Right Of Self-defense Research Articles

THE IMPACT OF SMALL ARMS ON CHILDREN AND GIRLS IN ARMED CONFLICTS.

The use of arms whether small, light, improvised or weapons of mass destruction in conflict, is not new; and this explains why the right of self-defence and self determination are part of the international law. What is rather new is that access to these weapons is easy and cheap. Records have it that you can exchange an AK47 for as little as a bag of grain, and studies have it that, there are more arms with the militias than in the National armies of most African countries. And what is most unacceptable is the indiscriminate use of these weapons, against those that the humanitarian laws are out to protect. The proliferation of these weapons in the hands of undisciplined actors has outpaced the efforts to ensure compliance with the basic rules of warfare. The aftermath is levels of wanton violence and streams of horrific images.

The Legality of Weapons Transfers to Ukraine Under International Law

Abstract This article analyses the legality of Western states providing weapons to Ukraine. It focuses on five areas of international law: (1) the jus ad bellum; (2) the law of neutrality; (3) international humanitarian law; (4) state responsibility for complicity in internationally wrongful acts; and (5) international criminal law. It concludes that weapons transfers likely violate the law of neutrality, entitling Russia to respond with countermeasures; that Russia can lawfully target transferred weapons under ihl; and that weapons transfers could lead to state and individual responsibility if evidence comes to light that the Ukrainian military is using weapons previously supplied by the West to commit war crimes. By contrast, providing weapons to Ukraine does not violate the jus ad bellum because they are in service of Ukraine’s right of self-defence against Russia and does not make the supplying states co-belligerents in Russia’s international armed conflict with Ukraine.

‘Operation Olive Branch’ in Syria’s Afrin District: towards a new interpretation of the right of self-defence?

ABSTRACT Turkey’s ‘Operation Olive Branch’, carried out in Syria’s northern Afrin District in 2018, fuelled a debate around Turkey’s right to invoke Article 51 of the UN Charter against the Yekîneyên Parastina Gel (YPG). This article analyses whether ‘Operation Olive Branch’ is to be considered as an extensive interpretation of Article 51 of the UN Charter, given the absence of an agreement within the international community on the matter. On the basis of states’ positions regarding the Turkish military action in the Afrin District, on the one hand, and the jurisprudence of the International Court of Justice regarding the right of self-defence, the UN Charter, state practice and legal doctrine, on the other, this study will demonstrate that Turkey’s argument of preventively operating according to the right of self-defence is not compatible with international law, and consequently constitutes a violation of the Article 2(4) prohibition on the use of force.

Reconceptualising the right of self-defence against ‘imminent’ armed attacks

ABSTRACT A state’s right to act in self-defence against ‘imminent’ armed attacks remains an unsettled question of international law. Yet, states persist in justifying military actions on this basis. Absent a common definition of imminence, assessing the legality of these operations is practically impossible. Although imminence is traditionally understood as referring solely to the temporal proximity of an armed attack, for some this approach is insufficient. This article examines scholarship and examples of state practice that indicate that imminence may be viewed as comprising several contextual indicators that determine whether states may have recourse to self-defence. This conception of imminence raises fears of an expansive right of self-defence. Yet, this author concludes that such ‘contextual imminence’ stands as a proxy for jus ad bellum necessity. This conflation is perhaps unfortunate, but an orthodoxy regarding all forms of self-defence is thereby maintained, subject to the enduring legacy of the Caroline formula.

국제법상 요청에 의한 무력개입의 적법성

As “the threat or use of force” is generally prohibited under Article 2(4) of the United Nations Charter, the principle prohibiting the use of force has been firmly established as a general principle of international law. In addition, as an exception to the principle prohibiting the use of force, it is generally recognized that the exercise of the right of self-defence against prior armed attack or the use of force under the approval of the United Nations Security Council is exceptionally permitted. Nevertheless, in order to justify the use of force in the international community, States have used various international legal justifications, including anticipatory or preemptive self-defence, humanitarian intervention, protection of overseas nationals, protection of democracy, and self-determination. The so-called “intervention by invitation” is one of the main justifications that States claim to intervene in foreign civil war. However, if consent is granted by the requesting state, there would be no “use of force” prohibited from the beginning, so the intervention cannot be regarded exception to Article 2(4) of the United Nations Charter. Despite the relevant principles of international law related to foreign forcible intervention, especially the principle prohibiting the use of force, non-intervention, and self-determination, intervention by invitation is clearly permitted under international law. Nevertheless, if a State intervenes in another state's civil war and uses “intervention by invitation” as a legal justification, the question arises as to who has the authority to request forcible intervention, that is, what is the criterion for judging a legitimate government under international law. For this reason, most of the controversies related to “intervention by request” arise due to the question of who can give valid consent. In this paper, we first theoretically review the legality of intervention by invitation under international law, and then comprehensively review the controversy raised when intervention by invitation is invoked, especially in the context of civil war.

