Lieber Studies Making and Shaping LOAC Volume – The Application of LOAC in Domestic Courts and the Question of Expertise

Editors’ note: This post is based on the author’s chapter in Making and Shaping the Law of Armed Conflict (Sandesh Sivakumaran and Christian R. Burne eds. 2024), the tenth volume of the Lieber Studies Series published with Oxford University Press.

The South Africa v. Israel case at the International Court of Justice (ICJ) provides a rare opportunity to see a prominent domestic judge, who played a major role in cases involving the application of international law in domestic courts, serve as an ad hoc judge in an international court. Recent events highlight the relationship between law, ideology, and politics in the decisions of international and domestic courts, including the ICJ.

While law and politics play significant parts in these decisions, in the chapter that I contributed to Making and Shaping the Law of Armed Conflict, I focus on another factor in the application of international law in domestic courts that received much less attention: insufficient international law expertise. The chapter presents several examples of cases in which insufficient international law expertise seemed to influence the decisions of domestic courts. It then critically explores three ways in which domestic courts can potentially mitigate this deficiency.

Domestic courts are mainly occupied with cases that focus on domestic law, and in many cases, domestic court judges do not hold prior expertise in international law. Yet, it is not always easy to determine when insufficient expertise plays a significant role in specific domestic or international courts’ decisions, even if the decisions contain controversial or puzzling interpretations of the law. For example, in a 26 January 2024 Separate Opinion, Judge Ad Hoc Barak explicitly addressed the doctrinal challenges associated with his decision to vote in favor of some of the provisional measures while stating that he was not persuaded by the arguments regarding the plausibility of rights under the Genocide Convention (paras. 42-43). He acknowledged the normative reasons behind his decision to deviate from the conclusions that a formal application of the law would require. This is a clear example of a case where it seems that insufficient expertise does not explain the controversial decision made. In other cases, however, the most reasonable explanation seems to be that insufficient expertise played a key role in domestic court decisions, including cases presided over by Chief Justice Barak.

In this post, I focus on one key example of the influence of insufficient expertise in the law of armed conflict (LOAC) on domestic courts and the attempts to mitigate such insufficient expertise. The Targeted Killings case of the Israeli Supreme Court is a paradigmatic example of the application of LOAC in domestic courts. The case addressed two legal questions that were subject to extensive discussion in the international law community. The first is the classification of extraterritorial armed conflicts between a State and a non-State armed group. The second is the targeting of members of non-State armed groups.

Conflict Classification

Classification of extraterritorial conflicts between States and non-State armed groups is an issue that has been subject to continuous debate since the beginning of the 21st century. The reason for such debate is that these conflicts do not fit easily into one of the two definitions of armed conflicts in common Articles 2 and 3 of the Geneva Conventions. In the Targeted Killings case, Chief Justice Barak classified the conflict between Israel and Palestinian armed groups as an international armed conflict since it is “one that crosses the borders of the state — whether the place where the armed conflict is occurring is subject to a belligerent occupation or not” (para. 18). The court’s position had almost no support in the international law community and did not even mention common Articles 2 and 3, the textual heart of the debate over the classification of such conflicts. Ignoring the heart of the debate suggests that the court’s approach was influenced by insufficient expertise rather than merely an unconventional interpretive position.

The issue of conflict classification demonstrates not only the insufficient expertise of the Israeli Supreme Court, but also that of the U.S. Supreme Court in Hamdan v. Rumsfeld, as recognized by various authors (see here and here). Interestingly, these two cases demonstrate insufficient expertise while reaching two different answers to the classification question. Among other criticisms of the decision, the U.S. Supreme Court relied on an incorrect citation and incomplete quotation from an International Committee of the Red Cross (ICRC) Commentary to support a broad reading of common Article 3 (para. 4339).

This brings me to the first mitigating technique that domestic courts use to address insufficient expertise: reliance on submissions to the court. Even if the court does not have sufficient expertise, the parties to the conflict might and their submissions (including amicus briefs) can provide the relevant international law knowledge. However, the cases referred to above demonstrate the weaknesses of potential overreliance on submissions.

In the Targeted Killings case, for various reasons, none of the submissions addresses the definition of international armed conflict in common Article 2 or the challenges of classifying a conflict with a non-State party as an international armed conflict. In Hamdan, the incorrect citation and incomplete quotation were based on an amicus brief that was submitted to the court. Using the same wrong page in the citation to the ICRC Commentary suggests that the court did not rely on the primary source but on the amicus brief. The court’s lack of familiarity with the Commentary resulted in the misuse of the quote to support an expansive reading of common Article 3, beyond what was argued in the amicus brief, and contrary to the position in the Commentary. In both cases, the reliance on the submissions did not help the courts and perhaps even negatively affected their ability to address the relevant issues.

Targeting Members of Non-State Armed Groups

The second legal question in the Targeted Killings case, the targeting of members of non-State armed groups, provides another example of insufficient expertise. For brevity’s sake, I only focus here on the two additional techniques used by the court to mitigate insufficient expertise in its discussion of targeting. The first is the use of domestic law doctrines.

Domestic courts have expertise in domestic law and might use domestic law doctrines to overcome insufficient international law expertise. This is a technique that is used much less frequently than reliance on submissions to the court. The most prominent example is the use of the constitutional law understanding of proportionality in the Targeted Killings case. The court applied this doctrine to read an obligation to use the least harmful means when targeting members of non-State armed groups, although this reading significantly diverges from the traditional understanding of proportionality under LOAC.

The final mitigation technique is what I call general judicial expertise or judicial intuition. Courts are experts in conflict resolution and legal interpretation. It is beyond the scope of this post (and the chapter) to provide a comprehensive account of the complexities of judicial decision-making. I follow here the notion of what Lawrence Baum described as “a practical ability to choose wisely in particular circumstances.” This potentially allows courts to reach a reasonable outcome even if the doctrinal discussion suffers from insufficient expertise.

The targeting discussion in the Targeted Killings case is a good example of such a dynamic. The court’s discussion of targeting was based on various problematic doctrinal positions, such as the above-mentioned approach to proportionality as well as the analysis of members of an organized armed group as civilians who directly participate in hostilities. However, the bottom line of the analysis is very close to the position of the ICRC Interpretive Guidance on the Notion of Direct Participation in Hostilities, which was published three years after the Targeted Killings case.

While there are some differences between the two, the similarities are much stronger, as both adopted a functional approach to targeting that allows the targeting of armed group members at all times, with an additional obligation to use the least harmful means in targeting operations. In contrast to the Targeted Killingscase, the Interpretive Guidance was much more grounded in doctrinal analysis, although it was subject to criticism. It could be seen as a translation of the Targeted Killings case to proper LOAC.

Concluding Thoughts

Using the Targeted Killings case and other examples, the chapter seeks to offer several observations on the use of international law in domestic courts. First, while doctrinal and political analysis of domestic courts’ decisions is important, insufficient expertise should be taken into account as a potential explanation for controversial or puzzling decisions. Second, when it comes to the development of international law, cases of insufficient expertise call for more caution concerning their role in the development of international law. At the same time, the general judicial expertise of domestic courts suggests that they might have important insights into the desired outcome of cases and the future development of international law, even if their doctrinal analysis is problematic.

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