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Search: self-defense

17 Mar

...et de Duello was one of the first attempts to establish international rules for warfare. Legnano’s treatise closely examined the individual right of self-defense as the basis of establishing a derivative right of a nation to engage in war. Legnano believed that, “self-defense proceeds from natural law, and not from positive law, civil or canon.” Self-defense was not an artificial construct of positive law, but instead was an inherent instinct. Legnano did not confine the natural right to merely protecting one’s life. He explained that self-defense was proper not only...
17.03.08 | |

03 Jun

...that even. If a state cannot or will not control its territory to prevent it from being used as safe haven for terrorists or terrorist groups, then even the important international legal rule of territorial sovereignty can be overcome by an affirmative defense of self-defense; that use of force might be in the form of armed conflict, but it might be something that does not rise to that level of hostilities and thus constitute an act of self-defense use of force simpliciter. That use of force is justified under jus...
03.06.10 | |

10 Mar

claimed that there was a very strict limitation on particular methods of responsive force as opposed to when the right of self-defense pertains. No one disagreed that non-state actor armed attacks trigger the right to engage in certain measures of self-defense and that armed attacks had already occurred, but the U.S. claimed that use of a particular means of self-defense when the right of self-defense had been triggered should only be permissible when the “‘necessity of that self-defense is instant, overwhelming, and leaving no choice of means, and no moment...
10.03.15 | |

15 Jun

...the United States, but it is not at all "obvious" from an international legal perspective. Benjamin G. Davis I am looking forward to Ashley Deeks paper. From what I have seen the "unable/unwilling test" is not a legal rule but a rationalization. Agree with Jordan that the legal rule is the right of self-defense. Differ in that such action by another state in the host state may also trigger the right of self-defense of the host state. Did Pakistan have the right to respond on the basis of self-defense to...
15.06.11 | |

11 Jul

the legal issue will be whether the right of national self-defence applies. Equally, Article 31(c) of the ICC Statute and ICTY jurisprudence have approached the question of unit-level action from the perspective of personal self-defence, as a ground excluding criminal liability. The ICTY stated that the “notion of self-defence may be broadly defined as providing a defence to a person who acts to defend or protect himself or his property (or another person or person’s property) against attack” and applied that definition to questions regarding the legality of forceful action...
11.07.14 | |

12 Aug

...Daniel Webster argued in a letter to the British government that the British failed to meet the standard of self-defense, which requires “necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment of deliberation.” This definition combines elements of excuse and justification. The requirement that an exercise of self-defense is necessary suggests that self-defense is a justification, since jurisdictions generally recognize that a necessary action is justified. Yet, as George Fletcher and Jens Ohlin explain, the requirement that one could not do otherwise invokes the idea of...
12.08.15 | |

09 Nov

be necessary *if* Pakistan were able and willing itself to capture/kill bin Laden, or if Pakistan would have consented (in which latter case it wouldn't violate 2(4) whether or not in self-defense). 6. To ascertain whether Pakistan was willing and able (or consenting), however, would likely have made the self-defensive action impossible, due to the (presumably) serious risk of an ISI tip-off, even if the leaders of Pakistan *were,* in fact, willing and able (or consenting). 7. Therefore the self-defense action satisfied the "necessity" requirement even without consultation, because it...
09.11.15 | |

06 Mar

...anticipatory self-defence recognises the existence of the right in the face of a manifestly specific and imminent attack. The concept of preventive self-defence does not seek to rely on any concrete threat of an armed attack, and operates in the realm of contingency and conjecture (eg. Japan’s attack on Pearl Harbour). It is beyond debate that reactionary self-defence or self-defence simpliciter has a firm grounding in international law. The right of ‘anticipatory self-defence’ has also, over time, received recognition to some extent. However, ‘preventive self-defence’ has found few supporters. Interestingly,...
06.03.19 | |

24 May

if it had been firing across into Canadian territory -- as a matter of "self-defense." And the British lawyer was correct. Even today, self-defense against ongoing non-state actor armed attacks can be permissible without the consent of the state from which such armed attacks emanate and without two or more states being at war. Precisely the circumstance addressed in the Caroline incident despite disagreement concerning methods and timing of the British measures of self-defense. For years now, yes, there are two alternative paradigms to consider: (1) the law of war...
24.05.13 | |

21 May

...often walk into that courtroom voluntarily. Law that isn't enforced doesn't exist for all practical purposes. Daniel I think a large part of the confusion is whether responding to an 'armed attack' (in art. 51) with force automatically creates an 'armed conflict'. There's a strong argument to be made that the UNSC's recital of the right to self defense in this resolution implies that self defense can be justified against an armed attack originating from a non-State target (at least, when the s-d is necessary and proportionate). If you believe...
21.05.11 | |

04 May

...(Of course, there is dispute about whether some of these actions were legitimate self-defense; but for present purposes what's important is that there's no dispute that there have been many instance such historical cases where the claim of self-defense was justified.) I've always assumed that such self-defense actions are governed by IHL, in two important respects. First, the many constraints of IHL apply -- distinction, proportionality, necessity, no perfidy, no denial of quarter, etc. Second, members of the armed forces of the state or non-state actor against whom the self-defense...
04.05.11 | |

05 Mar

JordanPaust Response... The inherent right of self-defense is expessly and unavoidably limited in Article 51 of the Charter by the phrase "if an armed attack occurs"! The Caroline incident actually involved ongoing armed attacks on Canada by insurgents who had been supported in part by The Caroline. See, e.g. http://ssrn.com/abstract=1520717 The Caroline incident does NOT support anticipatory self-defense, much less preemptive self-defense when an armed attack is not even imminent (if anticipatory self-defense could ever be lawful in view of the express limit in Article 51 of the Charter). "imminent...
05.03.12 | |