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

2016 ◽  
Vol 29 (3) ◽  
pp. 801-825 ◽  
Author(s):  
NICHOLAS TSAGOURIAS
Keyword(s):  
Legal Issues ◽  
The Self ◽  
The Other ◽  
Security Threat ◽  
Alternative Framework ◽  
Primary Rule ◽  
State Actors ◽  
The Law ◽  
Secondary Rule ◽  
Self Defence

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.

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

2019 ◽  
Vol 10 (2) ◽  
pp. 303-336 ◽  
Author(s):  
Hilly Moodrick-Even Khen
Keyword(s):  
Law Enforcement ◽  
International Law ◽  
Use Of Force ◽  
Legal Regulation ◽  
The Self ◽  
Military Operations ◽  
Legal Questions ◽  
The Law ◽  
Israeli Occupation ◽  
Self Defence

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.

Suicide in Depressed Patients: Medico-legal Issues

1993 ◽  
Vol 163 (S20) ◽  
pp. 29-32 ◽  
Author(s):  
R. J. Daly
Keyword(s):  
Law And Economics ◽  
Legal Issues ◽  
The Other ◽  
Depressed Patients ◽  
The Law

In psychiatry, the law, and economics, there are many areas of overlap where our knowledge and appreciation are growing and developing. Many doctors ‘understand the words but not the music’, and the same is true for the other professions involved. This is exemplified in relation to suicide.

Lawful War of Self-Defense

2018 ◽  
Author(s):  
Yishai Beer
Keyword(s):  
The Self ◽  
The Other ◽  
Legal Issue ◽  
Military Doctrine ◽  
Self Defense ◽  
The Law ◽  
Imminent Threat ◽  
The Right ◽  
Military Professionalism

This chapter deals with the application of the suggested professionalism criterion in the other segment of the law, the ad bellum sphere. An unresolved legal issue in the self-defense context concerns its timing: When can a self-defendant state be proactive in its defense and strike preemptively? On the assumption that a self-defendant is not obliged to remain a sitting duck when confronted by an imminent threat against it, this chapter suggests that the criterion to be used in defining the legal-timing threshold, vindicating the right of self-defense, be taken from the toolbox of military professionalism. It should be the last reasonable point, according to the self-defendant’s military circumstances, at which it can, according to its military doctrine, successfully face the aggressor’s threat and still operationally defend itself—including, when necessary, by taking the initiative in its own self-defense.

Comparative Jurisprudence as Scholarship and Profile of Education

2019 ◽  
pp. 49
Author(s):  
CSABA VARGA
Keyword(s):  
Explanatory Power ◽  
The Self ◽  
The Other ◽  
Strict Sense ◽  
Individual Feature ◽  
Knowing That ◽  
Legal Statement ◽  
The Law ◽  
Culture Tradition

Our thoughts are products of our culture, tradition, and ideal of order, so their understanding and development can only be based upon them. However, cultures, traditions and ideals vary from time to time and from people to people, as each of them has been created and developed to respond to challenges under their own conditions. Consequently, they are not only independent of each other in their genesis, but are also incommensurable in their historical set, which equals to saying that they are not even classifiable but only taxonomisable in a strict sense. Each of us lives and interprets his own world: when we compare, we attempt at putting them in a common hat, knowing that no one can go beyond the symbolic paradox of “I interpret your culture through my culture”. A way out from this trap can only result from their individual parallel characterisation after we have built up some kind of abstract philosophical universality from the ideals of order concerned. Then, in the context of the Self and of You, we are expected not only to explain the Other, but also to recognise it by its own right. In its due course, legal comparison aims at getting knowledge not only of ‘law in books’ and ‘law in action’ but about what is meant by law when it works in our mind. Therefore, beyond the mere act of taking cognisance, comparison comprises also the acceptance of this Other by its own right, in which none is simply reduced to anything purely factual (“what is the law?”), but the actuality of the entire normative process leading to a legal statement (“how do we think in law?”) is considered. Getting to know foreign laws begins with grouping of laws and, as expressed in legal families, by combining those which are similar while contrasting the dissimilar. Interaction and mixing amongst them is a natural sequel, but their establishment cannot be a substitute to the didactic necessity and explanatory power of analysis in term of legal families. When describing them, mere contrasting shall be consummated by presenting the specific ingenuity of each of them as a characteristic individual feature specific to them.

