When We Sit to Judge We are Being Judged: The Israeli G.S.S Case, Ex Parte Pinocet and Domestic/Global Deliberation

Abstract

Through analysis of two recent cases, one Israeli and one British this paper advances a deliberative paradigm with which to understand emerging global, meta-constitutional norms, such as prohibition against torture, enforced through transitional adjudication. More specifically, this paper suggests that deliberation between the three branches of government, central to the concept of constitutional democracy, is not confined to the boundaries of the nation-state; rather, the development of jus cogens norms coupled with universal jurisdiction in domestic courts ensures that such deliberation crosses national jurisdictions. This development allows, for example, for domestic courts to review, and be reviewed by, foreign courts, executives and legislatures, for their commitment to meat-constitutional norms. In the absence of an international, hierarchical design, this emerging system of dialogue and peer review presents an interesting modal of super-national adjudication.

Keywords: Universal,Jurisdiction,Torture,War crimes,Criminal law,International

JEL Classification: N40,N45,K10,K14,K33,K40,K42