Hostname: page-component-74656f9884-2dmjx Total loading time: 0 Render date: 2026-11-07T05:01:33.602Z Has data issue: false hasContentIssue false
  • English
  • Français

Silent Enim Leges Inter Arma – but Beware the Background Noise: Domestic Courts as Agents of Development of the Law on the Conduct of Hostilities

Published online by Cambridge University Press:  31 July 2013

YAËL RONEN
Rights & Permissions [Opens in a new window]

Abstract

This article highlights the challenges to the operation of domestic courts as agents of development of the laws of armed conflict and particularly of the law on the conduct of hostilities. The first part of the article concerns the spillover from various branches of the laws of armed conflict to the law regarding the conduct of hostilities. The second part of the article addresses the structural constraints on domestic courts in deciding issues relating to the laws of armed conflict, focusing on the conflict between their role as guardians of national interests and their judicial commitment to protecting the individual. The cumulative effect of these characteristics of domestic litigation suggests that the laws of armed conflict, and particularly the law on the conduct of hostilities, are not necessarily well served by development through domestic jurisprudence.

Keywords

IHLenemy aliensjusticiabilityconduct of hostilitiesoccupationlaws of armed conflict

Information

Type
INTERNATIONAL LAW AND PRACTICE: Symposium on Domestic Courts as Agents of Development of International Law
Information
Leiden Journal of International Law , Volume 26 , Issue 3 , September 2013 , pp. 599 - 614
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2013 

1. Introduction

Domestic jurisprudence on the laws of armed conflict is not plentiful. Some obstacles to domestic adjudication lie in international legal doctrines such as state immunity;Footnote 1 additional bars to adjudication emanate from numerous domestic legal doctrines, such as act of state, political question, dualism, and substantive or institutional non-justiciability.Footnote 2 Some exclusion doctrines pertain specifically to claims relating to armed conflict, such as combat immunityFootnote 3 and the inaccessibility of domestic courts to enemy aliensFootnote 4 or in the aftermath of conflict.Footnote 5 A different obstacle may be the non-enforceability of the laws of armed conflict by individual action, following from the proposition that Hague and Geneva law do not establish individual rights but only govern the relations between states.Footnote 6

Nonetheless, questions relating to the laws of armed conflict do reach domestic courts and are decided on the basis of international law, rendering domestic courts agents of development of the laws of armed conflict. This article queries whether domestic courts are the appropriate vehicle for developing this law, by critically appraising the contours and consequences of domestic judicial activity, focusing on the law on the conduct of hostilities.Footnote 7

A prominent area of domestic jurisprudence is criminal law relating to war crimes. Until the 1990s, such cases were for the most part limited to the courts of the occupying powers in post Second World War Germany, and to the courts of a few European states.Footnote 8 Since the 1990s, large numbers of domestic indictments for war crimes have been issued in the states emerging from armed conflict.Footnote 9 War crimes have been tried also in other states on the basis of universal jurisdiction.Footnote 10 There have also been sporadic indictments in states engaged in multinational operations under UN command.Footnote 11 In addition to criminal-law, civil- and public-law claims have been brought in domestic courts which invoke post-conflict responsibility for violations of the law on the conduct of hostilities (e.g. on the principle of distinction,Footnote 12 war booty,Footnote 13 and taking of propertyFootnote 14) and on the laws on prisoners of war (POWs) and occupation.Footnote 15

Domestic courts also engage with the laws of armed conflict in real time, albeit in a very particular manner. Ordinarily such cases concern not the conduct of hostilities itself but either the law of occupation or the law on POWs. Jurisprudence on the law of occupation, other than that immediately following the Second World War, lies almost exclusively with the Israeli High Court of Justice (HCJ). Domestic case law pertaining to POWs or other individuals in situations analogous to that of POWs is more widely spread and has become particularly common since 2001, since the ‘war on terror’ brought to the fore the question of the status of terrorists and insurgents. This jurisprudence concerns the procedure for determining POW status,Footnote 16 the entitlement to POW status,Footnote 17 and compliance with the laws on the treatment of POWs.Footnote 18

Adjudication based on the laws of occupation or of POWs need not present particular difficulties to courts: the law of occupation relates to territory where active hostilities have, generally speaking, ended, while the law on POWs concerns detention of persons outside the combat zone, both geographically and substantively. In these cases the state has stable and continuous control over the territory in which claimants are present. Substantively, these two branches of the laws of armed conflict draw on the same area of law with which courts are routinely engaged, namely human rights, even if the particular context modifies their application.Footnote 19

Notably absent from judicial practice is real-time judicial review of the conduct of hostilities. This is hardly surprising: while hostilities are under way the situation is constantly changing and the courts do not have the information required in order to make informed decisions, nor can they react in a timely manner. Thus, despite contestations,Footnote 20 insofar as active conduct of hostilities is concerned, it is largely true that silent enim leges inter arma. As a result, the law on the conduct of hostilities has received less jurisprudential attention.

The inaccessibility of the law on the conduct of hostilities, particularly during the very duration of hostilities, is mitigated in situations that involve also another branch of the laws of armed conflict. In such cases, courts can draw on the fundamentals of branches with which they are familiar and are which justiciable, to pass judgment on issues that in practice involve the law on the conduct of hostilities. However, since each of the branches of the laws of armed conflict is grounded in different fundamental principles, adjudicating situations involving the law on the conduct of hostilities by borrowing on other branches of law invites a spillover from those branches of law into the law on the conduct of hostilities, potentially tilting the interpretation of the latter away from its original purpose.

The first part of the article examines the impact of the engagement of the courts with situations of overlap on the development of the law on the conduct of hostilities. The second part of the article considers the impact of the conflict between the courts’ role as guardians of national interests and their commitment to the protection of the individual on the development of the law on the conduct of hostilities.

