ample convincing and reliable evidence placed on record which could safely go to prove charges levelled against civil servant and only then findings could be recorded. From the perusal of the above mentioned charges, it reveals that the departmental proceedings were initiated only on the basis of above mentioned criminal charge. This Court in the case Attaullah Sheikh. v. WAPDA and others (2001 SCMR 269) exactly under the similar circumstances allowed the appeal of the petitioner therein and reinstated him in service taking into consideration that the departmental proceedings initiated on the basis of Criminal charges was not subsequently proved against him by the competent court of Law and resulted in his acquittal.”

The cited case of 2001 SCMR 269 indeed is home to similar grounds and in that case, the departmental proceedings happened on the basis of the criminal charge and the superior court held

“The record does not show that any different charge was levelled against the appellant in the departmental proceedings. On the contrary, it is evident that subject-matter was the same and action against appellant was taken on the basis of said criminal proceedings. Where the criminal charges are not established before a competent Court of Law and the accused is acquitted on those specific charges, the departmental proceedings exactly on the same charges, would be wholly irrelevant and unjustified.”


2002 SCMR 57

[Supreme Court of Pakistan]

Present: Abdur Rahman Khan and

Nazim Hussain Siddiqui, JJ

RASHID MEHMOOD---Appellant

Versus

ADDITIONAL INSPECTOR-GENERAL OF POLICE

and 2 others---Respondents


Facts;

The appellant was provided with a showcause notice that held that the constable had been nominated in the FIR and while you were acquitted, your acquittal was based on technical grounds/benefit of doubt and it is no bar on us to initiate and take decision against you on the same ground. He contested the notice by highlighting that his nomination in the FIR was a conspiracy by his enemies. He was removed from service and his appeal, both departmental and tribunal were both dismissed, hence the appeal.

Decisions;

The court perused the matter and held the following;

“No other misconduct on the part of the appellant or adverse proceedings/report against him could be shown or referred. Although in the discharge order the appellant was dubbed as inefficient and unfit to be retained in service but no specific example was shown to prove inefficiency and unfitness. Therefore, the argument that the sole basis for the charge was knocked out by the acquittal of the appellant in the case could not be controverted………When the charge is dismissed without any suggestion by the Court in the conduct of the accused has been suspicious or any indication that it is merely giving the accused the benefit of a doubt, the acquittal should be treated as an honourable acquittal and no further departmental action should be taken."

Similar court stance could be seen in the cases 2000 PLC C.S 331 & 1994 SCMR 247


1991 S C M R 209

Present: Shafiur Rahman, Saad Saood Jan and Abdul Qadeer Chaudhry JJ

Malik AZHARUL HAQ‑‑Appellant

versus

DIRECTOR OF FOOD, PUNJAB, LAHORE and another‑‑Respondents


This landmark case actually set the principles which court should follow when concerning acquittal in criminal proceeding and its impact on departmental proceedings. I shall reiterate what the court held

  • Effect of dismissal of civil servant after he was acquitted of criminal charge. Judgment of a Criminal Court is not necessarily decisive as regards departmental or disciplinary action. A prosecution may fail for technical reasons; sometimes the Court notes the facts as suspicious, but gives the accused the benefit of the doubt; and sometimes a prosecution fails for the patent reason that witnesses have been bought over. In all such cases it may well be held that the circumstances are so suspicious that the Government servant can no longer be safely trusted; or it maybe held that, though the official is acquitted on the main charge, facts brought to light in the course of the trial show defects of character or a disregard of proper procedure which would justify the taking of departmental action against the accused.
  • Yet departmental action should not follow a prosecution which has failed for the sole reason that witnesses have been bought over unless the Court itself has noted that the witnesses have been influenced.
  • Frequently, however, the above elements are absent, e.g., when art official is tried on a definite charge and is acquitted either in the original Court or on appeal and there is no question of the acquittal being merely on technical ground of evidence having been suppressed. In such cases, and when no facts are established in the course of the trial that would' justify action being taken for disregard of departmental rules, the decision of the Court on the facts should be accepted and no departmental action should be taken.
  • Similarly when the charge is dismissed without any suggestion by the Court that the conduct of the accused has been suspicious or any indication that it is merely giving the accused the benefit of a doubt, the acquittal should be treated as an honourable acquittal and no further departmental action should be taken.
  • The above principles have to be followed in taking departmental action against a Government servant who has been prosecuted criminally but is acquitted by the Court. The dismissal of the appellant was based on. The conviction recorded, against him. Since the conviction has been set aside, the order of dismissal cannot be maintained and has to, be set aside. The appeal is accepted and the respondents are directed to reinstate the appellant in service with back benefits.”


