The Right of Individual Self-Defense in Public International Law
Jan Kittrich
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Jan Kittrich, The Right of Individual Self-Defense in Public International Law (2008), Logos Verlag, Berlin, ISBN: 9783832599690
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Beschreibung / Abstract
The book examines in detail one of the most controversial topic in current international law, namely the scope and extent of the right of individual self-defense. The book carefully traces the paths which have been followed in the developing legal debate on self-defense. The author uses numerous case-studies of incidents involving the use of force in alleged self-defense (such as the Entebbe Incident 1976, the Nicaragua Case 1986 or the Israeli-Lebanese conflict of 2006) which have formed the central point of scholarly debate. The author's conclusions are based not only on thorough analysis of academic discussions but also of the practice of States and international bodies, especially of the United Nations Organization.
At the outset of the book the author reviews the historical context and the customary evolution of the right of self-defense. Reference is made to the famous Caroline Case of 1837, which set the necessary conditions of lawful exercise of self-defense. Next, the author examines the concept and legal nature of self-defense, carefully assessing the customary conditions of necessity, proportionality and immediacy derived from the Caroline Case. As the occurrence of an "armed attack" is a conditio sine qua non of lawful invocation of self-defense, several modalities of an armed attack are attentively evaluated such as its constituent elements, beginning or scale.
The author explores, whether reactions to acts of international terrorism committed by a non-State may be based on the right of self-defense. In times of global terrorist networks it is highly desirable to attach special attention to use of force in self-defense as a remedy against serious acts of terrorism. Thorough analysis of State practice is shown on several examples from recent history - the U.S. air raid on Libya in 1986 and on Baghdad in 1993 and relatively recent air strikes on Sudan and Afghanistan in 1998. Reference is also made to the most striking example - the Al-Qaeda attack on the United States in 2001.
The validity of claims of anticipatory/preventive self-defense is examined on a theoretical level and then applied to the specific details of the Israeli air strike on the Osiraq Nuclear Reactor in 1981. The two main approaches to preventive self-defense - "restrictive" and "traditional" - are then discussed in detail. Brief analysis is also devoted to the nature of the so-called - pre-emptive - self-defense indicating its current position under international law.
At the outset of the book the author reviews the historical context and the customary evolution of the right of self-defense. Reference is made to the famous Caroline Case of 1837, which set the necessary conditions of lawful exercise of self-defense. Next, the author examines the concept and legal nature of self-defense, carefully assessing the customary conditions of necessity, proportionality and immediacy derived from the Caroline Case. As the occurrence of an "armed attack" is a conditio sine qua non of lawful invocation of self-defense, several modalities of an armed attack are attentively evaluated such as its constituent elements, beginning or scale.
The author explores, whether reactions to acts of international terrorism committed by a non-State may be based on the right of self-defense. In times of global terrorist networks it is highly desirable to attach special attention to use of force in self-defense as a remedy against serious acts of terrorism. Thorough analysis of State practice is shown on several examples from recent history - the U.S. air raid on Libya in 1986 and on Baghdad in 1993 and relatively recent air strikes on Sudan and Afghanistan in 1998. Reference is also made to the most striking example - the Al-Qaeda attack on the United States in 2001.
The validity of claims of anticipatory/preventive self-defense is examined on a theoretical level and then applied to the specific details of the Israeli air strike on the Osiraq Nuclear Reactor in 1981. The two main approaches to preventive self-defense - "restrictive" and "traditional" - are then discussed in detail. Brief analysis is also devoted to the nature of the so-called - pre-emptive - self-defense indicating its current position under international law.
Inhaltsverzeichnis
- BEGINN
- A INTRODUCTION
- A.1 The Use of Force in Historical Perspective
- B THE CONCEPT OF INDIVIDUAL SELF-DEFENSE
- B.1 Self-Defense as a Right
- B.2 Permissible Objectives of Self-Defense
- B.3 Customary Legal Requirements for Self-Defense
- B.4 Consequences of the Failure to Meet the Criteria
- C MODALITIES OF AN ARMED ATTACK
- C.1 The Occurrence of an Armed Attack
- C.2 What is an Armed Attack?
- C.3 Armed Attack versus Aggression
- C.4 The Scale of an Armed Attack
- C.5 The Place and Target of an Armed Attack
- C.6 Attacks on Nationals Abroad (Intervention to Protect Nationals)
- C.7 Indirect Aggression, Armed Attack and the Nicaragua Case
- C.8 Repeated Terrorist Attacks of Lower Intensity
- C.9 The Gap between Articles 2(4) and 51 of the Charter
- C.10 The Provisional Nature of Self-Defense
- D TERRORISM AND SELF-DEFENSE
- D.1 Introduction
- D.2 Principles of Attribution and Degrees of Complicity
- D.3 Is an Attack by a Non-State Entity an Armed Attack?
- D.4 Recent Pronouncements of the International Court of Justice
- D.5 Conditions for the Lawful Exercise of Self-Defense against Terrorism
- D.6 A Case Study: Counter-terror Operations and Self-Defense?
- E ANTICIPATORY SELF-DEFENSE
- E.1 The Concept of Anticipatory Self-Defense
- E.2 Anticipatory Self-Defense under the Charter
- E.3 Restrictive Interpretation of Article 51 of the Charter
- E.4 Traditional Interpretation of Article 51 of the Charter
- E.5 The Implications of the Corfu Channel Case (1949)
- E.6 Claims of Anticipatory Self-Defense in State Practice
- F THE ISRAELI STRIKE ON THE OSIRAQ NUCLEAR REACTOR IN 1981
- F.1 Subsequent Security Council Deliberations
- F.2 Did Israel Comply with Customary Criteria?
- F.3 Nuclear Weapons and Anticipatory Self-Defense
- F.4 D†™Amato†™s Explanation of Legality of the Aerial Strike
- F.5 The Similarities between Osiraq and Norway, 1942
- F.6 The Concept of Interceptive Self-Defense
- G CONCLUSION
- G.1 Anticipatory Self-Defense
- G.2 Self-Defense and Terrorist †˜Armed†™ Attacks
- G.3 Self-Defense