Mélange du Mercredi/The Role of National Courts in Applying International Humanitarian Law

Welcome to Mélange du Mercredi (Wednesday Mix). Each week, we highlight one of the latest and greatest in reading, film and other scholarly resources, focusing on a variety of issues pertaining to international humanitarian law. As always, if you have suggestions, or would like to submit a post on something you feel our readers will also enjoy, we're happy to include them. Just email Editor Niki Clark

The Role of National Courts in Applying International Humanitarian Law by Sharon Weill 

This review was written by Shane Darcy, lecturer at the Irish Centre for Human Rights, National University of Ireland Galway. His review was originally published in The International Review: Generating Respect for the Law. 

States have exhibited a perennial wariness towards allowing judicial oversight of conduct during situations of armed conflict, by either international or national judicial bodies. While the prosecution of war crimes by international courts and tribunals over the past two decades has marked an upsurge in the judicial application of international humanitarian law (IHL) and invigorated scholarly interest in the area, the jurisdictional reach of these bodies has been tightly circumscribed. The ad hoc international criminal tribunals have been granted a temporary existence, and their jurisdiction has usually been tied to a specific time frame and geographical location. Even the exceptional International Criminal Court (ICC) only addresses war crimes reaching a certain threshold, when committed by nationals of a State party or on its territory, and where national authorities have been unwilling or unable to investigate or prosecute the offences. The United Nations Security Council represents an unlikely route for triggering the universal reach of the ICC, given the dominance of the “Permanent Five” members and the less than enthusiastic support for the Court by several of those States.

That State sovereignty would be a barrier to any broad judicial role was evident during the drafting of the Geneva Conventions – States would not agree to a proposal to grant compulsory jurisdiction to the ICC. The Plenary Assembly of the 1949 Diplomatic Conference heard that:

To deplore the inadequacy of the procedure for settling disputes under international law is almost a commonplace. Whereas national legislations generally provide for the repression of any infringement of their rules, and whereas all legal disputes are settled by the national courts of justice, the dogma of State sovereignty in international law has proved an insurmountable obstacle to any generalization of a system of compulsory international jurisdiction.

Download the full review here