In association with the International Commission of Jurists

Search: self-defense

26 Jun

...Rumsfeld, the AUMF contains the implied authority to detain war prisoners under its auspices because such detention was a recognized incident of the use of force under international law, then surely self-defense of one’s own forces (at least to the extent permitted by international law) should also be within the realm of implied statutory authority. The problem is, U.S. self-defense is not what most (or maybe all) of these recent incidents have involved. (For a nice list of recent actions in Syria, see here.) By the United States’ own account,...
26.06.17 | |

20 May

...of the ICCPR and ICESCR respectively? Is it restricted to internal self-determination? Are the Taiwanese people entitled to the right to external self-determination? I restrict my note to the last question. In the ICJ’s Advisory Opinion on Kosovo’s unilateral declaration of independence, it is noted that a right to independence (ie external self-determination) exists with ‘the peoples of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation’ (2010 ICJ Report 404, 436, para 79), although declarations of independence have been made outside these two contexts. As regards the...
20.05.16 | |

18 Oct

act of aggression. These are fascinating, if troubling, cases. On the one hand, I share the defendants’ belief that the invasion of Iraq was illegal under international law. On the other hand, these “political necessity” defenses, as they are appropriately called, rarely if ever satisfy the formal requirements of the defense of necessity. At common-law, the defense requires six conditions be met: The defendant must have faced a “clear and imminent danger.” The defendant must have reasonably believed that his act would abate the danger he was seeking to avoid....
18.10.06 | |

31 Aug

...are apparently invoking self-defense, on a rationale that chemical weapons in the possession of Syria’s government might “fall into the wrong hands” and be used against the United States or against US-friendly states in the region, naming Jordan, Israel, and Turkey. Apart from this being too distant from the “armed attack” required by UN Charter Article 51, self-defense could apply only to the United States, absent a request from another state for “collective” self-defense, a request that could be valid only if the other state had been attacked. The possibility...
31.08.13 | |

09 Nov

the USA dropped atomic bombs on the Japanese cities of Hiroshima and Nagasaki. These actions went far beyond what is lawfully justified in self-defence in terms of necessity and proportionality. But they did not somehow, for that reason, give Germany and Japan a legal right in international law to use force in self-defence against the USA and the UK. They were incidents of illegality on the part of the two states within the broader context whereby they were acting lawfully in pursuance to a right to self-defence in response to...
09.11.23 | |

19 May

...a law enforcement/police mission. Consequently, while your self-defense argument might count within a law enforcement legal regime, the legality of use of force against a person in armed conflict (IHL) is not assessed by it being an act of self-defense but rather by the question of compliance with the rules of war. In other words, self-defense can in the present case justify the violation of Pakistans sovereignty (Art. 51 UN-Charter) but not the target killing of OBL. JordanPaust Response... Has to be an int'l armed conflict for the Seals to...
19.05.11 | |

23 Aug

...of sovereign rights whether some action is an action of "inherent right of self-defense" this action is not limited to an action involving the army. There is no rule of international law that limits the acts of self-defense to military actions, and one can employ other means as well; for instance legal means. Thus if a state has an "inherent right of self-defense" using its army, it has also a right to bring the leaders of the other state before ICC and sue them for the crime of aggression. In...
23.08.10 | |

02 Jun

...released; that is, it has already hijacked the aid in support of itself.). Certainly, it is relevant to determining whether there is authority to blockade the ports controlled by Hamas. 6. Even without Security Council Resolution 1373, the fact that Hamas uses the cargo for military use arguably makes it contraband, susceptible to seizure as prize under customary law, even without the existence of a state of maritime blockade. 7. Additionally, the more general self-defense rationale invoked by Harold Koh (thank you Ken Anderson) in favor of US targeted strikes...
02.06.10 | |

28 Jul

factual error. The brief states at pp. 16-17 that Mr. Al Bahlul made “statements in trial in his capacity as his own defense counsel.” It repeats the assertion that he was “Acting as his own counsel” or “Acting as his own defense counsel” multiple times, quoting from the transcript from a pretrial session on 24 September 2008. Allow me to set the record straight. I was Mr. al Bahlul’s defense counsel. He did not represent himself at trial, and the assertion that he was acting as his own defense counsel...
28.07.13 | |

04 May

Marty Lederman John: I posted a question about your first topic -- does IHL apply to actions of self-defense short of armed conflict -- in Kevin's post, but the comments section there appears temporarily to be down. No matter for present purposes, since this is, in the U.S. view, an armed conflict as well as an action in self-defense to protect against future attacks. Three other reactions to your post: First, I think you're too quick to assume that, if this was a joint operation monitored by CIA and originally...
04.05.11 | |

07 Jan

...argues that the Charter has been adapted to allow for a much broader reading of the right of self-defense to encompass anticipatory self-defense or the rescue of a state’s nationals abroad, and for an approach to humanitarian intervention that would treat it as excusable if illegal. Though the mainstream legal position on preemptive self-defense has remained the same over the years, state practice is ambiguous: (1) the U.S. used Resolutions as well as a questionable theory of customary law of anticipatory self-defense to justify its military action in Iraq, and...
07.01.07 | |

24 May

...were very much written with an eye to the near-to-middle future, in which the US will be increasingly unable to maintain the fiction that it is involved in a single armed conflict “with al-Qaida, the Taliban, and associated forces.” Differently put, the US seems to be anticipating a time in which it will no longer be able to argue that the US may use lethal force outside of areas of active hostilities on the ground of either self-defense or IHL, but will be able to invoke only self-defense. I think...
24.05.13 | |