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Search: self-defense

24 Jul

...Mindua emphasises, was an exercise of the right of self-determination, which he describes as a pillar of international law [15]. In this way, Judge Mindua begins his analysis by focusing on a jus ad bellum in which the fight for self-determination is a legitimate and justified struggle.  Judge Mindua then engages in a theoretical discussion about why non-state actors, such as Ansar Dine/AQIM, are subjects of international humanitarian law. Again, this theoretical question is not at issue in the case. The Prosecution only had to show that Ansar Dine/AQIM demonstrated...
24.07.24 | |

28 Oct

...the lawyers’ pre-raid analysis – meaning that even if one did not buy the “unwilling or unable” theory, or anything else about the raid, it wouldn’t have mattered. The UN Charter and the Geneva Conventions are non-self-executing treaties under U.S. law, the theory is, so the President is not legally bound. This view embraces a fundamental misunderstanding of the doctrine of self-execution, before and even after the Supreme Court’s 2008 decision in Medellin. A non-self-executing treaty under U.S. law is one that is not automatically enforceable under U.S. law without...
28.10.15 | |

17 Sep

...the decolonization context. Second, the right to self-determination in most instances authorizes a people to exercise its right to internal self-determination, which is typically reflected in a right to form a regional government and/or have other cultural, linguistic, and religious rights respected by the mother state. The right to self-determination, outside of the decolonization context, may lead to the secessionist type of external self-determination only in extreme instances where the mother state chooses to completely disrespect the people’s right to internal self-determination. According to the Canadian Supreme Court in the...
17.09.14 | |

05 Mar

...proceeding in the Military Commissions at Guantanamo on December 5, 2007: ""MJ [Military Judge]: Okay. Well this is a very interesting question and I appreciate your argument. I am not sure what the answer is. Does the defense want to respond to that last question about section 948b subsection (g) [of the 2006 MCA]? CDC [Mr. Joe McMillan, civilian defense counsel]: Yes, Your Honor, if I may very quickly. Colonel Britt did indeed correctly anticipate the defense's response to the question from the court concerning subpart (g) of 948b. The...
05.03.10 | |

24 Dec

stand-by counsel. Should a time come when the Trial Chamber feels justified to make such a decision, the Rule 44 list of counsel should be provided to Seselj and he should be permitted to select stand-by counsel from that list. Alternatively, should the full restoration of Seselj’s right to self-representation fail to curb his obstructionist behaviour, the Trial Chamber would be permitted to assign counsel to Seselj. Again, such decision may only be taken once Seselj has been given a real chance to effectively exercise the right to self-representation and...
24.12.09 | |

01 May

one who does not accept the claim that a state can use military force prior to the initiation of a process of "armed attack" within the unavoidable language and meaning of UN article 51 and general patterns of practice and opinio juris. Therefore, I would not accept the claim by many that "anticipatory" self-defense (prior to the start of an armed attack) should be permissible; and these claimants do not accept the claim by a few that "preemptive" self-defense should be tolerated even when there is no alleged imminent attack...
01.05.12 | |

10 Aug

...prevail over Charter obligations. My central question is again what is the Security Council saying or doing? Jordan It would fit with the U.N. Charter if the U.S. was engaged in collective self-defense with the consent of the Iraqi government. Self-defense and collective self-defense per a multilateral treaty does fit within the President's constitutionally-based duty faithfully to execute the Laws. See http://ssrn.com/abstract=2061835 A question would also be whether the President is claiming presidential power to faithfully execute the Genocide Convention and relevant CIL. P I don't think so Jordan. Assuming...
10.08.14 | |

02 Oct

In a thoughtful opinion, the Ninth Circuit rejected the claim, finding that the VCCR is self-executing but does not confer an individual right. For any treaty to be susceptible to judicial enforcement it must both confer individual rights and be self-executing. There is no question that the Vienna Convention is self-executing. As such, it has the force of domestic law without the need for implementing legislation by Congress. But “the questions of whether a treaty is self-executing and whether it creates private rights and remedies are analytically distinct.” “While a...
02.10.07 | |

23 Jul

Now that I’ve had a chance to read through the ICJ’s advisory opinion, following are a few initial reactions. (I will consider the separate opinions in another post.) Marko Milanovic has done a great job parsing the main issues that were at bar, namely 1. Whether the ICJ should exercise advisory jurisdiction in this case; 2. How broadly or narrowly the question posed by the General Assembly should be interpreted; 3. The legality of the declaration of independence in light of the international law of self determination; and, 4. The...
23.07.10 | |

16 Sep

...the conflict First, our definition of the conflict. As the President has said many times, we are at war with al-Qa’ida. In an indisputable act of aggression, al-Qa’ida attacked our nation and killed nearly 3,000 innocent people. And as we were reminded just last weekend, al-Qa’ida seeks to attack us again. Our ongoing armed conflict with al-Qa’ida stems from our right—recognized under international law—to self defense. An area in which there is some disagreement is the geographic scope of the conflict. The United States does not view our authority to...
16.09.11 | |

15 Feb

...this discussion is, after all, about application of a potential defense. I assume the thrust of the argument is that this is a potential but ultimately ineffective theory of defense for a charge directed towards the CIA personnel who executed these orders. But in the end, isn't that why the judgment on what was "reasonable" in application of the defense is a question of fact for the finder of fact? What I can agree on is that it would be a tough defense to prevail upon, even if the interrogation...
15.02.08 | |

02 Oct

...Not only would such a use of force create an international armed conflict between the US and Russia, it would itself qualify as an armed attack under Art. 2(4), thereby permitting Russia to use force against the US in self-defense. Russia would simply be responding to an unlawful act of aggression by the US. (To be sure, the same analysis would apply to any US use of force against Syria in defense of the FSA. But it would obviously be a much bigger deal for the US to commit an...
02.10.15 | |