Self-Defence in International and Criminal Law: The Doctrine of Imminence

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First is the fact the state's law says a person has "no duty to retreat. Second: the state's law provides immunity from criminal prosecution and civil actions, O'Mara said, "which not all other 'stand your ground' statutes do. The final reason, O'Mara said, can be attributed to a recent change in the law , which shifts the burden onto the state to prove that a shooter did not act in self-defense and is therefore not entitled to "stand your ground" immunities.

Previously, the shooter used "stand your ground" as a defense, and had to prove she or he feared further bodily harm. But no longer. Florida's law has drawn attention over the years, most notably in the shooting death of year-old Trayvon Martin in Sanford, Florida. Basketball star Carmelo Anthony says gun violence has "got worse" since Trayvon Martin In , a jury found George Zimmerman -- who O'Mara represented in that case -- not guilty in the shooting death.

Martin was walking to his father's fiancee's house from a convenience store when Zimmerman, a neighborhood watch volunteer, saw him and called the police. Zimmerman defied an order to not approach the teen. When he did, the two got into a physical altercation, and Zimmerman shot Martin. As the case garnered national attention, onlookers speculated whether Zimmerman would try to use the Florida's "stand your ground" law as part of his defense.

Zimmerman was charged in Martin's death but was eventually acquitted. Ultimately, he did not lean on the state's "stand our ground law," but did claim self defense. Still, the case cast a spotlight on Florida's "stand your ground" law and demands to change it. Supporters of "stand your ground" laws say they give people the right to protect themselves.

Perhaps it could be suggested that Satchwell J was in fact alluding to the fact that the test of reasonableness incorporated both objective and subjective components, but that the appreciation of the situation by the abused woman and her belief as to the reaction required needs "an objectively verifiable basis for such perception", which could be elicited through a combination of evidence, including expert evidence. In S v T the court went so far as to say that-. The actions of both the attacker and the defender leading up to the attack are relevant with reference to the question of whether the boundaries of self-defence have been exceeded.

A person who is prone to violence can as a last resort rely on the defence whereby the question will be not what the reasonable person would have thought but what the defender knows about his attacker. Requiring that a person's self-defensive act be objectively reasonable raises an important question: if the person's act was not reasonable, could they have acted otherwise? Therefore, in an attempt to mediate this inevitable conflict, reasonableness establishes an objective boundary between acceptable exercises of individual freedom and unacceptable interferences with the rights of others.

This boundary is determined by looking to prevailing social norms. First, in cases of non-confrontational killings, even where there is expert testimony explaining how the battered woman's syndrome affects individual perception, the judge has no meaningful way to determine whether that abused woman's belief in the imminence of danger is reasonable when viewed from her distorted perspective. Therefore, if an abuser becomes contrite and apologetic immediately before he fell asleep intoxicated, it would follow from the cycle theory of violence that there was no imminent threat of harm, and no reasonable belief otherwise, until the contrition phase was complete and the tension-building phase was well under way.

Not all abused women share the same perception of the degree of immediacy of a threat, nor do they respond in the same way. Where an abused woman subjectively but unreasonably believes that her use of force is justified, she has a claim of putative self-defence which may lead to an acquittal. While it is true that a battered woman who is afraid and isolated might respond more quickly and intensely to a "threat" and therefore might overestimate the danger, it is clear that her initial extreme responses to abuse might become over-generalised and might occur in situations where there is no objective danger.

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While the argument of putative self-defence is available, if the objective test does not sufficiently retain its objective character it will become increasingly difficult to distinguish between self-defence and putative self-defence. Consider for instance the developments in the Canadian law of self-defence.

In section 34 2 of the Canadian Code the term "reasonable" is expressly stipulated when determining the existence of self-defence, as well as in determining the parameters of the accused's conduct. What is interesting is that Lamer J in R v Patel noted that in terms of the wording of section 34 2 of the Code, there are three constituent elements of self-defence: a the existence of an unlawful assault; b a reasonable apprehension of a risk of death or grievous bodily harm; and c a reasonable belief that it is not possible to protect oneself from harm except by killing.

