جستجوی مقالات مرتبط با کلیدواژه « self-defence » در نشریات گروه « فقه و حقوق »

The implication of partial defence of loss of control in the criminal system of England is that the accused loses his or her self-control, because of fear or heat of passion resulting from provocative act of victim, and killing a person. Although the loss of control has an important role in this defence and must be proven objectively and subjectively but the unjust act of victim is one of the two essential requirements of this defence. With respect to the important effect of victim in this defence, we did a comparative study on the partial defence of loss of control and self-defence in Iranian legal system. By explaining and distinguishing several situations witch deems these defences overlapped, we express some cases can only be subject to the partial daefence of loss of control. Therefore, it cannot be claimed that due to acceptance of the self-defense, it is not necessary to recognize the partial defence of loss of control in penal code. Actually we, by using the descriptive-analytical method based on library sources, describing and analyzing laws, realized these two defences are distinguished in their area, nature, affection and requirements. Eventually this article attempts to introduce a draft of the defence of loss of control compatible with bases of Iranian legal system.

During the Gaza-Israel conflict of 2023 (Al Aqsa storm Vs. Swords of Iron) several allegations and claims have been raised from both sides in order to defend their actions. Hamas, Palestinian Islamic Jihad, and Popular Front for the Liberation of Palestine as Palestinian armed groups insist on their right to self-determination and right to resist on the one hand and Israel on its right to self-defence on the other hand. From the very first day of this armed conflict, Israel as one party claimed that while it has not had any effective control over Gaza since 2006, there is no ground to avoid this regime from its natural right to self-defence. With the emergence of disputes over the concepts of effective control and the possibility of resorting to self-defence, several questions are raised as follows: does an occupying power have the right to self-defence? What are the main criteria for effective control in international law? And does Israel have effective control over the Gaza Strip? The author tries to answer these questions based on the Analytical-descriptive method by using library documents. The results show that there is a doctrine and also a soft law about the new criterion of effective control which focuses on consequences of control rather than its material element, namely Occupation.

The evolution in the nature and form of international threats in the current century is due to the process of globalization, and terrorism has become transnational and international in response to these changes, which usually occurs with the organization and use of new technologies.Thus, these characteristics have added to the difficulty of fighting and preventing it. Arguably, self-defence against non-state actors is at least sometimes legal. But in terms of the emergence of new types of terrorism such as water terrorism, international jihadism, cyber terrorism, and finally the acquisition of dangerous radioactive, chemical, and biological weapons by terrorists which suddenly endangers international peace and security, This issue is raised, considering the coordinates of modern terrorism, what is the position of reference to preemptive and preventive attack in international law? This research examines the proposed legal theories and arguments with a descriptive analytical method and tests the hypothesis that governments have the right to resort to self-defence by using military forces if they are exposed to an armed attack.

Scholars rightly believe that prohibiting the threat to or use of force is the most important achievement of the UN charter. Eventhough Article 51 offers an exception in this regard, the letters and substance of this article are clear about an ‘armed attack’ as a precondition to trigger the right to self-defense. Beside this legal fact, a Preemptive use of force against an imminent threat is endorsed by Customary International Law as well. However, and mainly after the 9/11, a number of countries have used military forces against their oppositions beyond their borders under the article 51 while labeling those groups as terrorist organizations. Supporting this approach, some scholars have argued that an ''extensive interpretation'' of Article 51 could enable states to legally fight terrorist threats beyond their territories under ''Preventive Self-defense.
Having thoroughly examined theories & concepts of interpretation, UN and ICJ Jurisprudence, we have argued that none of those sources supports the `Extensive Interpretation` doctrine under the treaty law or customary international law. Reiterating the necessity to offer a well-defined legal mechanism to prevent terroristic threats, we believe the International law may not yet provide a proper answer to this question through ''codification'', and the answer lies in the ''development'' of international law. To this end, the author proposes a triangle criteria test toward a legal use of force against non-imminent terrorist threats beyond national borders.

Today, cyber attacks have attracted the political and military heads of states and other international actors, because of advantages such as no need for extensive preparations and heavy costs and maintaining human resources than common armed conflict. in spite of a significant increase in cyber attacks in the past two decades, the rules governing on jus ad bellum in cyber attacks is not entirely clear. This article tries to show cyber attacks can be regarded as an armed attack and violate the principle of non-use of force if there are some circumstances. So the possibility of self-defence's injured state may be in response to the attacks. However, most of the rules governing on jus ad bellum extends to cyber attacks, some of these rules are not implemented because of the special status of these attacks.

The International community officially paid attention to terrorism in early 1960s, in term of legal and international aspects of the issue, through ratifying the first-ever international convention in this regard, i.e, the Tokyo Convention (1963). By adopting resolution 3034 (1972), the UN General Assembly introduced the issue in the UN literature. Half a century after the first global attention to this phenomenon, and despite ratification and adoption of some 150 conventions and UN resolutions, international community still suffers from lack of a coherent legal approach in fighting terrorism. This article aims to analyze the evolution of terrorism in international legal instruments, and provide an assessment on the legal gaps and their implications on self-defence and fighting terrorism.

Self-defence is one of the most important exceptions to the principle of prohibition of use of force. For many years, has been objected by the opinions that claim basic changes on the terms of exercise of this right. The global reaction as well as the United States to 11 September 2001 attacks confirms this claim. But the International Court of Justice has, clearly, considered the "occurrence of an armed attack by a state" as an essential term for the applying the right of self-defence, but this term dose not exists in terrorism attacks.