In recent years, a new creature has emerged on the institutional landscape: The Schmitelsen Court. This court is the end-product of a combination of the positions presented by Hans Kelsen and Carl Schmitt in their famous debate over the institutional identity of the guardian of the constitution during the Weimar years. The Schmitelsen guardian is a court thus fulfilling Kelsen’s vision of the constitutional court as the guardian of the constitution. Nevertheless, it possesses the mission, the means to achieve it, and the source of legitimacy that Schmitt envisioned for the president as the guardian of the constitution. In this Article, I focus on the Schmitelsen Court’s source of legitimacy that differs greatly from the traditional source of judicial legitimacy that Kelsen envisioned for the guardian. Whereas Kelsen viewed legal expertise as the guardian’s source of legitimacy, Schmitt viewed public support as filling this role. After analyzing these two positions, I explain why it is vital for the Schmitelsen Court to harness public support as its source of legitimacy. I proceed by examining how the Schmitelsen Court model manifests itself in three case studies. In the US, Alexander Hamilton—in The Federalist No. 78—raised the notion of the guardian of the constitution long before Schmitt and Kelsen. He designated the judiciary as the guardian and ascribed its source of legitimacy to expertise. After describing how in recent decades the US Supreme Court adopted the Schmitelsen understanding of judicial legitimacy, I turn to examine the Israeli Supreme Court and the European Court of Human Rights. The relevance of these latter two courts stems not only from their adoption of the Schmitelsen Court’s understanding of judicial legitimacy, but also from the strong influence of the Weimar lessons on their evolution into Schmitelsen guardians.

The Israeli official policy of targeted killing has often been a subject of controversy and criticism. Although still applied by the state of Israel, this cruel practice was recently limited in a courageous decision handed down by the Israeli Supreme Court. The new restrictions on targeted killing represent an important step towards its criminalization. Despite this, the Court's interpretation of the international humanitarian law requirements is still too broad and there is a need for more restrictive safeguards. In addition, the current uncertainties of this field of law, replicated in the decision, exacerbate the problem further. The main difficulty, however, lies in the theoretical assumption that targeted killing is legal. This article proposes instead to view targeted killing as an exception to the presumption of protection of the civilian population. The authors review the recent trends in international humanitarian law in order to assess the impact of the Court's reasoning. Although this landmark case represents an important breakthrough, it will certainly not be the last word on targeted killing.