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

Print publication date: 2014

Print ISBN-13: 9780199685424

Published to Oxford Scholarship Online: April 2014

DOI: 10.1093/acprof:oso/9780199685424.001.0001

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The Normative Role of National Courts: From Deferring to Limiting

The Normative Role of National Courts: From Deferring to Limiting

Chapter:
(p.117) 3 The Normative Role of National Courts: From Deferring to Limiting
Source:
The Role of National Courts in Applying International Humanitarian Law
Author(s):

Sharon Weill

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199685424.003.0004

This chapter examines both the deferral and the normative application roles of the court. It shows that the deferral techniques allow an important transition from the avoidance role (with respect to judicial review) towards the exercise of the most significant role of courts from the rule of law perspective: enforcer of international humanitarian law through its normative application. It presents two case studies to illustrate this premise. The first case study focuses on the Guantanamo cases and examines the extent of the protections granted by courts to individuals in detention. The second deals with the limits on the state, imposed by the judiciary, on questions relating to the conduct of hostilities.

Keywords:   national courts, deferral role, normative role, rule of law, international humanitarian law

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