Right Of Self-defense Research Articles

Dissenting Opinion of Justice Radhabinod Pal on the Notion of Aggressive War: A Critical Evaluation

Tokyo trial experienced a judgment circumscribed for a long period for publication during allied occupation years. This is Justice Pal’s dissenting judgment at the Tokyo trial; endeavored to seek Justice in a different way, justified ‘aggression’ not only considering subjective ends, rather extends beyond that. The present paper does not intend to justify the judgment which exceeds author’s competence, but tries to extract the notion of aggression where Justice Radhabinod Pal is experimental. Where all acts are not act of aggression, the main concern is to segregate the concept of act of war and the act of aggression. Assertion becomes crucial when certain use of force can be legitimized under sovereign right of self-defense. This paper tends to clarify these ambiguities concerning the notion of aggression relying on Justice Pal’s opinion. Firstly, a progressive attempt has been made to identify the extent of use of force under sovereign right of self-defense, overriding that extent may tantamount to aggression. Then possible means have been drawn to limit the concept of aggression. Finally, the paper would shed brief light on the comparison of Justice Pal’s dissenting opinion with contemporaneous legal framework predominantly concerning the notion of aggression.

Good Guys with Guns: From Popular Sovereignty to Self-Defensive Subjectivity

Beliefs once limited to the extremes of the North American gun culture have become mainstream, while the US Supreme Court’s ruling in District of Columbia v. Heller (2008) and a spate of right-to-carry laws have contributed to the proliferation of guns in public life. These changes in political discourses, legislative agendas, and social practices are indicative of an emergent and pernicious form of subjectivity, which is here defined as self-defensive. Such subjectivity is characterized by a pathological identification with the right of self-defense, which undermines the social conditions of individual freedom and renders subjects unable to comprehend the function of abstract rights within an informal normative order. Practically speaking, this raced and gendered subjectivity relies on extra-legal relations of domination for its reproduction. The rapid expansion of gun rights and the recent loosening of restrictions on self-defensive violence are argued to be responses to a perceived threat to these identity-constituting relations, rather than to the threat of violent crime, which has long been on the decline.

The ratione temporis elements of self-defence

This article focuses on one particular factor that is of crucial importance to all self-defence actions. It is a factor that is almost always present in the application and appraisal of the right, but one that is not always explicitly engaged with: time. There are various ratione temporis elements underpinning the lawful exercise of the right of self-defence, and questions related to the timing of both an attack being responded to in self-defence and the response itself are notably controversial. The self-defence timeline is therefore charted, and the key legal debates encountered along its trajectory are identified. In particular, there is a focus on three temporal ‘stages’ of the right of self-defence: (i) the much-debated question of preventative forms of self-defence (the ‘before’); (ii) the timeliness of a state's defensive action, or what is sometimes called the need for the response to be ‘immediate’ (the ‘during’); and (iii) the duration of self-defence actions, including the crucial issue of when they must end (the ‘after’). The aim of this article is not to break new substantive ground with regard to these ‘stages’ as such, but is, rather, to draw together the temporal strands of self-defence in a more focused manner than is often the case in the literature.

On the ‘Inherent’ Character of the Right of States to Self-defence

While there is no lack of studies on the use of armed force by states in self-defence, its qualification as an ‘inherent right’ in article 51 of the Charter of the United Nations has received little scholarly attention and has been too quickly dismissed as having no significance. The present article fills this gap in the literature. Its purpose is not to discuss the limits to which article 51 or customary international law submit the exercise of the right of self-defence by states, but to examine what its 'inherent’ character means and what legal consequences it entails. The article advances two main arguments. The first is that self-defence is a corollary of statehood as presently understood because it is essential to preserving its constitutive elements. The second argument is that the exercise of the right of self-defence must be distinguished from the right itself: it is only the former that may be delegated to other states or submitted to limitations under customary international law and treaty law. The right of self-defence, however, cannot be alienated and it takes precedence over other international obligations, although not over those specifically intended to limit the conduct of states in armed conflict or over non-derogable human rights provisions.