Regulating the Use of Force in International Law: Stability and Change. By Russell Buchan and Nicholas Tsagourias

Dr Buchan and Professor Tsagourias have added a new monograph on the use of force to the long list of publications on this topic. The book combines coverage of the usual topics on this subject—including the prohibition of the use of force, the right of self-defence, the UN collective security system and humanitarian intervention—alongside some topics not usually covered in a work on the jus ad bellum. These include the role of non-state actors within the law regulating the use of force, the law on ‘cyber warfare’, the role of law and morality, and UN peacekeeping operations. The authors bring their own considerable expertise and experience in teaching and publishing on topics covered and related to the those in the book. There is no need to argue the relevance of the topic itself, as any glance at the news media will confirm, with numerous armed conflicts ongoing and others brewing and capable of erupting at relatively short notice. Likewise, the controversies on various issues, ranging from permissible reactions to humanitarian crises to the applicability of the law relating to the use of force to new threats and technologies continue to fuel debate within the disciplines of international law and relations. As such it is to be welcomed that two authors with an established reputation within the field should add their contribution to the debates on these issues.

The 25 February 2021 military strikes and the ‘armed attack’ requirement of self-defence: from ‘sina qua non’ to the point of vanishing?

ABSTRACT Following a rocket attack that occurred at Erbil airport in Iraq, President Biden authorised the first use of military force since becoming President on 25 February 2021. This was legally justified on the basis of self-defence. On the face of it this seemed an innocuous justification. Yet, this article argues that through both downplaying the treaty source of the right of self-defence and its express requirement for an armed attack, as well as promoting a contextual and enabling form of necessity, the Biden administration’s military action and ensuing strategy of legal justification place question marks over the meaning of, and even the requirement for, an armed attack. However, seeing the 25 February incident in the context of broader US and other state practice, while various attempts at diluting this requirement and the interpretation provided to it by the International Court of Justice have been sustained, others have clearly not.

THE RIGHT OF SELF-DEFENSE AND THE ORGANIC UNITY OF HUMAN RIGHTS

AbstractThe article challenges the fashionable but finally unsupportable opinion in political and academic circles that there exists no compelling, unitary, universally resonant moral and legal justification of human rights. The argument is intimated by two overlooked passages in the preamble to the Universal Declaration of Human Rights that presuppose the right of self-defense against arbitrary force, understood as both a moral and legal concept, and as relevant both to personal and collective life. It shows how the logic of defensive force underlies the three formative human rights instruments: the UDHR, and the two covenants on political, legal, economic, social, and cultural rights. The underlying claim is that good reasons of a particular kind are required to justify any use of force, a claim that makes perfect sense against the backdrop of the atrocities committed by the German fascists and their allies in the mid-twentieth century. The article also refers to compelling, if preliminary, evidence of the widespread cross-cultural acceptance of the moral and legal right of self-defense, suggesting a basis for the worldwidecomprehensibilityandappealof human-rights language.

Potential of China Pakistan Economic Corridor After US Exit From Afghanistan

U.S. and Taliban signed a peace deal on 29thFebruary2020 which brought an end to the decades-old Afghan conflict. 9/11 Attacks changed the situation of the world as the U.S. used its preemptive right of self-defense and started the global war on terror to eliminate the threat of terrorism. This research paper has discussed in detail the war on terror and events that led to the peace deal between the U.S. and the Taliban. Defensive realism theory has been used to analyze the unilateral decision of the U.S. to start the war on terror and the Liberalperspective has been used to analyze the peace deal between the U.S. and the Taliban. Peace in Afghanistan is very important for the peace and stability of South Asia. This paper has discussed how Afghanistan can increase its economic growth and stability by inclusion in CPEC. The inclusion of Afghanistan in CPEC will bring economic stability and prosperity in the South Asian region.

