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The Role of National Courts in Applying International Humanitarian Law

The Role of National Courts in Applying International Humanitarian Law

Author: Sharon Weill
Publisher: Oxford University Press
ISBN: 9780199685424
Published In: March 2014
Format: Hardback , 240 pages
Jurisdiction: International ? Disclaimer:
Countri(es) stated herein are used as reference only

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Description
Contents
Author

Details
- Evaluates how domestic courts have interpreted and applied international humanitarian law, and shows how their interpretations can differ
- Establishes a methodology to critically assess the actions of domestic courts on a scale from acting as apologists for the use of force to actively promoting and enhancing international humanitarian law
- Provides a detailed analysis of several key jurisdictions as case studies: the UK, US, Canada, Italy, Israel, and Serbia, and investigates how their rulings demonstrate the approach taken by each court
International law is increasingly applied in domestic courts. This can result in situations where the courts are being asked to rule on politically sensitive issues, especially issues which involve actions during armed conflicts. Domestic courts do not show a uniformity of approach in addressing cases concerning international humanitarian law, and can often be seen to differ markedly in their response.

The book argues that different national courts demonstrate different functional roles in different countries. These can be situated on a scale from apology to utopia, which can be set out as follows: (1) the apologist role of courts, in which they serve as a legitimating agency of the state's actions; (2) the avoiding role of courts, in which they, for policy considerations, avoid exercising jurisdiction over a case; (3) The deferral role of courts, in which courts defer back to the other branches of the government the responsibility of finding an appropriate remedy (4) the normative application role of courts, in which they apply international humanitarian law as required by the rule of law; and (5) the utopian role of courts, in which they introduce moral judgments in favour of the protection of the individual, beyond the requirements of the law.

The book investigates the rulings of five key domestic courts, those of the UK, the USA, Canada, Italy, and Israel, to understand how their approaches differ, and where their practice can be placed on the methological scale. This analysis has been assisted by the author's extensive field work, notably in Israel and in the Occupied Palestinian Territories. Providing a detailed understanding each court's function, the book offers a critical analysis of the courts' rulings, in which both the legal arguments and the political context of cases they have ruled on are examined. The book shows that the functional role of the national courts is a combination of contradictions and mixed attitudes, and that national courts are in the process of defining their own role as enforcing organs of international humanitarian law.

Readership: Scholars, international lawyers, NGO practitioners and students in the fields of international law, international humanitarian law, and international law and domestic courts.
Introduction
1: The Apologist Role of National Courts: Legitimizing (Illegal) State Policy
2: The Avoiding Role of National Courts: Law as a Polit ical Doctrine
3: The Normative Role of National Courts: From Deferring to Limiting
4: The Twilight Zone of Utopia: Judges as Law Developer s
Conclusion
Dr Sharon Weill is an international lawyer specializing in international humanitarian law. Her particular field of interest is the relationship between international and domestic law and the judicial enforcement mechanism of international law at a national level. In this context, she conducted a number of field researches in Israel and Palestine (most notably in the Israeli military courts in the Occupied Palestinian Territories) and in the Balkans (Serbian war crimes chamber). In parallel to her academic work, Dr Weill gives seminars on a regular basis for NGOs practitioners. She writes reports for NGOs and media, and has worked with the UN fact finding mission into the Gaza conflict in 2010.