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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


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.

INTERNATIONAL LAW AND PRACTICE: Symposium on Domestic Courts as Agents of Development of International Law
Copyright © Foundation of the Leiden Journal of International Law 2013 

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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; S. Horovitz, ‘Rwanda: International and National Responses to the Mass Atrocities and Their Interaction’, (September 2010) DOMAC/6 September, 31–44, available at—Rwanda.pdf; S. Horovitz, ‘DR Congo: Interaction between International and National Responses to the Mass Atrocities’, (February 2012) DOMAC/14, 29–30, available at

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

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:

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

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

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.