Innocent Attackers and Rights of Self-Defense

2004 ◽  
Vol 18 (1) ◽  
pp. 81-86 ◽  
Author(s):  
David R. Mapel
Keyword(s):  
Political Independence ◽  
Self Defense ◽  
Neighboring State ◽  
Imminent Threat ◽  
Moral Fault

Imagine that a neighboring state drafts an army of ignorant soldiers, makes them falsely believe that your state poses an imminent threat to their survival or political independence, and then launches them across your border. As a soldier, would you have a right to kill such attackers in self-defense or in defense of your country? In this brief comment, I will focus primarily on the question of whether one may kill “innocent attackers,” that is, individuals who pose a lethal threat through no moral fault of their own, but because they are acting under a combination of duress and nonculpable ignorance.

Self-Defense, Imminence, and the Battered Woman

2007 ◽  
Vol 10 (3) ◽  
pp. 342-369 ◽  
Author(s):  
Whitley R.P. Kaufman
Keyword(s):  
Civil Society ◽  
Battered Women ◽  
Use Of Force ◽  
The State ◽  
Battered Woman ◽  
Self Defense ◽  
Imminent Threat ◽  
The Individual

A traditional element of self-defense doctrine is the imminence rule, restricting the use of force in self-defense to cases where the threatened harm is imminent, about to happen. In recent years, this rule has been subject to increasing criticism, especially in the context of cases involving battered women, and some commentators have even called for its elimination. This essay presents the case for the imminence rule as reflecting the requirement that in a civil society, the use of force be reserved to the state, with only one exception. This exception applies to cases where an individual is faced with an imminent threat. In such circumstances, the state would not be able to intervene in time to protect the person, and hence the individual is permitted to use force in her own defense.

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.

Forceful Intervention for Protection of Human Rights in Africa

2020 ◽  
Author(s):  
Dan Kuwali
Keyword(s):  
Human Rights ◽  
International Law ◽  
Security Council ◽  
Military Intervention ◽  
Use Of Force ◽  
Territorial Integrity ◽  
Enforcement Action ◽  
Political Independence ◽  
Self Defense ◽  
Protection Of Human Rights

Article 2(4) of the Charter of the United Nations (UN) obliges States to refrain from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the UN. The formulation of Article 2(4) of the UN Charter gives room to argue that military intervention for purposes of protecting human rights is not covered in the prohibition if it does not threaten the territorial integrity or political independence of a State, especially since promotion of human rights is one of the purposes of the UN under Article 1(3) of the Charter. However, the majority of commentators argue that the Charter prohibits any unilateral use of force and the travaux préparatoires leave no doubt that the terms ‘territorial integrity’ and ‘political independence’ were included not to qualify an absolute prohibition of the use of force but rather as intensifiers to emphasize the protection of States from acts of aggression. The purpose of inserting the phrase ‘or in any other manner inconsistent with’ in Article 2(4) was not to open the door to implicit exceptions from the rule but to make the prohibition watertight. Thus, Article 2(4) constitutes general prohibition of use of force in international law, subject only to the two exceptions outlined in the Charter: self-defense under Article 51 and chapter 7 enforcement action by the Security Council. Thus, except in self-defense, the use of force is the preserve of the Security Council. On this basis, any use of force to protect human rights in another State is subject to authorization of the Security Council.

General Assembly

1961 ◽  
Vol 15 (4) ◽  
pp. 637-651
Keyword(s):  
Security Council ◽  
Armed Conflict ◽  
Armed Forces ◽  
General Assembly ◽  
International Peace ◽  
Political Independence ◽  
Self Defense ◽  
Course Of Action ◽  
Peaceful Settlement ◽  
The Right

The third special session of the General Assembly, summoned by the Secretary-General to consider “the grave situation in Tunisia obtaining since 19 July 1961,” was held from August 21 through 25, 1961. In his opening statement to the Assembly the Tunisian delegate, Mongi Slim, outlined events leading up to the crisis of July 19 when as a normal exercise of its sovereignty the Tunisian government decided to prohibit formally flights over its territory by any French aircraft and announced that aircraft which violated this prohibition would be shot down. Shortly after the notification of this prohibition, French aircraft began to fly over the Bizerta region, and, disregarding the warning shots directed against them, launched an assault, in which paratroopers and warships later joined. Furthermore, Tunisia had complied with the interim resolution adopted by the Security Council on July 22 calling for a cease-fire and a withdrawal of all armed forces to their original positions, whereas France, in open defiance of the Security Council and of the Tunisian government, had availed itself of the Tunisian compliance by extending its perimeter of occupation and by strengthening its military potential. Mr. Slim called preposterous the French argument that its actions were in self-defense, stating that the peaceful demonstrations of the Tunisian people on Tunisian territory could not possibly have prejudiced the political independence and territorial integrity of France. Thus, since all of Tunisia's attempts to enter into negotiations with a view to the peaceful settlement of the armed conflict and the evacuation of the French base at Bizerta had been in vain, Tunisia's only course of action, other than to submit to brutal force, was to appeal to the United Nations. In closing, Mr. Slim emphasized that the problem before the Assembly had a two-fold aspect: 1) the right of Tunisia to call for the swift withdrawal of all French troops from her soil, which touched upon the Organization's responsibilities for the maintenance of international peace and security; and 2) the refusal of France to comply with the interim resolution of the Security Council. Thus, the question before the Assembly involved not only a conflict between France and Tunisia, but one between France and the UN as well.

