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Search: self-defense

07 Jun

“areas of active hostilities”) with the legal definition of non-international armed conflict (NIAC). Gabor conceded that “areas of active hostilities” and NIAC are not synonymous, but pointed out that it nonetheless remained unclear where the US government considered itself at war. Ryan, together with Stephen Pomper, replied that such lack of clarity shouldn’t be a reason to distrust the DNI report since, in any event, national self-defense targeting in response to imminent armed attacks is more restrictive than IHL targeting. Simply put, I think that Gabor is more likely to...
07.06.17 | |

29 Jul

...round hole. As an interesting coincidence, I experienced this first hand on the day this online symposium began. Yesterday I testified (out of order) as the first defense witness in the Hamdan military commission trial. The defense requested that I offer my opinion on when the armed conflict with al Qaeda began. Interestingly, the defense is not (to my knowledge) challenging the government assertion that the terror attacks of September 11th initiated a state of armed conflict between the United States and al Qaeda (which I realize and pointed out...
29.07.08 | |

15 Jan

...in the view of the judge, the case does not pertain to the question of whether the State’s current policy violates its international legal obligations but instead whether, and if so to what extent, the preliminary relief judge is allowed to assess the State’s foreign and defense policies (para. 4.9). In general, the government is presumed to enjoy wide discretion to shape its policy (beleidsvrijheid) in the areas of foreign policy and defense ‘where strongly political choices have to be made’. This explains why the ruling is largely void of...
15.01.25 | and |

10 Dec

and custom, which provides that a state may only use force pursuant to a Security Council resolution under Chapter VII or in self-defense. For this reason, a conflict also exists between the P5’s duty to engage in humanitarian intervention (if a member of the P5 breaches the duty not to veto) and the duty not to use force absent self-defense or Security Council authorization under the UN Charter and custom. Resolving the Conflict through Jus Cogens In Chapter 4, I note that the conflicts recognized in Chapter 3 must be...
10.12.18 | |

05 Oct

...create space for anticipatory self-defense even though its plain language—which permits the use of defensive force only “if” an armed attack occurs—clearly states otherwise) this argument is by itself not likely to be a sufficiently sturdy foundation. As such, the best odds for the development of a legal theory to support the sort of test that Koh proposes may lie in a multi-step process, which begins with revisiting the history and text of the UN Charter itself, developing a credible interpretation based on the text and history of Article 2(4)...
05.10.18 | |

06 Apr

but I think unpersuasive. The United States today has its own troops on the ground in Syria – troops that were not present in 2013, troops stationed (at least some of them) as close as 50 miles away from the site of the chemical weapons attack. In the abstract, one might imagine this could lead the United States to offer some sort of self-defense justification (in defense of our own nationals). But given our troops are in Syria (to fight ISIS) without Syrian consent, and given Syria’s apparent determination since...
06.04.17 | |

26 Apr

...other small set of problems around Syrian intervention: international law. The UN Charter says that one state can use force against another in two circumstances: (1) if the UN Security Council authorizes it, or (2) in national or collective self-defense if an armed attack occurs, until the Security Council has time to act. In Libya, we had a UN Security Council Resolution authorizing military intervention. There is no such resolution here, and at the moment, slim prospect of obtaining one given Russia’s opposition to intervention. Is this plausibly self-defense, for...
26.04.13 | |

08 Nov

...case was an invaluable part of ensuring Milosevic had a fair trial. In interviews with the amici, they noted that they preferred the role of amicus to being assigned as defense counsel. They pointed out that had they been assigned to represent Milosevic from the start, they would have an ethical obligation not to act without instructions. Given that Milosevic would have refused to instruct assigned counsel, they would not have had the opportunity they had as amici to file motions helpful to the defense without conflicting with their obligations...
08.11.09 | |

06 Nov

...trade and non-proliferation as well. Finally, I found Obama’s response particularly interesting with respect to the use of force, where he lays out a traditional articulation of the U.S. right to self-defense plus a preference for multilateral action in other circumstances: I will not hesitate to use force, unilaterally if necessary, to protect the American people or our vital interests whenever we are attacked or imminently threatened. . . . There are some circumstances beyond self-defense in which I would be prepared to consider using force, for example to participate...
06.11.08 | |

29 Sep

...after all.) Perhaps it is not surprising that the ILC’s commentaries justify its rule on countermeasures by citing the comments it received from the WHO and UNESCO, both of which saw no reason to deny them such powers. One can only imagine the countermeasures that organizations like the WHO or UNESCO now see themselves as licensed to impose on the rest of us. Equally mysterious are the preconditions that the ILC appears to envision with respect IOs’ “self-defense” or their invocations of the defense of necessity. One wonders precisely what...
29.09.10 | |

24 Mar

...my view, the proper legal frame is international law of self-defense – and it is what the US has traditionally viewed the exercise of these discrete uses of force by the CIA, covert or clandestine, as being anyway. These two legal rationales eventually lead to different legal conclusions, constraints and authority for the use of force. My view is that forcing CIA targeted killing in places that might range widely in the world into armed conflict rationales is bad for the CIA’s legal reasoning, and requires ever greater legal contortions...
24.03.10 | |

25 Jun

...conflict between the United States and Al Qaeda. But the analysis is detailed enough in this iteration to accomplish something the White Paper, etc. in important ways did not: identifying key legal limits on the scope of U.S. targeting authority. Take the source-of-authority example. The earlier White Paper was remarkably successful in fudging whether the Administration was invoking the President’s Article II self-defense power under the Constitution, or the statutory AUMF, to support targeting operations. The White Paper likewise (notoriously) fudged whether it was invoking a UN Charter-based self-defense justification...
25.06.14 | |