1985 S C M R 1062

Present: Muhammad Haleem, C.J., Shafiur Rahman,

Zaffar Hussain Mirza and Mian Burhanuddin Khan, JJ

MUHAMMAD SARDAR KHAN‑‑Appellant

Versus

SENIOR MEMBER (ESTABLISHMENT), BOARD OF REVENUE,

PUNJAB, LAHORE‑‑Respondent


Facts:

The appellant was convicted in an anti-corruption case and while he filed an appeal, he was suspended and was served a showcause notice. His appeal was accepted and he was acquitted. He filed appeals against the dismissal highlighting how his acquittal should reinstate him. The tribunal had stated that his acquittal was technical and thus could not be relied upon.

Decision;

“However, it does not require any elaborate argument to show that in case the sentence is set aside and the accused officer is acquitted, the very basis on which such order of removal from service stands, would disappear. The result of such an event would be that the order of removal itself will be rendered ineffective and liable to be set aside. Such being the legal consequence a void order of removal could not have been propped up by any additional ground, as done by the learned Service Tribunal, for the simple reason that such additional grounds found in support of the removal order would violate the rule of natural justice, besides being violative of the mandatory requirements of the Efficiency and Discipline Rules….the appellant shall be reinstated in service with effect from the date the said order took effect.”


The court also held that there are no levels of acquittal and a person acquitted was honourably acquitted.
 

Saiyan0321

Contributor
Moderator
Think Tank Analyst
Messages
1,209
Reactions
100 1,891
Nation of residence
Pakistan
Nation of origin
Pakistan

The Russo-Ukrainian War: The Return of History​

By Serhii Polokhy

Mr. Polokhy has written an informative account on the russo-ukrainian relations and the war itself. Anybody that has studied ukrainian history knows the name of Mr. Polokhy and his detailed works on Ukrainian history, politics and foreign relations.. It explains details upto Feb of this year and also goes into details of the military operations that have been conducted so far. Whilst the writer is a historial from Ukraine, he has tried to be as impartial as possible or as expected to be. I find his account to be satisfying although missing some elements. No single book has all the information so hopefully the missing elements will be revealed in other research materials. The book is a perfect recommendation for anybody who wishes to learn about the Russo-Ukraine war. A must read for the holidays. I am attaching a copy for those that wish to read.
 

Attachments

  • Serhii Plokhy - The Russo-Ukrainian War_ The Return of History (2023, W. W. Norton _ Company) ...pdf
    11.7 MB · Views: 37

Saiyan0321

Contributor
Moderator
Think Tank Analyst
Messages
1,209
Reactions
100 1,891
Nation of residence
Pakistan
Nation of origin
Pakistan
Dear Mr. Jinnah" : selected correspondence and speeches of Liaquat Ali Khan, 1937-1947

In honor of Jinnah Day, i will like to recommend this book which by Roger D. Long and Stanley Wolpert. The book is compendium of letter correspondence between Jinnah and Liaqat however it is not a collection of letters. the book provides background and information of the preceding events that were happening and then attached the letters so that the reader is able to get a good background understanding of the events happening when these letters were exchanged. For those that are interested in a greater study into the life of Jinnah and about the relationship between Jinnah and Liaqat, then this book is a must for the collection. However it is important to note that the book stops at letters upto 27th March and does not provide any analysis on the relationship between the two in Pakistan which is a study in its own-self. This book, when read in conjunction with the work by Fatima Jinnah, Sister of Jinnah, then we can truly get a great understanding on how this relationship was formed and how it deteriorated when Pakistan was formed.


Further reading materials on the life of the great man have been attached in this thread.
 

Attachments

  • Liaquat Ali Khan, Roger D. Long (editor) - _Dear Mr. Jinnah_ _ selected correspondence and spe...pdf
    17.4 MB · Views: 35

Saiyan0321

Contributor
Moderator
Think Tank Analyst
Messages
1,209
Reactions
100 1,891
Nation of residence
Pakistan
Nation of origin
Pakistan
Some legal research on Burden of Proof on the party that alleges fraud and whether mere denial is enough to discharge said burden in light of Precedents by Pakistani Courts.


