Jan Arno Hessbruegge

Human Rights and Personal Self-Defense in International Law (eBook, PDF)

• Format: PDF

Produktbeschreibung

While an abundance of literature covers the right of states to defend themselves against external aggression, this is the first book dedicated to the right to personal self-defense in international law. Drawing on his extensive experience as a human rights practitioner and scholar, Dr. Hessbruegge sets out in careful detail the strict requirements that human rights impose on defensive force by law enforcement authorities, especially police killings in self-defense. The book also discusses the exceptional application of the right to personal self-defense in military-led operations, notably to contain violent civilians who do not directly participate in hostilities. Human rights also establish parameters on how broad or narrow the laws can be drawn on self-defense between private persons. Setting out the prevailing international standards, the book critically examines the ongoing trend to excessively broaden self-defense laws. It also refutes the claim that there is a human right to possess firearms for self-defense purposes. In extraordinary circumstances, the right to personal self-defence sharpens human rights and allows people to defend themselves against the state. Here the author establishes that international law gives individuals the right to forcibly resist human rights violations that pose a serious risk of significant and irreparable harm. At the same time, he calls into question prevailing state practice, which fails to recognize any collective right to organized armed resistance even when it constitutes the last resort to defend against genocide or other mass atrocities.

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Produktdetails

• Verlag: Oxford University Press
• Seitenzahl: 304
• Erscheinungstermin: 13. Dezember 2016
• Englisch
• ISBN-13: 9780190655037
• Artikelnr.: 48794451

Autorenporträt

Jan Arno Hessbruegge works for the New York Office of the United Nations High Commissioner for Human Rights. He is also a visiting professor for international law at the U.N.-mandated University for Peace in Costa Rica. In the course of his career, he has worked as a legal advisor in the Executive Office of the High Commissioner, with the U.N. Commissions of Inquiry on Human Rights in Syria and North Korea, the U.N. Special Rapporteur on Violence against Women and the Representative of the U.N. Secretary-General on Internally Displaced Persons. Furthermore, he served in U.N. peacekeeping missions in Sudan and Haiti. He has written numerous scholarly works on international law and human rights. Dr. Hessbruegge holds a PhD in international law from the European University Viadrina.

Inhaltsangabe

* 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