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Search: self-defense

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 | |

21 Sep

...U.S. territory is attacked). In the U.S. -Philippines Defense treaty, the area covered by the treaty is “the metropolitan territory of either of the Parties.” The Korea Treaty does have similar language “administrative control” language, although I am assuming it does so in order to exclude North Korea. So the U.S. is basically on the hook for a defense of the Senkaku/Diaoyu. And what’s worse, Japan doesn’t have to help the U.S. at all in defending its own territory. Looks like the Japanese got themselves a nice little deal here....
21.09.12 | |

31 Aug

...as a NATO coalition (as occurred with Kosovo) lends greater legitimacy (although even that is technically not sufficient under a strict reading of the U.N. Charter). But when a broad coalition or regional actor is unavailable, does that mean that countries must stand by and let mass atrocities, such as the use of chemical weapons (a necessarily indiscriminate weapon), occur? The answer is arguably no. While the U.N. Charter only clearly permits intervention in two scenarios: U.N. Security Council authorized action and article 51 individual or collective self-defense, the Charter...
31.08.13 | |

31 Aug

...situation regarding Iran is far more complex because of Iranian direct support of Hezbollah and other groups in ongoing armed attacks on Israel and its stated objective re: Israel. I have an article on 51 self-defense and collective self-defense in such a context that has been accepted for publication by a journal and might obtain a short-fuse expedited review by a few others. It might be interesting here to address implications of the Obama doctrine and recent decisions regarding potential use of armed force against Iranian nuclear weapons production facilities....
31.08.13 | |

25 Feb

...the pun) interpretation of the relevant Security Council resolutions in the article. I'd simply add that Yoo's argument that the right of anticipatory self-defense justified the Iraq war is even less persuasive. Yoo spends four pages defending the existence of that right (something few international lawyers would doubt, at least in theory), then concludes that the right justified the Iraq war in two sentences. Here they are, reproduced in full: "Applying the reformulated test for using force in anticipatory self-defense to the potential use offorce against Iraq reveals that the...
25.02.05 | |

20 Mar

...areas. Also, by July 2011 a significant number of countries had recognized the NTC as the legitimate representative of the Libyan people and the NTC thereafter effectively consented to NATO's use of armed force in their defense (collective self-defense) and for self-determination assistance against a regime engaged in ongoing armed attacks on Libyan civilians (and, therefore, in violation of self-determination -- e.g., 1970 Dec. Prin. I.L.). Therefore, NATO's use of force in Libya was permissible (1) within the S.C. mandate, and (2) as (a) collective self-defense, and (b) self-determination assistance....
20.03.12 | |

17 Mar

Steve Paterno On my provocative comments on the genocide debate, I have seen everyone came in defense of Alex De Waal and faulting me. Well, I may accept where I am at fault, but I am also compelled to clarify my position further. In this discussions, what I have seen are three major issues: (1) whether the atrocities in Darfur constitutes genocide, (2) if the case of genocide can be presentable in court, (3) and should someone be held accountable for the atrocities committed in Darfur, especially if that someone...
17.03.09 | |