Concept Of Self-defence Research Articles

The Concept of Self-Defence in Islamic Criminal Law: A Study

The Concept of Self-Defence in Islamic Criminal Law: A Study

From Knives to Kites: Developments and Dilemmas around the Use of Force in the Israeli–Palestinian Conflict since ‘Protective Edge’

This article analyses the legal regulation of the use of force in international law in the context of three emerging Palestinian forms of struggle against Israeli occupation: the Knife Intifada, the disturbances at the border, and the launching of incendiary kites. It discusses what legal paradigms or concepts should regulate the type and level of force used in each situation – a question that is complicated by various dilemmas – and finally, appraises the Israel Defence Forces policies tailored in response. The article evaluates the applicability of two legal paradigms regulating the use of force in military operations – (i) the conduct of hostilities and (ii) law enforcement – as well as the concept of personal self-defence in international law and the escalation of force procedure. While the Knife Intifada clearly falls under the law enforcement paradigm, the disturbances at the border and the launching of incendiary kites raise more difficult legal questions. Categorising them under a paradigm of law enforcement is less straightforward, and may have undesirable ramifications for safeguarding humanitarian interests. The article argues that the use of force in the disturbances at the border and the incendiary kites cases should be regulated by the concept of self-defence and escalation of force procedure, and that the application of the self-defence concept should be adapted, mutatis mutandis, to situations of law enforcement and to situations of hostilities.

Self-Defence as a Circumstance Precluding the Wrongfulness of the Use of Force

Roberto Ago, the International Law Commission’s second Special Rapporteur on the topic of state responsibility for internationally wrongful acts, defined self-defence as a faculte of a state to use force in response to an act of another state through which a breach of the principal obligation under Article 2(4) Charter is committed. On this basis, he then inserted a provision in Chapter V to Part One of the Draft Articles on State Responsibility expressing self-defence as a specific factual circumstance precluding the wrongfulness of the use of force which constitutes a response to state aggression. This conception of self-defence, although misunderstood from the onset, remained in the backdrop of the study of the law of state responsibility for a considerable period. It was only dismantled during the reign of the last Special Rapporteur on the topic of state responsibility, James Crawford. The last Rapporteur, at the onset, submitted that it is not the function of the Draft Articles to specify the content of the primary rules, including that referred to in Article 51 Charter. He then redefined the function of the circumstance of self-defence as that of precluding the wrongfulness of non-performance of certain obligations other than the general prohibition insofar as such non-performance is connected with the exercise of the right under Article 51 Charter. This contribution first scrutinises this paradigmatic shift and finds it to be symptomatic of the conviction on the part of Crawford that the notion of self-defence could also encompass the use of force against speculative threats of state origin as well as actual threats that emanate from individuals or groups which are disconnected from the organisation of any state. It then uses this finding as a springboard towards the examination of the controversy surrounding the notion of self-defence under international law. In that connection, it first outlines the findings of the World Court on the requirements of armed attack and attribution and describes the points of criticism which those findings have elicited. Next, it argues that state practice is unable to settle the controversy concerning the scope of the concept of self-defence and that the question whether or not valid invocation of Article 51 Charter must be preceded by a state’s breach of the general prohibition can be conclusively answered only as part of efforts geared to devising an explanatory account of self-defence which accurately translates its normative origins and which preserves its logical relations with the other, more ordinary but fundamental legal concepts. The study’s conclusion is that respect for such criteria demands that the notion of self-defence under international law be defined in line with Ago’s proposition, i.e. in terms of a de facto situation, recognised by a secondary rule, whereby the principal obligation under the primary rule contained in Article 2(4) Charter is pushed into abeyance to the detriment of a state which conducts itself in breach of that very same obligation in respect of another state; or, correlatively, in terms of a factual circumstance precluding the wrongfulness of the use of force which constitutes a riposte to an unlawful armed attack of another state.

