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Published online by Cambridge University Press: 09 July 2019
1 Forcese, Craig, Destroying the Caroline: The Frontier Raid That Reshaped the Right to War (Toronto: Irwin Law, 2018)Google Scholar at 104. A selection of these diplomatic notes, with editorial annotation and explanation by Hunter Miller, are available from the Avalon Project, <http://avalon.law.yale.edu/19th_century/br-1842d.asp>.
2 See e.g. Dinstein, Yoram, War, Aggression, and Self-Defence, 6th ed (Cambridge: Cambridge University Press, 2017) at 225.CrossRefGoogle Scholar
3 The book was awarded the American Society of International Law’s Certificate of Merit for Pre-eminent Contribution to Creative Scholarship for 2018.
4 Forcese, supra note 1 at 74.
5 Also available from the Avalon Project, <http://avalon.law.yale.edu/19th_century/br-1842.asp>.
6 Neff, Stephen, War and the Law of Nations: A General History (Cambridge: Cambridge University Press, 2005).CrossRefGoogle Scholar
7 Charter of the United Nations, 26 June 1945, Can TS 1945 No 7 (entered into force 24 October 1945) [UN Charter].
8 Forcese, supra note 1 at 246, citing Antonio Cassese, International Law (Oxford: Oxford University Press, 2001) at 310.
9 Forcese, supra note 1 at 246, citing Reisman, W Michael and Baker, James E, Regulating Covert Action: Practices, Contexts and Policies of Covert Coercion Abroad in American and International Law (New Haven, CT: Yale University Press, 1992) at 48.Google Scholar
10 Forcese, supra note 1 at 229.
11 Department of Justice White Paper: Lawfulness of a Lethal Operation Directed against a US Citizen Who Is a Senior Operational Leader of Al-Qa’ida or An Associated Force (undated), obtained by NBC News, <https://www.scribd.com/document/123883608/Lawfulness-of-a-Lethal-Operation-Directed-Against-a-U-S-Citizen-who-is-a-Senior-Operational-Leader-of-Al-Qa-ida-or-An-Associated-Force>; see also the David J Barron, Office of Legal Counsel, Re: Applicability of Federal Criminal Laws and the Constitution to Contemplated Lethal Operations against Shaykh Anwar al-Aulaqi, Memorandum for the Attorney General (16 July 2010), online: <https://www.justice.gov/sites/default/files/olc/pages/attachments/2015/04/02/2010-07-16_-_olc_aaga_barron_-_al-aulaqi.pdf>.
12 Daniel Bethlehem, “Self-Defense against Imminent or Actual Armed Attack by Nonstate Actors” (2012) 106 Am J Intl L 770 [Bethlehem, “Self-Defense against NSAs”]; see also Daniel Bethlehem, “Principles of Self-Defense: A Brief Response” (2013) 107 Am J Intl L 579.
13 Forcese, supra note 1 at 104.
14 See Bethlehem, “Self-Defense against NSAs,” supra note 12 at 775–76 (Principle 8).
15 I cannot do justice to these arguments in this short review, but I have explored them in much more detail in Craig Martin, “Challenging and Refining the ‘Unwilling or Unable’ Doctrine” (2019) 52 Vand J Trans L 387.
16 It has an older pedigree within the law of neutrality and can be traced back to Vattel, but this involved the use of force against the forces of other belligerent states operating from within neutral state territory. See further Ashley Deeks, “‘Unwilling or Unable’: Toward a Normative Framework for Extraterritorial Self-Defense” (2012) 52 Va J Intl L 483.
17 Bethlehem, however, is cited in chapter 26 of Forcese, supra note 1 at 206. For a discussion of the debate, see Martin, supra note 14.
18 Bethlehem, “Self-Defense against NSAs,” supra note 12 at 775 (Principle 4).
19 On attribution for purposes of self-defense, see Ruys, Tom, “Armed Attack” and Article 51 of the UN Charter: Evolutions in Customary Law and Practice (Cambridge: Cambridge University Press, 2010) at 489–93;Google Scholar see also Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States), Judgment, [1986] ICJ Rep 14 at paras 194–95; Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Merits, [2005] ICJ Rep 1 at paras 106–47.