Search: self-defense
17 Feb The Absence of Practice Supporting the “Unwilling or Unable” Test
Regular readers of the blog know that one of my hobbyhorses is the “unwilling or unable” test for self-defense against non-state actors. As I have often pointed out, scholars seem much more enamored with the test than states. The newest (regrettable) case in point: my friend Claus Kress, who is one of the world’s best international-law scholars. Here is what he writes in an otherwise-excellent contribution to Just Security about the use of force against ISIL in Syria (emphasis mine): It therefore follows not only from the right of self-defense’s...15 Oct BU Law School’s “Ten Years In” Conference
not field military units is sustained hostilities, and so forth. The interesting question is not targeting persons who are DPH in a real theatre of war or DPAA in self-defense, but detention when an armed conflict does not exist. What will be the authority of the U.S. to detain terrorist suspects without trial? Will it relate to an expanded notion of self-defense? Can it? I have written (like Abe Sofaer) that since we can kill in self-defense we should be able to capture. I had in mind capture for trial....24 May The U.S. Perspective on the Legal Basis for the bin Laden Operation
...to present an imminent threat that might justify the use of force in self-defense, but also that bin Laden himself continued to pose such an imminent threat. It is not obvious that such a determination—that an individual poses an imminent threat—is necessary for any international law purposes. But it surely helps to explain why this particular use of force against al Qaeda satisfied the basic requirements that uses of force in self-defense must be proportional and necessary to address the threat in question. Of course, international law requires that the...05 Apr Drone Warfare and the Koh Speech – A Roundup of Links
United States - this being the causal chain driving some of our current actions. The public will not, however, get behind calling such drone attacks "self-defense." The term self-defense implies to the public something you do in the face of an imminent, immediate threat - and whacking Pakistani militant chieftains out on the far end of that long causal chain is not it. Used to justify any targeted killing anywhere on the globe, "self-defense" sounds Orwellian. When "the international soft law community" makes this their "next big thing," you won't...
23 Oct Encoding Empire: How Legal Rhetoric Justifies Occupation and Masks Resistance
[Joyce Choo worked as a fellow with UNRWA during the 2025 Gaza war. She holds an LLM in international legal studies from NYU School of Law, where she was a Transitional Justice Scholar] In recent years, the doctrine of self-defense has become a powerful tool for states to entrench territorial dominance. When Israel bombs Gaza, India militarizes Kashmir and Pakistan occupies Balochistan, they all invoke the same justification: self-defense. Legal language, such as “proportionality”, “necessity” and “defensive” has shifted from limiting violence to legitimizing it. These are not isolated cases....
12 Jul Of Proxies, Self-Defence and Reprisals
...consulates) abroad are considered emanations of the state, Israel’s attack on Iran’s consulate in Syria is an armed attack against Iran to which Iran has the right to self-defence. The US has long held that attacks on diplomatic and consular missions can justify action in self-defence (including those against US embassies in Nairobi and Dar-es-Salam in 1998). Here, UN experts agreed that Iran has a right to respond, but argued it would be unnecessary as “self-defence is only lawful where it is necessary to stop a continuing armed attack”. Similarly,...23 Sep Does the Collective Self-Defense Justification Extend to Khorasan? If Not, Then Is There One?
Jordan Julian: you should read the responses to Jennifer's interesting post below. The claim of the U.S. (perhaps the advisors to Obama have not realized it yet) would be self-defense against continual armed attacks by al Qaeda and its affiliates....03 Jan Dershowitz on Israel and Proportionality
...the right to engage in self-defense against armed attacks. The only limitation international law places on a democracy is that its actions must satisfy the principle of proportionality. As Marko Milanovic explains today at EJIL: Talk!,”[t]his is simply not self-defense within the meaning of Article 51 of the UN Charter, as that concept of self-defense is an exception to the general prohibition on the use of force, that operates between states only and exclusively and is enshrined in Article 2(4) of the Charter. That prohibition was not triggered by Israel’s...