It was necessary to determine if the accused's perception was reasonable objectively determined. The judge went on to note that-. Imminence is only one of the factors which the jury should weigh in determining whether the accused had a reasonable apprehension of danger, and a reasonable belief that she could not extricate herself otherwise than by killing the attacker. Further, it would appear as if the term "reasonable" does not exclude factors that are beyond the accused's control. In respect of the hypothetical reasonable man, the accused's perception of imminent harm and the need for deadly force did not appear to rest on reasonable and probable grounds.

The reason proposed for this was that the accused shot her unarmed husband in the back of the head, as he was leaving the room. Wilson J noted that the court could not appreciate the accused's perspective without the consideration of expert evidence on battered woman syndrome:.

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How can the mental state of the accused be appreciated without it? The average member of the public can be forgiven for asking why would the woman put up with that treatment? Why should she continue to live with such a man? How could she love a partner who beat her to the point of requiring hospitalization?

We would expect her to pack her bags and go. Where is her self-respect? Expert evidence of the psychological effects of battering was therefore relevant and necessary to assist the court in determining the mental state of the accused and ascertaining whether or not her belief in imminent harm and the need for lethal defensive force was reasonable, since "the definition of what is reasonable must be adapted to the circumstances which are, by and large, foreign to the world inhabited by the reasonable man".

The reasonableness requirement imposed an objective standard on the accused's subjective apprehension of danger and the need for deadly force, and it placed in issue her state of mind at the time when she acted in self-defence: it asked whether her perception was based on reasonable and probable grounds. The rationale behind the imminence requirement was that defensive force can only be justified if the accused faces an uplifted knife or pointed gun, making it reasonable for her to suppose that there is no time to escape or get help.

Predictability therefore confers heightened sensitivity, which imparts a unique ability to detect subtle changes in the abuser's usual pattern of violence that may signal an escalation in the imminence of danger.

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Given this "heightened sensitivity", the abused woman did not need to wait until the attack was in progress to defend herself, since-. Due to their size, strength, socialization and lack of training, women are typically no match for men in hand-to-hand combat Wilson J went on to state that expert evidence on "battered woman syndrome" could show how the accused meets the necessity requirement in the law of self-defence.

To satisfy this requirement, the accused needed to show that she reasonably believed that shooting her husband was the only way to avoid grievous bodily harm or death. When Rust the husband threatened to kill her on the night of his demise, her situation was not unlike that of a hostage who had just been informed by her captor that he would kill her in three days.

Imminence and Self-Defense Against Non-State Actors: Australia Weighs In

The judge concluded that it would be reasonable for persons who found themselves in such a situation to seize the first opportunity to kill their captor, rather than to wait until the husband made his attempt to kill them instead. Still less is it entitled to conclude that she forfeited her right to self-defence for having done so A man's home may be his castle but it is also the woman's home even if it seems to her more like a prison in the circumstances.

Therefore, it had to be decided by the jury "whether, given the history, circumstances and perceptions of the accused, her belief that she could not preserve herself from being killed by Rust that night except by killing him first was reasonable". On appeal the issues of law were dismissed, the finding of the jury was upheld, and the accused was acquitted on the basis of self-defence.

It is evident that the importance of this case lays in the fact that the court acknowledged that women's experiences were not captured by the hypothetical construct "the reasonable man", and therefore proposed the admission of evidence of "battered woman syndrome", to counter this. Such expert testimony is relevant, because a it reinforces the accused's credibility; b it goes to the state of mind of the accused to show she honestly believes she was in imminent danger; and c it goes to the reasonableness of the accused's belief that she was in danger of death or grievous bodily harm.

But it is wrong to think of this development of the law as merely an example where an objective test - the requirement that an accused claiming self-defence must reasonably apprehend death or grievous bodily harm - has been modified to admit evidence of the subjective perceptions of a battered woman The perspectives of women, which have historically been ignored, must now equally inform the "objective" standard of the reasonable person in relation to self-defence. The judge stipulated that the reasonable woman standard was another component of the reasonable person standard.

