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Search: self-defense

05 Oct

...not the UN Art. 51 test and an imminent threat is not even a threat yet. He should have used the phrase "threat of imminent attack" and then he would be impliedly arguing for a relaxation of the in case of armed attack requirement in favor of anticipatry self-defense. And Hostage, the Caroline test offered by Secretary Webster concerned the method or means of self-defense and was too high a standard-- as all admitted that the rebel attacks were ongoing -- and once an armed attack occurs or a process...
05.10.12 | |

14 Aug

The WSJ has a nice discussion of the tricky legal arguments in the upcoming trial of alleged pirates in U.S. federal court. Apparently, the prosecutors and defense attorneys are battling over the fact that U.S. statutes criminalizing piracy leave the definition to “the law of nations”. Now the court in Norfolk must contend with the defense motion to dismiss the piracy charge, which would leaving only such lesser charges as attempted plunder. The prosecution argues that U.S. courts should defer to international law, especially an 1982 U.N. Law of the...
14.08.10 | |

23 Oct

not for its self-refuting non-applicability to the Department of Justice (the only agency to whom the provision would realistically apply in the first instance). Here’s the language: “Absent a court order requiring the reading of such statements, no member of the Armed Forces and no official or employee of the Department of Defense or a component of the intelligence community (other than the Department of Justice) may read to a foreign national who is captured or detained outside the United States as an enemy belligerent and is in the custody...
23.10.09 | |

27 Aug

...as laying down an indiscriminate barrage aimed at “cratering” the neighborhood. The cratering operation was designed to collapse the Hamas tunnels discovered when IDF ground units came under fire in the neighborhood. Initially, said the senior U.S. military officer who spoke with me about the military summaries of IDF operations, Israel’s artillery had used “suppressing fire to protect their forward units, but then poured in everything they had — in a kind of walking barrage. Suppressing fire is perfectly defensible — a walking barrage isn’t.” The Israelis’ own defense of...
27.08.14 | |

02 Jun

defense attorney for doing his job, can anyone maintain with a straight face that transferred defendants would be tried fairly? Second, and relatedly, the ICTR has uttered nary a word in protest of Erlinder’s arrest. That’s absolutely shameful — and is indicative of the Tribunal’s general contempt for defense attorneys. The very first post I ever wrote for Opinio Juris, way back in February 2006, focused on the second-class status of defense attorneys at the international tribunals. Unfortunately, it seems clear that nothing has changed in the past four years....
02.06.10 | |

02 Jul

André Tschumi You are absolutely right Kevin. ICC should not have expressed regret or apologized to Libya and defense attorneys have a second-class status in international criminal law, which is pretty clear in your fictional scenario. I worked in a defense team at the ICTR. The willingness of Rwanda government to cooperate with defense teams is similar to the willingness of Zintan authorities to let the OPCD represent Saif effectively. Unfortunately, this happens because international community is more concerned to punish the "bad guys" than to provide the defense teams...
02.07.12 | |

13 Jul

...2. Prosecutors – Five dedicated prosecutors, assigned by the Department of Justice (DoJ) would represent the government and exercise prosecutorial discretion on whether or not to proceed in cases. Oversight would be conducted by the Chief, Criminal Division of DoJ. The powers of these prosecutors, as currently exists in other democratic, E.U. nations, would be great. However, these prosecutors would still operate under the ethical rules standard for all US government attorneys. 3. Specified and Qualified Defense Counsel(s) – Judge advocates would serve as the government-provided defense counsel. This group...
13.07.07 | |

22 Feb

Bill Poser By what authority could the Pentagon prevent Colonel Davis from testifying? If he is subpoenaed, why would an order not to testify be any different from an order from a civilian employer not to testify, that is, of no force, and contempt of court? J.D. Clearly the Dep't of Defense is not just like any other employer. It is an agency of our government, a part of our sovereign. They could attempt to claim a privilege under Military Commission Rule of Evidence 506...(or 505 if some of it...
22.02.08 | |

16 Jan

...lack thereof—is what this is really about. In the days and months after 9/11, while OLC was generating the Geneva Convention memos and the torture memos, L was being run by an ex-General Counsel of the Department of Defense (who had also been an Acting Secretary of Defense) and included a staff of lawyers who had worked more at negotiating, interpreting, and applying the laws of armed conflict than anyone else in the U.S. except for some of the uniformed JAGs. This is not to say that OLC was “evil,”...
16.01.07 | |

21 Apr

[Major John C. Dehn is an Assistant Professor in the Department of Law, US Military Academy, West Point, NY. He teaches International Law, and Constitutional and Military Law. He is writing in his personal capacity and his views do not necessarily represent the views of the Department of Defense, the US Army, or the US Military Academy.] First, I express my thanks to Opinio Juris for permitting me to comment on recent events here at West Point in my personal capacity as an international law scholar and U.S. citizen. Last...
21.04.09 | |

08 Sep

...of the laws of war. Further, it is an international armed conflict b/c U.S. military are dropping bombs on an insurgent (ISIS) and our presence has internationalized the armed conflict. The reason why the President does not need congressional approval is not b/c of a nonsense claim that we are not at "war," but b/c the President has constitutional authority to engage in measures of self-defense and collective self-defense -- e.g., http://ssrn.com/abstract=2061835 I suppose that the best argument for U.S. use of force in Syria against ISIS would be that...
08.09.14 | |

06 Apr

rights to "individual, or collective self-defense," under Article 51 of the U.N. Charter! If Hamas continues to launch its rockets from population centers, Israel must take such measures as are feasible to minimize civilian casualties, but is not otherwise required to refrain from responding to threats to its national security. The unvarnished reality is that this conflict will continue until either Israel devastates Gaza in this perpetual war, or the Hamas barbarians succeed on the battlefield, which seems even far less likely to occur! Kevin Jon Heller Mike 71, With...
06.04.11 | |