A significant part of the analysis is based on Israeli jurisprudence, which is exceptionally rich with respect to the laws of armed conflict and specifically the law on the conduct of hostilities. As early as 1958 the Central District Military Court highlighted the prohibition under international law of killing persons not participating in hostilities, referring to Common Article 3 of the Geneva Conventions.Footnote 21 Subsequent years saw a number of cases regarding eligibility for POW status of persons who entered Israel illegally from neighboring enemy states.Footnote 22 Since the early 1970s, Israeli jurisprudence has been replete with case law on occupation. Moreover, since the early 2000s, this jurisprudence is also interspersed with cases on the conduct of hostilities. The willingness of Israeli courts and particularly of the HCJ to adjudicate the laws of armed conflict on the merits is the result of the convergence of unique judicial policies: an expansive interpretation of the right of standing,Footnote 23 a narrow interpretation of exclusion doctrines,Footnote 24 and a willingness to engage with the substantive laws of armed conflict regardless of whether they apply de jure.Footnote 25 Given that Israel has been involved in armed conflict, first intermittently since its establishment in 1948, and then continually since 1967, these policies have provided ample opportunity for adjudication on the merits of questions relating to the laws of armed conflict. Furthermore, as described below, the fact that hostilities at times take place in occupied territory triggers the application of other branches of the laws of armed conflict, and enhances the ability of the courts to engage with petitions on the merits, because they does not address a pure matter of the law on the conduct of hostilities.

2. The spillover into the law on the conduct of hostilities

2.1. The spillover from international criminal law into law on the conduct of hostilities

Various questions have been addressed by domestic courts in the context of individual criminal responsibility that pertain also to state responsibility, since the substantive obligations are the same under both modes of responsibility. Consequently, constraints characteristic of the process of domestic criminal adjudication over individuals sometimes colour the substantive issue also for the purpose of state responsibility (which is non-criminal), despite the differences between the two modes of responsibility. For example, criminal-law principles, such as nullum crimen sine lege, require that an ambiguous prohibition be interpreted narrowly,Footnote 26 and that the customary nature of a crime under international law be proven if it is not already incorporated within domestic law.Footnote 27 Accordingly, interpretation of the laws of armed conflict for criminal-law purposes would be more restrictive than interpretation geared towards establishing state responsibility.Footnote 28 Thus, where a domestic court confirms that a norm of the laws of armed conflict is customary law for criminal-law purposes, this finding is also relevant in the context of state responsibility. But the converse conclusion would be incorrect. In other words, that a norm has not been found sufficiently substantiated as customary law for the purpose of establishing an international crime under customary law, or has been found inapplicable on the facts in criminal proceedings, does not mean that it cannot serve as a ground for establishing state responsibility. Nonetheless, an example of such erroneous deduction is the American ‘Blackstone Three’ doctrine, according to which a finding that a norm of international law constitutes customary law depends on it satisfying the requirement of specificity at a level comparable to the three primary offenses cited by Blackstone (violation of safe conducts, infringement of the rights of ambassadors, and piracy).Footnote 29 These norms, however, were singled out by Blackstone because of their unique incorporation into domestic (English) criminal law.Footnote 30 Reliance on the ‘Blackstone Three’ doctrineFootnote 31 transfers criminal legal standards into the state responsibility sphere, including the law on the conduct of hostilities, easily resulting in the unfortunate conclusion that state responsibility does not exist where a norm does not constitute part of international criminal law. For example, in the Agent Orange case, a US Court of Appeals ruled that the injury to civilians through the use of a herbicide could not be regarded as a violation of the principles of necessity and proportionality governing the use of weapons under Regulation 23(e) of the Fourth Hague Convention,Footnote 32 because the latter provision did not have sufficiently definite and specific content to be applied as customary law under the Blackstone Three doctrine.Footnote 33 The criminal-law standard in this ruling is all the more apparent in view of the Court's reliance on prominent international criminal-law sources (the Nuremberg Charter,Footnote 34 Article 147 of the Fourth Geneva Convention,Footnote 35 and the Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign against the Federal Republic of YugoslaviaFootnote 36) to support its finding with respect to a state responsibility issueFootnote 37.

The criminal-law mindset may also implicitly underlie the interpretation of the laws of armed conflict for the purposes of state responsibility. For example, in Anonymous v. Circuit of Saxon Switzerland, Saxony, Germany, the German court was concerned with the question whether forced labor by POWs during the Second World War violated the principles of humanity so as to exclude compensation for expropriation of a company that had used forced labor, if there was no evidence of mistreatment.Footnote 38 The Court found that use of forced labor was not a violation of the principles of humanity per se. It reached this conclusion by analysing the content of ‘crimes against humanity’ under the Nuremberg Charter and Control Council Law No. 10, both of which were criminal codes. It also reasoned that although the use of forced POW labor in question was prohibited under Article 50 of the Third Geneva Convention,Footnote 39 it was not a violation of the principle of humanity because it did not fall within the grave breaches listed in Article 130 of the Third Geneva Convention.Footnote 40 Here too the criminal-law standard was applied to determine the extent of state responsibility (a limitation of the right to compensation following an administrative expropriation of property), in disregard of an explicit international legal prohibition directed at the state.Footnote 41

In 2005 the Israeli HCJ rendered the Targeted Killing judgmentFootnote 42 on the interpretation of Article 51(3) of the First Additional ProtocolFootnote 43 concerning civilians directly participating in hostilities. In establishing the justiciability of the petition, the Court noted that international law ‘dealing with the army's duties toward civilians during an armed conflict’ has been discussed, for example, by the international criminal tribunals for the former Yugoslavia and Rwanda. The HCJ queried: ‘Why do those questions, which are justiciable in international courts, cease to be justiciable in national tribunals?’Footnote 44 The Court compared itself to the international criminal courts, making no mention of the fact that the ICTY and ICTR deal with individual responsibility established after the fact, rather than with state responsibility focusing on issuing ex ante instructions on what would be a permissible course of action.Footnote 45

Spillover from international criminal law into the law on the conduct of hostilities is also suggested by one of the requisites stated in the judgment for the legality of a targeted killing, namely the performance of a thorough independent investigation regarding the precision of the identification of the target and the circumstances of the attack upon the victim.Footnote 46 Under the law on the conduct of hostilities, an obligation to investigate arises only with respect to alleged war crimes.Footnote 47 Although the Court reserved the obligation of investigation only to the targeting of civilians directly participating in hostilities rather than ordinary combatants, the expansion of the obligation to (potentially numerous) instances of ostensibly legitimate targeting puts a great strain on the state which the law on the conduct of hostilities does not envisage.

Another example of the effect of international criminal law on the interpretation of the laws of armed conflict is Justice Thomas's dissent in Hamdan v. Rumsfeld, according to which conspiracy to massacre civilians must be regarded as a violation of the laws of armed conflict, because otherwise it would be impossible to hold terrorists criminally accountable unless they were caught in the act.Footnote 48 Justice Thomas's dissent was proffered in the context of a criminal process and in that respect did not directly transport rationales from one branch of the laws of armed conflict to another. Yet adopting his interpretation would render conspiracy to commit a war crime a substantive prohibition also on states. Again, the focus of the domestic court on criminal enforcement steers the interpretation of the laws of armed conflict away from the basic purpose of these laws, namely to regulate state conduct.

