Use Of Defensive Force Research Articles

Defending Primary Victims Who Face Criminal Charges for the Use of Defensive Force against Their Abusive Partners: Attempting to Change ‘Laws’ Practices’

Australian lawyers, scholars and policy makers have grappled for decades with the barriers faced by victim-survivors in successfully raising self-defence in response to criminal charges for the use of force against their abusive partners. In this article we discuss a recent legal innovation developed to address similar barriers in the New Zealand context. The defence in R v Ruddelle was ground-breaking in Australasia in that expert evidence on ‘intimate partner violence entrapment’ was admitted at trial from an expert who was not a psychologist or psychiatrist. The aim was to assist the jury in more accurately understanding the facts for the purposes of determining whether the Indigenous defendant’s defensive force was ‘reasonable’ in self-defence. Similar evidence was provided at sentencing. In this article we assess the gains that were made in taking such an approach at sentencing, as well as the limitations of this strategy at trial in this particular case.

Defending Primary Victims Who Face Criminal Charges For The Use Of Defensive Force Against Their Abusive Partners: Attempting To Change 'laws' Practices'

Defending Primary Victims Who Face Criminal Charges For The Use Of Defensive Force Against Their Abusive Partners: Attempting To Change 'laws' Practices'

Crying Havok and (Re)claiming Rights

In the last decade, there has been a seismic shift in debates about the ethics of war, a shift that challenges the foundational assumptions of the just war tradition. In the revisionist project responsible for this shift, the key question becomes whether an agent, through their actions, is liable to the use of deadly force. More recently, this revisionist project has been modestly expanded, from considering how killing others could make an agent liable to the use of defensive force to considering how saving or not saving others could do so as well. In this paper, I consider how analyzing questions of liability in this new, expanded domain can highlight important distinctions that we may miss when we consider the same kinds of actions (i.e., killings) time and time again in considerations of self-defense and war. Morally salient elements that would normally be concealed can be revealed, and we can use that insight to consider the paradigmatic case of killing anew. It turns out that a more nuanced understanding of rights – the moral element that is meant to the centerpiece of the revisionist project – can be used to demonstrate a serious limitation for both revisionism and the just war tradition it seeks to replace. One can hold onto one of core aims of the revisionist project, its weary skepticism of the blank pass given by traditional just war theorists to those who fight unjust ad bellum wars, while maintaining that a fuller appreciation of the moral complexities of rights often strengthens, rather than undermines, many of the traditional in bello rules.

Activating the Right to Be Rescued

Abstract When a person finds herself in peril her right to be rescued is activated and a rescue duty is imposed on those who are in a position to help. In this article, I argue that the activation of the right to be rescued needs to be suitably constrained so that the rescuee is prevented from arbitrarily controlling the normative situation between herself and potential rescuers. Such control would be in conflict with the moral equality of persons. I argue that the activation of the right to be rescued should be conditional on the person having a justification for the action that caused her peril. One implication of my view is that the right to be rescued cannot fulfill the function that Jonathan Quong ascribes to it. The right to be rescued turns out to be an unsuitable ground for the necessity condition which constrains the permissible use of defensive force.

Introductory Remarks by Monica Hakimi

This is the panel on the use of defensive force against non-state actors. We thought we would use the campaign against the Islamic State in Iraq and Syria, ISIS, to take stock on where we are on the question of when, if ever, states may use defensive force against non-state actors in other states.

THE BLUFF: THE POWER OF INSINCERE ACTIONS

ABSTRACTIn addition to normative powers by which we alter our rights and duties, we can also forfeit rights. Culpable aggression forfeits the aggressor's right against the victim's use of defensive force. So, what happens when an aggressor “fakes it”? If a culpable aggressor is simply bluffing, has he still forfeited his rights? Because there is no threat, leading accounts of self-defense deny that there is forfeiture.This paper argues that individuals alter their rights and duties through insincere acts. Specifically, when one person culpably causes another person to believe that a normative power has been exercised or a right forfeited, that normative power is in fact exercised or the right is forfeited. An insincere promise counts as a promise; insincere consent counts as consent; and insincere abandonment counts as abandonment. And, the insincere threat forfeits the bluffer's rights to the same extent as a real threat would.

Reclaiming Proportionality (Society for Applied Philosophy Annual Lecture 2016)

Reclaiming Proportionality (Society for Applied Philosophy Annual Lecture 2016)

Self-Defence against Non-state Actors: The Interaction between Self-Defence as a Primary Rule and Self-Defence as a Secondary Rule

AbstractThis article examines the law of self-defence as applied to non-state attacks in light of the coalition air strikes against ISIL in Syria. It critiques the two current interpretations of the law of self-defence – one based on attribution and the other on the ‘unable or unwilling’ test – for failing to address adequately the security threat posed by non-state actors or for not addressing convincingly the legal issues arising from the fact that the self-defence action unfolds on the territory of another state. For this reason, it proposes an alternative framework which combines the primary rule of self-defence to justify the use of defensive force against non-state actors, with the secondary rule of self-defence to excuse the incidental breach of the territorial state's sovereignty.