Whether the plaintiff/respondent are legally bound to prove that fraud is being committed?


The question of burden of proof, when a plea of fraud has been taken by a party against a sale deed, is one of the most argued questions of law. It is an established principle that when there is an allegation for fraud then the party that makes such an allegation must bring forth evidence to prove their claim and for this reliance can be placed in the following cases.

In the recent case of PLD 2015 SC 212 Muhammad Javed Shafi vs Syed Rashid Arshad, the question on burden of proof when fraud is alleged was looked into by Justice Saqib Nisar, Justice Amir Hani Muslim and Justice Ejaz Afzal Khan, and the Apex Court held

“it was the duty of the respondent to have discharged his initial burden of showing that the registered power of attorney, which was being challenged after 16 years of having been acted upon, was a forged and fabricated document;. However no initial burden in this context was discharged by the respondent. One of the reasons which has been given by the learned High Court for interfering in the matter and for upsetting the two concurrent decisions of the courts below, is that the appellant being the beneficiary of the transaction has failed to produce and prove the original power of attorney, sale deed of Manzoor Ahmed and his own sale deed. In this regard it may be mentioned that the respondent himself was challenging the said documents and all these documents were registered with the sub-Registrar, and it was therefore his duty to bring on record the said documents and discharge the initial burden by establishing that those are invalid documents, but this has not been done by him.”

The honourable court even went further and held that even non-production of sale deed was not of relevance since the document in question was not properly challenged and thus was genuine.

Besides, when the learned High Court on the basis of evidence had formed the view that General Power of Attorney in favour of Fazal-e-Azeem was not forged, in such a situation the non- production of the sale deed(s) of Manzoor and the appellant was not of much relevance. Therefore, nothing much depends, hinges, or turns on the non-production of the said documents by the appellant or adversely affect his case.”

In 2007 SCMR 85 Rasool Bukhsh vs Muhammad Ramzan, Justice Sayyed Saeed Arshad and Justice Ch. Ijaz Ahmed held

“It is a settled law that the registered document has sanctity attached to it and stronger evidence is required to cast a aspersion on its genuineness as law laid down by this Court in Mirza Muhammad Sharif's case NLR 1993 Civil 148.”

In 2010 SCMR 1066 Sardar Ali vs Sardar Bibi where Justice Mian Shakirullah Jan and Justice Raja Fayyaz Ahmed, the court held

“Admittedly, the onus was on the petitioner to substantiate that the decree was obtained by respondent No.1 Mst. Sardar Bibi by playing fraud and misrepresentation and none of the grounds urged in the application filed under section 12(2), C.P.C. could be substantiated by the petitioner by discharging the onus, hence; in our considered opinion, the impugned order is not open to any interference by this Court.”

In 1992 SCMR 2184 Allah Wasiya vs Irshad Ahmed, Honourable Chief Justice Muhammad Afzal Zullah and Justice Wali Muhammad Khan held the following

“The appellants have challenged the decree passed by the competent Court of law on the ground of fraud and collusion under section 12(2) of the Civil Procedure Code and the burden heavily lay upon them to establish that the fraud had been practised by the decree‑holders on the Court in the obtaining of the impugned decree.”

In 1989 SCMR 1563 Muhammad Hussain vs Khuda Baksh, it was held

“A presumption of truth is attached to the revenue record. This presumption gets further strengthened when the entries therein remain unchallenged for more than half a century. It was for the petitioners to rebut this presumption. They took the plea of fraud and misrepresentation but were unable to substantiate it.”

Lastly one of the most important judgments that I must highlight. It was passed by a three bench composed of Chief Justice Hamdoor ur Rehman, Justice Sajjad Ahmed and Justice Qadeer ud Din Ahmed in PLD 1969 SC 167 Ahsan Ali vs District Judge. The judgment cemented the principle of onus of proof on the plaintiff when alleging fraud.

“The burden of proving fraud, it must be remembered, is on the party alleging it and that too by clear and convincing evidence, particularly, where" a long period has expired and valuable rights have accrued to the other side.”