Such emphasis complies too well with society's stereotypes about women. Therefore, it should be scrupulously avoided, because it only serves to undermine the important advancements achieved by the decision in Lavallee. By insisting on a reasonable woman standard and the partial practical realisation thereof by means of allowing expert testimony concerning battered woman syndrome in determining the requirements and boundaries of self-defence by means of the reasonableness requirement, it would appear as if the standard of the reasonable person is starting to lose its objective nature.

This is so because-. Reference in this regard is made to subjective factors pertaining to the person being attacked as well as subjective factors pertaining to the attacker. A similar trend has been followed in American law and is beginning to be demonstrated in the South African law of self-defence. The end result of such an approach may be that "it is predicted that the legal requirements for private defence will eventually be equated with those currently required for putative private defence".

It is submitted that the Engelbrecht case unacceptably broadened the scope of private defence in its unanimous opinion that further domestic violence was imminent or inevitable. The imminence requirement was in fact applied. However, this was done in terms of the legal convictions of society, which now also include a consideration of the fundamental human rights as guaranteed in the Bill of Rights.

Therefore, perhaps Satchwell J did not in fact dispense with the "imminence" requirement. Instead, she clearly delineated the extended meaning of the imminence requirement by noting that the cycle of abuse was in fact "inevitable". Furthermore, given the provisions of sections 8 and 39 of the Constitution and the consideration of fundamental human rights in the determination of unlawfulness, precedent is no longer an obstacle in the way of the adaptation of the common-law requirement of imminence to comply with the values on which South African society is based.

While it could be argued that constitutional norms could at least provide a broad-based "principle" or set of principles on which to draw distinctions in determining which factors should be considered in extending the imminence requirement, it is submitted that this view is impractical. The concept of unlawfulness, which hinges on the legal convictions of the community, has not only found favour with South African courts, but requires the judge not to impose his own subjective preferences onto the case, but to seek the solution in the sentiments of "all enlightened individuals in society" or the "legal convictions of the community's lawmakers".

Although there is a need for flexibility in the area of the grounds for justification, and this makes objectivity more elusive, there have to be clear limits. Judges are expected to make value judgments in this context all the time, when they assess the extent to which an accused's conduct falls within the limits of self-defence.

The realm of objectivity is in the recognition of pre-existing limits. The use of discretion in applying such preexisting rules is well-established, but it needs to be established if it is adequately countenanced. It is submitted that it is not. The concept fails to be objectivised sufficiently, and furthermore, judges are granted too much discretion in this respect. The Engelbrecht case is a clear example of such unfettered discretion.

While the Constitution does not establish a hierarchy of rights, judges and academics have acknowledged that some rights are more foundational than others, constituting a core of rights from which others are derived. The right to life is antecedent to all other rights in the Constitution. It is therefore submitted that Satchwell J went too far when she declared that "even the quality of life, her home, her emotional and psychological wellbeing, her freedom as well as those interests of her children are protected by the right to private defence".

However, it is submitted that she had no way of knowing whether her abuser would have killed her at that very moment. Indeed, the abuse had been going on for some time. There were therefore less-restrictive means of extricating herself from her situation. She could have called the police or left the premises. Not only did Satchwell J in Engelbrecht not correctly identify whether or not the limitation on the accused's rights was justifiable, but the court failed to take cognisance of established precedence.

Interpretation or development of the common law requires that the court must promote the spirit, purport, and objects of the Bill of Rights. It is therefore meant to adapt or correct applicable law to reflect common law, not to change it in its entirety. Later on, however, the court goes on to state that "the accused had not afforded the legal system, the South African police Service and society a fair chance of helping her. It had not been objectively reasonable in all the circumstances for the accused to kill the deceased when she did".

If the violence is to be viewed as "inevitable", if the abused woman is suffering from "battered woman syndrome", then it becomes clear that she could not have acted other than the way she did. It is submitted that the traditional element of imminence should remain in force. If the abused woman is being attacked and the threat is imminent in the traditional sense , then she should be able to avail to herself of self-defence, although it should be noted that the court should also consider the fact that the battered women placed herself in this dangerous situation.

