Search: self-defense
25 Mar Medellin: My Early Thoughts
...analysis, which seems fairly sensible and reasonable. It is not overreaching, since it makes clear that there are indeed treaties that are self-executing, and international court judgments that could be self-executing (just not these ones). The most important part of the Court’s opinion deals with self-execution, since its analysis there is the key the rest of the decision. And I don’t think it creates a “presumption” against self-execution, even against self-executing international court judgments (even though it perhaps ought to). But that is a subject of deep complexity, which I...22 Feb Israel Does Not Have a Sovereign Claim to the West Bank: A Response to IJL’s Legal Opinion
...violated the self-determination of Palestinian people: “[t]he weak point of our position of course”, he said in 1919, “is that in the case of Palestine we deliberately and rightly decline to accept the principle of self-determination” (Quigley, p. 75). Much has been written about the purported illegality of the Mandate of Palestine, given how its Balfour commitments directly contradicted Article 22 of the Covenant, denying the mandated population self-determination and betraying the Covenant’s obligation to administer the territory for the “well-being and development” of its inhabitants. In 2007, James Crawford...03 Feb Medellín, the Alien Tort Statute, and the Domestic Status of International Law
...treaty-based claims are also raised. Treaty-based claims will not succeed, however, unless the treaty is self-executing and the plaintiff has a cause of action. By endorsing a broad notion of non-self-execution and by endorsing the presumption that treaties do not create domestic rights of action even when treaties “directly benefit[] private persons,” Medellin restricted prospects for treaty-based claims under the ATS. Medellin also undermines the more common CIL-based claims. In Sosa v. Alvarez-Machain, plaintiff Alvarez cited the International Covenant on Civil and Political Rights as evidence that CIL prohibits the...03 May Bountygate, the Nuremberg Defense, and Ordering vs. Physical Perpetration
The Nuremberg defense pops up in the strangest places. As the NFL fans among our readers know, Commissioner Roger Goodell has suspended four New Orleans Saints players for their role in Bountygate — a program whereby Saints players would get financial bonuses for intentionally injuring other players on the football field, essentially the most heinous crime a football player can commit. What is most remarkable about the reaction from sportswriters to the unprecedented suspensions is how many almost reflexively invoke the Nuremberg defense in order to minimize the players’ culpability....20 Oct Why the CIA and Drones?
...on this would be useful.) It goes on for a while, so I’ll put it below the fold. (1) The USG does not see a legal problem with either participation by the CIA in the use of force under international or domestic law; either in an armed conflict as civilians taking direct participation or, under some circumstances not apparently at issue today, self-defense operations outside of technical armed conflict, or together in coordinated operations with the uniformed military. I think this point is not sufficiently emphasized – the USG, at...09 May Guest Post: Al Nashiri and the Existence of an Armed Conflict
on the panel. But in order to rehabilitate such a juror, the defense would have to get the juror to agree to keep an open mind on the existence of whether there was an armed conflict in Yemen in 2000, a position directly contrary to the position that the defense will be advancing during the trial. At best, this puts the defense in an awkward position. At worst, it will result in a jury that is skewed in favor of the prosecution. Another problem with leaving this issue to the...17 Jan Unprivileged Belligerents (Or Illegal Combatants)
...suspect that new paradigm types are merely seeking to do thing prohibited under the slightly less new (Geneva Conventions are not that old) paradigm to humans - see the torture and the anticipatory self-defense road (rather than saying war as national policy of the kind that Kellogg-Briand was trying to outlaw). Hope this helps. Best, Ben P.S. What if the security risk civilian asserts that they were fighting in self-defense against the combatant forces as a defense. That would be a very interesting question. Are they precluded from asserting self-defense?...30 Jul Guest Post: Israel’s Use of Law and Warnings in Gaza
...Janina, I completely agree that advance warning does not have any effect on the legality of an attack in terms of distinction and proportionality. The proposition that Israel is absolving itself from making the proportionality "calculus" in places where it gives advanced warning is something that should be looked into. However, like other commentators, I have some issues with the second part of your analysis: (a) when looking at motivations for giving warning, there is a spectrum between "selflessness" and malice, which seems to be absent from your analysis. States...