Yet what happens In light of Article 117/118 of the Qanoon e Shahadat, is mere denial sufficient to discharge the initial burden of proof? Before we delve into this question it must be stated that the intitial burden of fraud when dealing with Oral gift and when dealing with a Registered Sale Deed is entirely different since, unlike an Oral Gift, a Registered Sale Deed has a presumption of truth attached to it and this has been highlighted repeatedly in the judgments of Higher Courts same of which is mentioned in

1993 S C M R 462

Mirza MUHAMMAD SHARIF and 2 others‑‑‑Appellants

versus

Mst. NAWAB BIBI and 4 others‑‑‑Respondents

Justice: Saad Saood Jan, Saleem Akhtar and Wali Muhammad Khan​



  • The learned counsel for the appellants vehmently argued that the mortgage deed, sale‑deed and the rent note had been proved according to law and that the finding of the lower forums whereby the evidence with regard to the execution of sale‑deed was brushed aside, was erroneous. According to him, the appellant‑1 had tendered the original sale‑deed before the Court at the time of his evidence as D.W.4 and the Court returned the same to him after its perusal and exhibited the certified copy thereof without any objection by the respondents.
  • The learned counsel for the respondents, on the other hand, controverted the submissions of the learned counsel for the appellants and additionally argued that the payment of the consideration had not been established which was a sine qua non for the completion of the sale transaction in dispute and the transaction was done through fraud.


The Court Held;

“There is no cavil with the legal requirement of law as discussed by the learned Judge of the High Court and we would have readily concurred with him if the original saledeed had not been tendered in evidence by appellant No.1 while stating the case of the appellants as D.WA He did comply with the mandatory provision of the Civil Procedure Code by producing the primary evidence viz., the registered sale-deed and if the trial Court rest contended with exhibiting the certified copy thereof and returned the original presumably for safe custody, without any objection by the opposite side, we do not find any fault on the part of the defendants/appellants in not insisting upon the Court for exhibiting the original. It is by now well‑settled that registered document has sanctity attached to it and stronger evidence is required to cast aspersion on its genuineness.



The judgment did not just highlight the question of sanctity of the Registered Sale Deed but also talked about its certified and genuine nature which can be perused from aforementioned judgment 2007 SCMR 85 Rasool Bukhsh vs Muhammad Ramzan, Justice Sayyed Saeed Arshad and Justice Ch. Ijaz Ahmed whose operative part dealing with such is mentioned,

“It is a settled law that the registered document has sanctity attached to it and stronger evidence is required to cast a aspersion on its genuineness as law laid down by this Court in Mirza Muhammad Sharif's case NLR 1993 Civil 148.”


Article 117/118 deal with the burden of proof whose reproduction is such

117. Burden of proof:

(1) Whoever desires any Court to give judgment as to any legal right or liability dependent On the existence of facts which he asserts, must prove that those facts exist.

(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

Illustrations

(a) A desired a Court to give Judgment that B shall be punished for a crime which A says B has committee. A must prove that B has committed the crime.

(b) A desires a Court to give judgment that he is entitled to certain land in the possession of B by reason of facts, which he asserts, and which B denies to be true. A must prove the existence of those facts.

118. On whom burden of proof lies: The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

Illustrations

(a) A sues B for land of which B is in possession, and which, as A asserts was left to A by the will of C, B's father. If no evidence were given on either side, B would be entitled to retain his possession. Therefore the burden of proof is on A.

(b) A sues B for money due on a bond. The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies. lf no evidence were given on either aide, A would succeed as the bond is not disputed and the fraud is not proved. Therefore the burden, of proof is on B


So the burden of proof is upon the person who alleges a fact and in case there is equal evidence or no evidence in suit, then the burden would be on the person who would fail.



Here Registered Sale Deed plays an important role since a registered document has a presumption of truth and the court, due to this presumption looks upon the one that is casting doubt on the document and requires strong evidence. The courts have held this principle in

