1 “[N]ational courts know that their executive is firmly tied to the national constitution from which it cannot exit and which the courts have the responsibility and sole authority to protect, for the benefit of the domestic population. Judges in national courts are relatively more independent than judges in international tribunals, and enjoy broader public support for their decisions”. Benvenisti, Eyal and Downs, George W., “National Courts, Domestic Democracy, and the Evolution of International Law”, European Journal of International Law, Vol. 20, No. 1, 2009 p. 68Google Scholar. Yet, on their disadvantages, see Alvarez, Jose E., “Crimes of States/Crimes of Hate: Lessons from Rwanda”, Yale Journal of International Law, Vol. 24, 1999, p. 375Google Scholar. See also Cassese, Antonio, “On the Current Trends towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law”, European Journal of International Law, Vol. 9, 1998, pp. 5–7CrossRefGoogle Scholar.

2 Rome Statute of the International Criminal Court, 17 July 1998 (entered into force 1 July 2002), UN Doc. A/CONF.183/9, Art. 8.

3 In the case of the ICC, this is due to two factors: first, the ICC Statute is a multilateral treaty and is thus only binding on States Parties, those that have accepted its jurisdiction (or when a case is referred to the ICC by the Security Council); second, the principle of complementarity regulates relations between the ICC and national tribunals, and attributes primary jurisdiction to the national courts (see Article 17 of the ICC Statute). In the case of the ICJ, jurisdiction is limited by the non-compulsory nature of the proceedings and the necessity of having the States’ consent in order to hold the proceedings. See the ICJ website, available at: www.icj-cij.org/jurisdiction/index.php?p1=5&p2=1.

4 Article 2(7) of the UN Charter states: “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state.”

5 Richard Falk, The Role of Domestic Courts in the International Legal Order, Syracuse University Press, Syracuse, NY, 1964, p. 22: “To achieve international order, it is therefore necessary to rely upon horizontal distribution of authority and power among independent states … [I]t is likely that progress towards a more rational delimitation of jurisdiction will result from efforts to improve the horizontal method of allocating legal competence rather than from efforts to centralize authority … [F]rom this viewpoint, one grows more cautious about investing a high percentage of one's enthusiasm in proposed expansions of the compulsory jurisdiction of the ICJ or in attempts to narrow the scope of ‘domestic jurisdiction’ in Article 2(7) of the UN Charter.” See also André Nollkaemper, National Courts and the International Rule of Law, Oxford University Press, Oxford, 2011, pp. 25–26: “Basing the primary role of national courts in the protection of the international rule of law on the principle of sovereignty presents something of a paradox. The principle of sovereignty has traditionally served as to give states control over the process of adjudication. In a Frankenstein-like reversal, it now provides a basis for courts to turn their dependent position into an independent power against the state.”

6 See, for example, the obligation to prosecute individuals who have committed war crimes regardless of their nationality and where the crimes were committed, in common paragraph 1 of Articles 49/50/129/146 respectively to the four Geneva Conventions of 1949, and Article 85(1) of Additional Protocol I to the Geneva Conventions of 12 August 1949. Other IHL provisions that impose an obligation to implement IHL clauses into domestic legislation include those relating to the use of the Red Cross emblem and the protection of cultural property, and conventions regulating the use of weapons.

7 For selected publications on the work of these national tribunals, see United Nations Interregional Crime and Justice Research Institute, “Reports and Publications on War Crimes Proceedings”, available at: http://wcjp.unicri.it/proceedings/. For ongoing war crimes cases prosecuted in Belgrade, see the Serbian Office of the War Crimes Prosecutor, available at: www.tuzilastvorz.org.rs/html_trz/pocetna_eng.htm. For ongoing war crimes cases prosecuted in Bosnia and Herzegovina, see: www.sudbih.gov.ba/?jezik=e. For prosecutions in Bosnia and Herzegovina, see the experience of the Bosnian War Crimes Chamber, documented in the Human Rights Watch report Justice for Atrocity Crimes: Lessons of International Support for Trials before the State Court of Bosnia and Herzegovina, available at: www.hrw.org/report/2012/03/12/justice-atrocity-crimes/lessons-international-support-trials-state-court-bosnia. Regarding Croatia's efforts towards effective prosecution of war crimes, see Ivo Josipovic, “Responsibility for War Crimes Before National Courts in Croatia”, International Review of the Red Cross, Vol. 88, No. 861, 2006, available at: www.icrc.org/eng/assets/files/other/irrc_861_josipovic.pdf.