UN Police Action in Lieu of War: “The Old Order Changeth”

1991 ◽  
Vol 85 (1) ◽  
pp. 63-74 ◽  
Author(s):  
Thomas M. Franck ◽  
Faiza Patel
Keyword(s):  
Use Of Force ◽  
Military Force ◽  
Armed Attack ◽  
Political Independence ◽  
Self Defense ◽  
Old Order ◽  
Collective Self ◽  
Police Action ◽  
United Nations System ◽  
Nations System

The United Nations system is an elegant, carefully crafted instrument to make war illegal and unnecessary. To this end, in Article 2(4) of the UN Charter, members are required to “refrain … from the threat or use of force against the territorial integrity or political independence of any state.”If such force is used despite that prohibition, the Charter envisages two kinds of military remedies: wars of self-defense and police actions. Article 51 authorizes members to use military force in exercise of the “inherent right of individual or collective self-defence if an armed attack occurs” in violation of Article 2(4). This provision merely recognizes that the old war system may still be needed until the new system of global policing can secure the peace for all.

Federal Republic of Germany-Union of Soviet Socialist Republics: Treaty on Good-Neighborliness, Partnership and Cooperation

1991 ◽  
Vol 30 (2) ◽  
pp. 504-514 ◽  
Keyword(s):  
List Type ◽  
Federal Republic Of Germany ◽  
Environmental Preservation ◽  
Territorial Integrity ◽  
Political Independence ◽  
Self Defense ◽  
Sovereign Equality ◽  
Peaceful Settlement ◽  
Territorial Claims ◽  
Settlement Of Disputes

Art. 1 [Guiding Principles] - I.L.M. Page 506 [Sovereign equality; territorial integrity; political independence; human rights; environmental preservation; non-interference; prevention of war; precedence of the rule of international law]Art. 2 [Territorial Integrity] - I.L.M. Page 507 [Neither State has any territorial claims against any other State]Art. 3 [Peaceful Settlement Of Disputes] - I.L.M. Page 507 [Non-use of the threat or use of force except for collective self-defense]

CODIFICATION PROBLEMS OF NECESSARY DEFENSE AFFECTING ITS IMPLEMENTATION

2020 ◽  
Vol 10 (3) ◽  
pp. 155-163
Author(s):  
PETRUSHENKOV ALEXANDR ◽  
Keyword(s):  
Russian Federation ◽  
Criminal Law ◽  
Criminal Code ◽  
Educational Institutions ◽  
Scientific Article ◽  
Teaching Staff ◽  
Self Defense ◽  
Special Part ◽  
The Russian Federation ◽  
Legislative Activities

Objectives. The goal of scholarly research is to develop proposals for amendments in criminal law General and Special part of Criminal code of the Russian Federation governing self-defense. The scientific article identifies legislative gaps and contradictions that hinder the effective implementation of the necessary defense and require prompt solutions. Methods. The article analyzes such concepts as “self-defense”, “public assault”, “excess of limits of necessary defense”, “violation of the conditions of lawfulness of necessary defense”, “surprise assault”, “rights defending or other persons, interests of the state”. The use of logical and comparative legal methods allowed us to develop proposals for making changes to the criminal law norms that establish the necessary defense. Conclusions. The article shows the conflicts and gaps legislative recognition of self-defense and, in this regard, the complexity of its implementation in the articles of the Special part of the Criminal code of the Russian Federation and practical application. Changes are proposed to the criminal law norms regulating the necessary defense, both in the General and in the Special part of the Criminal code of the Russian Federation. Sense. The content of the scientific article can be used by the teaching staff of higher educational institutions when teaching the course “Criminal law”. The results of the work can be useful to persons who carry out legislative activities in the field of criminal law. The leitmotif of the article can be used in the preparation of dissertation research.

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