2.2. The spillover from the law of occupation into the law on the conduct of hostilities

The law on the conduct of hostilities in international armed conflict does not presuppose territorial control by the state. Conversely, application of the law of occupation implies that there are no longer any widespread hostilities. Nonetheless, the two branches of law may apply simultaneously,Footnote 49 and the divide between the law on the conduct of hostilities and the law of occupation, which incorporates elements of law enforcement based on international human rights law and thus circumscribes the state's freedom of action, may blur.Footnote 50

One example of this blurring is evident in Israeli jurisprudence regarding demolition of houses. The HCJ's jurisprudence distinguishes punitive demolition of houses as a law-enforcement measureFootnote 51 from operational demolitions under the law on the conduct of hostilities.Footnote 52 With respect to the former, the Court has long ago established a qualified right of hearing for the tenants prior to the demolition.Footnote 53 With respect to the latter, the HCJ has ruled that conditions during hostilities were not normal and static, and therefore it was not possible to afford prior hearing before every demolition.Footnote 54 However, the distinction between punitive and operational demolitions did not survive. In May 2004, following a lethal terrorist attack on an Israeli woman and her four children, the Israeli Defence Forces (IDF) immediately demolished a number of houses near the site of the attack. When Palestinian residents of the area petitioned the HCJ to enjoin further demolitions, the government stated that the demolitions had been carried out not as a punitive measure but under Article 23(g) of the Hague Regulations, there being ‘an immediate military necessity during an armed conflict’. It nonetheless declared that if a need arose to demolish additional houses, the IDF would allow the tenants the qualified right of hearing (applicable to punitive demolitions).Footnote 55 In subsequent cases concerning operational demolitions, the Court relied on this undertaking by the state to dismiss (or encourage the withdrawal of) petitions against demolitions, proposing instead that a hearing be granted.Footnote 56 Thus, despite express statements to the contrary, the Court effectively applied to operational demolitions the right to hearing laid down in cases of punitive demolitions.

Another example of the injection of norms from the law of occupation into decisions on the conduct of hostilities concerns access to medical services. In the 2004 Rafah case, heard while hostilities were under way in the Gaza Strip, the petitioners asked the Court to order the IDF to take certain measures with respect to evacuation of wounded, transfer of medical equipment, and supply of water and electricity. The Court was explicit that ‘this case is no different from other cases where this court examines the legality of military operations’.Footnote 57 Yet in determining the normative framework applicable in the situation, the Court mentioned, in addition to the general principle in GC IV Article 27 (applicable in occupied and sovereign territory and therefore relevant to Rafah under the law of occupation), obligations incumbent specifically upon occupying powers, such as the obligations to ensure food and medical supplies under Articles 55 and 59 of the Convention, the obligation to ensure operation of medical facilities under Article 56 of the Convention, and the obligation to allow continuation of Red Cross activities. It did not address at all the question of qualifying these provisions to a situation of active hostilities. In other situations of hostilities the practicality of such a demand would be at least subject to question.Footnote 58

There is even more reason for concern over spillover from the law of occupation into the law on the conduct of hostilities if one looks not only to formal judgments but also to modalities agreed upon in the shadow of the Court; that is, under pressure from the Court on the authorities to compromise with petitioners.Footnote 59 These often contain arrangements far beyond those which are mandated by the law on the conduct of hostilities. For example, Almandi v. Minister of Defense concerned the terms of an IDF siege on the Church of the Nativity in Bethlehem, where over a hundred gunmen had taken refuge and were preventing Palestinian civilians from leaving. The Court refused to intervene formally, noting that just as it ‘will take no position regarding the manner in which combat is being conducted’, it will neither conduct the negotiations nor guide them, but leave the responsibility with the executive branch.Footnote 60 The Court nonetheless secured an undertaking by the IDF that it would permit civilians to leave the church in order to eat and drink and then to return to the church. One could hardly imagine such an arrangement if the state had not had effective control over the area in which hostilities were taking place, but the occupation context was not articulated in the decision, leaving it apparently a matter exclusively of the law on the conduct of hostilities.

A final example is the 2005 Targeted Killing case, in which the HCJ provided a list of requisites which must be fulfilled for a targeted killing to be considered legal. Among these requisites was the unavailability of less harmful means.Footnote 61 This is a derivation of the principle of proportionality, which governs the legality of interference with human rights. Thus, under human rights law, applicable in territory under effective control, a state may use lethal force only when this is strictly unavoidable in order to protect life and when less extreme means are insufficient for achieving that objective. In contrast, under the law on the conduct of hostilities, states are normally permitted to attack enemy combatants as well as civilians directly participating in the fighting.Footnote 62 Although the Court noted in a general fashion that lacunae in the laws of armed conflict can be supplemented by human rights law,Footnote 63 it did not mention any human rights norm as a basis for the requisite of a less harmful means. Moreover, to the extent that this requisite derives directly from human rights law, it ought to give way to the law on the conduct of hostilities which is lex specialis in situations of armed conflict.Footnote 64 The only means of avoiding an interpretation of the judgment as running contrary to the state of the law as declared by the ICJ is to interpret the requisite of exhausting less harmful means as an incorporation of a human rights notion into the law on the conduct of hostilities. This is significantly different from holding that human rights law and the laws of armed conflict apply simultaneously, because there may be situations of hostilities where the level of personal or territorial control exercised by the state would not trigger the application of international human rights obligations, even under the most expansive interpretation of the lawenforcement paradigm.Footnote 65

The HCJ's interpretation of Article 51(3) as comprising a requisite of exhaustion of less harmful means has already permeated the emerging doctrine on direct participation, in the ICRC Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law. Like the HCJ, the Guidance acknowledges that the weight of necessity and humanity as constraints on the limits of exercising lethal power depends on the circumstances, giving a situation of occupation as an example of circumstances where there is extensive control which makes the requirement of least-harmful means both meaningful and practicable.Footnote 66 But as a matter of principle, these constraints apply also in non-occupation situations. In other words, while in the Targeted Killing judgment the least-harmful-means requirement could be implicitly tied to the fact of territorial control, in the ICRC Guidance on DPH it has become a stand-alone requirement under the law on the conduct of hostilities.

