Domestic Humanitarian Law: Developing the Law of War in Domestic Courts

Deeks, Ashley S.

doi:10.1007/978-94-6265-008-4_5

Cited by 2 publications

(2 citation statements)

References 22 publications

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“…83 Amongst its many cases, the 2006 Targeted Killings case is a much-discussed example, considered by many to have interpreted the concept of direct participation in hostilities in an overly expansive manner, 84 and to have had an influence far beyond national borders. 85 The decisions by international and national courts are of course subject to debate and criticism, 86 and whether they influence the interpretation of IHL depends on uptake by the international community. However, through their influence on State positions and the "dialogue" between different national and international courts, they undeniably contribute to the shaping of IHL over time.…”

Section: Development Through Interpretationmentioning

confidence: 99%

How international humanitarian law develops

Droege¹,

Giorgou²

2022

Int. rev. Red Cross

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This article takes a critical look at the development of international humanitarian law (IHL), from its early codification in the Hague and Geneva Conventions to the present day. It examines why and how IHL develops – through treaty, custom, interpretation and soft-law instruments, as well as the influence of jurisprudence and other branches of law. In doing so, it highlights some of the distinctive elements of IHL that set it apart from other bodies of law and explains how these elements influence IHL development. Turning to the present, it addresses some of the key arguments commonly heard against attempting any further development of IHL, by answering the following three key questions: Does IHL need to develop further? If so, how can this be achieved? And what are the prospects for such development in the near future? In answering these questions, the article argues that IHL will continue to develop in many ways, and that while the current environment does not appear propitious for new legally binding norms of IHL, they continue to be both necessary and possible.

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Section: Development Through Interpretationmentioning

confidence: 99%

How international humanitarian law develops

Droege¹,

Giorgou²

2022

Int. rev. Red Cross

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“…To these ends, the MCA reinterpreted the laws of war to codify material support for terrorism and conspiracy as punishable offenses in military commissions to provide a patina of legitimacy for the cases the government planned to prosecute. Thus, the second phase of counterterrorism war paradigmatic thinking involved the interpretative fabrication of new military law offenses whose novelty was captured by the oxymoronic label "domestic humanitarian law" (Deeks 2013).…”

Section: The Paradigmatic Signifigance Of Rewriting the Laws Of Warmentioning

confidence: 99%

The Counterterrorism War Paradigm versus International Humanitarian Law: The Legal Contradictions and Global Consequences of the US “War on Terror”

Hajjar¹

2019

Law Soc. Inq.

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Since 2001, we have witnessed the development of a counterterrorism war paradigm built to advance claims about the post-9/11 scope and discretion of US executive power and to articulate specific interpretations of national security interests and strategic objectives in the “war on terror.” What makes this a paradigm rather than merely a conglomeration of evolving policies is the cohesiveness and mutual reinforcement of its underlying rationales about the rights of the US government to prosecute a territorially unbounded war against an evolving cast of enemies. Drawing on Bourdieu’s concept of a juridical field, the article focuses on how officials who constructed a legal framework for this paradigm, rather than disregarding international law wholesale, have engaged in interpretations and crafted rationales to evade some international humanitarian law (IHL) rules and norms while rejecting the underlying logic or applicability of others. This article traces the counterterrorism war paradigm’s development and explains how it now competes with and threatens to supersede the customary law principles enshrined in IHL.

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Domestic Humanitarian Law: Developing the Law of War in Domestic Courts

Cited by 2 publications

References 22 publications

How international humanitarian law develops

How international humanitarian law develops

The Counterterrorism War Paradigm versus International Humanitarian Law: The Legal Contradictions and Global Consequences of the US “War on Terror”

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