The Analogy's Limit: Defending the Rights of Peoples

Abstract

In Defending Humanity: When Force is Justified and Why? George Fletcher and Jens Ohlin introduce a thought-provoking analogy between self-defence under criminal law and under public international law. At first glance, the analogy is appealing, as it is reasonable to assume that the meaning attributed to the concept of ‘self-defence’ in domestic criminal law has shaped, at least to some extent, the way self-defence has developed in international law. Still, the article argues that context matters, and that the different institutional configuration of the national and international legal and political systems undercuts the analogy offered by Fletcher and Ohlin. Section 1 of the article discusses Fletcher and Ohlin’s legitime defense argument - that is, that the right to self-defence provides broad authority to use of force in order to defend a state’s own interests or the interests of other states or nations from unlawful violent acts. Arguably, such an argument runs contrary to the renunciation by the UN Charter of the just war theory and is incompatible with the institutional structure that the Charter has created. Section 2 specifically examines the possibility of invoking legitime defense in order to protect sub-statal ‘nations’ (in the framework of humanitarian intervention). Section 3 concludes by offering some observations on the potential analogy between domestic and international criminal law.