8 Watts, Arthur, “The International Rule of Law”, German Yearbook of International Law, Vol. 36, 1993, p. 44Google Scholar. See also A. Nollkaemper, above note 5, p. 50: “in states that in all other aspects have a reputable quality of the rule of law, the powers of judicial review against the political branches often do not cover international law to the full extent”. And see A. Cassese, above note 1, p. 17.

9 Andrei Marmor, “The Ideal of the Rule of Law”, in Dennis Patterson (ed.), A Companion to Philosophy of Law and Legal Theory, 2nd ed., Wiley-Blackwell, Oxford, 2010), p. 666. One of the most inclusive definitions is probably the one formulated by Raz, who identified eight fundamental elements common to all legal systems: Raz, Joseph, “The Rule of Law and Its Virtue”, Law Quarterly Review, Vol. 93, No. 2, 1977Google Scholar, reproduced in Keith C. Culver (ed.), Readings in the Philosophy of Law, 2nd ed., Broadview Press, Ontario, 2008, p. 16.

10 The division between the structural and functional aspects is echoed in the ICC complementarity principle set forth in Article 17 of the ICC Statute: while the term “unable” indicates structural deficiencies of national courts, the term “unwilling” refers to functional deficiencies.

11 These structural demands were studied in a recent collective publication: Dinah Shelton (ed.), International Law and Domestic Legal Systems: Incorporation, Transformation, and Persuasion, Oxford University Press, Oxford, 2011.

12 These include formal procedural requirements relating to the appointment of judges and their working conditions, the demand that judicial proceedings be conducted openly and fairly, and that the rights of the parties be respected. See International Covenant on Civil and Political Rights, Art. 14; and the UN Basic Principles on the Independence of the Judiciary Adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985 and endorsed by UNGA Res. 40/32, 29 November 1985, and UNGA Res. 40/146, 13 December 1985.

13 See A. Nollkaemper, above note 5, pp. 53–54; Resolution on the Activities of National Judges and the International Relations of their State, Institut de Droit International, Milan, 1993, Art. 1(1).

14 A. Nollkaemper, above note 5, pp. 44–45.

15 See Marco Sassòli, Antoine A. Bouvier and Anne Quintin, How Does Law Protect in War?, 3rd ed., Vol. 1, ICRC, Geneva, 2011, pp. 360–361.

16 Since the courts' judgments establish the law in the case before them, the litigants can only be guided by law if the judge applies the law correctly. Moreover, an open and fair hearing and absence of bias are essential for the correct application of the law. See J. Raz, above note 9, p. 18; A. Watts, above note 8, p. 39.

17 This principle was recognized in the Preamble of Additional Protocol I. See also M. Sassòli, A. Bouvier and A. Quintin, above note 15, pp. 114–115.

18 For a comprehensive analysis of the different roles of national courts, see Sharon Weill, The Role of National Courts in Applying International Humanitarian Law, Oxford University Press, Oxford, 2014. This work presents a critical analysis of case law from different democratic jurisdictions, including criminal, civil and administrative cases. It has been largely based on the prior works of Eyal Benvenisti, André Nollkaemper, Marco Sassòli and critical legal scholars such as David Kennedy, Duncan Kennedy and Martti Koskenniemi.

19 See, for example, Lord Justice Richards: “It can be seen that the approach of the courts has been very far from insular or narrow. There has been a readiness to tackle issues arising across the world and involving complex and sensitive questions of public international law. … [M]y chosen focus has been on foreign affairs and military conflict. In those fields there are, inevitably, certain forbidden areas – areas where the courts themselves have accepted that it is not appropriate for them to intervene. But that should not be allowed to obscure the fact that modern judicial review is operating in a way that exposes ministers and their officials to close and effective judicial scrutiny, to which the human rights legislation has given additional impetus.” Lord Justice Richards, “The International Dimension of Judicial Review”, The 2006 Gray's Inn Reading, 7 June 2006, p. 10.

20 Henkin, Louis, “Is There a ‘Political Question’ Doctrine?”, Yale Law Journal, Vol. 85, No. 5, 1976, p. 599CrossRefGoogle Scholar; Benvenisti, Eyal, “Judicial Misgivings Regarding the Application of International Norms: An Analysis of Attitudes of National Courts”, European Journal of International Law, Vol. 4, 1993, p. 183CrossRefGoogle Scholar; Thomas M. Franck, Political Questions/Judicial Answers: Does the Rule of Law Apply to Foreign Affairs?, Princeton University Press, Princeton, NJ, 1992, pp. 45–60.