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But now imagine that Judy killed her husband in a confrontational situation ie where the attack was imminent. A woman who stays in an abusive relationship for 20 years cannot when an attack is taking place that is to say when an attack is imminent in the traditional sense state that she killed her abuser because she feared for her life.

She had been attacked many times before. What makes this time different from the other times? She stayed, knowing that a future attack was a very real likelihood. The persistence of the attack over 20 years would militate against her claim of self-defence. In respect of putative self-defence, the abused woman's perspective and what she knew are critical. If this is true, then she cannot reasonably claim that she knew her abuser would kill her. Again, what would make this occasion different from the others? If, however, the abused woman "snapped" and really believed that her abuser would kill her, then she should be pleading non-pathological incapacity instead.

It would be better for the court to ask whether a reasonable person in similar but not all of the circumstances would have considered the threat to be imminent. This is the standard that is already used in South African law. While it is obviously true that if a reasonable person were defined to be just like the accused in every respect, he would arguably do exactly what the accused did under the circumstances. This, however, is an inherent difficulty that self-defence law confronts whenever it tries to determine which of the accused's characteristics are properly considered in making an objective inquiry: the perennial problem of "striking the balance between the defender's subjective perceptions and those of the hypothetical reasonable person".

The case of S v Steyn is a case in which courts have demonstrated that they are competent to take the abused woman's situation into account. In this case the accused shot and killed her former husband when he threatened her with a knife. This statement sent the deceased into a rage and he threatened and choked her. As a result she fled to the bedroom. However, since she was not in good health and required food before taking medication for numerous medical conditions, she ignored the deceased's instructions to remain in the bedroom.

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When the deceased saw her his reaction was immediate and violent. He jumped up and proceeded towards her with a steak knife that he had been using to eat his meal with. She perceived this threat as deadly serious, and fearing for her life she raised her revolver and fired a single shot. In determining whether the attack was imminent, the court a quo held that when the accused left her bedroom in order to fetch food from the kitchen, a reasonable person in the accused's position would have foreseen the possibility that the deceased in the condition and mood he was in might attempt to attack her.

Therefore a reasonable person would not have proceeded to place herself in the position of danger where she might be forced to use a weapon to defend herself. The court found that in this instance she had acted unreasonably and therefore negligently. The court of appeal then turned its attention to the question of the lawfulness of the accused's conduct. The court noted that the conduct of the alleged offender was to be measured against that of a reasonable person on the basis that reasonable conduct is usually acceptable in the eyes of society, and therefore considered lawful.

Rather, the proper consideration is whether - taking all factors into account - the accused acted reasonably in the manner in which she defended herself or not. When considering if these factors are sufficient to take the abused woman's situation into account, it becomes clear that they are adequate. For instance, in relation to the location of the incident it is clear that it could not have been expected of the accused to gamble with her life by turning her back on the deceased, who was extremely close to her and about to attack her with a knife, in the hope that he would not stab her in the back.

She would have had to turn around in order to return to her bedroom, by which time he would have been upon her and flight would have been futile. This shows that her training in conflict management had been of no use to her in her daily life. She had clearly been dominated by him.

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There was nothing unlawful in her action in doing so, and it cannot have been expected of her to telephone for assistance every time she needed to do something in her own home. What these factors demonstrate is that the court already takes the abused woman situation into account, to a limited extent, as a matter of course. Since no single profile of a battered woman exists, it would be inadvisable to expect the court to go so far as to attempt to assess whether or not the killing was a reasonable response for a battered woman.

By utilising an imminence requirement, the courts have been able to limit the intrinsic scope of self-defence. Although it has been noted that the traditional requirement of imminence does not adequately cater for battered women's situations, it is submitted that the variations that have been introduced in foreign law will not work in principle in South African law.

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Not only does no precedent exist for the use of such varied standards of imminence, but the range of criticisms levelled at these suggests that it would be better to stay with the status quo: the traditional element of imminence. Furthermore, any reference to the "'reasonable battered woman"' standard is unnecessary, since South African courts already take the abused woman's situation into account, to a limited extent, by considering several factors when determining whether the abused woman acted reasonably.