Dávid Kaposi: Violence and Understanding in Gaza. The British Broadsheet's Coverage of the War. Palgrave Macmillan, 2014, p.220

“War is the continuation of politics by other means” – a proverb held by the military strategist, Clausewitz. This sentence is highly relevant in our understanding of the IsraeliPalestinian conflict which has had its own life-cycle since the beginning: when negotiations collapse a military phase begins. In the year 2014 the region saw more violence than diplomatic negotiations to solve the long-lasting conflict. The failure of the significant efforts of John Kerry to achieve a final status agreement for the West Bank and Gaza Strip until the spring of 2014 forced both Israelis and Palestinians to increasingly influence the international audience to support their truth. On the one side the renewed conflict in Gaza in the summer of 2014 prompted the Palestinian Authority to portray Israel as an oppressor, which breached the basic tenets of international humanitarian and war law. On the other side the Netanyahu government argued with using the right of self-defense in Gaza against a terrorist group, Hamas.

Right of Self Defense of State.

“Nothing in the present Charter shall impair the inherent right of individual and collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council….” The essence of self-defence is that if a State is attacked it is entitled, in circumstances of necessity, to use armed force in order to defend itself against the attack, to repel the attackers, and expel them from its territory. The Charter system of maintaining international peace and security is based on three fundamental pillars:(1) the general prohibition of the use of force;(2) the collective security system (the Security Council is empowered to take enforcement measures against the wrong-doer or aggressor; and(3) the right of self-defence (in exceptional circumstances, a State can defend itself as long as it is the victim of armed attack, and until such time as the Security Council itself intervenes).

Germany in a Changing World

Germany in a Changing World

The 'Irrelevancy' of Self-Defence: Revisiting the 2004 ICJ 'Wall' Opinion

This article discusses the 2004 ICJ Advisory Opinion, exactly one decade after it's issue, and examines one of the core assertions made in the Opinion - namely, that Article 51 of the UN Charter (the right of self-defence) is irrelevant when determining the legality of the security barrier built by Israel.The article conducts a detailed analysis of the possible explanations for such an assertion, and ultimately argues that the conclusion was unfounded. It is emphasized that the article only examines the Court's particular claim regarding Article 51, and does not pronounce upon the entire Opinion's final conclusion.The article is presented in a unique style, written in the form of the Advisory Opinion itself, appearing as what perhaps the original discussion should have looked like.

Iraq War 2003 and the Issue of Pre-emptive and Preventive Self-defence: Implications for the United Nations

The adoption of pre-emptive self-defence as a policy by the United States of America in its war against terrorism has revived the controversy over the concept of pre-emptive use of force in international politics. Some scholars argue that states are stretching the right of self-defence as pre-emptive, preventive and anticipatory in accordance with their needs and interests and to justify their actions. For others, in the context of changing security threats such as terrorism and Weapons of Mass Destruction pre-emptive strikes are permissible. These efforts to redefine and re-interpret the right of self-defence and use of force for justifying state’s actions have challenged the role of international organisations that were principally designed to regulate the unilateral use of force, and to maintain international peace and security. Against this backdrop, this article will examine how the pre-emptive and preventive use of force undermines the role of the United Nations in international politics through probing the case of Iraq War 2003. This would be a much needed reflection on the implications of Iraq War on multilateralism in the context of 10 years after the war.

Ethics, Law, and Humanitarian Intervention:

Ethics, Law, and Humanitarian Intervention:

