Pre-emptive Self Defence

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When did the Armed Attack against Ukraine become ‘Imminent’?

When did Russia’s armed attack on Ukraine begin? And, before it began, when did it become imminent, as that term is commonly understood in the international law on the use of force? In this post I will offer some thoughts on these two questions, not because they are directly relevant to the situation in Ukraine – they are not, because Ukraine’s defensive actions against Russia were not pre-emptive – but because, I submit, Ukraine as a case study can teach us some useful lessons on the workability of the notion of imminence. And that notion may be central in evaluating future conflicts, some of which may be at least as dangerous as Russia’s assault on Ukraine. If, say, the United States or Israel ever choose to intervene militarily against Iran or North Korea, the justification they would offer would almost certainly revolve around a necessity to stop an imminent armed attack. Some background Whether Article 51 of the UN Charter permits recourse to self-defence against armed attacks that are yet to occur…

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What is Russia’s Legal Justification for Using Force against Ukraine?

With missile and aerial strikes across Ukrainian territory and Russian ground forces entering Ukraine from multiple directions, there is now no doubt that the Russian Federation has used ‘force’ in the sense of Article 2(4) of the UN Charter against Ukraine, and has done so on a large scale. The burden is now on Russia to attempt to…

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Mistake of Fact in Putative Self-Defence Against Cyber Attacks

I am glad that Marko has taken on the task of tackling the issue of mistakes of fact in international law, as I completely agree that it is a very important yet so far largely overlooked aspect, surprisingly so. While I’d mostly approve of Marko’s deliberations and conclusions, I wanted to add a brief point that I…

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Mistakes of Fact When Using Lethal Force in International Law: Part III

  To briefly recapitulate our examination of mistake of fact when using lethal force in various sub-fields of international law: such a doctrine is, in its purely subjective form, black letter law in international criminal law. It is also established (even if not labelled as such) in international human rights law and (somewhat less clearly) in international humanitarian…

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Mistakes of Fact When Using Lethal Force in International Law: Part II

  If a state believes that it is the target of an ongoing or imminent armed attack and uses force to repel that attack, but it later turns out that it was mistaken and that there either was no such attack or that there was no necessity to respond to it, is that use of force in putative…

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