One case which has illustrated this point well is S v Steyn. J "Beyond the Reasonable Man? R v Hayes TS R vK 3 SA A. R v Nomahleke GWL 8. R v Patel 3 SA A. R vZiklalala 2 SA A. S v Mnguni 3 SA T. S v Ntuii 1 SA A. S v T 2 SA O. Register of legislation. Herein referred to as "the Constitution"'. Y after being robbed by X, went home, collected a weapon, returned to the scene of the robbery, and used force against X to recover his property. It was held that he had acted in lawful private defence in so far as his actions had been part of the res gestae of the original attack.

Any measure taken after the attack has ended would be retaliatory rather than defensive R v Hayes TS Indeed, the State is under a series of constitutional mandates which include the obligation to deal with domestic violence; to protect both the right of everyone to enjoy freedom and security of the person and to bodily and psychological integrity, and the right to have their dignity respected and protected, as well as the defensive rights of everyone not to be subjected to torture in any way and not to be treated or punished in a cruel, inhuman or degrading way".

Ripstein UPittL Rev , argues that the conception of "imminent harm," is simply an instantiation of the legal concept of "unavoidable" harm, and that current American self-defence law is designed to guarantee that no one must endure an reasonable risk of unavoidable harm He goes on to say that if imminence is nothing more than an instantiation of unavoidability, then it follows that if a battered woman has a reasonable belief that she will be seriously assaulted after her batterer wakes up, she is justified in killing him while he sleeps It also makes sense since these theories, when taken to their logical extreme, would require either a drastic curtailment of the defence in the case of the pacifist theory or an extraordinary expansion in the case of the libertarian theory.

For instance, Dr Du Preez's kind gesture of giving her R as a deposit for a new flat. These include not only the young age of the accused in determining reasonableness, but also conditions of arrested intellectual or mental development. In R vMelaragni 96 CCC 3d 78 Ont Court GD 82, it was held that where the accused has private knowledge of his attacker that the attacker is extremely aggressive , he is entitled to avail himself of such information when acting in self-defence.

Ally and Viljoen SACJ , note that an important factor in this evaluation is the question of whether or not less restrictive means are available to obtain the stated objectives. She often kept food in her bedroom to sustain herself during these periods. All the contents of this journal, except where otherwise noted, is licensed under a Creative Commons Attribution License. Services on Demand Article. English pdf Article in xml format Article references How to cite this article Automatic translation. Access statistics.

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Cited by Google Similars in Google. The theory underlying this approach is that every person has the right to protect their legal interests, and is under no obligation to surrender these rights in order to avoid inflicting some evil on another person. First, is terminal sedation appropriate if it is necessary to relieve intractable pain in patients diagnosed with a terminal illness, even if death is not imminent? This is what Cellarius calls early terminal sedation because it does not satisfy the requirement that death is imminent that is typically cited as a condition of the permissibility of terminal sedation.

Early terminal sedation could be expected to hasten death as a side effect of providing palliative care for unusually recalcitrant pain. A second issue concerns the moral significance of the fact that once sedation has occurred, death is inevitable either because it was imminent already or because the withholding of nutrition and hydration has made it inevitable. Would it be permissible to increase the level of sedation foreseeing that this would hasten the death that is now inevitable?

Traditional applications of the principle of double effect rest on the assumption that the death of an innocent human being may never be brought about intentionally and would rule against such an action. It may obscure rather than clarify discussion of these situations to view the principle of double effect as a clear guideline. In this discussion, as in many others, the principle of double effect may serve more as a framework for announcing moral constraints on decisions that involve causing death regretfully than as a way of determining the precise content of those decisions and the judgments that justify them.

Aquinas, Saint Thomas consequentialism doing vs. Formulations of the principle of double effect 2. Applications 3. Misinterpretations 4. Criticisms 5. One principle or many loosely related exceptions? Formulations of the principle of double effect Thomas Aquinas is credited with introducing the principle of double effect in his discussion of the permissibility of self-defense in the Summa Theologica II-II, Qu. The New Catholic Encyclopedia provides four conditions for the application of the principle of double effect: The act itself must be morally good or at least indifferent.