2007 S C M R 870

HAKIM-UD-DIN through L.Rs. and others----Petitioners

Versus

FAIZ BAKHSH and others----Respondents

Justice: Present: Falak Sher and Ch. Ijaz Ahmed​

  • The learned counsel for the petitioners submits that learned First Appellate Court had decided Issue No.8 in favour of the petitioners with cogent reasons whereas the learned High Court had reversed the finding of the First Appellate Court in revision petition without any justification. He further maintains that judgment of the First Appellate Court is based on reasoning and logic whereas the learned High Court had reversed the same without adverting to the reasoning of the First Appellate Court. He further maintains that First Appellate Court had reversed the finding of the trial Court after reappraising the evidence on record while exercising power under section 96 of C.P.C. whereas the learned High Court had reversed the finding of the First Appellate Court while exercising revisional power under section 115, C.P.C. Learned counsel for the petitioners further maintains that respondent/plaintiff did not appear before the trial Court to prove the contents of its plaint and failed to produce evidence to prove his case in terms of contents of plaint. This fact was not considered by the learned High Court.
  • The learned counsel for the respondents supported the impugned judgment and further submits that First Appellate Court had reversed the finding of the trial Court on Issue No.8 in spite of the fact that the petitioners had not taken the said ground in their written statements and said ground was not taken in memorandum of appeal. The trial Court after appreciation of evidence on record had rightly decreed the suit which was reversed by the First Appellate Court by misreading and non-reading of the evidence on record. He further maintains that respondent has proved superior right as evident from the findings of the trial Court and the learned High Court in the impugned judgment. The findings of both the Courts below are in consonance with the evidence on record


The Court while accepting the appeal held the following

“It is also settled law that initial burden of proof is on the party who alleges in the plaint or written statement of its claim. See Muhammad Sajjad Hussain's case 1991 SCMR 703 and Muhammad Siddique's case 2001 SCMR 1443. It is a settled law that written statement/plaint is not substitute of evidence.”

In terms of fraud and burden of proof, we can peruse the following case where a similar question was asked and the courts held

2009 S C M R 70

GHULAM GHOUS----Petitioner

Versus

MUHAMMAD YASIN and another----Respondents

Justice; Present: Ijaz-ul-Hassan Khan and Syed Sakhi Hussain Bokhari​

  • Learned counsel appearing on behalf of the petitioner, attempted to argue that learned High Court as well as the two Courts below have not appreciated and discussed the material on record in its true perspective and have proceeded on wrong premises while deciding the controversy involved; that the concurrent findings are the result of complete misreading and non-reading of the record and non- consideration of factual and legal facts which had direct bearing on the fate of the case. Concluding the arguments learned counsel submitted that it was for respondents to prove that Ghulam Murtaza, donor had validly gifted the suit property in terms of gift deed in question for which respondents neither produced any witness of the gift deed nor its scribe.
  • learned counsel for the respondents opposed the arguments of learned counsel for the petitioner and supported the impugned order forcefully.
The court disregarded the notion for the burden of proof to be on the respondents and held

“The mere assertion of the petitioner that a fraud had been practised upon him and he has been deprived of his share in the estate of his father, without a positive attempt on his part of substantiate the same, is of no consequence. Needless to add that it is very easy to assert fraud but it is difficult to prove the same. The evidence produced by the petitioner does not prove that fraud had been practiced upon him.”

Similarly in

2003 S C M R 1011

ALLAH BAKHSH and others---Petitioners

Versus

BAKHSHA and others---Respondent

Justice:Tanvir Ahmed Khan, Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar​

The learned counsel for the petitioners argued that the plaintiff late Mughla was an old aged person against whom the respondents had committed a fraud. The respondents failed to produce the original General Power of Attorney, dated 5-7-1979 in the Court despite the fact that its execution had been denied by the plaintiff

The Court held

“Sale on the basis of general power of attorney was assailed by -the plaintiff on ground that the same' was the result of misrepresentation and fraud. Onus of proof of the non execution of the general power of attorney and subsequent registered sale-deed was on the plaintiff who failed to discharge the same.”

The courts have highlighted in accordance to Article 117/118 that the person that is approaching the court must stand on his own two feet and cannot gain from the weakness of the opposition and must prove the burden attached to the grant of relief that he seeks. For this we can peruse the below.

2010 S C M R 1630

SULTAN MUHAMMAD and another---Appellants

Versus

MUHAMMAD QASIM and others---Respondents

Justice: Mian Shakirullah Jan, Anwar Zaheer Jamali and Rahmat Hussain Jafferi, JJ​

The Court Held

“The well-recognized legal principle about the discharge of burden .of proof that a party approaching the Court of law for grant of relief has to discharge its own burden and has to stand on its own legs to succeed, and no benefit of any weaknesses in the case of opposite party can be availed by him.”



The Courts when establishing the Burden of Proof have also considered the following judgment

1994 S C M R 2299

SARDARA through Legal Heirs‑‑‑Petitioner

versus

MUHAMMAD through Legal Heirs‑‑‑Respondent

Justice:Shafiur Rahman, Saleem Akhtar and Manzoor Hussain Sial​



The Court Held;

“The petitioners have not been able to establish fraud and misrepresentation particularly in view of the fact that the sale deed was a registered document. The P.Ws. were not able to satisfactorily prove the allegations of fraud and misrepresentation.”