Extraterritorial Law-Enforcement: Combating Non-State Actors

As a relatively new instrument of warfare, drones are an important tool in the global war against terrorism. Its deployment is often couched in the language of self-defence. However such thesis raises several questions with respect to the concept of self-defence. This article will elaborate on the concept of self-defence, first from a historical perspective and second its current understanding. From therof, the deployment of drones will be assesed from two different approaches; namely the sovereign-right and belligerent-right approach.

OSAMA BIN LADEN: A WAR WAGED WITHIN THE GAPS IN INTERNATIONAL LAW

The recent demise of arch-terrorist Osama bin Laden at the hands of United States (US) Navy Seals has given rise to furious debate as to the legality thereof. The broadest question to ask is whether bin Laden’s killing can be justified in terms of international law. Indeed, it is not even clear which legal paradigm should be utilised to answer this conundrum. In this article it will be shown that the American term, ‘war on terror’, does not fit neatly into the definition of either an international or non-international armed conflict and is therefore not comfortably governed by the rules of either. The concept of selfdefence, desperately needing clarification, will then be proposed as something which operates outside these two paradigms. The aforementioned discussions will lead to an analysis of whether the correct over-arching legal system to apply is international humanitarian law (the law of war) or international human rights law; or whether these two can legitimately operate concurrently. Finally, some brief thoughts will be added regarding the legality of the actual killing of bin Laden.

Application of International Law in Cyber Warfare Operations

In the not-so-distant future, a concerted ‘Cyber Attack’, effectuated via the Internet, could cause massive destruction to any society dependent on computer networks, especially in key target fields of transport, energy supply and communication infrastructures, leading to human casualties and serious destruction of property – reproducing the same, if not more, damage that would be caused by conventional armed attacks. Despite last decade’s abundant legal literature on the subject, not only is a clear and unambiguous international consensus regarding the legal status of Cyber Warfare Operations hitherto nonexistent, but also the views of international law scholars present a peculiarly high level of heterogeneity. Are Cyber Attacks prohibited under the non-use of force doctrine or permitted within the concept of self-defence? Are they even subject to the Law of War? In order to find answers to questions such as the aforementioned, various aspects of International Law will be applied, underlining the need for a reform of notions such as armed conflict, use of force and attack. This paper will attempt to ‘navigate’ through the ‘sea’ of multitudinous and farraginous papers written by lawyers from military, humanitarian and academic backgrounds, by dividing its corpus into the following distinct sections. In the first part, a delineation of the terms Cyberspace and Cyber Warfare Operations will be attempted, coupled with an examination of the various hacking techniques and the typology of potential attacks. Secondly, the jus ad bellum will be applied in Cyber Attacks with the goal of classifying them under the existing ‘costumes’ of ‘use of force’ and/or ‘aggression’. Their relationship with the concept of self-defence will be examined in a two-fold way. Is a Cyber Attack tantamount to an ‘armed attack’, in order to trigger the lawful right of self-defence, according to UN Charter article 51? And vice-versa, is it possible for self-defence to be waged in the form of a Cyber Attack? State responsibility will be subsequently addressed, using as a ‘compass’ the 2001 Draft Articles on State Responsibility and the relative jurisprudence by international tribunals. Thirdly, certain bedrock rules of the jus in bello will be applied in Cyber Attacks, concluding that the cardinal principles of distinction, humanity and proportionality are outdated albeit essential. Lastly, this paper will address the existing international treaty systems in the quest of determining a satisfactory framework under which Cyber Attacks can be regulated. Separate emphasis is to be laid upon on the need for the creation of a jus novum, specifically tailored to modulate this novel and multifaceted method of warfare.

‘Death to Tyrants’: Self-Defence, Human Rights and Tyrannicide-Part II

This is the final part of a series of two papers that have examined the conceptual development of the philosophical justifications for tyrannicide. While part I focused on the classical, medieval, and liberal justifications for tyrannicide, Part II aims to provide the tentative outlines of a contemporary model of tyrannicide in world politics. It is contended that a reinvigorated conception of self-defence, when coupled with the modern understanding of universal human rights, may provide the foundation for the normative validity of tyrannicide in contemporary world politics.