The Right to Prompt Access to Guns in a Time of Unrest

Legitimate protests of police killings have led to greater levels of violence across the nation. As people have felt less secure, applications for gun licenses have surged. This essay reflects on this intertwining of the need for protest and the need for self-defense and thus the connection between the First and Second Amendments. It argues based on new evidence that James Madison, the key architect of the Constitution and the Bill of Rights, understood the First Amendment and Second Amendment similarly as protecting the individual's natural right to speak and the individual's natural right to self-defense respectively. The similar nature of the First and Second Amendments support making doctrinal analogies between them. The First Amendment helps judges gauge the strength of the public interest justification needed to set a natural right aside. It also can bring to bear a comprehensive body of neutral First Amendment principles to help guide a Second Amendment law that is still in its infancy and to which judges may not be as well-disposed because of professional and social position. This analogy can help answer a pressing Second Amendment issue arising from the unrest in the wake of legitimate protests. Some jurisdictions facing an upswing in violence have delayed the licenses for purchasing or carrying guns for more than month. While the First Amendment permits states to require licenses for demonstrations (for reasons of externalities that also underlie licensing requirements for guns), such licenses cannot be unreasonably delayed as that delay effectively undermines the right of free speech. Delays in licensing guns for self-defense during unrest would make the Second Amendment right of self-defense as ineffective as would delays in licensing for demonstrations to protest recent events.

Gray Zones and Vulnerability in the U.S.-Japan Alliance: Operational and Legal Dimensions

executive summary: This essay examines the gray-zone situation around the Senkaku Islands, assesses the vulnerabilities for the U.S.-Japan alliance, and proposes three measures to cope with the definitional and policy gaps between the two nations. main argumentThe vulnerabilities of the U.S.-Japan alliance in a gray zone come from structural and internal gaps in domestic laws, interpretation of international law, and views on the operation of the military and law-enforcement agencies. While it is difficult to fix these issues in the short term, if these gaps are left unchallenged, managing gray-zone contingencies and close interoperability between the Japan Self-Defense Forces and the U.S. military will be affected. To avoid this outcome, three steps are recommended. The first is to deepen exchanges and promote shared understanding about the gaps among practitioners and legal advisers in Japan's National Security Secretariat and the U.S. National Security Council. The second is to create a Japanese version of the U.S. Department of Defense's Law of War Manual . The third is conducting various exercises that test the legal limits of a joint response. policy implications • While Japan and the U.S. agree that the gray-zone concept is characterized by both a situational aspect and a time-and-space aspect, their conceptions differ in terms of where a gray zone ends and war begins due to dissimilar domestic laws. This variance in definition could be a potential vulnerability in a joint U.S.-Japan military response. • China seems to be working to achieve its political and territorial ambitions in five stages. Japan and the U.S. must agree on what stage in the process China is currently conducting operations and how to best counter it. • A key vulnerability of the U.S.-Japan alliance is rooted in the difference of interpretations on the right of self-defense. As allies, they must be able to understand and manage these differences in the event of a gray-zone contingency.

The Right of Private Defense in Indian Criminal Justice System

This research paper explores the doctrine of self-defence within the context of the challenges directed at the imminence requirement, from the perspective of national law. This research paper will further attempt to illustrate that the requirement of imminence underlines the political character of the self-defence doctrine wherein private force may only be exercised when there is an absence of institutional protection. This research paper demonstrates how a rights-based account can explain the broad and narrow nature of the right of self-defense. This study will further argue that the imminence rule can't simply be considered as a proxy for establishing necessity, instead it is to be proved that the elements of imminence, necessity, and proportionality are inevitably connected to ensure that defensive force is barely resorted to when national authorities are not in a position to prevent an illegal aggression, and that the defensive force is not abused and misused.

Implementation and Enforcement of International Humanitarian Law

The chapter analyzes different means of implementation and enforcement of international humanitarian law (IHL). This includes traditional means, and new means of implementation. Hence, the use of big data tools and Artificial Intelligence, and new challenges for the implementation of IHL, as the use of autonomous weapons, are tackled. In more general terms the author differentiates between bilateral confrontative means (such as retorsions and reprisals), general non-confrontative means (such as the law of state responsibility) and more specific non-confrontative means (such as decisions and opinions of courts and war crime tribunals, especially the International Criminal Court). Moreover, special forms of implementation and enforcement of IHL are stressed, as the system of collective security, the instruments to secure both interstate and domestic enforcement and the competence and responsibilities of different actors. It is argued by Voeneky that, even though there is no place for the claim ‘inter arma silent leges’, IHL faces two main challenges for its realization: Firstly, IHL, like other areas of international law, is not implemented and enforced via a central body or hierarchical institutions, which leads to implementation deficits of rules protecting common values and an overlap of norms and competences. The second major challenge, relevant for this particular area of international law, is its purpose, aiming at humanizing an area that is per se inhumane. Moreover, by implementing and enforcing IHL rules, a balance has to be struck between the aim to protect certain persons and objects through restricting the means and methods of warfare, and the preservation of the right of self-defense as enshrined in Article 51 UN Charter.

