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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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(p.1) Introduction
The Role of National Courts in Applying International Humanitarian Law

Sharon Weill

Oxford University Press

This introductory chapter first sets out the book's purpose, which is to analyse the contradictory and often incoherent position in which national courts place themselves when applying international humanitarian law. It proposes a methodology for examining court decisions to determine their functional role. Through a critical reading of case law from different democratic jurisdictions, the book identifies a spectrum of functional roles that judges may assume. They can serve as a legitimating agency of the state; avoid exercising jurisdiction for extra-legal considerations; defer the matter back to the other branches of government; enforce the law as required by the rule of law; or, develop the law and introduce ethical judgment beyond the positive application of the law. The chapter then discusses the political objective of the rule of law framework; national courts and the international legal order; and national courts and the international rule of law. An overview of the subsequent chapters is also presented.

Keywords:   international humanitarian law, national courts, judges, functional roles, rule of law, international legal order

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