The aforementioned judgments are not the only cases where courts have held that there is a heavy burden but also in the cases mentioned in previous queries where the same was asked and the courts held that not only is the initial burden on the party that alleges fraud but in case of registered sale deeds, the evidence must be very strong since there is a presumption of truth attached to the registered document.

Thus it can be proven that he who alleged fraud, had to discharge the initial onus by presenting very strong evidence.
 

Nilgiri

Experienced member
Moderator
Aviation Specialist
Messages
9,450
Reactions
107 19,157
Nation of residence
Canada
Nation of origin
India
This was exhibited when Israeli Prime Minister Ben-Gurion ordered military operations into sovereign neighboring nations in retaliation to terror attacks absent any restraint or negotiation, a paranoid and aggressive posture of power politics even by the relatively lax standards of the the pre-modern era.

The nature of the nationstate itself was tenuous given the origins of the peel plan in mandatory Palestine. The larger Jewish people were not united while most of the Peel plan was being formed....i.e there was significant ashkenazi resistance to a Jewish state formation (and movement to establish Hebrew over Yiddish, Polish, Russian, English etc for the larger people). This was before the holocaust though, the holocaust added an exceptional element to the equation for the Jewish people (the remnant there post ww2) in how they viewed the need for a jewish state elsewhere (from Europe) and immediately.

Significant elements were not resolved by Ben Gurion in this intensity. The constitution was never explicitly written (this poses significant issues to this day regarding the scope and check and balances w.r.t say the supreme court and other 2 branches).

There was also the competing societal groups within the jews regarding fundamental things and the manner Ben Gurion made working agreements and compromises for that (regd yeshiva for the religious folks versus more secular jew public education...and also conscription exceptions for the haredi who were against that).

These significant gaps in the first cpl decades of Israel's existence were essentially addressed by executive power....especially in relation to how Jordan, Egypt and neighbouring Arab countries intervened in the 1st war and all manner of militias on the ground that were forming even before the Peel plan due to local Arab resentment in Palestine with the Jews.

These all played a role in the bunker state psyche that grew (both in Israel and its neighbours and the population that would become the Palestinians as well). This was near inevitable in this context if 1900 - 1950 is looked into deep enough.

This was further displayed when an Israeli armored thrust, supported by France and the British occupied Sinai, a territory three times the size of the country for five months. It would annex said territory for 15 years after the Six-Day War of 1967

Yeah the first one was the Suez war, Israel's objectives then (which relied on the British and French roles at the same time) were quite different to the 67 war. It was a different bunker psyche in war 1 compared to war 2 (war 2 was influenced by the US reaction to war 1 for example).

Rather than condemning Israel for taking such a military offensive absent any attempted negotiation, deescalation or absolute provocation, the world defended these actions and cemented that a siege mindset is justification for hostile and provocative operations. The victory in the Six-Day War was hailed by the international community and the losing nations were condemned as the aggressors.

Its more complicated than that. The role of the holocaust and also the geographic size and proximities of the populations involved here too (along with Arabic nationstates realised treatment of the Palestinian people, which has been shoddy to extremely bad in general)....made a lot of unique considerations here compared to how they reflected in other parts of world (which had larger geographic sizes, less psyche intensities and generally very different inherited circumstances upstream). Its why I cannot think of one other situation like the Palestinian people at all....its very distinct situation.

These have changed with time in world reflection as Israel has secured its existence and its very different country downstream, with bargaining strength that should perceivably afford loosening of the bunker psyche (especially in aggressive actions regd west bank settlements and policing).

If a state functions in a siege mentality, exhibiting a paranoid mindset and using such paranoia as justification for their actions, then the acceptance of these actions will create a precedent and at this point, it is clear that the mollycoddling of Israel and the constant justification for its illegal actions have formed a legal doctrine that stems from paranoia and affirmed that for a state, it is justified to showcase aggressive military hostility if such state feels that it is under a state of siege by its neighbors. Russian invasions into Crimea and Ukraine are another example of the Paranoid Doctrine, where Russia annexed sovereign territories and invaded a sovereign nation to mitigate NATO influence.

Thats true. There are some broad takeaways that apply to all. I'll get to your next post a bit later..... this is a good thread to slowly delve through measuredly.
 
Top Bottom