These cases demonstrate the heavy reliance of the HCJ on effective control of the territory in which hostilities are under way in the resolution or management of disputes over the conduct of hostilities. This reliance impacts on both the justiciability of disputes and the determination of the substantive obligations of the state.

2.3. Conclusion

Court decisions necessarily build on the particular legal and factual context in which hostilities take place reflected in the judgment of courts. This context may include the fact of territorial control, the availability of criminal responses, etc. The overlap of different bodies of law in a particular situation is neither unique nor problematic in itself,Footnote 67 and it allows domestic courts to engage with issues that concern the law on the conduct of hostilities and with which they would not have engaged if the latter concerned only issues of pure law on the conduct of hostilities. A problem does arise, however, if the overlap results in norms and principles of one branch of law spilling over to another branch and becoming embedded in it despite their different fundaments, to the extent that they apply also in situations where there is no overlap. Regarding the law on the conduct of hostilities, domestic judicial practice has in this way ‘tamed’ the law on the conduct of hostilities into legal patterns that domestic courts are capable of handling.

3. The role of domestic courts as guardians of government interests

In 1993 Benvenisti argued and demonstrated that domestic courts tend to defer to the short-term interests of their executive branches with respect to the conduct of foreign affairs, engaging with international law in a manner that protects national interests rather than promotes global rule of law.Footnote 68 In a later analysis, Benvenisti argued that the commitment to national interest has become more nuanced, and is sometimes served by holding the state more strictly bound by international law rather than by leaving it a wide berth, thereby pre-empting international pressure.Footnote 69 It nonetheless appears that the more traditional approach largely continues to prevail in the context of the laws of armed conflict, to the extent that the perception by the courts of their role as guardians of national interests risks resulting in an inherent bias against applicants associated with the adversary.Footnote 70 What is at issue is not the fact that courts are organs of the state. After all, where courts are independent, they can be expected to be objective even in disputes involving the government. Indeed, this objectivity is a fundamental precept of human rights law, which, like the laws of armed conflict, involves first and foremost disputes between individuals and governments. However, the asymmetry between litigants in disputes based on the laws of armed conflict differs qualitatively from the asymmetry in disputes based on domestic human rights, making the suitability of domestic adjudication for the former less than obvious.

Since responsibility under human rights law is primarily territorial, individuals litigating human rights disputes are usually nationals or residents of the forum state. Their interests form part of the community interest to which the court is committed, and the deference of the court to that interest does not necessarily pull towards preference of the government's position. In contrast, applicants in litigation under the laws of armed conflict may well be alien to the constituency of the court and, moreover, associated with an enemy.Footnote 71 Their interests do not form part of the societal interest to which the court defers and to which it is committed.Footnote 72 In the past, courts used to clearly voice their reservations about the justiciability of the laws of armed conflict.Footnote 73 Even if courts do engage with this law, this may result in jurisprudence that systemically reinforces government policy, although individual cases might not patently reveal the bias.Footnote 74

Another consequence of the identification of individuals with the adversary is the greater likelihood that courts regard them not so much as individuals deserving legal protection but as members of another collective with whom relations are a matter of politics rather than of law.Footnote 75 The perception of the adversary as a collective is not entirely misplaced: the law of occupation, for example, is geared towards protecting not only the interests of individuals, but the interest of a political entity, be it the ousted sovereign or the population in the territory.Footnote 76 Even the law on POWs makes reference not only to the conduct of individuals but to the armed forces to which they belong. But other branches of the laws of armed conflict, including the law on the conduct of hostilities and the law on the treatment of POWs (rather than their entitlement to POW status), are geared towards protection of individuals; indeed, the principle of distinction prohibits an attacking state from regarding individuals merely as parts of a collective adversary. However, in domestic courts members of a collective adversary may seem less deserving of the remedy which the courts offer to individuals.Footnote 77 Instead the political entity with which the individual is identified may be perceived as a more appropriate addressee for the individual's grievance than the state in which the court operates, being the enemy responsible for the situation which brought about the alleged violation. For example, in Almandi, HCJ Justice Englard noted:Footnote 78

Who is responsible for the breach of the international law, which requires the protection of religious and cultural treasures from combat activities, and forbids their use for the purposes of war? . . . . Does this responsibility not rest on the shoulders of the Palestinian Authority which obligated itself to protect the holy places in areas under its control? Did the Palestinian Authority take substantial steps to prevent this desecration, and did it make an effort to end it immediately? We all deserve answers to these questions!

Domestic adjudication may thus skew the balance between the interests of the state and the interests of the individual towards the former. Yet this would frustrate the very goal of the laws of armed conflict as developed since the Second World War, namely to limit the power of the state against an adversary population. To clarify, at issue is not the substantive legal obligation of the forum state, which is binding regardless of an adversary's conduct.Footnote 79 But the perception of enmity may affect legal policy, for example in whether to entertain a claim in the first place, and under which domestic legal framework to hear it. The reluctance to offer a remedy is at times articulated by judges, as bluntly demonstrated in the statement attributed to US Supreme Court Justice Scalia:Footnote 80

If he was captured by my army on a battlefield, that is where he belongs . . . I had a son on that battlefield and they were shooting at my son and I'm not about to give this man who was captured in a war a full jury trial. I mean it's crazy.

Another example is provided in the Targeted Killing case. On the one hand, the HCJ articulates very clearly that it belongs to a party to the conflict:Footnote 81

We are members of Israeli society. Although we are sometimes in an ivory tower, that tower is in the heart of Jerusalem, which is not infrequently hit by ruthless terrorism. We are aware of the killing and destruction wrought by the terrorism against the State and its citizens. As any other Israelis, we too recognize the need to defend the country and its citizens against terrorism's severe blow.

On the other hand, the court is loyal to its mission. It is also painfully aware of the cost of maintaining that loyalty:Footnote 82

We are aware that in the short term, this judgment will not make the State's struggle against those rising up against it easier. That knowledge is difficult for us. But we are judges. When we sit in trial, we stand trial. We act according to our best conscience and understanding.