Self-Defence in Response to Attacks by Non-state Actors in the Light of Recent State Practice: A Step Forward?

2010 ◽  
Vol 23 (1) ◽  
pp. 183-208 ◽  
Author(s):  
RAPHAËL VAN STEENBERGHE
Keyword(s):  
Use Of Force ◽  
Prima Facie ◽  
Operation Enduring Freedom ◽  
Armed Attack ◽  
The Us ◽  
State Practice ◽  
State Actors ◽  
The Law ◽  
The Right ◽  
Self Defence

AbstractThis article analyses the recent state practice in which the right of self-defence has been invoked in order to justify the use of force in response to attacks by non-state actors. The main purpose of this analysis is to determine whether the law of self-defence has evolved through this practice. It is submitted that the latter confirms the tendency, evidenced by the US operation ‘Enduring Freedom’ in Afghanistan in 2001, towards allowing states to respond in self-defence to private armed attacks, that is, attacks which are committed by non-state actors only. The article also aims to shed some light on other fundamental conditions of the law of self-defence which played a significant role in the legal assessment of the recent state practice. It is argued in this respect that this practice confirms that any armed attack must reach some level of gravity – which may be assessed by accumulating minor uses of force – in order to trigger the right of self-defence, and that proportionality of the action taken in self-defence may be assessed in quantitative terms, but only as a means of making a prima facie judgement about the necessity of this action.

The Fight against isil in Syria. Comments on the Recent Discussion of the Right of Self-defence against Non-state Actors

2018 ◽  
Vol 87 (1) ◽  
pp. 1-25 ◽  
Author(s):  
Marja Lehto
Keyword(s):  
Legal Theory ◽  
State Violence ◽  
Recent Discussion ◽  
Fertile Ground ◽  
State Actors ◽  
The Law ◽  
The Right ◽  
Silver Bullet ◽  
Self Defence

The legal debate on self-defence against non-state actors is still inconclusive after two decades. At the same time, it has created a fertile ground for attempts to find a silver bullet: a new legal theory that could bridge the conceptual gap between the law of the un Charter and the expanded notion of self-defence. The article gives an overview of the legal rationales presented in relation to the fight against isil in Syria as well as scholarly comments, focusing on the emerging doctrine of ‘unwilling or unable’. It argues that the ‘unwilling or unable’ test has little to offer as a solution to the problem of responding to massive non-state violence. It does not amount to a coherent doctrine, and is in many respects at odds with established interpretations of law. The apparent simplicity of the ‘unwilling or unable test’ may be politically attractive but makes it open to abuse.

Consequences for Third States as a Result of an Unlawful Use of Force

2016 ◽  
Author(s):  
Paolo Palchetti
Keyword(s):  
Use Of Force ◽  
The Other ◽  
State Responsibility ◽  
Collective Self ◽  
Legal Position ◽  
The Law ◽  
Armed Intervention ◽  
Self Defence

This chapter explores some of the problems concerning the role of third states in situations of unlawful use of force by a state against another state. It first draws a distinction between states directly involved in conflict either as the instigator or as the victim of an unlawful armed intervention, and ‘third states’. It then considers the rules that define the legal position of third states in situations arising from an unlawful use of force, as well as the responses that such states are entitled or obliged to take when dealing with such situations. In particular, the chapter examines the rules on state responsibility and their impact on and interaction with the other rules dealing with the position of third states. It also describes the scope of applicability of the law of neutrality, collective self-defence, enforcement of erga omnes obligations, and centralized versus decentralized responses by third states.

