ANTIPATORY ACTION IN SELF DEFENCEPDF|Epub|txt|kindle电子书版本下载

ANTIPATORY ACTION IN SELF DEFENCEPDF格式电子书版下载

注意：本站所有压缩包均有解压码： 点击下载压缩包解压工具

1 Introduction1

1.1 Anticipatory Action in Self-Defence: A Controversial Concept1

1.2 The Temporal Controversy of the Right of Self-Defence3

1.3 Structure and Methods of Research10

1.3.1 Explanation of Central Terms10

1.3.2 Methods of Research11

1.3.3 Pre-Charter Customary Law (Part Ⅰ)12

1.3.4 Post-Charter Customary Law (Part Ⅱ)15

1.3.5 Rationale of Part Ⅲ17

1.3.6 Tracing the Evolution of Customary Law17

1.4 Notes on Terminology21

1.5 Disclaimers22

1.6 Contribution22

References23

Part Ⅰ Pre-Charter Customary Law on Self-Defence29

2 Self-Defence in Ancient and Medieval Natural-Law31

2.1 War in Ancient Greece and Rome32

2.2 Early Christian Views on War and Self-Defence35

2.3 Medieval Christian Views on War and Self-Defence37

2.4 Christian Legalist Views on War and Self-Defence43

2.4.1 Probabilistic Arguments and the First Rejections of the Just War Theory43

2.4.2 Spanish Scholastics and their View on Self-Defence45

2.4.3 Protestant Legalist Views on War: Gentili and Grotius48

2.4.4 Self-Defence: As Seen by Gentili and by Grotius50

2.5 The Christian Normative Framework and Self-Defence54

References57

3 Self-Defence as a Measure Short of War59

3.1 The Rise of Positive Law60

3.1.1 The Departure from the Christian Concept of Natural Law61

3.1.2 Positive Law and War in Due Form63

3.1.3 'Perfect' Wars64

3.1.4 'Imperfect' Wars66

3.2 War as an Instrument of Policy68

3.2.1 Positive Law and War as a Legal Institution68

3.2.2 State Practice and 'Measures Short of War'69

3.3 The Positivist Normative Framework and Self-Defence77

References79

4 Self-Defence as an Exception to the Prohibition of War81

4.1 Pacifist Trends of the Late Nineteenth and Early Twentieth Centuries82

4.2 War in the Regulatory System of the Covenant of the League of Nations84

4.3 Self-Defence in the League System87

4.4 The Kellogg-Briand Pact and the Right of Self-Defence88

4.5 State Practice in the 1930s and the Collapse of the League of Nations91

4.5.1 The Invasion of Manchuria by Japan (1931-1932)92

4.5.2 The Italian Invasion of Ethiopia (1935-1936)94

4.6 Operation Catapult (1940)96

4.7 The Emerging International Legal Framework and Self-Defence98

References99

5 The Right of Self-Defence and the Drafting of the UN Charter101

5.1 Preliminaries and the Dumbarton Oaks Proposals101

5.2 The Drafting of the UN Charter at the San Francisco Conference103

5.2.1 Proposals Ahead of the Conference103

5.2.2 The Plenary Discussions of the San Francisco Conference104

5.2.3 The Work of Technical Committee 4 (Committee III/4)105

5.3 The Final Provision on Self-Defence: Interpretation109

5.4 Concluding Remarks113

References114

6 The Temporal Dimension of Self-Defence at the Time of the Charter117

6.1 Forms and Content of Self-Defence in the Three Identified Frameworks117

6.2 The Temporal Dimension of the Narrow Concept of Self-Defence119

6.3 The Temporal Dimension of Preventive Wars120

6.4 Limits of the Narrow Concept of Self-Defence120

6.4.1 Necessity121

6.4.2 Proportionality122

6.5 The Status and Limits of Anticipatory Action in Self-Defence123

References123

Part Ⅱ Post-Charter Customary Law on Self-Defence129

7 The Right of Self-Defence in the Judgments of the Nuremberg and Tokyo Tribunals129

7.1 Introduction129

7.2 The 'Major War Criminals' Trial' (Nuremberg, 1945-1946)130

7.3 Self-Defence and the 'Major War Criminals' Trial'131

7.4 The Trial and Judgment of the Japanese War Criminals (1946-1948)135

7.5 Self-Defence as Interpreted by the Tokyo Tribunal135

7.6 Self-Defence in the Nuremberg and Tokyo Judgments138

References139

8 Self-Defence in State-to-State Conflicts141

8.1 Introduction141