The conflict between loyalties to international law and to national interests is apparent in the choice of courts to legitimize their decisions in terms of the state's own ethos and interests rather than under international law. In the US Supreme Court, for example, the decision to declare the special military commissions illegal was accompanied by the concurring justices’ rebuttal of the dissenting minority, that

judicial insistence upon that consultation does not weaken our Nation's ability to deal with danger. To the contrary, that insistence strengthens the Nation's ability to determine – through democratic means – how best to do so. The Constitution places its faith in those democratic means. Our Court today simply does the same.Footnote 83

And in the Targeted Killing case:

we are convinced that at the end of the day, a struggle according to law (and while complying with the law) strengthens [the state] and its spirit. There is no security without law. Satisfying the provisions of the law is a component of national security.Footnote 84

And in Dirani,

[Allowing access to the courts to hostile elements] does not endanger the power of the state, but guarantees its moral strength. This is because the strength of the state is not only in the power of its weapons and military, but in upholding principles of the rule of law.Footnote 85

Finally, the fact that the laws of armed conflict, and particularly the law on the conduct of hostilities, are directly related to national security, also plays a factor in the court's work. If the court is constantly fending off pressure from various corners, domestic as well as international, its ability to withstand domestic pressure weakens where national security issues are concerned. This follows not only its own internal bias, as discussed above, but also the greater pressure that is exerted on it by other actors in the domestic scene, who are fuelled by a particularly strong commitment to the state collective where national security is concerned and who enjoy particularly strong public support.Footnote 86

4. Conclusion

Both on the substantive and on the institutional level, the engagement of courts with the law on the conduct of hostilities raises formidable challenges. On the substantive level, an unbridled spillover between different branches of law may produce rules that do not properly reflect the different tenets of each of those branches. At the same time, as international law becomes more fragmented, domestic courts may have a welcome countering coalescing function.Footnote 87 On the institutional level, the recruitment of a legal system geared towards domestic situations to uphold the protection of parties that are foreign and even hostile to the domestic environment risks generating outcomes which have the external appearance of judicial propriety but are substantively lacking. The more domestic courts engage in laws of armed conflict adjudication, the more entrenched and generalized this problem will become, since the inherent conflict of loyalties is a challenge to any domestic court. If active engagement with international law holds out the possibility that national courts contribute to coherence of the law and of the global governance system,Footnote 88 the content of this coherent law should raise concern.

Interestingly, the overlap with other bodies of law, particularly criminal law, may operate in two opposite directions: it may both raise and lower its responsibility. This may in fact demonstrate Benvenisti's claim that service to national interests may take different forms. In the examples given here, the court on the one hand raises the substantive threshold required for establishment of responsibility to the criminal standard, thereby leaving the state a greater range of permissible conduct. On the other hand, the court obligates the state to follow certain international procedural standards, thereby providing evidence of the substantive legality of its conduct. The fact that the courts have a greater toolkit – not only the law on the conduct of hostilities but overlapping regimes – renders it easier for them to follow policy rather than strict law.

One might argue that the weight of domestic courts should not be overstated. They are but one organ of the state, and the development of law through state practice is based on a plethora of other sources. However, the fact that courts are judicial organs may afford their practice added weight.Footnote 89 This is particularly dangerous if that weight is based on a perception of objectivity embedded in the ethos of the courts, when such objectivity is in fact absent. Furthermore, while in other areas there may be international adjudicationFootnote 90 to temper the domestic bias even within the context of judicial practice, the laws of armed conflict are very rarely brought to international adjudicationFootnote 91 or before any international legal forum. Domestic courts thus enjoy a monopoly over judicial practice.

The conclusion is not that domestic courts should avoid adjudicating disputes over the laws of armed conflict. Rather, they should be encouraged to carefully delineate the scope of their decisions, identify the applicable norms with care, and acknowledge possible limitations of their decisions. Domestic courts should also be conscious of the unintended power that they have acquired to interpret the laws of armed conflict, as a result of individuals being permitted to invoke these laws in domestic fora. They should endeavour to counter the inherent biases which a domestic legal system contains against individuals associated with the adversary. In addition, precisely because of the cross-fertilization between domestic courts worldwide,Footnote 92 courts should recognize their role in developing the laws of armed conflict and take the responsibility that attaches to it, to ensure that the balance provided for within these laws between a state and the individual is not skewed in a manner which dilutes the protection of the individual.

References

1 Article 12 of the 2004 United Nations Convention on Jurisdictional Immunities of States and Their Property (not yet in force) ostensibly provides an exception to state immunity in claims against an injuring state in the courts of a state where a conflict took place. However, according to the ILC commentary, ‘[i]t is also clear that cases of shooting or firing across a boundary or of spill-over across the border of shelling as a result of an armed conflict are excluded from the areas covered by article 12’. Watts, A. (ed.) The International Law Commission 1949–1998, vol. 3, Final Draft Articles and Other Materials (1999), 2069Google Scholar. Report of the International Law Commission on the Work of Its Forty-Third Session (29 April–19 July 1991), Draft Articles on Jurisdictional Immunities of States and Their Property, A/CN.4/SER.A/1991/Add. 1 (Part 2) (1994), at 45.

2 For US practice see Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006), and the analysis by Sloss, D., ‘When Do Treaties Create Individually Enforceable Rights? The Supreme Court Ducks the Issue in Hamdan and Sanchez-Llamas’, (2006) 45 Columbia Journal of Transnational Law 21Google Scholar.

3 Australia, Shaw Savill and Albion Co. Ltd v. The Commonwealth, (1940) 66 CLR 344.

4 Amin v. Brown, [2005] EWHC 1670 (Ch) para. 22.

5 Shimoda et al. v. The State, Hanrei Jiho, Vol. 355, at 17 (translated in (1964) 8 Japanese Annual of International Law 231) (Tokyo District Court, 7 December 1963), Japan, rejecting a claim on the ground that the 1951 peace treaty precluded the possibility of individuals submitting claims before domestic courts.

6 E.g. Re: Iraq and Afghanistan Detainees Litigation, Mohammed Ali and Others v. Colonel Pappas and Others, Trial Court Order, 479 F.Supp.2d 85 (D.D.C. 2007), ILDC 812 (US 2007), (Dist. Ct. for D.C., 27 March 2007); Johnson v. Eisentrager, 339 U.S. 763, 789, at fn. 14 (Sup.Ct. 1950).

7 The following review is based on case law since 1945. Its main sources are the OUP database on ILDC, the database of the ICRC national implementation database, and the annual state practice review in the Yearbook of International Humanitarian Law.