21 When a case is declared by the court as non-justiciable, it may appear that the judiciary is not only deferring to the political branch, but also implicitly condoning the action. Deeper examinations of cases in which these doctrines are not applied – through their rejection or by defining their exceptions – support this assumption. Studies have shown that a court is more likely to render a decision on the merits in cases involving foreign relations or military affairs when the case results in a finding in favour of the State. See Yates, Jeff and Whitford, Andrew, “Presidential Power and the US Supreme Court”, Political Research Quarterly, Vol. 51, No. 2, 1998, pp. 539–550CrossRefGoogle Scholar.

22 US Supreme Court, Banco Nacional de Cuba v. Sabbatino, 376 US 398, 1964, p. 428. In this case, a number of factors were established, leaving a wide margin of appreciation for the court to decide on the matter.

23 For the selective application of avoidance doctrines in US Alien Tort Statute cases, which corresponds almost always to the State position see Jeffrey Davis, Justice across Borders: The Struggle for Human Rights in U.S. Courts, Cambridge University Press, Cambridge, 2008; S. Weill, above note 18, pp. 82–100. When the State directs courts as to when to exercise their competence (or not), the principle of independence and impartiality of the court is also compromised.

24 Eyal Benvenisti, “United We Stand: National Courts Reviewing Counterterrorism Measures”, in Andrea Bianchi and Alexis Keller (eds), Counterterrorism: Democracy's Challenge, Hart Publishing, Oxford, 2008, p. 257. The deferral role of courts is well apparent in a number of Guantanamo cases in different jurisdictions; see S. Weill, above note 18, pp. 121–134.

25 “If national constitutional courts are willing to strike down laws passed by the national legislature, then they should have the institutional clout to do the same thing when enforcing international law”: Kumm, Mattias, “International Law in National Courts: The International Rule of Law and the Limits of the Internationalist Model”, Virginia Journal of International Law, Vol. 44, 2003, p. 24Google Scholar. Benvenisti proposes on the basis of that analogy to adjust the requirement of standing. Benvenisti, Eyal, “Judges and Foreign Affairs: A Comment on the Institut de Droit International's Resolution on ‘The Activities of National Courts and the International Relations of their State’”, European Journal of International Law, Vol. 5, 1994, p. 438CrossRefGoogle Scholar.

26 Paradoxically, too much independence can limit the effectiveness of international law, as the judiciary may lose its ability to compel the executive to act. Nollkaemper argues that the political dimension of international law not only de facto limits the possibility of full independence of national courts but also questions the very desirability of such independence. See A. Nollkaemper, above note 5, p. 59.

27 Martin Shapiro, Courts: A Comparative and Political Analysis, University of Chicago Press, Chicago, IL, 1981; E. Benvenisti, above note 24, p. 275.

28 Ibid. See also Rofer Cotterrell, The Sociology of Law, Butterworths, London, 1984, pp. 232–236; T. M. Franck, above note 20, pp. 10–12.

29 E. Benvenisti, above note 25, pp. 425–427, holding the view that this pact did not include judicial review in foreign affairs, because of the absence of the State's interest in having legal legitimization for its acts abroad and because of a lack of public demand for scrutiny over those acts.

30 Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument, Cambridge University Press, New York, 2006, p. 607. See also Duncan Kennedy, A Critique of Adjudication [fin du siècle], Harvard University Press, Cambridge, 1997, pp. 59–60. On the structural bias and the Israeli High Court of Justice, see S. Weill, above note 18, pp. 37–40.

31 See generally the critique of American legal realism, an intellectual movement in the United States during the 1930s: “How a judge responds to the facts of a particular case is determined by various psychological and sociological factors, both conscious and unconscious. The final decision, then, is the product not so much of ‘law’ (which generally permits more than one outcome to be justified) but of these various psychological factors, ranging from the political ideology to the institutional role to the personality of the judge.” Brian Leiter, “American Legal Realism”, in Dennis M. Patterson (ed.), A Companion to Philosophy of Law and Legal Theory, 2nd ed., Blackwell, Oxford, 2010, p. 249. See also José J. Toharia, “Judges”, in James D. Wright (ed.), International Encyclopedia of the Social & Behavioral Sciences, 2nd ed., Elsevier, Amsterdam, 2015, pp. 879–884.

