Understanding when and how domestic courts apply IHL
Laurie R. Blank
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Case Western Reserve journal of international law, Vol. 44, no. 1, 2011, 20 p.
This essay will analyze what factors courts to choose to apply—or not apply—International Humanitarian Law (IHL) and how much of it they will apply. Knowing how the law actually applies to the facts at hand is, of course, critical to the preparation of any case, military operation, advocacy campaign, or other action. A strategic analytical approach to the way that courts approach IHL is also useful for the overall development of IHL. When courts simply refuse to apply IHL or apply it in a limited manner in conjunction with other legal regimes, the failure to tackle new challenges can stunt the development of the law. IHL’s development and effectiveness will be richest when courts of all kinds, whether national, regional or international, address current complexities and controversies head-on and grapple with how to maintain IHL’s central goals of civilian protection and lawful conduct of hostilities even in the face of new challenges. In the broadest sense, therefore, understanding how and why courts do or do not apply IHL, and to what extent, in particular situations can help trigger deeper understandings of how the law is likely to develop and what its impact will be in the future.