Doctoral thesis
Open access

The role of national courts in applying international humanitarian law: from apology to judicial activism

ContributorsWeill, Sharon
Defense date2012-10-05

My PhD aims to set a method of analysis evaluating the manner in which national courts enforce international humanitarian law in light of the core principles of the international rule of law (which require courts to be independent, impartial, accessible and effective). This methodology offers a useful tool for understanding the function of national courts and provides a mapping of courts' rulings, within which each category can then be legally (and politically) justified or delegitimized in light of the principles of the rule of law. The scale according to which the court's function is assessed varies from apology to judicial activism, and it identifies four functional roles: (1) the apologist role of courts, in which they serve as a legitimating agency of the state's actions; (2) the avoiding role of courts, in which they, for policy considerations, avoid exercising jurisdiction over a case; (3) the normative application role of courts, in which they apply international humanitarian law as required by the rule of law. In that category, a deferral technique is identified – courts may defer back to the other branches of the government the find an appropriate remedy; and (4) the judicial activism role of courts, in which they introduce moral judgments in favour of the protection of the individual, beyond the requirements of the law. Revealing the court's function in order to situate a decision on the utopian-judicial activism scale is carried out by a critical analysis of the court ruling, in which both the legal argument and the political context are examined. This is done through a technique of deconstruction, which aims to reveal the political character of what appears a priori, to be a neutral application of objective rules. As the research shows, the functional role of the courts is a combination of contradictions and mixed attitudes – sometimes they play an apologist role, in other cases a normative, activist, or an avoiding one. It would appear that national courts are in the process of defining their own role as enforcing organs of IHL.

Citation (ISO format)
WEILL, Sharon. The role of national courts in applying international humanitarian law: from apology to judicial activism. 2012. doi: 10.13097/archive-ouverte/unige:23575
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Creation10/17/2012 10:57:00 AM
First validation10/17/2012 10:57:00 AM
Update time03/14/2023 5:43:41 PM
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