Search: self-defense
07 Jun Civilian Casualties and the Law-Policy Conundrum
“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...
05 Oct Trump vs. International Law: The Challenge of Articulating a Legal Framework for Humanitarian Intervention
...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)...
08 Oct Rethinking International Law After Gaza Symposium: Massacring Civilians – Genocide as International Legal Conundrum
...other international legal doctrines: state self-defense and prohibition of terrorism. Neocolonial states consistently allege to be acting in self-defense or in the interest of global security when they massacre civilians in the global South. (The U.S. “war on terror” exemplifies this tactic.) These neocolonial states also allege that mass civilian deaths are “mistakes” or “collateral damage.” The state’s claim of self-defense is so sacred in the contemporary international legal system that the burden of proof falls on victims of massacres to prove civilian targeting. Neocolonial states consistently murder disproportionately more...
10 Dec Symposium: A Duty to Prevent Genocide–Due Diligence Obligations among the P5 (Part Two)
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...01 Apr A Response to Alonso Gurmendi: The ICJ Must Consider Israel’s Legal Rights to the West Bank, Gaza and East Jerusalem
...independence under the “sacred trust of civilisation” and its right to self-determination under the UN Charter”. However, Palestinian self-determination cannot negate Israel’s territorial claims or the principle of territorial integrity; at most they imply the existence of competing claims which must be addressed in a final resolution. Of course, the existence of self-determination rights does not dictate the precise territorial scope in which they can be exercised [nor does it mandate a separate state; see Reference re Secession of Quebec]. A conflicting Palestinian right would not necessarily detract from Israeli...12 Mar Bradley Book Symposium: Kristina Daugirdas on Delegations to International Institutions
...them unless and until Congress adopts implementing legislation. This is desirable, he writes, because it ensures that international decisions and orders are subject to “the filter of the U.S. democratic process.” (p. 134) Professor Bradley reports that some commentators—himself included—have therefore endorsed a presumption that the orders and decisions of international institutions are not self-executing. When the decisions and orders of international institutions are not self-executing, Congress’s participation becomes essential if the United States is to comply with its international obligations. But can we count on Congress to fulfill this...08 Mar David John Frank Responds to James Hathaway & Jason Pobjoy
is not to disregard the obvious differences between LGBT asylum claims and self-repression. Asylum rights are enabling. Self-repression is disabling. Asylum rights are public matters. Self-repression is a private matter. And so on. All of this is important to spell out because it describes the world as we know it and the world as we believe it should be. In articulating the assumptions that allow us to justify LGBT asylum claims in terms of the traumatic consequences of self-repression, we specify the conditions under which such a justification makes sense...17 Feb The Treaty Supremacy Rule: Is a Partial Revival Possible?
...in international affairs might prefer such a constitutional design. However, Professor Stewart is certainly not in that camp, nor were the Founders. Third, one modern permutation of self-execution doctrine—the “no judicial enforcement” doctrine—allows state governments to impose sanctions on a criminal defendant in violation of supreme federal (treaty) law, without addressing the merits of defendant’s treaty-based defense. The Fourteenth Amendment Due Process Clause guarantees every state criminal defendant an opportunity to be heard on the merits of a federal defense to state criminal charges. Therefore, as I contend in Chapter...
25 Mar Uniting for Justice: Group Referrals to the International Criminal Court
...referral, can be grouped in three categories: 1) State Party self-referral; 2) single State Party referral and 3) group/collective State Party referral. The last two of them can be termed as “third State Party referrals”. Self-referral takes place when a State Party itself refers alleged crimes committed on its territory or by its nationals to the Prosecutor. Self-referrals has emerged as the major way to seize the Court. Interestingly, drafters of the Rome Statute shared an assumption that self-referrals would be an exception (for an opposite view, see Robinson, 2011)....