Prohibition of the use of force and legality of humanitarian intervention

This article addresses the problem of the legality and legitimacy of humanitarian intervention in the light of contemporary international law and practice. The Author discusses this issue in the context of a potential conflict between State’s sovereignty and its obligations under international human rights law. He points to the new concepts aimed at the legitimization, form the point of view of international law, of the use of force in defence of humanitarian values.

Advantaging Aggressors: Justice & Deterrence in International Law

Current international law imposes limitations on the use of force to defend against unlawful aggression that improperly advantage unlawful aggressors and disadvantage their victims. The Article gives examples of such rules, governing a variety of situations, showing how clearly unjust they can be. No domestic criminal law system would tolerate their use.There are good practical reasons why international law should care that its rules are perceived as unjust. Given the lack of an effective international law enforcement mechanism, compliance depends to a large degree upon the moral authority with which international law speaks. Compliance is less likely when its rules are perceived as obviously unjust. This common sense perspective is supported by social science research showing the importance of law's moral credibility in gaining assistance and compliance, in reducing resistance and subversion, and in helping to shape shared norms. The current practice of victim states ignoring legal limitations, with studied indifference to such violations by the international community, only legitimizes and habituates law-breaking, further undermining international law's moral credibility.Interpretations of international law can be constructed that would narrow the gap between the legal rules and moral intuitions regarding the use of defensive force. Such revisionist interpretations may be a useful temporary measure, but are not a solution, because the gap between law and justice can be narrowed but not closed by reinterpretation alone. Ultimately, reform is required of international law's foundational texts.International law limitations on responses to aggression are also improper for reasons beyond their conflict with principles of justice instantiated in domestic criminal law. International law and domestic criminal law are importantly different. Most fundamentally, international law lacks an effective law enforcement system. In order to effectively control unlawful aggression, international law needs to have fewer limitations on responses to aggression than criminal law, not more limitations. A series of examples of such improper limitations are discussed. Each has the unfortunate effect of promoting aggression and instability by undermining effective deterrence. Again, there exist possible reinterpretations of international law that could avoid some of the improper limitations but, ultimately, a reform of international law's foundational texts is required.One important opportunity for reforming international law is currently being squandered. The Assembly of State Parties to the International Criminal Court has recently approved a resolution defining the international crime of aggression. However, rather than confront international law's existing problems, the drafters compounded them by imposing individual criminal liability on leaders of victim states who authorize defensive force in violation of flawed current law. Fortunately, the resolution will not go into effect until 2017 at the earliest. There is still time to change course.

Responsibility to Peace: A Critique of R2P

The NATO bombing of Yugoslavia in 1999 led to the doctrine of R2P, which envisages the use of force in defence of human rights. But as the Kosovo conflict demonstrates, nothing is more destructive of human rights than war. The protection and promotion of human rights should be done through lawful and non-lethal means. This essay argues that citizens and states have a responsibility to peace as much as to human rights because human rights can only flourish in a condition of peace. This essay seeks to restore peace to its proper place in the discussion of international politics and human rights.

Killing Soldiers

A riddle in the ethics of war concerns whether lethal defensive force may be justifiably used against aggressing soldiers who are morally innocent. In this essay I argue that although there might be reasons for excusing soldiers as individuals, one may be justified in using defensive force against them provided that they have initiated threatening behavior and that our interpretation of that behavior as threatening is reasonable. I go on to investigate various implications of being in conflict with aggressing soldiers who are morally innocent, arguing that different restrictions apply to the use of defensive force when the aggressors cannot be held morally responsible for being aggressors.My argument has important practical implications both for deciding whether to go to war and for deciding how to fight a just defensive war. Concerning the ongoing Iraq war, for example, it suggests that if it were only a matter of killing culpable members of the Republican Guard, invasion could perhaps have been justified. Since any attack would involve killing innocent conscripted soldiers as well as innocent civilians, however, there were good reasons to wait to see whether options other than intervening militarily would become available. If we are engaged in a just defensive war, my argument implies that we must accept a higher level of risk and more harm if we can assume that the aggressors are innocent rather than morally responsible for their harmful or threatening behavior.

Is there a “right” to self‐defense?

