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

(ProQuest: ... denotes non-US-ASCII text omitted.)

INTERNATIONAL LAW AND PRACTICE: Symposium on Domestic Courts as Agents of Development of International Law

* Senior Lecturer, Sha'arei Mishpat College, Israel [

[email protected]

]. This article follows a presentation given at the Third ILDC Colloquium, Glasgow, May 2011. I am grateful to participants of the colloquium, particularly Antonios Tzanakopoulos, for their comments; as well as to Shai Dotan and the anonymous reviewers. I also thank Yael Naggan for excellent research assistance. Usual disclaimers apply.

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;¹additional bars to adjudication emanate from numerous domestic legal doctrines, such as act of state, political question, dualism, and substantive or institutional non-justiciability.²Some exclusion doctrines pertain specifically to claims relating to armed conflict, such as combat immunity³and the inaccessibility of domestic courts to enemy aliens⁴or in the aftermath of conflict.⁵A 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.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.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.⁸Since the 1990s, large numbers of domestic indictments for war crimes have been issued in the states emerging from armed conflict.⁹War crimes have been tried also in other states on the basis of universal jurisdiction.¹⁰There have also been sporadic indictments in states engaged in multinational operations under UN command.¹¹In...