The Future of Gun Control Laws Post-McDonald and Heller and the Death of One-Gun-Per-Month Legislation

For over 200 years, the Supreme Court has taken myriad opportunities to define, refine, and elucidate those rights guaranteed by the Constitution. The Court has also strained to balance important government interests against the rights of the people by creating and applying the levels of scrutiny. For almost every right protected by the Constitution, and made applicable to state government through the process of selective incorporation, the state and federal governments have sought to limit and restrict the exercise of those rights in order to further some government interest.While many rights have been incorporated against the states over the past eighty-five years, the Second Amendment right to bear arms is the most recent addition to that family. Like many rights that are newly incorporated, Second Amendment jurisprudence is in its infancy, and will continue to evolve throughout the years to come. Some of the questions left unanswered by the Heller and McDonald decisions include: What exactly is the right protected by the Second Amendment? To what degree, and for what purposes, may the government (state and federal) abridge the right to bear arms? And, what is the proper level of scrutiny for assessing the constitutionality of laws that impinge the right to bear arms?By means of a thorough and comprehensive evaluation and interpretation of the majority, concurring, and dissenting opinions in Heller and McDonald, I conclude that the right to bear arms is a historical right that pre-dates the Constitution, and the Second Amendment was a means to guarantee that right would be secured for future generations of Americans. Like the pre-independence colonists, Americans today are guaranteed a right to bear arms that extends well beyond a collective right vis-a-vis a well-regulated militia or simply a right to possess a firearm for self-defense. Instead, the right enshrined in and protected by the Second Amendment is a right to purchase, own, and carry almost any commonly available weapon, in almost any locale, and for almost any purpose.Of course, like every other fundamental constitutional right, it is not unlimited and unqualified. The Heller and McDonald Court was abundantly clear that some, reasonable government regulation of and restrictions on the right to bear arms are appropriate and necessary. The government has a compelling interest in protecting the safety and security of the free state, and in exercising that right may restrict the sale of certain firearms to minors, convicted felons, and the mentally ill, and the government may entirely prohibit the sale, possession, and use of certain arms used specifically for military purposes. The government may also establish criteria for citizens wishing to exercise their Second Amendment right, including licensing schemes that requiring training, safety examinations, and licensing by state officials. However, the extent to which the government may restrict the right to bear arms is a question the Court conspicuously left unanswered, giving no guidance to aid future courts in assessing the constitutionality of laws that restrict the right to bear arms. Traditionally, such guidance is found in the level of scrutiny assigned to the right, which establishes how weighty the government’s interest must be to constitutionally restrict a fundamental right. Because of the nature of the right to bear arms, a fundamental right that uniquely implicates the government’s public safety and security interests in a manner unseen in any other constitutional right, I proffer that the Court must invoke a little-defined and rarely applied modus operandi of judicial scrutiny that I have called a sliding-scale level of review. Under the sliding-scale scrutiny, courts must assess the constitutionality of a regulatory scheme restricting the right to bear arms in light of the effect it has on the exercise of the core right. The Supreme Court has identified the right of self-defense as the central component of the right to bear arms, and any regulation that infringes on a citizen’s right of self-defense must be reviewed with the highest degree of suspicion and thus subjected to the most stringent level of scrutiny, strict scrutiny. Conversely, when a regulation does not touch upon the core principles of the right to bear arms, but instead merely restricts the penumbras of the right, such regulations should be granted more deference with regard to the government’s important interests, warranting a lesser level of scrutiny.

The Right of Self-Defense under Article 51 of the UN Charter in Asymmetric Warfare in Light of the Soleimani Case

Strategies of asymmetric and hybrid warfare have been a matter of military, political and scientific concern for several years. The killing of the Iranian General Quassem Soleimani by the USA at the beginning of 2020 gives reason to take a closer look at particularities that appear in connection with strategies of asymmetric warfare in regard to the right of self-defence under Art 51 UN Charter. In the debate concerning the Soleimani case, the challenges of asymmetric warfare for international law have so far received little attention. Yet armed conflicts no longer are being waged in a conventional manner but increasingly frequently contain elements of asymmetric or hybrid warfare, so that the topic is of high relevance and topicality for international law irrespective of the individual case. In the article, this constellation is therefore first examined in abstract terms, before – based on the results of the first part – in a second part the killing of Soleimani is then examined for its legitimacy under international law. The aim of this article is to show what problems occur with regard to the right of self-defence under Art 51 UN Charter in the case of asymmetric warfare, what options for reaction and adaptation international law offers and where the limits of these options under international law lie.

