Human Rights and Personal Self-Defense in International Law
Hessbruegge, Jan Arno
Oxford Univ Pr on Demand 2017/01
388 p. 25 cm
Based on author's thesis (doctoral - European University Viadrina in Frankfurt (Oder), Germany, 2016) isued under title: The right to personal self-defence as a general principle of law and its general application in international human rights law.
Table of Contents
Acknowledgments Chapter 1: Introduction A. Summary of the argument B. Delineation of the topic: What is personal self-defense? I. Distinction of self-defense from other concepts of self-help II. Distinction between personal and interstate self-defense C. Methodology and sources I. Reliance on universal and regional jurisprudence II. Transposition of jurisprudence from other disciplines of international law III. Consideration of arguments from domestic jurisprudence Chapter 2: The right to personal self-defense as a general principle of law A. No treaty provisions establishing a right to personal self-defense B. No recognition under customary international law C. General principles according to Article 38 (1) (c) ICJ Statute I. Formation of general principles II. Functions of general principles D. The right to self-defense as a principle of natural law I. Personal self-defense: a shared principle across cultural and religious traditions II. Inherent moral justification of self-defense E. The right to self-defense as a general principle derived from domestic law I. Common classification as a right and justification II. Comparable requirements of application F. Transposition of the personal self-defense principle into international law I. International humanitarian law II. International criminal law III. The law of the sea IV. The law of diplomatic relations G. Conclusion: A universally recognized right, but no unlimited license for violence Chapter 3: A human right to self-defense? A. Positions in the academic literature B. Lack of state recognition of a human right to self-defense I. No recognition of a human right in international treaties or resolutions II. Insufficient national legislative practice supporting a human right C. Conceptual differences between the right to self-defense and human rights I. Inalienable nature as a commonality II. Auxiliary and relational nature of the right to self-defense III. No specific aim of curbing state power and abuses IV. Neutrality of the right to self-defense on the nature of the state D. Conclusion: Right sui generis, not human right Chapter 4: Defensive force by law enforcement agents A. Self-defense as a justified limitation of the rights to life and physical security I. Recognition in universal and regional human rights law II. Defensive force as a state obligation III. Self-defense as the sole peacetime justification of deliberately lethal force B. Formal requirement: Sufficient basis for the use of force in domestic law I. Minimum specifications II. Publicity III. Parliamentary prerogative to regulate lethal force C. Substantive requirements for self-defense as a ground of justification I. Unlawful attack against protected individual interests II. Immediacy of defensive action III. Necessity of defensive action IV. Proportionality of defensive action V. Defensive Intent D. Burden of Proof and evaluation of evidence E. Post-action duties of care, accountability and remedy I. Medical care and psychosocial support II. Duty to investigate incidents involving use of firearms and other force III. Duty to prosecute perpetrators of excessive force IV. Duties to provide compensation and, exceptionally, to make amends F. Conclusion: A deep, but narrow justification for the use of force in law enforcement Chapter 5: Personal self-defense in military-led operations A. Exceptional relevance of the personal self-defense principle in armed conflict I. Riots, violent demonstrations and opportunistic banditry II. Violent prisoners of war and interned fighters III. Enforcement of naval blockades and ceasefire lines B. Military involvement in peacetime law enforcement C. "Naked self-defense" - a conflation of personal and interstate self-defense D. Conclusion: Exceptional relevance of personal self-defense in military-led operations Chapter 6: Human rights standards for self-defense between private persons A. Applicability of human rights standards to self-defense between private persons B. Duty to recognize a right to self-defense between private persons C. Duty to regulate and reasonably circumscribe self-defense between private persons I. Unlawful attack on a defensible interest II. Immediate defense: An exception for victims of intra-family violence? III. Necessity and proportionality IV. Special requirements regarding private security companies D. Duty to investigate and prosecute excessive or unwarranted self-defense I. Immunities from prosecution II. Burden of proof E. No general right to possess firearms and other means of self-defense I. Negative impact of gun proliferation on the protection of life and physical security II. No enhancement of women's right to self-defense III. No effective means to pre-empt tyranny or atrocities IV. The right to self-defense of unarmed citizens F. Conclusion: Human rights circumscribe the ambit of private self-defense Chapter 7: Self-defense against the state - resistance against human rights violations A. Resistance against the state - a history of opposing views I. Resistance as a legitimate defense against abusive governments II. Unassailable authority based on divine mandate or constitutional supremacy III. Rebellion as a threat to order and stability IV. Balancing stability and vindication of the right to self-defense B. Personal self-defense against unlawful individual acts of law enforcement officials I. Resistance against extrajudicial killings, torture and other police brutality II. No resistance against arbitrary arrest and detention if judicial remedies available III. Force to escape inhumane conditions of detention IV. General limits of the right to resist individual human rights violations C. Collective self-defense below the threshold of direct participation in armed conflict I. Limits based on the right to self-defense II. Distinction between civilian defense groups and organized armed groups D. Organized armed resistance against denials of the right to self-determination I. Legal Basis for a right to organized armed resistance II. Limits of the right to organized armed resistance III. Legal implications of the right to resistance IV. No right to rebel against undemocratic governments E. Organized armed resistance against mass atrocities I. No state recognition of a right of armed resistance against mass atrocities II. The case for a right of armed struggle against mass atrocities III. Limits of a right to resist mass atrocities IV. Legal implications of a right to resist mass atrocities V. No justification of unilateral humanitarian interventions F. Conclusion: A right to resistance only in exceptional circumstances Chapter 8: The right to personal self-defense in a Rechtsstaat - final reflections Bibliography Index