The Analogy's Limit: Defending the Rights of Peoples

Posted: 18 Aug 2009  

Yuval Shany

Hebrew University of Jerusalem - Faculty of Law and Institute of Criminology; Israel Democracy Institute

Date Written: July 2009

Abstract

In Defending Humanity: When Force is Justified and Why? George Fletcher and Jens Ohlin introduce a thought-provoking analogy between self-defence under criminal law and under public international law. At first glance, the analogy is appealing, as it is reasonable to assume that the meaning attributed to the concept of ‘self-defence’ in domestic criminal law has shaped, at least to some extent, the way self-defence has developed in international law. Still, the article argues that context matters, and that the different institutional configuration of the national and international legal and political systems undercuts the analogy offered by Fletcher and Ohlin. of the article discusses Fletcher and Ohlin's légitime défense argument - that is, that the right to self-defence provides broad authority to use of force in order to defend a state's own interests or the interests of other states or nations from unlawful violent acts. Arguably, such an argument runs contrary to the renunciation by the UN Charter of the just war theory and is incompatible with the institutional structure that the Charter has created. specifically examines the possibility of invoking légitime défense in order to protect sub-statal ‘nations’ (in the framework of humanitarian intervention). concludes by offering some observations on the potential analogy between domestic and international criminal law.

Suggested Citation

Shany, Yuval, The Analogy's Limit: Defending the Rights of Peoples (July 2009). Journal of International Criminal Justice, Vol. 7, Issue 3, pp. 541-553, 2009. Available at SSRN: https://ssrn.com/abstract=1448475 or http://dx.doi.org/mqp044

Yuval Shany (Contact Author)

Hebrew University of Jerusalem - Faculty of Law and Institute of Criminology ( email )

Mount Scopus, 91905
Israel
972 2 5882541 (Phone)
972 2 5823042 (Fax)

Israel Democracy Institute ( email )

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Jerusalem
Israel

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