The treatment of occupation legislation by courts in liberated territories
Eyal Benvenisti and Michal Saliternik
International law in domestic courts : rule of law reform in post-conflict states
Cambridge [etc.] : Intersentia, 2012
This chapter focuses on the jurisprudence of courts in liberated territories concerning the laws and administrative acts that were promulgated and applied by the occupying power. An analysis of a varied range of case law shows that, by tendency, national courts in the aftermath of an occupation prioritize the transitional needs of their societies - at least, in cases of conflict - over addressing questions of international legality. The "transitional bias" produced by post-occupation courts is examined by reference to case studies originating from several jurisdictions, under occupation during World War I, the Namibian Supreme Court's ruling in the Cultura 2000 case, the imposition of capital punishment on Saddam Hussein by the Iraqi High Criminal Tribunal, and cases from East Timor and Kosovo in which prescriptive measures of UN territorial administrations were scrutinized by national courts. Inferring from the case studies, the chapter offers insight into the various froms of "transitional bias", ranging from post-occupation justice and struggle for reputation to the institutional aspects of post-conflict situations. The chapter concludes by suggesting that, given the countervailing concerns, it would be preferable to distinguish between ex ante and ex post consideration, and it criticizes the courts for invoking the laws of occupation as the basis for their ex post findings, thereby contributing to distorting this law.