8 E.g. Italy, ‘Kappler case’, Il Foro Italiano, 1949 (II), pp. 160–8 (Military Court of Rome, 20 July 1948) (cited in ICRC database).

9 Y. Ronen (with the assistance of S. Avital and O. Tamir), ‘Prosecutions and Sentencing in the Western Balkans’, (2010) DOMAC/4, available at www.domac.is/reports; S. Horovitz, ‘Rwanda: International and National Responses to the Mass Atrocities and Their Interaction’, (September 2010) DOMAC/6 September, 31–44, available at www.domac.is/media/veldu-flokk/DOMAC6—Rwanda.pdf; S. Horovitz, ‘DR Congo: Interaction between International and National Responses to the Mass Atrocities’, (February 2012) DOMAC/14, 29–30, available at www.domac.is/media/domac/DRC-DOMAC-14-SH.pdf.

10 E.g. H v. Public Prosecutor, Judgment on Merits, Case No. 07/10063 (E), LJN: BG1476, ILDC 1071 (NL 2008) (Hoge Raad (Sup. Ct.), 8th July 2008) (Netherlands), in which a Dutch court exercised jurisdiction with respect to crimes committed by an Afghan in Afghanistan; Niyonteze and Military Prosecutor of the Military Tribunal of First Instance 2 v. Military Appeals Tribunal 1A, Cassation Judgment, ILDC 349 (CH 2001) (Military Sup. Ct., 27 April 2001). (Switzerland), confirming that Swiss military courts have universal jurisdiction over violations of the Geneva Conventions and Additional Protocol II committed in a non-international armed conflict.

11 E.g. Canada, R. v. Sergeant Mark Adam Boland, Case No. CMAC-374 (Court Martial Appeal Court of Canada, Judgment of 16 May 1995).

12 Japan, Shimoda, supra note 5; Colombia, Complaint Challenging Constitutionality of IHL Implementing Legislation, decision C-291/07 (Constitutional Court of Colombia, 2007) (Cited in M. Sassóli, Bouvier, A., and Quintin, A. (eds.), How Does Law Protect in War? Cases, Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law, vol. 3 (2011)Google Scholar, case 244).

13 Morrison v. The United States of America, Federal Reporter, Vol. 492, 1219, cited in ICRC database.

14 HCJ 574/82 Al Nawar v. Minister of Defence (Court of Claims, 20 February 1974), (1986) 16 Israel Yearbook on Human Rights, 321–32 (HCJ, 11 August 1985) (Israel).

15 Aboitiz and Company, Incorporated v. Price, Trial Judgment, 99 F. Supp. 602 (Dist. Ct. Utah, 16 June 1951), ILDC 931 (US 1951), a claim between former POWs relating to promissory notes revolving on whether regulations issued by an occupier of a country during war specifying the currency to be used during the foreign occupation and an edict forbidding traffic of money to internees in war prison camps were valid under the international law of belligerent occupation.

16 E.g. American Civil Liberties Union and Others v. Department of Defence and Others, Appeals Judgment, 543 F.3d 59 (2d Cir. 22 September 2008), ILDC 1152 (US 2008), on whether Article 13 of the Geneva Convention Relative to the Treatment of Prisoners of War and Article 27 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War prohibited dissemination of images of detainees being abused when the images were redacted in order to protect the identities of detainees and where the purpose of the dissemination was not in itself to humiliate the detainees. Crim. Misc. Appl. 8780/06 and Crim. Misc. Appl. 8984/06 Muhammad Abd-al-Hamud Srur and Others v. The State of Israel (Supreme Court, 20 November 2006), Para. J (Israel); Hamdan, supra note 2; Boumediene v. Bush, 128 S. Ct. 2229 (2008).

17 Mohamed Ali and Other v. the Public Prosecutor, 3 All ER 488 (Privy Council 1968); El Arish Military Court, Military Prosecutor v. Swarka and Others, Judgment of 1974, Case EA/412/71, published in Selected Judgments of Military Courts, Vol. 3, 1974, at 206 and in (1977) 7 Israel Yearbook on Human Rights 264; Military Prosecutor v. Omar Mahmud Kassem and Others., Judgment, 13 April 1969, published in (1971) 42 International Law Reports 470; Srur, supra note 16. For more case law see A. E. Wall, ‘Civilian Detentions in Iraq’, in Schmitt, M. N. and Pejic, J. (eds.), International Law and Armed Conflict: Exploring the Faultlines: Essays in Honour of Yoram Dinstein (2007), 413 at 419 fn. 14Google Scholar.

18 Israel, Crim FH 7048/97 John Does v. Ministry of Defence, PD 54(1) 72 (Sup. Ct. 12 April 2000); HCJ 2967/00 Arad v. Knesset, PD 54(2) 188 (Sup. Ct. 19 April 2000); Ex Parte Quirin and Others, 317 U.S. 1 (Sup. Ct. 1942).

19 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, [1996] ICJ Rep. 226.

20 Justice Scalia in Hamdi v. Rumsfeld, 542 U.S. 507 (2004); The Public Committee against Torture et al. v. The Government of Israel and Others., HCJ 769/02, Judgment of 13 December 2006, para. 61 (‘Targeted Killing case’).

21 Military Prosecutor v. Maj. Malinki PM 17, Military Court Central/3/57, 90 at 193 (16 October 1958), citing an even earlier case of the military court (without identifying detail). In establishing the responsibility of the commander, the Court deduced by an a fortiori argument that command responsibility accrues when the victims are nationals of the state present within its territory, at 221.

22 Srur, supra note 16.

23 Including for enemy aliens, e.g. The State of Israel v. Mustafa Dirani, Request for Appeal 993/06 (Sup. Ct. 18 July 2011) Para. 57.

24 Al Nawar v. Minister of Defence, HCJ 574/82 (11 August 1985), published in (1986) 16 Israel Yearbook on Human Rights 321. For examples of the HCJ's emphasis on the justiciability of military activity during hostilities see Jaber Al-Bassiouni Ahmed v. Prime Minister, HCJ 9132/07 (27 January 2008), para. 20.

The position of the HCJ has long been that substantive justiciability is almost non-existent. This jurisprudence developed as a general matter, not confined to matters related to the Israeli–Palestinian conflict or to the occupied territories. Ressler v. Minister of Defense, PD 42(2), HCJ 910/86, 441, translated in (1992) 10 Selected Judgments Sup. Ct. Isr. 1, at 472–98.

