[DRAFT #4] Right to Self-Defence (remastered 2023)

[Tinhampton]

Character count: 2,311
Word count: 358

ICly by Lydia Anderson, Assistant to the Delegate-Ambassador.
Drafts 1 and 2. Thanks to anjo and Zuk for their assistance.

Right to Self-Defence
A resolution to improve worldwide human sapient and civil rights.

Category: Civil Rights

Strength: Significant

Proposed by: Tinhampton

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Believing it would be highly inappropriate to criminalise those who seek to protect their life and liberty in the face of violence, the General Assembly hereby:

1. defines, for the purposes of this resolution:
   
   1. "harm" as death, life-threatening injury, or violation of bodily sovereignty,
   2. "attack" as the present or imminent threat by a person ("attacker") to cause harm to another person, and
   3. "defensive action" as any act directed against the attacker that a person ("defender") takes to protect oneself or another ("the defended") from an attack,
2. declares that defensive action constitutes fully legal self-defence, unless it is excessive,
3. authorises the relevant court of law to deem an individual defensive action excessive, taking into account:
   
   1. differences in the physical capabilities of attacker and defender, including whether they were carrying weapons,
   2. alternative non- or less violent defensive action that the defender could have taken without an increased likelihood of harm being caused to the defended,
   3. the amount of time the defender had to assess and react to the attack,
   4. the magnitude of the harm threatened by the attack, and
   5. customs and other social contexts relevant to the member state where the defensive action was taken,
4. permits each member state to domestically codify that defensive action is always excessive where:
   
   1. it is directed against an on-duty law enforcement officer lawfully carrying out an arrest, or
   2. the defender intentionally provoked the attack,
5. mandates that a person who, out of fear, mistakenly believes to act under the protections of self-defence may only be punished to the extent the mistake was (with regard to what they assumed the harm's magnitude would be, the physical and mental capacities they had to assess and react to the situation, and the time they believed to have for doing so) avoidable,
6. clarifies that defensive action against an attack that would, if not immediately averted, cause the death of the defended must not be considered excessive,
7. emphasises that, notwithstanding article f, defensive action which constitutes (or aids in) torture is always illegal, and
8. encourages the passage of future legislation on self-defence education.

Co-author: Tepertopia

[Tinhampton]

Some drafts can, and do, defend themselves. Others... won't, over time. Here they are.

Believing that it would be highly inappropriate to criminalise those who seek to protect their life and liberty in the face of violence, the General Assembly hereby:

1. defines, for the purpose of this resolution:
   
   1. a "LEO" as an on-duty law enforcement officer,
   2. "harm" as an action which is unlawful, imminent (or certain to become imminent), and causes a person to suffer death, life-threatening injury, or violation of bodily sovereignty, and
   3. "self-defence" as physical violence inflicted in defence of oneself or another against a person who threatens to cause harm to the defended when that violence is inflicted,
2. requires that member states (subject to prior and standing international law, future international law restricting the use of force by LEOs, and Articles c, d and f):
   
   1. recognise actions constituting self-defence as fully legal,
   2. allow any person suspected of a crime involving physical violence against another person to affirm that such violence constituted self-defence, so long as they furnish proof of grounds for self-defence, and
   3. only convict a person pleading as such if their affirmation is disproven either on the balance of probabilities or beyond reasonable doubt (as legislated by individual members),
3. recommends that members do not recognise physical violence against a LEO seeking to lawfully carry out an arrest as self-defence (although this Article shall not apply where the LEO exerts unnecessarily dangerous force while carrying out the arrest),
4. demands that members do not recognise as self-defence:
   
   1. any physical violence a person exercises despite knowing about and being able to successfully use non-violent means of deterrence or aversion (when required by individual members) that promise similar immediate relief of the threat of harm,
   2. any use of force that is disproportionate to the threat of harm, and
   3. any action a person takes in response to a threat of harm which they themselves deliberately induced,
5. clarifies that a person who, out of fear, mistakenly believes to act under the protections of self-defence may only be punished to the extent the mistake was (with regard to what they assumed the harm's magnitude would be, the physical and mental capacities they had to assess and react to the situation, and the time they believed to have to do so) avoidable,
6. emphasises that, notwithstanding Article e, self-defence shall never be a valid legal defence for any action constituting (or aiding in) torture, and
7. encourages the passage of future legislation on self-defence education.