scholarly journals Extra, Contra, Intra

2015 ◽  
pp. 11-17
Author(s):  
Andrey V. Shipilov
Keyword(s):  
The Self ◽  
The Other ◽  
Classical Antiquity ◽  
The Arts ◽  
Primitive Society ◽  
The Law ◽  
Artistic Works

Addresses the example of the Classical Antiquity and argues that the culture of a primitive society focuses on the Outward and the culture of the developed society emphasises the Inward. The author demonstrates that these trends may be traced in a variety of institutions and phenomena; he addresses manifestations of extra­intentionality and intra­intentionality in religious views and practices, the ethical complex, representations and perceptions of the Self and the Other, in the law, aesthetics, the arts and literature. Certain types of socio­cultural activities, artistic works, and monuments that typologically belong to different periods of the archaic and developed society within the Ancient culture are historically compared (contraposed).

(1) Stage 1: correct analysis of the constituent parts of the problem question (a) Identify the FACTS given—place on a tree diagram. (b) Identify the primary and secondary LEGAL ISSUES raised by the facts, available defences and doubts in the law. Place on a tree diagram of the issues. List the issues under the facts. (c) Consider the LAW THAT MAY APPLY (eg, legislation or common law and/ or European Community law). The sources of law to be drawn on will vary according to the particular subject. Quickly list these under the issues on the tree diagram. (2) Stage 2: Begin to work on discrete aspects of the problem question (a) Decide the order in which issues will be raised in your answer. (b) Consider your view of uncertainties and gaps in the law in the area. (c) Consider issues of interpretation and defence. A doubt about the interpretation of the law is not a defence, it is a doubt about the law. Make sure you do not make this mistake, as they require a different approach. (3) Stage 3: Decide your view of the outcome of the specific questions asked in the problem question The facts in a problem question can give rise to many issues but all of these may not be necessary to resolve the specific question(s) set in your problem. Problem questions tend to ask you to do two main things: (a) Discuss the issues raised in the problem scenario. OR (b) Advise one of the parties. Both types of problem question require the same knowledge to successfully answer them. However, your approach will be different. (In fact essay questions can be drawn from the same knowledge but also require a different approach.) • In those drafted in response to a question in the style of (a) you raise all issues without privileging one party. • In those drafted in response to a type (b) question you raise all issues but orientate to your argument to the effect of those issues on the party you are asked to advise. This includes discussing in detail the likely chances of the other party being the successful party. 8.5.3 Demonstration: beginning to answer a specific problem question The key to successfully answering a problem question lies in spotting the ‘clues’ to the issues to be discussed. Many of these are purely linguistic. We will look at one particular problem, Problem Question 4, above, applying the stages outlined above.

2012 ◽  
pp. 274-274
Keyword(s):  
European Community ◽  
Common Law ◽  
Legal Issues ◽  
The Other ◽  
Type B ◽  
Community Law ◽  
Correct Analysis ◽  
Tree Diagram ◽  
The Law ◽  
Stage 1

Part 1 The Cold War Era (1945–89), 33 The Israeli Raid Against the PLO Headquarters in Tunis—1985

2018 ◽  
Author(s):  
Pobjie Erin ◽  
Declercq Fanny ◽  
van Steenberghe Raphaël
Keyword(s):  
Cold War ◽  
International Law ◽  
International Organizations ◽  
The State ◽  
Legal Issues ◽  
Jus Ad Bellum ◽  
Cold War Era ◽  
State Actors ◽  
The Cold War ◽  
Self Defence

This chapter examines the Israeli raid against the Palestine Liberation Organisation (PLO) headquarters in Tunis in 1985. It first sets out the facts and context of the raid, the positions of the main protagonists (Israel and Tunisia) and the reactions of third States and international organizations. The chapter then analyses the legal issues raised by the incident under international law as it stood at the time, and its impact on the jus ad bellum. The 1985 raid was an early example of a claimed right to exercise self-defence in response to attacks committed by non-state actors without those attacks being attributable to the state on whose territory the action in self-defence takes place. However, it is argued that this incident left unsettled whether or not such a right was accepted at the time.

Sign in / Sign up

Export Citation Format

Share Document