Israel’s Seizure of the Gaza-Bound Flotilla: Applicable Laws and Legality

The present working paper analyzes the applicable laws and legality of Israel’s naval blockade on Gaza and of the enforcement of that blockade through the seizure of a number of vessels, notably the Mavi Marmara, on May 31, 2010. It includes a comparison between that analysis and the analysis of the just-released (September 27, 2010) Report of the international fact-finding mission to investigate violations of international law, including international humanitarian and human rights law, resulting from the Israeli attacks on the flotilla of ships carrying humanitarian assistance. This three-member mission was chaired by Judge Karl T. Hudson-Phillips, Q.C., retired Judge of the International Criminal Court and former Attorney General of Trinidad and Tobago. Its mission was established by the UN Human Rights Council in resolution 14/1 of 2 June 2010. Suggestions are made about questions of law to which two remaining panels or commissions of inquiry may wish to give special attention. One such question is whether or not a belligerent right of visit of vessels for purposes of arms interdiction requires a naval blockade first to be in place. A second question meriting further attention is how to think about the interaction of personal rights of self-defence of both the passengers aboard the ships and the soldiers ordered to seize the ships, in terms of the analysis of the necessity and proportionality of specific actions taken by Israeli soldiers. A third question is whether, without addressing the matter in any detail, the Hudson-Phillips report unhelpfully blurred the jus in bello right of visit within the laws of war and the jus ad bellum right of states to self-defence. The first of these two other commissions is the four-member Panel of Inquiry established by UN Secretary-General Ban Ki-moon, with the support of the UN Security Council; that panel is chaired by the former Prime Minister of New Zealand, Geoffrey Palmer, and vice-chaired by the former President of Colombia, Alvaro Uribe, and also includes panel members from Israel and Turkey. The second is Israel’s own “Public Commission to Examine the Maritime Incident of 31 May 2010” chaired by retired Israeli Supreme Court justice, Judge Jacob Terkul, and including as non-voting observers Northern Ireland’s former First Minister, Lord William David Trimble, and a former Judge Advocate General for Canada, Brigadier General (retired) Ken Watkin.

UN Charter Article 51 and the Right to ‘Anticipatory Self-defense’: Validity of the US Preventive War Doctrine against Al Qaeda

This article investigates whether the US war against Al Qaeda in Afghanistan is a customary ‘inherent right’ under the right to force doctrine as codified in Article 51 of the UN Charter. While its fool-proof nucleus covers national states inter partes relations, the provision's applicability to non-governmental organizations (NGOs) is unclear, especially in cases of conflicts, where a NGO is a party in an international conflict, such as the US-Al Qaeda conflict in Afghanistan. Because Article 51's foundation is in ‘a defensive strategy,’ states that deploy military troops across borders under the cover of self-defense must notify the UN Security Council immediately and must justify their actions. The distinction between armed attack and armed defense is the most important element defining the legality of a state's conduct. However, the Article 51 inherent right of self-defense arises solely to protect against ‘armed attacks,’ and under international law, an ‘armed attack’ alone triggers the right of self-defense. This raises the question as to whether a terrorist attack undertaken by a NGO qualifies as an armed attack? What guidance do the UN Security Council resolutions of September 2001 provide to support the US claim of anticipatory self-defense, as they do not invoke the notions of war, armed attack, or military measures, as they refer only to ‘terrorist attack,’ a term that is not a defined and internationally accepted term of war?

The Ethic of Non-Violence in the Thought of Stanely Hauerwas: The Rationale for Christian Pacifism