Co-author: Tepertopia

[Barfleur]

"Barfleur generally supports this proposal, as it is our longstanding belief that self-defense is perhaps the most important of human sapient rights, given that every sapient has the paramount interest of preserving their own life. It is for this reason, however, that we object to clauses d(i) and (ii), which would impose a 'duty to retreat' on all member nations, even in situations where doing so would be grossly unjust to the victim. Consider the case of a homeowner who is awakened at night by the sound of a prowler who has entered their house and is approaching the bedroom. At the moment, the prowler does not know if the house is occupied or if the homeowner is awake, and is not planning any immediate act of violence. Thus, any level of force used against the burglar would be excessive, given that there is no 'imminent' harm, although harm would likely result were the burglar to become aware of the homeowner's presence. Furthermore, given the wording of d(i), it appears the homeowner would need to jump out the window, if feasible, rather than use any force against the burglar. We think this to be a manifest injustice, as it would effectively turn the victim into a refugee from the place they ought to feel the safest and most entitled to take refuge in."

[Tinhampton]

Anderson: Article d does not require member states to introduce duty to retreat doctrine. Part i is especially clear that the choice between duty-to-retreat and stand-your-ground legislation will be "legislated by individual members."

[Barfleur]

Anderson: Article d does not require member states to introduce duty to retreat doctrine. Part i is especially clear that the choice between duty-to-retreat and stand-your-ground legislation will be "legislated by individual members."

"In that case, then, I am not quite sure why clause d forbids member nations from accepting defenses that they do not establish in their own domestic law. Of course, I would be happy for that to be the case, I am just caught on the superfluous wording."

[Tinhampton]

Anderson: If you mean the clarification in parentheses, that was added at the first stages of our very original draft due to concerns that it would have restricted duty-to-retreat legislation otherwise. It remains there to mitigate against that - or indeed the inverse - happening.

[Barfleur]

Anderson: If you mean the clarification in parentheses, that was added at the first stages of our very original draft due to concerns that it would have restricted duty-to-retreat legislation otherwise. It remains there to mitigate against that - or indeed the inverse - happening.

"In that case, I suggest replacing 'as legislated' with 'when required' to make it clear that clause d(i) imposes no additional duty that member nations choose not to. As for clause d(ii), I am still concerned about the proportionality analysis. The armed burglar in my example may not be imminently planning to commit any harm, and thus, from the wording of the proposal, the homeowner would not be allowed to use and force, but must either call the police or alert the burglar to their presence, both of which will likely lead to an escalation of force."

[Tinhampton]

Given Barfleur's failure to respond to repeated requests for comment, I have redefined harm to include situations that are both imminent and certain to become imminent (in consultation with anjo).

We agreed that his proposed change to Article d(i) should happen and thus it has been made.

[Barfleur]

Given Barfleur's failure to respond to repeated requests for comment, I have redefined harm to include situations that are both imminent and certain to become imminent (in consultation with anjo).

We agreed that his proposed change to Article d(i) should happen and thus it has been made.

OOC: If these requests were via Discord, I have been locked out of my account and haven't gotten around to making a new one. Should do that actually.

[Tinhampton]

Given Barfleur's failure to respond to repeated requests for comment, I have redefined harm to include situations that are both imminent and certain to become imminent (in consultation with anjo).

We agreed that his proposed change to Article d(i) should happen and thus it has been made.

OOC: If these requests were via Discord, I have been locked out of my account and haven't gotten around to making a new one. Should do that actually.

Indeed they were. Assuming you are dissatisfied with the new definition, you may also bring any ideas you had for d(ii) here or via telegram; I'll take them up with anjo.

[Barfleur]

OOC: If these requests were via Discord, I have been locked out of my account and haven't gotten around to making a new one. Should do that actually.

Indeed they were. Assuming you are dissatisfied with the new definition, you may also bring any ideas you had for d(ii) here or via telegram; I'll take them up with anjo.

OOC: Not dissatisfied at all.

[Tinhampton]

I'm here!

[Tinhampton]

I have rewritten this draft with anjo. Greater Cesnica had concerns about Draft 3b; they're allayed now.

This does not ban self-defence except when it constitutes torture. (This is my red line: there should never be any exceptions to bans on torture.) We see this as a basic minimum with members can otherwise expand upon, but - if a strong enough case is made - we're open to making excessive use of force in self-defence illegal outright.

[States of Glory WA Office]

Neville: 'Do these provisions apply to combat sports and military situations as well?'

[The Ice States]

"What is stopping a member nation from declaring all self-defence which does not fall under Section f to be 'excessive'? In addition, Section f permits any defensive action no matter how excessive as long as the attack had the potential to kill the defender, and the defensive action does not reach the level of torture."

~Alexander Nicholas Saverchenko-Colleti,
World Assembly Ambassador,
The Communal Union of the Ice States.