The Apologist Role of National Courts: Legitimizing (Illegal) State Policy

Sharon Weill

in The Role of National Courts in Applying International Humanitarian Law

Published in print March 2014 | ISBN: 9780199685424
Published online April 2014 | e-ISBN: 9780191765643 | DOI:
The Apologist Role of National Courts: Legitimizing (Illegal) State Policy

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This chapter discusses the apologist role of courts, in which they serve as a legitimating agency for state action. The first case study shows how the Israeli High Court of Justice (HCJ) contributed to the creation and legitimization of a segregated regime in the Occupied Palestinian Territories by providing the state with the legal tools required to design and implement it. The HCJ has done this through the selective use (and misuse) of the law of military occupation. The second case study examines the jurisprudence of the Serbian War Crimes Chamber (WCC). The WCC is one of the few domestic courts in the world to prosecute its own nationals for war crimes committed in a conflict that ended just a few years before the court's creation. More generally, it deciphers the legitimating role of a national court which exercises criminal jurisdiction over former government officials.

Keywords: national courts; apologist role; state action; judicial decisions; Israeli High Court of Justice; Serbian War Crimes Chamber; law of military occupation; criminal jurisdiction

Chapter.  31592 words. 

Subjects: Public International Law ; Comparative Law

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