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Search: self-defense

27 Sep

...interdependent military is capable of providing institutional support to a nascent democracy because its institutional self-interests often align with the conditions that Madison and others have identified as conducive to the genesis of a constitutional democracy: institutional stability, political pluralism, and national unity. Using comparative case studies, I explore how the interdependent militaries’ self-interested actions have counter-intuitively promoted democratic development and constrained unilateral exercises of power in emerging democracies, which Professor Landau has persuasively argued is the central challenge of constitution-making in a separate article titled Constitution-Making Gone Wrong, Ala....
27.09.12 | |

16 Feb

...be found in rehabilitation, reconciliation and the last resort principle. Regarding the limits, some contribution can be found in both comparative criminal law and transitional justice. In these, for instance, we could also find an answer to our starting point: The discussion on self-pardon. Departing from the ‘bad examples’ of the self-amnesties adopted by Pinochet (law decree n. 2191/1978) and Fujimori (law 2647/1995) and before them by Mussolini, right after the coup which brought him to power (Royal Decree 1641/1922), the vast majority of scholars rejects the admissibility of self-clemency...
16.02.21 | |

26 Mar

[Mark Weisburd is the Martha M. Brandis Professor of Law at UNC Law School.] I find it difficult to read Medellin as institutionalizing a presumption against self-execution. If that had been Roberts’s intent, the form of his argument should have been, “We presume non self-execution, is there anything to overcome the presumption?” Instead, he analyzed the text, ratification hearings, and practice of other treaty parties to conclude that Art. 94 was not intended to create obligations for domestic courts. The conclusion seems reasonable to me – 94(2)’s according the Security...
26.03.08 | |

11 Apr

Pierre N. Leval, a well-respected judge who sits on the U.S. Court of Appeals for the Second Circuit in New York, has published a full-scale no-holds-barred policy defense of the Alien Tort Statute in Foreign Affairs. The essay, which is adapted from his lecture to the New York City Bar Association, offers the standard argument in favor of the Alien Tort Statute (it gives victims of human rights atrocities the possibility of justice and compensation). And he offers a pre-rebuttal to a possibly negative ATS ruling from the U.S. Supreme...
11.04.13 | |

24 Jun

...charges which made it difficult for the defendants to prepare their case and the inability of the defense to call witnesses who feared for their security. Proceedings in the Anfal trial closed on May 10, 2007 and a verdict will be issued soon. The prosecutor has called for the death penalty to be imposed on five of the six defendants. “The court undercut the accused’s right to present a vigorous defense by allowing the prosecution to rely on vague charges and refusing requests to accommodate defense witnesses,” said Dicker. “This...
24.06.07 | |

21 Nov

James Comey and Jack Goldsmith provide here the best (although not completely convincing) defense of the decision to try KSM in New York. I agree that the most defensible explanation is that military commissions remain constitutionally vulnerable, hence it makes sense to use the civilian courts for your most important cases. I don’t quite buy this, but I think this is the most sensible explanation of what seems otherwise a totally baffling decision....
21.11.09 | |

16 Apr

...the time that there was no legal justification for watering down American criminal law’s well-established “entrapment by estoppel” defense in the way that Lederman suggested and that Obama has now endorsed. Here is what I wrote regarding Lederman’s claim that we can infer reasonable reliance from the existence of the OLC’s advice itself (which directly contradicts his insistence that waterboarding is patently illegal): I think Lederman’s argument misunderstands the nature of “entrapment by estoppel.” Section 2.04 of the Model Penal Code provides a typical formulation of the defense: [a] belief...
16.04.09 | |

02 Oct

...Arabs to live together. Partitioning the territory was the only way out. Mihai Martoiu Ticu "In December 1917, when the British Army occupied Palestine, the Arabs could not independently invoke a right of self-determination in general international law even though they had long been numerically preponderant in Palestine, owning most of the land, and even reaching high political office under the Turks. This is because at that time self-determination was, at best, a political principle. It did not exist as an independent legal right, which all peoples could invoke. However,...
02.10.11 | |

30 Nov

First of all, I want to thank Chris, Peggy, Julian and Roger for letting me spend some time here at Opinio Juris. As an avid reader, I’m looking forward to the opportunity to exchange ideas with other Opinio Juris readers. To that end, I want to start off with a question about judicial treatment of non-self-executing treaties. U.S. courts have certainly devoted considerable (albeit often inconsistent) attention to the question of when to enforce a U.S. treaty by declaring it “self-executing” or “non-self-executing.” But the inquiry always seems to end...
30.11.05 | |

18 Nov

...makes more sense” (in War Crimes and Just War, 2007: 310). Here’s why: at least insofar as we’re dealing with al-Qa‘ida militants, preference for the war model has perverse even if unintended effects, owing to the militant’s collective self-description or self-understanding as jihadists within the Islamic tradition. The Islamic legal tradition (of Shari’ah and fiqh), which admittedly is no longer as intellectually vigorous and relevant in the manner it once was in the Islamic world, understands (the ‘lesser’) jihad (the ‘greater’ jihad of course being the personal struggle against evil...
18.11.09 | |

04 May

In 2008, the U.S. Supreme Court held in Medellin v. Texas that rulings of the International Court of Justice are not “self-executing” under U.S. law. For this reason, the Supreme Court refused to require Texas to stop executions that the ICJ had held in violation of U.S. treaty obligations. It looks like Colombia’s Constitutional Court has followed that same approach with respect to Colombia’s Constitution: Colombia’s constitutional court ruled on Friday that applying a decision by the International Court of Justice (ICJ) that granted Nicaragua a disputed area of Caribbean...
04.05.14 | |

18 Nov

status but reflects, however dimly and intermittently, a recognition of the moral stature of man and the conduct appropriate to a rational and self-conscious agent, endowed with a measure of free will and capable of choosing, deciding, assenting, and withdrawing support." I suspect that "the seeming weakness of Natural Law is, in fact, its real source of moral strength and significance. Its operative force depends very much upon the extent of self-awareness and the degree of humanity which men show themselves capable of and seek to attain in a given...
18.11.08 | |