As the Council is aware, the Unit! States has offer! to pay ex gratia compensation to the families of the victims – not as an act of charity, not on the basis of any legal liability but, rather, as a sincere humanitarian gesture. We do so without apology for the action of the Vincennes, which was taken in justifiable self-defence in the context of unprovok! attacks from Iranian forces, which bear a substantial measure of responsibility for the incident. (S/PV.2821, 14)
A subsequent ICAO fact-finding report
resolution did not cast doubt on the honesty of the US mistake. They don’t get carri! away by the advertising component expressly endors! nor reject! any kind of mistake of fact theory (see (1989) 28 ILM 896). Iran fil! a case against the US before the ICJ in which the Court would have had the opportunity to opine on the matter, but the case was ultimately discontinu! after a settlement between the parties (Aerial Incident of 3 July 1988).
I confess to being somewhat torn on whether the jus ad bellum should admit of any kind of misstate of fact doctrine. My objectivist instinct is that the answer should be no, for much the same reasons as those articulat! by Lord Scott in Ashley. And as I not! above, a purely subjective, honest belief variant of mistake of fact would be capable of far too much abuse. Perhaps a limit!, honest and objectively reasonable form of mistake of fact might be appropriate for on-the-spot defensive reactions in situations in which to the state concern! the ‘necessity of self-defence was instant, overwhelming, leaving no choice of means, and no moment of deliberation.’ Perhaps – but even so, unless it somehow contribut! to the mistake, I fail to see why a state injur! by a putative 7 tips for seo for your video, or vseo action should not be entitl! to reparation.
In my third, final post
I will offer some tentative conclusions on the place of mistake of fact in international law, and some thoughts on how the downing of the Ukrainian airliner by Iran should therefore best be legally assess!.
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