THE RESPONSIBILITY OF SOLDIERS AND THE ETHICS OF KILLING IN WAR

According to the purist war ethic, the killings committed by soldiers fighting in just wars are permissible, but those committed by unjust combatants are nothing but murders. Jeff McMahan asserts that purism is a direct consequence of the justice-based account of self-defence. I argue that this is incorrect: the justice-based conception entails that in many typical cases, killing unjust combatants is morally unjustified. So real purism is much closer to pacifism than its proponents would like it to be. I conclude that the best explanation of the common view that unjust combatants may be defensively killed relies on a rights-based conception of self-defence.

The Concept of Self-Defence in Article 9 of the Constitution of Japan and the lawsuits on the unconstitutionality of Article 9(I)

일본은 1946년(昭和21年) 11월 3일 일본국헌법을 공포하고 1947년 5월 3일부터 시행되고 있는 헌법을 그동안에도 여러번 헌법조사회를 설치하기도 하였으나, 오히려 헌법개정에 관한 이야기가 한 때는 금기시되던 시절도 있었다.BR 그러던 것이 국제정세가 급변하면서 일본에서도 서서히 헌법개정에의 움직임이 가시화되더니, 마침내 2000년 1월 20일 衆議院?參議院 兩院에서 憲法調査會를 설치하여 5년간 조사?연구하여 2005년 4월 15일 兩院의 最終報告書가 제출되었다.BR 패전 이후 일본의 평화헌법은 이제 보통헌법으로 개정되려는 절정의 시점에 와있는 것 같다. 북한의 핵실험과 이라크에의 파병 등은 이러한 원인에 결정적인 계기가 된다고 볼 수 있을 것이다.BR 그렇다면 일본이 왜 패전 이후 지금까지도 잘 유지되어온 헌법을 개정하고 싶어하는 이유는 어디에 있을까? 지금까지 이러한 일본의 헌법의 제정과정과 특히 그중에서도 문제가 되고 있는 일본국 헌법 제9조의 제정과정과 맥아더와의 관계 등에 관하여는 이미 논문을 발표한 바가 있다.BR 이렇게 제정된 일본국 헌법 제9조의 해석이 반세기동안 어떻게 변천되어 왔으며, 이제는 왜 반드시 개정하려고 하는지, 그렇게 하여 소극적 평화국가에서 적극적 평화국가로 변화하려고 하는 시도와 그 추이에 관하여 살펴보고자 하는 것이 본 논문의 목적이다.BR 일본에 있어서 평화헌법의 핵이라는 제9조의 개념은 점진적으로 변천되어 왔다. 이를 時期別로 自衛權의 槪念을 분석하여 보면 反戰時期(1945-54-66-63년)(1차 논문), 平和愛護의 時期(1964-1989년), 派兵의 時期(1990-1995년), 제9조 일탈의 시기(2000년 이후)로 분류할 수 있을 것이며, 마지막으로 일본국헌법 제9조의 개정의 추이(2차 논문)를 나누고자 한다.BR 위 기간 중에서도 일본이 패망이후 약 20년간은 反戰의 시기라고 할 수 있을 것이다. 이 기간 동안에 평화의식과 自衛權, 그리고 일미방위조약과 자위권의 개념에 관하여 일본 국민과 정부 사이에 위헌소송들이 일어난다.BR 그러므로 본 논문에서는 우선 이 기간동안의 자위권의 개념과 위헌소송에 관하여 살펴보고, 나머지는 시기의 순서대로 위에서 분류한 것처럼 다음 호에 게재할 수 있도록 힘쓰고자 한다.