This thesis focuses on Hauerwas’s vision of peace from a radical Christian perspective. His vision of peace is radical in that, it does not accommodate the prevailing Christian ambivalence towards war through out Christendom. His call for Christian commitment to non-violence as a way of life in a war ridden world raises serious challenges to Christian living. And so, the study focuses not so much on Hauerwas’s conviction, but the basis for his conviction. The study employs a descriptive, desk research and expository design focussing on Hauerwas’s written works ranging from books, essays, speeches and letters. The study is structured in three chapters. In chapter one, Hauerwas’ vision of peace is discussed. The discussion describes Hauerwas’s idea of Christian commitment to non-violence as based on his eschatological and Christological conception of God’s kingdom on earth. And from this conception, he believes that in the cross of Christ God inaugurated a new history by which Christians are determined. Unlike the world history which is determined by war, God’s history is determined by the forgiving love towards God's enemies. And this sacrificial love was exemplified in Christ's non-violent response to injustice, and the cross he bore for humanity as our substitute. Therefore, the way the Christian confronts injustices and the world at war is determined by the story of God in the person of Jesus Christ.In chapter two, the study makes a brief discussion on the reality of human condition and the world in which Christians are called upon to live by the history of God. The discussion shows how incoherent the world is, and why Christianity has through ages grappled with reconciling the gospel and the inevitability of participating in war. There seems to be no easy options for a Christian if Christ who hanged on the cross remains the God of the Christian Church.And finally, in Chapter three, I make a critical reflection on Hauerwas’s vision of peace in relation to the prevailing Christian ambivalence towards war and also in relation to the present reality of our world. In our conclusion, it is clear that Hauerwas’s vision of peace is not an improvised thought of human imaginations, but indeed a reflection on the truth as it in Christ, and by which Christians aught to identify with and live by. Christian ambivalence towards war and violence is a testimony of two bitter truth and these are: Firstly, the unrealistic nature of the teaching and the life of Jesus in a real world; and secondly, the Christian Church has attempted to turn the idealist Jesus into a realistic one for convenience against the costly discipleship as evidenced by His life and death. The result has been the kind of the Church that serves two masters, hence, a darling to the world but a profanity to Jesus Christ. And yet, God still has a Church on earth comprised of all that love Him more than their life and are willing to follow the idealist Christ in a real world of violence and war. To such, even the right of self-defence is at its best when it avoids taking human life. Certainly, although the commitment to the gospel imperatives may not necessarily translate into actual practice, it proves a total surrender and dependency upon God, and eliminates the possibility of justifying sin. Those that would follow Christ must identify with Him in His life, death and resurrection. Every truth about God and Christian living must find its fullness and meaning in Christ. Never the less, Christian living however lofty it may be, is never the basis for one’s right standing with God.

The American just war theory in the 21st century: continuity or renewal?

Normal 0 21 false false false MicrosoftInternetExplorer4 Evaluations of the American war against Iraq are split into two irreconcilable camps among war theorists. Michael Walzer, on the one hand, is basically critical of the war, saying that the threat of Saddam’s regime did not then constitute the right of self-defense of the U.S. or any other country. Jean Bethke Elshtain, on the other, believes that it is the obligation of the U.S. to defend universal values like freedom and democracy on the world-wide scale, and argues for the justification of the Iraq war. Why and how are such opposite standpoints found in the same idea of just war? This paper aims to answer this question by subdividing the kinds and traditions of war theory. In fact, the doctrine of war, which goes back more than 1,600 years to the era of St. Augustine, is the gathering of particular ideas that are joined together in their family resemblance yet still different in fundamental ways. Especially, the difference between the modern war theory and the premodern one is substantial and significant. Historically, the doctrine of war was born far earlier than the emergence of the modern sovereign state system, and has not always been suitable for it in some crucial respects. In my analysis, Walzer belongs to the modern war tradition since Grotius, while Elshtain blongs to the premodern one since Augustine. This paper first makes clear in what way the modern and premodern war traditions are different with a brief, historical overview. Secondly, it develops the distinction further by presenting a detailed analysis of the conflicting evaluations of Walzer and Elshtain over the Iraq war. Finally, this paper points out that the American war doctrine in this century has been steadily drifting from the former to the latter.

Formation of state's rights to self-defense

This article examines the problem of evolutionary development institution of the state to defend itself, becoming a modern content of this institution, analyzing relevant scientific thought, and nominated andconfirmed that the right of self-defense is one of the fundamental institutions of modern international law, primarily because the most common reason of using force by States is the realization of their right to selfdefense.

Self-Defence, Intervention by Invitaion, or Proxy War? The Legality of the 2006 Ethiopian Invasion of Somalia

In late 2006, heavily armed Ethiopian troops invaded Somalia with tacit support of the United States. Subsequently, Ethiopia used two legal justifications for its military intervention, namely, an inherent right of self-defense and an invitation from the transitional government of Somalia. If nothing else, it appears Ethiopia and the United States wanted to seek a casus belli for military intervention against Union of Islamic Courts. This article examines whether the Ethiopian intervention can be justified as an exception to the general prohibition of the use of force embodied in the United Nations Charter.

