Understanding When and How Domestic Courts Apply IHL
21 Pages Posted: 22 Mar 2012 Last revised: 22 Jun 2012
Date Written: 2011
Detention at Guantanamo, targeting of individuals with drones, use of civilians to warn the targets of military operations, use of military commissions – courts in the United States and abroad have grappled with these and other questions extensively over the past decade and more. These issues, and others that arise in the course of armed conflict and counterterrorism operations, bring the role of national courts in the implementation and enforcement of international humanitarian law into direct relief. Courts faced with wartime cases encounter two critical determinations before even reaching the merits of the case: whether to apply international humanitarian law and, if so, to what extent. The answers to those two questions will then likely have a major impact on the disposition of the case.
Any actors engaged in the implementation or enforcement of international humanitarian law – whether lawyers, military operators, political leaders or others – must have a clear understanding of how their national courts will approach cases involving international humanitarian law. This essay will analyze what factors cause courts to choose to apply – or not apply – international humanitarian law and how much of it they will apply. Knowing how the law actually applies to the facts at hand is, of course, critical to the preparation of any case, military operation, advocacy campaign or other action. In the international humanitarian law paradigm, however, this analysis must go beyond the specific substantive law. A court’s initial decision about whether to apply IHL or to what extent it applies, relative to human rights law, for example, will have a significant effect on the merits of the case. Because the process – which law and how much law – is substantively determinative, on a broad strategic level, predicting or understanding how courts will approach the legal framework as cases arise is important for effective advocacy, operational and political decision-making and long-term legal analysis.
Keywords: IHL, law of armed conflict, armed conflict, domestic courts, international law
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