Die Causa Soleimani: Zur Legalität von „targeted killings“ im Völkerrecht

With the killing of Qasem Soleimani by the USA in January 2020, the issue of targeted killings was once again brought to the attention of the press, politics, and the global community. Although targeted killings have been a common means of combating terrorism for decades, and a growing number of states is participating in the creation, updating and execution of so-called ‚hit lists’, the question of the legality of this practice remains highly controversial. This contribution first sets out the international legal framework for targeted killings to then address specific features of the international legal assessment at the intergovernmental level vis-a-vis possible third countries and at the individual level vis-a-vis the targeted person. In particular, the right of self-defence and the rights of the targeted person will be examined. Finally, the article addresses the (il-)legality of the killing of Qasem Soleimani.

The Precariousness of Self-Defence in International Law by the Targeted Killing of Major General Soleimani of Iran by the United States

The view of the United States that it can lawfully hunt and kill terrorists plotting attacks on Americans even in the territory of other states is not peculiar to the Administration of Donald Trump. The earlier Administrations of Barack Obama and George W. Bush, Jr had acted against terrorists similarly. However, the killing of Major General Qasem Soleimani of the Islamic Revolutionary Guard Corps of Iran, a senior state official of Iran, goes beyond the narrower issue of the targeted killing of terrorists to the right of self-defence in international law and deserves closer analysis because of its precarious implications for international law and its unique rule-making mechanism.

Quantum of Silence: Inaction and Jus ad Bellum

In this paper, we examine the actual and potential roles of silence as an element of jus ad bellum treaty law and customary international law. By silence, we mean a lack of a publicly discernible response either to conduct reflective of a legal position or to the explicit communication of a legal position. We focus here on the silence of States and the United Nations Security Council as the primary actors who are positioned to shape, interpret, and apply jus ad bellum. We evaluate how silence has been employed by various scholars in making legal arguments in this field, and how silence may have the potential to affect the formation, identification, modification, and termination of various doctrines. We submit that there is no quantum of silence that has clear doctrinal force. We argue that, at least in relation to jus ad bellum, only certain forms of qualified silence — whether of States or of the Security Council — may be capable of contributing to legal effects. We further contend that, due in part to the nature and status of the norms underlying this field, those forms of qualified silence ought not to be lightly presumed. Arguably, there is a strong, if rebuttable, presumption that silence alone does not constitute acceptance of a jus ad bellum claim. Still, States and other international actors should be aware of the possible role that their silence could play in the identification and development of this field. We complement our analysis with an Annex that offers the most comprehensive catalogue to date of communications made by U.N. Member States to the Security Council of measures taken in purported exercise of the right of self-defense. The catalogue records over 400 communications made since the founding of the United Nations in late October 1945 through 2018. These communications reflect the views of the submitting State(s) on the scope of the right to employ force on the purported basis of self-defense.

Self-Defense by Non-State Actors in States of Fragmented Authority

Abstract The current article focuses on Events in the Middle East in relation to non-state actors and the right of self-defense. As study-case is adopted for Yemen, where the Houthis, as the de facto authority—and, according to their own standpoint as the de jure authority too—of the state, or at least large parts of it, declare that they exercise a right to self-defense against the Saudi-led intervention. The theme is examined in the context of protracted conflicts, which from non-international become internationalized armed conflicts, in states of fragmented authority and sovereignty. The argument is that while non-state actors (NSAs) do not autonomously possess a right of their own to self-defense, in cases involving states of fragmented authority and sovereignty they may exercise this right, on behalf of the state which is suffering the attack for as long as the government is not in a position to fulfill its responsibility regarding the defense of the state. The article does not advocate a contra legem interpretation of Article 51, expanding its application to non-state actors. It argues in favor of the substitution of the entity that is entitled to implement Article 51, when the government of a state is absent or incapable of carrying out its duties. It is in this sense that non-state actors are linked to the right of self-defense.

¿Hacia una responsabilidad objetiva del Estado que «no puede» combatir el terrorismo internacional?

Operation Inherent resolve against ISIL in Syria has revitalised the debate on the legitimacy of the «unwilling or unable» State theory. Starting from 9/11 terrorist attacks, States’ practice has shown a growing tendency to expand the right of self-defence of Article 51 of the U.N: Charter. Thus, the present study primarily revises the first extension of self-defence that took place after 9/11 allowing its invocation against the State that shelters a terrorist group. Moreover, it analyses a second expansion of the right of self-defence based on the «unwilling or unable» theory which seems to trespass into States’ strict liability for not preventing terrorists attacks originating from their territory.