32 M. Shapiro, above note 27, p. 27.

33 E. Benvenisti, above note 24, pp. 309–318.

34 Ibid, p. 309. See more generally the critique of American legal realism.

35 For instance, the willingness of the US Supreme Court to exercise its authority and to rule against the US State position in the Hamdan case is likely related to the fact that the petitioner has been held for more than four years in detention without legal procedure, a situation which was strongly criticized by the international community, the ICRC and local NGOs. Similarly, in Abbasi, a decision which was rendered in the UK relatively close to the event had to allow complete deference, as politically, this was probably the farthest a court could go at that stage. See S. Weill, above note 18, pp. 124–130.

36 See the 1968 UN Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity; Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law, Vol. 1: Rules, Cambridge University Press, Cambridge, 2005, Rule 106.

37 In this context, the war crimes trials carried out in Serbia are among the rare examples of prosecution of war crimes just a few years after they were committed. See S. Weill, above note 18, pp. 46–67.

38 Supreme Court of Canada, Canada (Justice) v. Khadr, 2 SCR 125, 2008 SCC 28, 2008, available at: www.canlii.org/en/ca/scc/doc/2008/2008scc28/2008scc28.pdf. Khadr, a Canadian citizen, was arrested by US forces in Afghanistan before his 16th birthday and had been detained since 2002 in Guantanamo Bay. His legal action involved a number of litigations, including two cases before the Canadian Supreme Court. The first Supreme Court ruling in 2008 addressed the involvement of Canadian officials in his illegal detention in Guantanamo, and the second case, from 2010, requested his repatriation to Canada.

39 Ibid., paras 21, 25. Interestingly, the Court does not refer explicitly to IHL violations, but refers only to human rights or international obligations. “Given the holdings of the United States Supreme Court, the Hape comity concerns that would ordinarily justify deference to foreign law have no application here. The effect of the United States Supreme Court's holdings is that the conditions under which Mr. Khadr was held and was liable for prosecution were illegal under both U.S. and international law at the time Canadian officials interviewed Mr. Khadr and gave the information to U.S. authorities. Hence no question of deference to foreign law arises. The Charter bound Canada to the extent that the conduct of Canadian officials involved it in a process that violated Canada's international obligations”: para. 26.

40 E. Benvenisti, above note 24, fn. 52 and accompanying text.

41 European Court of Human Rights, Al-Skeini and others v. The United Kingdom, Case No. 55721/07, Judgment, 7 July 2011. According to the British Act of State doctrine, English courts are prevented from considering a claim by an alien regarding the acts of the UK on foreign soil on behalf of the Crown (see F.A. Mann, Foreign Affairs in English Courts, Oxford University Press, Oxford, 1986, pp. 184–190). Yet, the European Court of Human Rights in Al-Skeini ruled that the European Convention of Human rights applied extraterritoriality and bound the UK forces in Iraq (from the moment armed forces exercised effective control), resulting in access to the UK courts through the UK domestic Human Rights Act. Al-Skeini, para. 148.

42 The Supremacy Clause of the United States Constitution, Article 6, Clause 2, provides as follows: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” The distinction between self-executing and non-self-executing treaties was introduced into US jurisprudence by the Supreme Court for the first time in Foster v. Neilson, 27 US (2 Pet.) 253, 1829. See also Vazquez, Carlos M., “The Four Doctrines of Self-Executing Treaties”, American Journal of International Law, Vol. 89, No. 4, 1995, p. 699CrossRefGoogle Scholar.

43 See US District Court for the District of Columbia, Al-Aulaqi v. Obama, 727 F. Supp. 2d 1 (D.D.C. 2010), at p. 80: “Because decision-making in the realm of military and foreign affairs is textually committed to the political branches, and because courts are functionally ill-equipped to make the types of complex policy judgments that would be required to adjudicate the merits of plaintiff's claims, the Court finds that the political question doctrine bars judicial resolution of this case.” On the other hand, the Israeli High Court of Justice found that “[w]hen the character of the disputed question is political or military, it is appropriate to prevent adjudication. However … the questions disputed in the petition before us are not questions of policy. Nor are they military questions. The question is whether or not to employ a policy of preventative strikes, which cause the deaths of terrorists and at times of nearby innocent civilians. The question is – as indicated by the analysis of our judgment – legal.” Israeli High Court of Justice, The Public Committee against Torture in Israel et al. v. The Government of Israel et al., HCJ 769/02, 2006, para. 51.