25 The application of the international principle of command responsibility in domestic law in Malinki is a striking, and admittedly exceptional, example of a casual approach towards reliance on international law. The reliance on GC IV since the 1970s without admitting its application de jure is based on different considerations. See also Physicians for Human Rights v. Prime Minister of Israel (unpublished), HCJ 201/09 (19 January 2009).

26 E.g. ICC Statute, Art. 22(2) (1998 Rome Statute of the International Criminal Court, 2187 UNTS 90). On the rationale for the principle of restrictive interpretation in criminal law see Kremnitzer, M., ‘Interpretation in Criminal Law’, (1986) 21 IsrLR 358, at 370–1Google Scholar.

27 That is a minimum requirement. Some domestic systems require that criminal prohibitions be expressly stipulated in domestic law.

28 See, e.g., Grover, L., ‘A Call to Arms: Fundamental Dilemmas Confronting the Interpretation of Crimes’, (2010) 21 (3)European Journal of International Law 543CrossRefGoogle Scholar, at 557, 572–5.

29 Sosa v. Alvarez-Machain, 542 US 692 (Sup. Ct. 29 June 2004); ILDC 117 (US 2004); Vietnam Association for Victims of Agent Orange and Others v. Dow Chemical Company and Others., Appeal Judgment, 517 F 3d 104 (2d Cir, 22 February 2008); ILDC 1040 (US 2008).

30 S. Simpson, ‘The Alien Tort Statute, the Blackstone Three, and the Historical Basis of Judge Williams’ Concurrence in Shafi v. Palestinian Authority’, 19 June 2011, available at www.viewfromll2.com/2011/06/19/the-alien-tort-statute-the-blackstone-three-and-the-historical-basis-of-judge-williams-concurrence-in-shafi-v-palestinian-authority.

31 The application of this standard by the US courts has been subject to criticism of being excessively strict. For present purposes, however, the question is not whether a particular interpretation of the Blackstone Three is meritorious but whether the very reference to the Blackstone Three is meritorious.

32 1907 The Hague Convention (IV) Respecting the Laws and Customs of War on Land and its annex, 18 CTS 227 (‘Hague Regulations’).

33 Agent Orange case, supra note 29.

34 1945 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis Powers, Charter of the International Military Tribunal, pt. II, Arts. 6, 59 stat. 1544, 1574, 82 UNTS 279.

35 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 75 UNTS 287.

36 International Criminal Tribunal for the Former Yugoslavia (ICTY), ‘Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign against the Federal Republic of Yugoslavia’, (2000) 39 ILM 1257.

37 Ibid., at para. 48.

38 The case was concerned with the interpretation of the term ‘principles of humanity’ not in an international instrument but in a domestic one; however, a violation of the ‘principles of humanity’ under the relevant domestic law resembled the Martens clause, which speaks of the ‘laws of humanity, and the dictates of public conscience’ as well as the ‘elementary considerations of humanity’, which the International Court of Justice (ICJ), as well as the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda (ICTR) have deemed on numerous occasions to constitute the foundation of rules of international humanitarian law Anonymous v. Circuit of Saxon Switzerland, Saxony, Germany, Appeal Judgment, Case No. 3 C 38/05; ILDC 951 (DE 2007) (Fed. Admin. Ct, 28 February 2007), at A3 (Germany).

39 1949 Geneva Convention relative to the Treatment of Prisoners of War, 75 UNTS 135.

40 Anonymous v. Circuit of Saxon Switzerland, supra note 38, at para. 51.

41 The narrow interpretation of the term ‘principles of humanity’ could have been justified on a different ground, namely that at issue was a limitation on a basic human right, which should also be interpreted narrowly. However, the Court did not mention this explicitly, despite having mentioned that expropriation without compensation was a violation of a human right.

42 Targeted Killing, supra note 20.

43 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1125 UNTS 3.

44 Targeted Killing case, supra note 20, para. 53.

45 For an analysis of the dialectic between state responsibility and individual criminal responsibility in the judgment see O. Ben-Naftali, ‘A Judgment in the Shadow of International Criminal Law’, (2007) 5 JICJ 322.

46 Targeted Killing case, supra note 20, para. 40.

47 E.g., the Geneva Conventions stipulate obligations of enquiry in case of a suspected homicide of a prisoner of war or of persons under detention (Arts. 121, 129–31 of the Third Geneva Convention), Arts. 129 and 130 of the Third Geneva Convention; Arts. 146 and 147 of the Fourth Geneva Convention).

48 Hamdan, supra note 2, Justice Thomas, with whom Justice Scalia joins, and with whom Justice Alito joins in all but Parts I, II–C–1, and III–B–2, dissenting, section II-C-3.

49 Hostages Trial (List et al.) (US Military Tribunal, Nuremberg, 1948), 8 LRTWC 34, 56, cited in Paulus, A., ‘The Use of Force in Occupied Territory: The Applicable Legal Framework, Background Document’, in Ferraro, T. (ed.), Occupation and Other Forms of Administration of Foreign Territory: Expert Meeting (2012), 120Google Scholar. For Israeli practice see e.g. Barakeh v. The Minister of Defense, 56(3) PD 11, HCJ 3114/02 (2002); Almandi v. The Minster of Defense, 56(3) PD 30, HCJ 3451/02, (2002); Mara'abe v. The Prime Minister of Israel, HCJ 7957/04, (2005) 2 IsrLR 106; Ajuri v. The Military Commander of the Judea and Samaria Area, 56(6) PD 352, 358 HCJ 7015/02 (2002). On the issue of parallel application of international human rights law and the laws of armed conflict see (2007) 40 IsrLR (2007) and (2008) 90 International Review of the Red Cross; Cerone, J., ‘Human Dignity in the Line of Fire: The Application of International Human Rights Law during Armed Conflict, Occupation, and Peace Operations’, (2006) 39Vanderbilt Journal of Transnational Law 1447Google Scholar; Watkin, K., ‘Controlling the Use of Force: A Role for Human Rights Norms in Contemporary Armed Conflict’, (2004) 98 AJIL 1, at 9CrossRefGoogle Scholar; Modirzadeh, N. K., ‘The Dark Sides of Convergence: A Pro-Civilian Critique of the Extraterritorial Application of Human Rights Law in Armed Conflict’, (2010) 86 US Naval War College International Law Studies (Blue Book) Series 349Google Scholar.

