Search: self-defense
01 Sep Syria Insta-Symposium: Marty Lederman Part I–The Constitution, the Charter, and Their Intersection
...which self-defense and protection of U.S. nationals have been the most commonly invoked; and (ii) the operation cannot be anticipated to be “sufficiently extensive in ‘nature, scope, and duration’ to constitute a ‘war’ requiring prior specific congressional approval under the Declaration of War Clause,” a standard that generally will be satisfied “only by prolonged and substantial military engagements, typically involving exposure of U.S. military personnel to significant risk over a substantial period” (quoting from the Libya opinion). Largely for reasons explained by my colleague and Dean, Bill Treanor, I am...08 Feb Why I Disagree with Marty Lederman About Prosecuting Waterboarders
...the relevant law. Any other interpretation of the defense — most relevantly, that relying on an official statement made by the appropriate public officer or body is per se reasonable — renders the word “reasonable” completely superfluous. Reliance itself would be enough to invoke the defense. Differently put, the reasonableness requirement in entrapment by estoppel only makes sense if we leave open the possibility — however slight — that reliance on official advice can be unreasonable no matter how authoritative the public officer or body that issues it. Lederman, however,...02 Jun Case of the Month: United States v. Juvenile Male 1
...deny the power of Congress to legislate over Indian affairs or to curtail the scope of Indian self-government. But the Court declared that Congress had not done so in any clear fashion and thus found no congressional intent to limit Indian self-government. The Court stated that the tribes retained their right of "self-government [and] the maintenance of order and peace among their own members." Unless this power is limited by explicit legislation or surrendered by the tribe, Indian tribes retain exclusive judicial jurisdiction over reservation Indian affairs. Thus today most...06 Jun Resurrecting the Clean Hands Doctrine and Mapping its History at the ICJ
...this stage. Then, the ICJ opined that it has treated the clean hands doctrine as a defense of merits with “utmost caution”. More importantly, the ICJ then analyzed the conditions where the clean hands doctrine could be applicable, as argued by the US in their counter-memorial. It is critical that we pause here first. This is the first time that the ICJ has delved into a substantial analysis of the clean hands doctrine as a defense on merits, and has taken into account the various considerations that attract its application....23 Apr Want to Prosecute the Lawyers? Cite Ministries — Not the Justice Case
...limits. [This is a tangent; feel free to ignore it.] Peter Orlowicz Don't affirmative defenses like self-defense or duress act to defeat criminal liability even when the mens rea for a given offense is present? Perhaps we don't want to extend those affirmative defenses for torture in particular, but to say "it is a basic principle of criminal law that the motive behind a crime is irrelevant to the defendant’s guilt" seems to oversimplify. B. Don Taylor III "...to say “it is a basic principle of criminal law that the...
07 Apr The Role of Business in War: A Different Defense to Corporate Complicity? Part I: The Old Offense
[Maya Nirula is a dual-qualified international human rights lawyer with multi-jurisdictional experience consulting and litigating on issues of business and human rights] Introduction This is the first of a two-part series, the Role of Business in War. Part I: The Old Offense will evaluate the interaction between International Humanitarian Law (IHL), International Human Rights Law (IHRL), and International Criminal law (ICL) in governing gross human rights abuses and corporate complicity. Part II: A Different Defense will examine a potential new defense to such complicity through the integration of IHL and ICL...25 Feb Drones as Strategic Airpower and the Light Cavalry?
...piece from me next week arguing something I’ve developed at Volokh Conspiracy and here at OJ blog: first, that the administration’s lawyers need to step up to the plate and defend targeted killing using Predators and, second, the proper legal basis on which to defend it to the full extent undertaken by the Obama administration is the international law of self-defense, rather than simply the law of armed conflict, targeting combatants. In another piece coming soon (this one a book chapter in a Hoover Institution online collection of essays from...24 Jan Appellate Jurisdiction Over Political Questions
...one person alone but from the rule of law itself. There are only two conditions in which a war is legal under international law: when force is authorized by the United Nations Security Council or when the use of force is an act of national self-defense and survival. The U.N. Charter, based on the Nuremberg Principles, prohibits war "as an instrument of policy." And the war in Iraq is just that — a war of choice. There is a common tendency among lawyers and military commanders to sneer at international...08 Sep Three Reasons Why Obama Will Not (and Should Not) Seek Congressional Okay for ISIL Strikes
...of the laws of war. Further, it is an international armed conflict b/c U.S. military are dropping bombs on an insurgent (ISIS) and our presence has internationalized the armed conflict. The reason why the President does not need congressional approval is not b/c of a nonsense claim that we are not at "war," but b/c the President has constitutional authority to engage in measures of self-defense and collective self-defense -- e.g., http://ssrn.com/abstract=2061835 I suppose that the best argument for U.S. use of force in Syria against ISIS would be that...
12 Aug Time for Codification? Tasking the ILC with Draft Articles on the Use of Force by States
...peacefully. However, this architecture leaves many questions unanswered. Is anticipatory or preventive self-defence permitted under customary international law? What qualifies as an “armed attack” sufficient to trigger Article 51? Can humanitarian intervention ever be lawful absent Security Council authorisation? What status do doctrines such as the Responsibility to Protect (R2P) or “pro-democratic intervention” hold? In the absence of authoritative interpretive guidance or a comprehensive codification effort, States have often interpreted the Charter’s provisions in self-serving or inconsistent ways. The result is a legal landscape shaped not by consensus, but by...