Multipurpose self-defence, proportionality disoriented: a response to David Kretzmer

The principle of proportionality cannot contribute to changing or multiplying the ends of a rule. Thus, Kretzmer's goal of (re-)constructing an up-to-date conceptual framework for the interpretation of the right of self-defence by recognizing, in addition to the traditional "halting and repelling" r... Deskribapen osoa

Egile nagusia: Nolte, Georg
Formatua: Artikulua
Hizkuntza: Ingelesa
Argitaratua: Oxford University Press 2013
Sarrera elektronikoa: http://dialnet.unirioja.es/servlet/oaiart?codigo=4202626
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Laburpena: The principle of proportionality cannot contribute to changing or multiplying the ends of a rule. Thus, Kretzmer's goal of (re-)constructing an up-to-date conceptual framework for the interpretation of the right of self-defence by recognizing, in addition to the traditional "halting and repelling" rationale, prevention, deterrence, and punishment as legitimate purposes of self-defence, would have to be achieved on the basis of the inherent persuasiveness of those alleged purposes. However, Kretzmer's "all relevant factors and goals" approach, to be applied within the framework of the principle of proportionality, would, in the typical non-judicially reviewed situation, probably lead to mutual recriminations that other actors have not taken all relevant factors and goals into account. This approach would then only provide an appearance of legality to spurious claims of self-defence. Instead, the principle of proportionality should continue be applied on the basis of a right of self-defence with a "halting and repelling" rationale. It can thus continue to serve as a language in which states and other relevant actors meaningfully exchange views on the specific problems in difficult cases. The principle of proportionality, in this understanding, is open enough to "fit all" modern forms of conflict.