The use of defensive force, even deadly force, in protection of self or others (hereinafter self-defense) is paradigm of moral and legal permissibility. However, just why this is so has turned out to be quite puzzle; indeed, there is today hardly the slightest consensus on the moral justification for this permission to use force, or even on what the various possible alternative justifications might be. The question is not merely theoretical, as one's choice of foundational principle for self-defense will determine one's conception of the scope and limits of permissible self-defense, matter that is continually in controversy. In this essay I propose to critique one purported foundational account: the idea that the permission to use defensive force is grounded in the idea of individual natural rights: that is, as Judith Thomson describes it, rights that a human being has simply by virtue of being human being. (1) I will attempt to demonstrate that, whatever might be the correct account of self-defense, rights theory will not do--it is at best unhelpful, and at worst positively pernicious as an explanation of the permissibility of defensive force. This essay is part of larger project in which I defend much-neglected theory of the foundations of self-defense, one grounded in the intentions of the defender. This position, known as the Doctrine of Double Effect, is usually traced historically to Thomas Aquinas. This account can, I believe, make sense of the principles of self-defense as we currently know them, and avoid the anomalies of other attempted foundational explanations. However, I do not attempt to work out the details of such justification here. Rather, I limit myself to showing that one of the most influential (and increasingly popular) current accounts of self-defense is so clearly inadequate that no amount of tweaking or patching up is likely to save it, and that our attention is best turned elsewhere. Thus this essay is negative in focus; I can ask only that the reader take it as an element of larger positive project, which must begin with clearing away the unworkable alternatives, foremost among which is the idea that the doctrine of self-defense can be explained by the idea of natural rights. What do we want and expect theory of self-defense to do for us? Such theory should have both an explanatory and justificatory function. It should provide single unifying principle or framework that makes sense of the scope and limits of permissible self-defense, thus explaining the inner logic of the practice. This unifying framework should present itself as justifying the practice as well: it should help make it clear why self-defense is morally and legally acceptable. This issue is particularly important given that it is not obvious from either the moral or legal standpoint why we should want to allow individuals to be making judgments about who they may kill on their own initiative. Finally, and equally important, good theoretical account should not simply endorse the status quo, but should have critical or normative function as well by implying recommendations as to how the practice should be modified at the edges, though without rejecting the core of the self-defense doctrine. An account that recommended totally remaking the practice would not be an account of self-defense as we know it; an account that simply took the current practice as correct in every way would probably be too weak to do any genuine work. In any case, there are numerous controversies within the doctrine of self-defense that genuine theory is urgently needed to resolve. (2) A theoretical account of permissible self-defense will not only have to explain the existence of general permission to use defensive force, it will also have to account for widely accepted features of that permission-in particular the four strict limitations on the use of defensive force (3): (1) Force may be used only against an unlawful aggressor. …

Rational Actors, Self-Defense, and Duress: Making Sense, Not Syndromes, Out of the Battered Woman

Current advocacy on behalf of battered women accused of criminal offenses focuses on the now familiar battered woman syndrome theory. Although the battered woman syndrome theory has enjoyed broad support when asserted by defendants claiming self-defense, the earnestness of the theory's judicial acceptance is questionable. First, in light of both empirical and analytical flaws in the battered woman syndrome theory, the overwhelming judicial acceptance of the theory is inconsistent with courts' growing tendency to scrutinize scientific evidence. Second, courts have been reluctant to extend the battered woman syndrome theory to the defense of duress, where the theory would excuse battered women who commit crimes with their batterers against innocent parties. That the syndrome theory has been controversial in duress cases, and yet widely accepted in the self-defense context, despite its analytical and scientific flaws, suggests that the battered woman syndrome has been used in the self-defense context to help sympathetic actors. This paper recommends an alternative approach to understanding the conduct of battered women. The self-defense claims of justified battered women have failed not because battered women are qualitatively different than other actors, but because current self-defense rules are imperfect generally and do not encompass all necessary uses of defensive force. An alternative approach to these cases would treat battered women as rational actors and ask whether their use of defensive force was necessary. Unlike the prevailing approach to the battered woman cases, the recommended rational actor approach preserves the importance of objective standards when justifying defensive force. Moreover, an emphasis upon objective standards when applying criminal defenses reconciles the existing tension between the treatment of battered women in the duress and self-defense contexts. Viewed as rational actors and not psychologically impaired, battered women who defend themselves against their batterers have stronger normative claims that their conduct was necessary than battered women who appease their batterers by victimizing third parties.

On the Limits to the Use of Force

In this paper I shall examine a variety of situations in which human agents make use of force. Section I will be concerned with the use of force in medical contexts, Section Ii with the use of force in defence of property, and Section in with the use of force in resolving international disputes. I shall argue that the boundary between what is and is not morally permissible needs to be, drawn more stringently than is commonly supposed. While agreeing that in some medical contexts and in some situations where defence of property is involved the use of force may be necessary and even morally required, I shall suggest that in the absence of any suitably constituted world court the use of force in attempting to resolve international disputes creates a morally different situation.