Adjudicating Armed Conflict in Domestic Courts: The Experience of Israel’s Supreme Court

Abstract

The Israeli Supreme Court in recent years has engaged in judicial review of questions pertaining to the conduct of hostilities within the context of what it has recognized as an armed conflict between Israel and Palestinian armed groups. This can be attributed to several factors that are unique to Israel, the most prominent being Israel’s long-time military presence in the Territories, which has made the Israeli Supreme Court accustomed to adjudicating matters governed by international law and scrutinizing the discretion of military commanders. Combined with the evolution in the Court’s jurisprudence regarding standing and political question doctrine, which has made the Court overall more accessible to general petitions challenging national security issues, this paved the road to adjudication of questions pertaining to the modern battlefield, as at least some counter-terrorism policies, previously considered to be law enforcement actions, have come to be perceived in Israel and elsewhere as part of the armed conflict paradigm. While the Israeli situation is unique in many aspects, other jurisdictions are also encountering legal challenges to the actions of the military in combat arenas abroad. To the extent that such jurisdictions are receptive to comparative law, the Israeli experience may prove useful in developing domestic jurisprudence on questions pertaining to the Law of Armed Conflict and its application to executive policy in the ‘war on terror’.

I am grateful to Nimrod Karin for his assistance and to Nadav Minkovsky, without whom the writing of this piece would not have been possible.