44 See above note 23.

45 The author, along with judges, prosecutors and defence lawyers from around the world, was invited to participate in a workshop in Geneva organized by the ICRC Advisory Service in May 2015. The workshop addressed different topics including a discussion on how the judicial sector has contributed to the interpretation, enforcement and development of IHL, and the ICRC's role in IHL training for judges. See: www.icrc.org/en/document/icrc-consultation-brings-together-legal-professionals-discuss-ihl.

46 In some legal systems, courts have to rely on a classification by the executive power and cannot do it independently. This is, as indicated above, a structural obstacle for the effective application of IHL.

47 To mention only a few: Sassòli, Marco, “Use and Abuse of the Laws of War in the ‘War Against Terrorism’”, Law and Inequality: A Journal of Theory and Practice, Vol. 22, 2004Google Scholar; Luigi Condorelli and Yasmin Naqvi, “The War against Terrorism and Jus in Bello: Are the Geneva Conventions Out of Date?”, in Andrea Bianchi (ed.), Enforcing International Law Norms against Terrorism, Hart Publishing, Oxford, 2004; Greenwood, Christopher, “International Law and the ‘War against Terrorism’”, International Affairs, Vol. 78, No. 2, 2002CrossRefGoogle Scholar. For a resources list, see M. Sassòli, A. Bouvier and A. Quintin, above note 15, pp. 129, 131–132. Academic literature has examined at length the relations between IHL and international human rights law during armed conflict. See, for example, Droege, Cordula, “The Interplay between IHL and International Human Rights Law in Situation of Armed Conflict”, Israel Law Review, Vol. 40, No. 2, 2007CrossRefGoogle Scholar; Hampson, Françoise J., “The Relationship between IHL and Human Rights Law from the Perspective of a Human Rights Body”, International Review of the Red Cross, Vol. 90, No. 871, 2008CrossRefGoogle Scholar.

48 See, for example, Hicks v. Ruddock et al., FCA 299, 2007; Canada (Prime Minister) v. Khadr, SCC 3, 2010 1 SCR 44, 2010; R (Abbasi) v. Secretary of State for Foreign and Commonwealth Affairs, EWCA Civ 1598, 2002, UKHRR 76 CA, 2003.

49 One of the rare cases that explicitly attempted to qualify the “war on terror” was the Hamdan case of the US Supreme Court, the outcome of which remains highly questionable: “The United States Supreme Court found in Hamdan v. Rumsfeld that the military commissions set up in Guantanamo violated precisely those judicial guarantees prescribed by common Article 3 to the Four Geneva Conventions of 1949. Yet the court left open the question whether Hamdan, arrested in Afghanistan when the country was still occupied by the United States and its allies, should rather be covered – as I would submit – by the law of international armed conflicts.” Marco Sassòli, “Transnational Armed Groups and IHL”, Harvard University, Program on Humanitarian Policy and Conflict Research, Occasional Paper Series, Winter 2006, p. 20.

50 Sassòli, Marco and Olson, Laura M., “The Legal Relationship between IHL and Human Rights Law where It Matters: Admissible Killing and Internment of Fighters in Non International Armed Conflict”, International Review of the Red Cross, Vol. 90, No. 871, 2008, p. 599CrossRefGoogle Scholar.

51 The official position of the State of Israel is that human rights treaties do not apply in the Occupied Palestinian Territories (OPT). See State of Israel, “International Covenant on Civil and Political Rights – Second Periodic Report”, UN Doc. CCPR/C/ISR/2001/2, 20 November 2001, para. 8. At first, when the question of the applicability of international human rights law in the OPT arose before the Israeli High Court of Justice, it was left open, and the Court was “willing without deciding the matter, to rely upon the international conventions”. Mara'abe et al. v. Israel Prime Minister et al., HCJ 7957/04, 2005, para. 27. The doctrinal framework was articulated in 2006 in the Targeted Killing case, where the Israeli High Court of Justice declared that IHL is the lex specialis law applicable during armed conflict. When there is a lacuna in that law, it can be supplemented by human rights law. Israeli High Court of Justice, Public Committee against Torture in Israel, above note 43, para. 18. This position has since been cited as a matter of evidence. See, for example, Israeli High Court of Justice, A and B v. The State of Israel, HCJ 6659/06, 2008, para. 9: “where there is a lacuna in the laws of armed conflict … it is possible to fill it by resorting to international human rights law”.