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48 Wash. & Lee L. Rev. 235 (1991)
Towards a Recognition of the Necessity Defense for Political Protesters

handle is hein.journals/waslee48 and id is 245 raw text is: TOWARDS A RECOGNITION OF THE NECESSITY DEFENSE FOR POLITICAL PROTESTERS MATTHEw LnpmAN* The world has witnessed the rise of people power. Regimes have been shaken and toppled due, in large part, to the mass, nonviolent actions of their citizens. In the United States, civil disobedience tactics increasingly have been deployed by unionists, environmentalists, peace activists, tax resisters, advocates for the homeless, educational reformers, and those embroiled in the debate over AIDS and abortion. Ironically, while American political leaders generally have praised, supported, and encouraged non- violent movements abroad, they often have condemned, frustrated, and attacked such movements at home. Much of this contemporary American civil disobedience is distinguished by the fact that disobedients, rather than following the traditional practice of entering a guilty plea and accepting their punishment, claim that their actions are justified under international law and argue that it is the state which is acting in a criminal fashion. These new self-proclaimed civil resisters view themselves as inheritors of the Nuremberg tradition that they claim morally and legally obligates citizens to resist the internationally illegal conduct of regimes. Such civil resisters typically have relied upon the common-law necessity defense as a mechanism that entitled them to raise indirectly their international law defense. The appellate judiciary, however, almost uniformly has ruled that the necessity defense is inapplicable as a matter of law in cases of political protest. This essay contends that the United States, with its rich tradition of civil disobedience and commitment to democracy, should recognize the right of civil resisters to rely upon the necessity defense.' Initially, it is argued that the Nuremberg Principles and international human rights law establish an internationally recognized privilege of citizen intervention to prevent illegal governmental activity. This notion of legally justifiable civil resistance then is contrasted with the traditional concept of civil disobedience. In conclusion, the refusal of the appellate judiciary to permit civil resisters to * Ph.D. Northwestern, J.D. American, LL.M. Harvard. Department of Criminal Justice, University of Illinois at Chicago. I would like to thank the members of Washington and Lee Law Review for the opportunity to express my views in an unrestricted and provocative form. They are to be congratulated for sponsoring this important symposium. 1. The ideas discussed in this paper, in part, are elaborated upon in: Lippman, The Right of Civil Resistance Under Internatidnal Law and the Domestic Necessity Defense, 8 DicK. J. INrr'L L. 349 (1990); Lippman, The Necessity Defense and Political Protest, 26 Cms. L. BuLL. 317 (1990); Lippman, Reflections On Non-Violent Resistance and the Necessity Defense, 11 Hous. J. INT'L L. 277 (1989); Lippman, First Strike Nuclear Weapons and the Justifiability of Civil Resistance Under International Law, 2 TMOLdE INT'L L.J. 133 (1989); Lippman, Nuremberg, 6 LAw ur CoNmxr 20 (1988); Lippman, Civil Disobedience: The Dictates of Conscience Versus the Rule of Law, 26 WAsatnmuR L.J. 233 (1987).

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