The agent may not positively will the bad effect but may permit it. If he could attain the good effect without the bad effect he should do so. The bad effect is sometimes said to be indirectly voluntary. The good effect must flow from the action at least as immediately in the order of causality, though not necessarily in the order of time as the bad effect. In other words the good effect must be produced directly by the action, not by the bad effect. Otherwise the agent would be using a bad means to a good end, which is never allowed.

This assumption could be made explicit as an additional condition on permissibly causing unintended harm: 5. Applications Many morally reflective people have been persuaded that something along the lines of double effect must be correct. No doubt this is because at least some of the examples cited as illustrations of DE have considerable intuitive appeal: The terror bomber aims to bring about civilian deaths in order to weaken the resolve of the enemy: when his bombs kill civilians this is a consequence that he intends. The tactical bomber aims at military targets while foreseeing that bombing such targets will cause civilian deaths.

When his bombs kill civilians this is a foreseen but unintended consequence of his actions. Even if it is equally certain that the two bombers will cause the same number of civilian deaths, terror bombing is impermissible while tactical bombing is permissible. The mistaken assumption that the use of opioid drugs for pain relief tends to hasten death is discussed below in section 6. Performing an abortion, by contrast, would involve intending to kill the fetus as a means to saving the mother.

To kill a person whom you know to be plotting to kill you would be impermissible because it would be a case of intentional killing; however, to strike in self-defense against an aggressor is permissible, even if one foresees that the blow by which one defends oneself will be fatal. It would be wrong to throw someone into the path of a runaway trolley in order to stop it and keep it from hitting five people on the track ahead; that would involve intending harm to the one as a means of saving the five.

But it would be permissible to divert a runaway trolley onto a track holding one and away from a track holding five: in that case one foresees the death of the one as a side effect of saving the five but one does not intend it. Misinterpretations Does the principle of double effect play the important explanatory role that has been claimed for it? They also include protections denied to minimize harm to civilians: Rule End of Life Decision-Making The principle of double effect is often mentioned in discussions of what is known as palliative care, medical care for patients with terminal illness in need of pain relief.

Three assumptions often operate in the background of these discussions: The side effect of hastening death is an inevitable or at least likely result of the administration of opioid drugs in order to relieve pain. The hastening of death is a not unwelcome side effect of providing pain relief in the context of palliative care.

It would be impermissible to hasten death intentionally in order to cut short the suffering of a terminally ill patient. Anscombe, Elizabeth, Aquinas, Thomas 13 th c. Baumgarth and Richard J. Regan, S. Augustine 4 th c. Bennett, Jonathan, Boyle, Joseph, Boyle, Jr. Cavanaugh, T. Cellarius, Victor, Connell, F.

Davis, Nancy, Delaney, Neil Francis, Duff, Antony, Fitzpatrick, William J. Fohr, Susan A. Foot, Philippa, New York: Fordham University Press, , pp. Mackie , Ted Honderich ed. Garcia, Jorge, Grisez, Germain G. Kagan, Shelly, Kamm, Frances M. Knobe, Joshua, Lackey, Douglas P. Mangan, Joseph, Marquis, Donald B. Masek, Lawrence, McCarthy, David, McIntyre, Alison, McMahan, Jeff, Mikhail, John,

Self-Defence in International and Criminal Law: The Doctrine of Imminence Self-Defence in International and Criminal Law: The Doctrine of Imminence
Self-Defence in International and Criminal Law: The Doctrine of Imminence Self-Defence in International and Criminal Law: The Doctrine of Imminence
Self-Defence in International and Criminal Law: The Doctrine of Imminence Self-Defence in International and Criminal Law: The Doctrine of Imminence
Self-Defence in International and Criminal Law: The Doctrine of Imminence Self-Defence in International and Criminal Law: The Doctrine of Imminence
Self-Defence in International and Criminal Law: The Doctrine of Imminence Self-Defence in International and Criminal Law: The Doctrine of Imminence
Self-Defence in International and Criminal Law: The Doctrine of Imminence Self-Defence in International and Criminal Law: The Doctrine of Imminence
Self-Defence in International and Criminal Law: The Doctrine of Imminence Self-Defence in International and Criminal Law: The Doctrine of Imminence

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