In this episode, I speak with Mary Ellen O’Connell, the Robert and Marion Short Professor of Law at the University of Notre Dame Law School. We discuss her recent focus on that the concept of “imminence” and the doctrine of self-defense in international law, through the lens of the killing of Iranian General Qassim Soleimani. Starting with just war theory and the natural law foundations of international law, right through to the text and intent of the UN Charter and current state practice, O’Connell argues that anticipatory self-defense is not lawful, that the concept of imminence has no place in the doctrine of self-defense, and moreover that it has undermined the narrow exceptions to the prohibition on the use of force. In doing so, however, she makes a broader argument that our approach to security must be more holistic and comprehensive, and it should reject the purely realist and positivist assumptions that have driven recent policy.
Materials:
– “The Illusory Standard of Imminence in the International Law of Self-Defense: The Killing of Qassim Soleimani” (unpublished, SSRN)(2021).
Reading Recommendations:
– Christine Gray, International Law and the Use of Force (4th ed., 2018).
– Olivier Corten, The Against War: The Prohibition on the Use of Force in Contemporary International Law (2nd ed., 2021).
– Judith Gardam, Necessity, Proportionality and the Use of Force by States (2004).