Multipurpose Self-Defence, Proportionality Disoriented: A Response to David Kretzmer

The principle of proportionality cannot contribute to changing or multiplying the ends of a rule. Thus, Kretzmer’s goal of (re-)constructing an up-to-date conceptual framework for the interpretation of the right of self-defence by recognizing, in addition to the traditional ‘halting and repelling’ rationale, prevention, deterrence, and punishment as legitimate purposes of self-defence, would have to be achieved on the basis of the inherent persuasiveness of those alleged purposes. However, Kretzmer’s ‘all relevant factors and goals’ approach, to be applied within the framework of the principle of proportionality, would, in the typical non-judicially reviewed situation, probably lead to mutual recriminations that other actors have not taken all relevant factors and goals into account. This approach would then only provide an appearance of legality to spurious claims of self-defence. Instead, the principle of proportionality should continue be applied on the basis of a right of self-defence with a ‘halting and repelling’ rationale. It can thus continue to serve as a language in which states and other relevant actors meaningfully exchange views on the specific problems in difficult cases. The principle of proportionality, in this understanding, is open enough to ‘fit all’ modern forms of conflict.

Right to Self Defense Against International Terroism

The requirements of attributability, proportionality and necessity have been the conditions to be met while exercising the right of self defense. While the limitations of necessity and proportionality have largely remained uncontested, a huge discrepancy has aroused regarding the requirement of attributability. It has been a subject of vital importance and profound debate whether the right can be exercised against non state actors, essentially in the context of international terrorism. While a great number of scholars and jurists continue to argue that the right can only be exercised against a state, a few others have favored the other side of the argument. Whatever the position be, it would not be a problem in dealing with state sponsored terrorist activities as they can be attributed to the host states. However, the situation would be different with regard to such terrorist activities which cannot be attributed to any state. In the setting of increasing terrorist attacks against states and the anonymity of any state involvement in the same, it becomes plausible that the right of self defense should be given a broad interpretation thus allowing the use of force to defend non state sponsored terrorism. The mere fact that the act of terrorists cannot be attributed to any state should not restrict the use of the right of self defense by the victim state against those terrorists.

Can Self-Defense Justify Punishment?

This piece is a review essay on Victor Tadros’s The Ends of Harm. Tadros rejects retributive desert but believes punishment can be justified instrumentally without succumbing to the problems of thoroughgoing consequentialism and endorsing using people as means. He believes he can achieve these results through extension of the right of self-defense. I argue that Tadros fails in this endeavor: he has a defective account of the means principle; his rejection of desert leads to gross mismatches of punishment and culpability; and he cannot account for punishment of inchoate crimes.

Jewish defamation of Israel: roots and branches

Jews have figured prominently in the propaganda war aimed at undermining Israel. They have joined in, and at times taken the lead in, branding the Jewish state a pariah nation and seeking to cripple its economy, deprive it of basic rights of self-defence, and challenge its very right to exist. These Jewish attacks on Israel almost invariably entail false, defamatory arguments. Their corrosive impact goes beyond the attacks themselves and entails providing an aura of legitimacy to anti-Israel attacks by non-Jews who seek to buttress their own arguments by citing Jews who make much the same arguments. While there are various reasons why individuals turn against their communities of origin, such alienation and hostility are particularly common within communities under siege. Members of such communities commonly embrace the indictments and calumnies of the attackers, however bigoted or absurd. Some will seek to reform their community in conformity with the attacks against it in the hope that, if the community follows their lead, it will appease the besiegers and win relief. Others seek personal relief from the siege by distancing themselves from the community, or even overtly joining the camp of the community's enemies. This article seeks to explicate how the history of Jewish defamation of Israel conforms to these patterns within communities under chronic attack. The phenomenon of such defamation will inexorably continue as long as Israel remains under siege, and the response to this defamation should incorporate understanding of its roots and offshoots.