Academic journal article Case Western Reserve Journal of International Law

Understanding When and How Domestic Courts Apply IHL

Academic journal article Case Western Reserve Journal of International Law

Understanding When and How Domestic Courts Apply IHL

Article excerpt

I.   INTRODUCTION  II.  THRESHOLD FOR ANALYSIS      A. Existence of a Conflict      B. Types of Conflicts      C. Issues Arising During Conflict  III. FACTORS TO ANALYZE AND ANTICIPATE JUDICIAL BEHAVIOR      A. When Courts Do--or Should--Apply IHL      B. How Do--and Should--Courts Apply IHL?  IV. CONCLUSION 


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 likely have a major impact on the disposition of the case.

International humanitarian law (IHL)--otherwise known as the law of armed conflict or the law of war--governs the conduct of both states and individuals during armed conflict and seeks to minimize suffering in war by protecting persons not participating in hostilities and by restricting the means and methods of warfare. (1) A variety of courts and judicial mechanisms apply and enforce IHL during and after armed conflict: national courts; courts-martial; military commissions; regional courts; international tribunals; and hybrid tribunals, to name a few. With the exception of national and regional courts, the remaining courts and tribunals are specifically designed or constituted to apply the law of war to persons and actions during wartime. Regional courts will usually operate within the human rights paradigm, such as the Inter-American Court of Human Rights or the European Court of Human Rights. In contrast, national courts have no special jurisdiction over law of war issues or over military personnel. Understanding when, why and how they apply--or perhaps refuse to apply--IHL is thus an essential task.

Any actors engaged in the implementation or enforcement of IHL--whether lawyers, military operators, political leaders, or others--must have a clear understanding of how their national courts will approach cases involving IHL. This essay will analyze what factors courts to choose to apply--or not apply--IHL 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 IHL 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 national 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.

This analysis plays an important role in three main areas. First, litigation strategy requires that lawyers know more than simply how the law applies to the facts. Knowing how the court will approach a relevant legal regime impacts a range of strategic issues in litigation, from the choice of court (if applicable) to decisions about how to present the case and which issues to emphasize. For example, courts in the United States tend to be reluctant to interfere in wartime decision-making and frequently invoke the political question doctrine in declining to adjudicate such cases. Courts in Israel, for example, take the opposite approach, implementing robust judicial review and hearing cases in real time during military operations. …

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