50 Paulus, supra note 49, 127.

51 Carried out under Reg. 19 of the Emergency Regulations (1945), enacted by the UK when Jordan was under British mandate and preserved under the law of occupation.

52 Reg. 23(g) of the 1907 Hague Regulations.

53 Association for Civil Rights in Israel v. Officer Commanding Central Command, 43(2) PD 529 (1988), reported in (1993) 23 Israel Yearbook of Human Rights 294. On the legality of house demolitions under the GC IV and the procedural constraints see D. Kretzmer, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (2002), 145–63.

54 Adalah v. IDF West Bank Commander, 56(3)PD 6, HCJ 2977/02 (2002).

55 Alzar v. IDF Commander, see Kretzmer, D., ‘The Supreme Court of Israel: Judicial Review during Armed Conflict’, (2005) 47 GYIL 392, at 396Google Scholar.

56 Gussin v. IDF Commander, 56(4) PD 608, HCJ 4219/02 (2002); Amer and Others v. IDF Commander, 56(6) PD 110, HCJ 6696/02 (2002).

57 Physicians for Human Rights v. Commander of the IDF in the Gaza Strip, 58(5) PD 385, HCJ 4764/04 (2005).

58 Kretzmer, supra note 55, at 432–5.

59 Kretzmer, supra note 53, at 189–91.

60 Almandi case, supra note 49. See also Barakeh, supra note 49, at para. 12: ‘Clearly this Court will take no position regarding the manner in which combat is being conducted. As long as soldiers’ lives are in danger, these decisions will be made by the commanders. In the case before us, it was not claimed that the arrangement at which we arrived endangered the lives of soldiers. Nor was it claimed that the temporary order endangered the lives of soldiers’ (English translation available at: http://elyon1.court.gov.il/Files_ENG/02/140/031/A02/02031140.A02.pdf.)

61 Targeted Killing case, supra note 20, at para. 40.

62 Ferraro, supra note 49, at 109–10.

63 Targeted Killing case, supra note 20, at paras. 16, 18.

64 Nuclear Weapons Advisory Opinion, supra note 19, at para. 25.

65 Al-Skeini & Others v United Kingdom, Decision of 7 July 2011, [2011] ECHR.

66 N. Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (2009), 80–2.

67 Broude, T. and Shany, Y. (eds.), Multi-Sourced Equivalent Norms in International Law (2011)Google Scholar.

68 Benvenisti, E., ‘Judicial Misgivings Regarding the Application of International Law: An Analysis of Attitudes of National Courts’, (1993) 4 EJIL 159CrossRefGoogle Scholar.

69 Benvenisti, E., ‘Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts’, (2008) 102 AJIL 241, 268CrossRefGoogle Scholar.

70 This phenomenon might be less pronounced in criminal proceedings based on universal jurisdiction; those, however, are the rare exception.

71 There may also be individuals temporarily present in the territory of the state, legally or otherwise. Conflicts of loyalties of courts may then exist, even if to a lesser extent, and depending on the circumstances (e.g. there may be greater commitment towards protection of persons allowed into the country legally than to those who have entered illegally).

72 Johnson v. Eisentrager, supra note 6, at 781–785.

73 Ibid., at 789, fn. 14, mentioned in Hamdan, supra note 2, plurality and supported by Justice Thomas, ibid., section III-B-1.

74 Kretzmer, supra note 53, at 193–6.

75 Brewer, M. B., ‘The Social Psychology of Intergroup Relations: Can Research Inform Practice?’, (1997) 53 Journal of Social Issues 197CrossRefGoogle Scholar, 201.

76 For the consequence of the failure to make this distinction, albeit in the opposite direction, namely the disregard of collective interests, see Paz-fuchs, A. and Ronen, Y., ‘Occupational Hazards: Labor Rights in the Occupied Territories’, (2012) 30 Berkeley Journal of International Law 580Google Scholar.

77 Brilmayer, L., ‘International Law in American Courts: A Modest Proposal’, (1991) 100 Yale Law Journal 2277CrossRefGoogle Scholar, 2308–9.

78 Almandi case, supra note 49. See also Justice Beinisch in Physicians for Human Rights v. Prime Minister of Israel, supra note 25, at para. 29: ‘This suffering (of the Palestinian people) is a result of the conduct of the cruel terrorist organization that controls the Gaza Strip and operates from within the civilian population while endangering it and abandoning it to its fate’.

79 Israel ‘is obliged to act against the terrorist organizations within the framework of the law and in accordance with the provisions of international law, and to refrain from any intentional attack upon the civilian population in the Gaza Strip’ (Al-Bassiouni case, supra note 24, at para. 22).

80 BBC News, ‘Judge Rejects Guantanamo Rights’, 27 March 2006, available at www.news.bbc.co.uk/2/hi/americas/4848834.stm.

81 Targeted Killing case, supra note 20, para. 63, citing Beit Sourik Village Council v. The Government of Israel, HCJ 2056/04 (2004).

82 Ibid.

83 Hamdan, supra note 2, Justice Breyer, with whom Justice Kennedy, Justice Souter, and Justice Ginsburg join, concurring.

84 Targeted Killing case, supra note 20, para. 63.

85 Mustafa Dirani, supra note 23, at para. 71.

86 I am grateful to Shai Dothan for highlighting this issue.

87 On the role of domestic courts as architects of a consistent international legal order see D'Aspremont, J., ‘The Systemic Integration of International Law by Domestic Courts: Domestic Judges as Architects of the Consistency of the International Legal Order’, in Nollkaemper, A. and Fauchald, O. K. (eds.), The Practice of International and National Courts and the (De-)Fragmentation of International Law (2012), 141Google Scholar.

88 Benvenisti, E. and Downs, G. W., ‘National Courts, Domestic Democracy, and the Evolution of International Law’, (2009) 20 EJIL 59CrossRefGoogle Scholar, at 68.

89 Roberts, A., ‘Comparative International Law? The Role of National Courts in Creating and Enforcing International Law’, (2011) 60 ICLQ 57, at 63CrossRefGoogle Scholar.

90 International adjudication does not constitute state practice and is therefore not directly a source of international law. It is nonetheless often referred to as such, either directly or as an authoritative interpretation of existing international law.

91 There are, however, some exceptions. For instance the ICJ case Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment of 19 December 2005, [2005] ICJ Rep. 168.

92 Benvenisti and Downs, supra note 88.