Search: self-defense

Jordan Response... Also, I find this interesting: in unresolved Q 1 Harold states that the U.S. view has long been that there is a right of self-defense against "any illegal use of force" but, "on the other hand, ... some governments and commentators" do not and that they view "armed attack" as triggering the right of self-defense [I have to include myself among such commentators, but I note that "armed" can include use of a "weapon," such as a cyber-"weapon", gas, chemical weapons, etc., at least if they have a...

...Self-defense is a justification, that is legally-warranted exception to a general prohibition. As such, it is a way out of illegality. The rules of engagement are authorization to use force in circumstances other than self-defense, issued by the military. ROE do not influence the right to self-defense, which is regulated by a different set of rules. During an attack or when an attack is imminent, ROE do not apply. They apply in case of hostile intent or a hostile act, which are situations other than attack. federico In a non-international...

...as “self-defense” does not provide a CIA interrogator — contra Yoo’s notorious 14 March 2003 torture memo — with a defense to torture. To be clear, that does not mean a CIA operative could not argue self-defense in a murder prosecution. The defense would apply — but it would be governed by the normal requirements, most relevantly that the operative must have reasonably believed that lethal force was necessary to prevent the imminent use of deadly force. The CIA operative would thus likely be entitled to the defense of self-defense...

...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...

...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...

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...

...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...

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...

...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...

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...

...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,...

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...