Applying the Law of Armed Conflict in Domestic Courts: The Fusion of Domestic and International Law and the Question of IHL Expertise

Abstract

Abstract The chapter addresses two issues that have been largely left outside the conversation about the interaction between domestic courts and international humanitarian law (IHL): the fusion of domestic and international law, and the role of (or lack of) expertise vis-à-vis the application of IHL by domestic courts. It identifies three types of domestic court decisions that fuse international and domestic law. The first is the application of international law as part of domestic law. The second is the direct application of domestic law doctrines to questions of international law. The third is when the legality under international law is dependent on an adequate regulation under domestic law. As to expertise, the chapter provides a thorough examination of domestic courts’ IHL expertise, and examines three techniques that they use to mitigate their insufficient expertise. Finally, it addresses the implications of the discussion on domestic courts role in the development of IHL.