8.2 The Anticipatory Dimension of Self-Defence142

8.2.1 The Sinai Campaign (1956)142

8.2.2 The Six-Day War (1967)144

8.2.3 The 'Yom Kippur War' (1973)149

8.3 The Remedial Dimension of Self-Defence150

8.3.1 The Iran-Iraq War (1980-1988)150

8.3.2 The Falklands War (1982)153

8.4 Self-Defence Claims with Anticipatory and Remedial Dimensions155

8.4.1 The UK Bombing of a Yemeni Fort (1964)156

8.4.2 The Gulf of Tonkin Incident (1964)157

8.4.3 US Bombing of Libya (1986)159

8.4.4 US Missile Attack Against Iraqi Intelligence Headquarters (1993)161

8.4.5 The South Ossetia War (2008)163

8.5 Concluding Remarks167

References170

9 Self-Defence and Weapons of Mass Destruction173

9.1 Introduction173

9.2 The Cuban Missile Crisis (1962)174

9.3 The Israeli Bombing of the Iraqi Reactor (1981)179

9.4 The Nuclear Weapons Advisory Opinion (1996)182

9.5 The War Against Iraq (2003)186

9.5.1 The 2003 Iraqi War: Setting the Context186

9.5.2 The 2003 Iraqi War: Disarmament and Security Council Resolutions188

9.5.3 The 2003 Iraqi War: Self-Defence Against WMD.191

9.5.4 The 2003 Iraqi War: The Requirement of Necessity192

9.5.5 Proportionality196

9.6 Concluding Remarks196

References199

10 Self-Defence Against Non-State Actors203

10.1 Introduction203

10.2 Israel and Arab Militants204

10.3 State Practice in the 1960s-1980s207

10.4 Terrorist Attacks in the 1990s216

10.4.1 The Kenya and Tanzania Bombings218

10.5 Terrorist Attacks of the New Millennium221

10.5.1 The Attack on the USS Cole (2000)221

10.5.2 The Attacks of 9/11 (2001)222

10.5.3 The War Against Iraq (2003)231

10.5.4 Israeli Invasion of Lebanon (2006)233

10.5.5 Turkish Incursion into Northern Iraq (2007-2008)237

10.5.6 The Gaza Crisis (2008-2009)239

10.6 Concluding Remarks242

References244

11 The Interpretation of Self-Defence and the United Nations249

11.1 The General Assembly of the United Nations249

11.2 The Work of the International Law Commission251

11.2.1 Self-Defence and 'General International Law'253

11.2.2 Armed Action Against Private Groups as 'State of Necessity'255

11.2.3 'Preventive' Self-Defence255

11.2.4 Necessity and Proportionality256

11.3 The Findings of the 2004 UN High-Level Panel258

11.4 The Work of the International Court of Justice259

11.4.1 The Conditionality of an Armed Attack260

11.4.2 Immediacy263

11.4.3 Proportionality264

11.4.4 The Customary Basis of Self-Defence264

11.5 Concluding Remarks265

References267

12 The Temporal Dimension of Post-Charter Self-Defence269

12.1 Temporal Dimension of Self-Defence in State-to-State Conflicts269

12.2 Temporal Dimension of Self-Defence in Conflicts Involving WMD273

12.3 Temporal Dimension of Self-Defence in Conflicts Involving Non-State Actors274

12.4 Concluding Remarks275

References277

Part Ⅲ Anticipatory Action in Self-Defence and International Customary Law279

13 The Legality of Anticipatory Action in Self-Defence281

13.1 Findings of Part I282

13.2 Findings of Part II283

13.3 The Legality of Anticipatory Action in Self-Defence in International Law284

References287

14 The Limits of Anticipatory Action in Self-Defence289

14.1 Findings of Part I289

14.2 Findings of Part II290

14.3 Parameters of Analysis290

14.4 Standard-Type Armed Attacks291

14.4.1 Necessity: Conditionality of an Armed Attack and Immediacy291

14.4.2 Proportionality301

14.5 Hit-and-Run Tactics and the Limits of Self-Defence303

14.5.1 Necessity: Collective Conditionality of Attacks and Immediacy304

14.5.2 Proportionality308

14.6 Demonstrating the Fulfilment of the Conditions of Necessity and Proportionality310

14.7 Conclusions as to the Limits of Anticipatory Action in Self-Defence312

14.8 Self-Defence: What It Is and What It Is Not312

References315

Bibliography319

Table of Documents335

Table of Cases341

Index343