Journal Article

Reducing the Security Gap through National Courts: Targeted Killings as a Case Study

Sharon Weill

in Journal of Conflict and Security Law

Volume 21, issue 1, pages 49-67
Published in print April 2016 | ISSN: 1467-7954
Published online November 2015 | e-ISSN: 1467-7962 | DOI: https://dx.doi.org/10.1093/jcsl/krv019
Reducing the Security Gap through National Courts: Targeted Killings as a Case Study

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This article examines the potential role of national courts in reducing the ‘security gap’ in the context of armed conflicts. Judges in democratic States assume different roles. They may variously serve as a legitimating agent of the State; avoid exercising jurisdiction for extra-legal considerations; defer to other branches of the government; enforce the law in line with the rule of law ideal; or develop the law and introduce forms of ethical judgment that go beyond positive application of the law. Identifying the various roles assumed by national judiciaries, their institutional limits and interactions with the executive offers a useful tool for assessing their potential role in advancing human security. In relation to the concept of human security, it has been suggested that the distinction between internal and external notions of security is becoming increasingly blurred, whereby ‘internal’ implies judicial guarantees and human rights based security and ‘external’ implies war-based security. In this context, the changing roles of national courts in situations of armed conflict that are explored in the article could be understood as a method for strengthening human security. The analysis of Israeli and US cases involving targeted killings suggests that while national courts have been largely reluctant to limit government action and have tended to apply international law in a selective manner, they have nonetheless become increasingly willing to review armed conflict cases, including State action beyond its territorial borders.

Journal Article.  9356 words. 

Subjects: Military and Defence Law ; Police and Security Services ; Terrorism and National Security Law ; Use of Force, War, Peace and Neutrality

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