Search: self-defense
08 Dec Why the U.S. is Not Invoking International Law to Oppose China’s ADIZ
(also claimed by Japan) and the Ieodo/Suyan Rock (also claimed by South Korea). To the extent those territories are “national airspace”, China can argue that it should be allowed to draw an ADIZ around them to ensure any airplanes coming near them will not enter that airspace, etc. As Zachary Keck suggests, China is using the ADIZ to subtly build its legal claim to sovereignty over the Senkakus/Diaoyu Islands. Hence, China is probably invoking the UN Charter’s self-defense provision to justify its ADIZ and its need for all foreign aircraft...04 Jun Targeted Killings Symposium: Jens David Ohlin Responds to Craig Martin
...(as US in Afghanistan after 2002 against the Taliban and AlQaeda and Iraq) while an NIAC would be like Yemen with consent against the AQ types or Afghanistan after Karzai had effective control consent against the Taliban and AQ. Pakistan is an NIAC in this setting though the lack of consent for the OBL raid (a very big deal for Pakistan) might be justified by the US as self-defense, but also might trigger Pakistan self-defense under Article 51. Subsequent events would not appear to have taken us over the threshold...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...29 Sep The Invention of the Khorasan Group and Non-Imminent Imminence
entitled to act in self-defence against “bad dudes” no matter when — or even if — those “bad dudes” might launch an armed attack against the US. This isn’t even the Bush administration’s “anticipatory self-defence.” This is, for lack of a better expression, “hypothetical self-defence.” Apparently, the US government believes it is entitled to use force against a non-state actor anywhere in the world as long as it can imagine a future state of affairs in which that actor would attack it. The mind — and international law — reels....26 Apr The Disappointing — If Predictable — CFR Report on the ICC Review Conference
...merely listing acts that might constitute aggression without defining when those acts are unlawful. The definition does not address how claims of self-defense or humanitarian necessity affect the categorization of the use of force as aggression. This is another profoundly misleading statement. The proposed definition does, of course, permit states to use armed force in self-defense — it specifically limits “acts of aggression” to acts that constitute “a manifest violation of the Charter of the United Nations,” and Article 51 of the Charter specifically provides that states have the right...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....
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...
09 Jun A Not So Clean Break: ICC Jurisdiction after Withdrawal in The Prosecutor v. Duterte
...statutory provisions. Even if preliminary examination were to constitute a “matter under consideration,” the Defense maintained, it would have no bearing on the question of whether the Court could open an investigation post-withdrawal under article 12, as the Defense contested an applicable linkage between 12 and 127. Finally, the Defense contested the finding that the object and purpose of the Statute permitted the authorization of an investigation post-withdrawal, arguing that the object and purpose of the Statute is served by the one-year period between notification of withdrawal and its effect...