Application of the law Subject to the powers of the
United Nations Security Council, a state’s right of self-defense is explicitly recognized in Article 51 of the United Nations Charter: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations.” The right of self-defense is limited by a duty to take only proportional countermeasures. In any given case, evaluating whether force was proportional or excessive in any given instance can be difficult. Allowances for military force in self-defence, and even moreso
humanitarian interventions, acting in defense
on behalf of others in a state which has not given permission for the use of force, may be hard to reconcile with human rights. The Intermediate People's Court of
Foshan,
People's Republic of China in a 2009 case ruled that a woman killing a robber by crashing her car into the getaway vehicle during an escape attempt to be justifiable self-defense because "the robbery was still in progress" due to the criminals still being in the victim's sight. In the United States between 2008 and 2012, approximately 1 out of every 38
gun-related deaths (which includes murders, suicides, and accidental deaths) was a justifiable killing, according to the
Violence Policy Center. In
Canada, in criminal law, self-defense is a statutory defense that provides a complete defense to the commission of a criminal act. It operates as a justification, the successful application of which means that, owing to the circumstances in which the act was produced, it is not morally blameworthy. There are three elements an accused must demonstrate to raise self-defense successfully. First, the accused must demonstrate that they believed on reasonable grounds that force would be used against them or another person or that a threat of force is being made against them or another person. The reasonableness of the belief is assessed through a subjective and objective lens. Certain beliefs, including racist beliefs and beliefs induced by self-intoxication, are prima facie unreasonable. Other beliefs related to the subjective experience of the accused may, however, be reasonable. These include any relevant military training (R v Khill), heightened awareness of patterns of cyclical violence in intimate relationships (
R v Lavallée) and whether the accused has autism (R v Kagan). Second, the act that constitutes the offence is committed to defend or protect themselves or the other person from that use or threat of force. Third, the act that constitutes the offence must have been reasonable. Many indicia factor into whether the act was reasonable in the circumstances. For one, was the violence or threat of violence imminent? Usually, if there is a significant time interval between the original unlawful assault and the accused's response, it undermines the contention that there were no other means available to respond to the potential use of force, and one tends to suspect that the accused was motivated by revenge rather than self-defense. However, R v Lavallée accepted expert evidence demonstrating that people experiencing
battered women's syndrome have special knowledge about the cyclical nature of violence in a way that allows them to foresee when harm is coming. Second, it's relevant whether a reasonable avenue of escape was available to the accused. Under the old self-defense provision, there was a requirement for the accused to have believed on reasonable grounds that there was no alternative course of action open to him at the time, so that he reasonably thought that he was obliged to kill to preserve himself from death or grievous bodily harm. Now, even though 34(2)(b) is only one consideration in a non-exhaustive list, the mandatory role it used to play in the common law suggests it carries considerable weight in determining the reasonableness of the act in the circumstances under 34(1)(c) As such, while there is no absolute duty to retreat, it is a prerequisite to the defense that no other legal means of responding are available. In other words, there may be an obligation to do retreat where there is an option to do so (R v Cain). However, there is an exception to the obligation to retreat which is there is no requirement to flee from your own home to escape an assault to raise self-defense (R v Forde). Moreover, evidence of the accused suffering from battered women's syndrome may evince that the accused reasonably perceived there to have been no means of escape (R v Lavallée). Third, the accused's role in the incident may play into the reasonableness of their act. Consideration of the accused's role is not limited to whether he did any provocative or unlawful acts, as it was under the old self-defense provisions (R v Khill). Fourth, the nature and proportionality of the accused's response will determine whether it was reasonable. While a person is not expected to weigh to a nicety the measure of force used to respond to violence or a threat thereof, grossly disproportionate force will tend to be unreasonable (R v Kong). ==See also==