Provocation as a Defence for Abused Women Who Kill

After the decision by the Supreme Court of Canada in Lavallee, Canadian women who are victims of serious domestic abuse have been able to invoke an ‘enlarged’ conception of self-defence to exonerate some acts of killing abusers. While concern remains about Lavallee, this judgement broke important ground in insisting on a more sensitive account of the actual experience of abused women, and in giving recognition to the reasonable fears that such women have for their lives. However, other than self-defence, there is no criminal law defence or plea that has been effective as a (partial) excuse or justification for killings by abused women. In this paper, I will consider the potential for a plea of provocation to serve such a role. Provocation has acquired some standing in other jurisdictions as a defence for abused women who kill but it has not as yet been effectively used in Canada. I will look at the appropriateness of provocation as a plea in some abuser homicides. The paper will discuss some ways in which the plea of provocation could be enlarged in scope and in normative power; the paper will also examine some shortcomings of the current understanding of provocation to serve a defence for women who kill. Since homicides by women make up a small fraction of all homicides, even a reformed defence of provocation would be rarely used. But the more important question is whether a plea which has been available to men for several centuries should not also be (much more) available to women who kill, and whether closer attention to the situations and perspectives of women in abusive relationships yields good grounds for thinking some kill as excusable or reasonable responses to serious provocation. The underlying concern is an equality concern; that women have equal access to suitable defences for their putative breaches of the criminal law, and that standards of reasonableness operative in criminal case deliberation be as responsive to women’s experience and women’s values as they are to men’s.

:Julius Pflug et L'Allemagne du XVIe Siecle, Etudes et documents

Robert von Friedeburg, Self Defence and Religious Strife in Early Modern Europe: England and Germany, 1530-1680, Aldershot, Ashgate, 2002, pp. 290, hb. £55, ISBN: 0754601773Recent historiography has witnessed two more or less discernable trends regarding the early modern world: the revival of comparative history, and the desire to understand 'England's troubles' within its European context. To the extent that this book seeks to address such concerns, and to introduce into English scholarship recent German research, it is entirely laudable. The author explores ideas of 'self-defence', in terms of the identity of those who could legitimately use force against rulers, and in what circumstances, and in terms of ideas of natural laws and rights. The aim is to demonstrate the 'influence' of German ideas in the sixteenth and early seventeenth centuries upon English thought during the Reformation, the reign of Charles I, and the civil wars, albeit the intention is to suggest that such ideas, displaced from their native context, had far more serious implications for social stability. In England, the lack of dispersed sovereignty, identifiable 'inferior magistrates', and elective monarchs, together with a rather different Reformation experience, ensured that notions of self-defence threatened the dissolution of civil government. This is a stimulating thesis, although its execution is far from successful, for a number of reasons.In developing the argument, stylistic awkwardness and clumsy translation accentuates some organisational difficulties. The first section, outlining developments in the understanding of self-defence in German thought, in terms of the role of minor princes, inferior magistrates, and heads of families, and in terms of resistance on the part of the whole body politic, discusses the importance of the Reformation, and discusses scriptual arguments from the Smalcaldic League to Melancthon and Selinus, and the Magdeburg Confession. Thereafter, it explores legal arguments for selfdefence later in the sixteenth century, particularly through the work of Althusius and Arnisaeus, and in terms of the development of ideas of popular sovereignty and representation, and of the notion that the monarch, or emperor, could be singulis maior, but universis minor, and that the provinces could defend themselves. It concludes by examining ideas of patria, 'fatherland', and salus populi during the Thirty Years War, and the attempts to rally the peasants in resistance. Such analysis is undoubtedly interesting, but the argument becomes lost under the weight of detailed scholarly exposition, which may be thought to be somewhat out of place in such a broad-ranging and comparative analysis, which arguably requires much greater organisational drive and sense of direction. More problematic is the concept of self-defence. Although this is logically distinct from resistance, which involves conscious struggle against governmental authority in the interest of different ideas, the authors under discussion may not always have been interested in such distinctions, and the two were often intimately connected. …