Reducing the Security Gap Through National Courts: Targeted Killings as a Case Study
Journal of Conflict & Security Law (2016), Vol 21, No.1, p. 49-67 https://doi.org/10.1093/jcsl/krv019
Posted: 26 Feb 2016 Last revised: 17 Jun 2018
Date Written: February 23, 2016
This article examines the potential role of national courts in reducing the ‘security gap’ in the context of armed conflicts. Judges in democratic States assume different roles. They may variously serve as a legitimating agent of the State; avoid exercising jurisdiction for extra-legal considerations; defer to other branches of the government; enforce the law in line with the rule of law ideal; or develop the law and introduce forms of ethical judgment that go beyond positive application of the law. Identifying the various roles assumed by national judiciaries, their institutional limits and interactions with the executive offers a useful tool for assessing their potential role in advancing human security. In relation to the concept of human security, it has been suggested that the distinction between internal and external notions of security is becoming increasingly blurred, whereby ‘internal’ implies judicial guarantees and human rights based security and ‘external’ implies war-based security. In this context, the changing roles of national courts in situations of armed conflict that are explored in the article could be understood as a method for strengthening human security. The analysis of Israeli and US cases involving targeted killings suggests that while national courts have been largely reluctant to limit government action and have tended to apply international law in a selective manner, they have nonetheless become increasingly willing to review armed conflict cases, including State action beyond its territorial borders.
Keywords: Targeted killing, international law in domestic court, IHL, rule of law, armed conflicts, judicial review
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