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Reducing the Security Gap through National Courts:

Targeted Killings as a Case Study

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Sharon Weill*

Abstract

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 juris-
diction for extra-legal considerations; defer to other branches of the government; en-
force 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 increas-
ingly 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.

1. Introduction

International law regulates some of the most violent situations in which States
and individuals can be involved. The assumption that States would willingly
comply with international law of their own volition, as an expression of their
self-interest to maintain the international legal order, seems unconvincing given
that they hold such formidable power during conflicts and emergency situations.
Therefore, in these contexts, national courts have a major role to play in guar-
anteeing the rule of law.1 Naturally, courts cannot be the only institution

* Lecturer and researcher in international law at Sciences-Po, Paris and CERAH (The
Graduate Institute for International and Development Studies/University of Geneva).
Author of The Role of National Courts in Applying International Humanitarian Law
(OUP 2014). The author wishes to thank Mary Kaldor, Christine Chinkin and Iavor
Rangelov for their useful comments on prior drafts, as well as the European Research
Council for their financial support. Email: sharon.weill@sciencespo.fr
1
R Higgins, ‘The Changing Position of Domestic Courts in the International Legal
Order’ (Speech at the First International Law in Domestic Courts Colloquium, The
..............................................................................
Journal of Conflict & Security Law (2016), Vol. 21 No. 1, 49–67
50 Sharon Weill

responsible for providing the necessary checks and balances over the State’s
exercise of its power during armed conflict and, bearing in mind the special
features of armed conflicts, would meet particular political constraints related

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to their institutional positioning. Yet, the judicial enforcement of international
law by courts seems essential; the power allocated to the State (and also limited)
by international law, if it is not judicially supervised, has the potential to bear
catastrophic consequences on the lives and security of a vast number of persons.
At the same time, the conduct of wars has traditionally been left to the discretion
of the executive and its professional agencies with little judicial scrutiny. The infor-
mation, which forms the decision process, is generally kept out of the public
domain. This lack of transparency prevents the effective crystallization of public
opinion, impairs public ability to influence decision-making and weakens the public
demand for judicial scrutiny over armed conflict issues. These and other socio-
psychological factors that favour unity and support for the State, all of which typ-
ically emerge in times of crisis and violence, lead to a weakening of the checks and
balances of the democratic system, not least its oversight by the judiciary.
However, times are changing, and more and more cases related to armed
conflicts are coming before national courts. With legislation codified at the inter-
national level and a growing tendency to endorse it on a national level, this
relatively new trend, which has become particularly prominent since the
1990s, is of no surprise. It is the result of a number of factors: (i) the creation
of active international courts and tribunals in the 1990s with jurisdiction over
serious violations committed during armed conflicts; (ii) the emergence of a
strong civil society and a number of professional, legally oriented non-govern-
mental organizations (NGOs). They have become active in the international
sphere, both in shaping public opinion’s demand for scrutiny over armed con-
flicts and initiating legal procedures before national courts; (iii) the training of
an increasing number of international lawyers, journalists, diplomats and aca-
demics; (iv) growing domestic legislation that allows access to the courts; and (v)
the development of progressive jurisprudence by a number of leading courts,
which are cited across jurisdictions.2
The responsibility for applying international law through national institutions
depends on judges who operate within a national context and are bound by
national institutional and political limits, which they have to respect in order
to maintain their legitimacy and authority. While certain national systems may
well comply with the structural requirements necessary to apply international

Hague, 17 March 2008) 1–3; PA Nollkaemper, National Courts and The International
Rule of Law (OUP 2011) 58. As stated by the European Court of Justice: ‘One can
scarcely conceive of the rule of law without there being a possibility of having access
to the courts’, Golder v United Kingdom App no 4451/70 (ECHR, 21 February 1975)
para 54.
2
See also, E Benvenisti and GW Downs, ‘National Courts, Domestic Democracy, and
the Evolution of International Law’ (2009) 20(1) Eur J Intl L 61.
 Reducing the Security Gap through National Courts 51

law,3 the de facto application of international law by national courts may still
differ. Thus, courts may tend to defer to the State’s position in international law
matters, in order not to upset their government in sensitive issues involving

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international law. Similarly, courts may develop justiciability rules to avoid jur-
isdiction. In other situations, they may be interested in legitimizing the actions of
their government more than in enforcing international law; or in the contrary,
courts may be willing and able to enforce international law and to impose limits
and remedies as required by the rule of law.4 Identifying these various functional
roles assumed by national judges in their application of international law, ac-
cording to their institutional limits and interaction with their executive, is of
importance as it may indicate the necessary conditions required for their optimal
function from the human security perspective—which is the normative applica-
tion in which courts enforce the law and provide remedies for its violations.
While national courts have been reluctant to impose limits on their government
and their application of international law is often done in a selective manner, this
article demonstrates that national courts have been nevertheless increasingly willing
to review armed conflicts cases, also when dealing with actions committed beyond
States’ territorial borders. Thinking of human security, it has been suggested to blur
traditional dichotomies related to security. One of them is the distinction between
internal/external—internal as implying judicial guarantees and human rights based
security and external as implying war-based security. In this context, the gradual
changes in the role of the national courts during conflicts, as shown in the article,
can be viewed as a method for increasing human security.
Within this general framework of analysis, this article presents the avoiding and
deferring roles of national courts through an analysis of Israeli and US case law on
targeted killings. Then, the article turns to identify the factors necessary for at-
taining the optimal function of national courts in the adjudication of cases related
to armed conflicts from the standpoint of the rule of law and human security.

2. The Avoiding Role of National Courts

Access to court is a constitutional right in democratic States and an important

pillar of the rule of law. Yet, judges in domestic courts in common law States
3
The structural capacity of national courts to apply international law is a preliminary
step for achieving enforcement of international law by national courts. First, the ap-
plicability of international law in domestic systems must be guaranteed through le-
gislation. Then, the issue of standing, as well as the structural independence of the
judges, must be guaranteed. Obviously, within this on-going process, each State has
complied with the domestic implementation obligation to a varying degree. These
structural demands were recently studied in a recent collective publication edited
by Dinah Shelton: D Shelton (ed), International Law and Domestic Legal Systems,
Incorporation, Transformation, and Persuasion (OUP 2011).
4
For the different functional roles that national courts can assume, see S Weill, The
Role of National Courts in Applying International Humanitarian Law (OUP 2014).
52 Sharon Weill

have developed avoidance doctrines, which would permit them to refrain from
exercising competence despite jurisdiction being otherwise established, which
results in shielding Sates from judicial scrutiny before domestic courts. These

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include the US Act of State doctrine, which was labelled by Lord Nicholls a
‘self-denying principle’,5 and the political question doctrine, better known in the
UK as the Butts non-justiciability principle. In the USA, the political question
doctrine requires abstention from the court ‘in issues of political delicacy in the
field of foreign affairs’.6 Henkin formulated this doctrine as ‘some issues which
prima facie and by usual criteria would seem to be for the courts, will not be
decided by them but, extra-ordinarily, left for political decision’.7
These justiciability doctrines are raised in the preliminary stages of the pro-
ceedings. Through their application, or their rejection, courts design their own
role in applying international law. Following the courts’ decision to avoid en-
forcement of the law, the legal question remains outside the realm of justice and
is left to the political arena. From the rule of law perspective, the avoiding role
of courts remains problematic as it prevents the right to access to court and the
requirement of a legal system to enforce the law in an equal and effective
manner. Recourse to avoidance doctrines may be justified in light of the diffi-
culty to assess evidence in foreign affairs cases and to apply legal standards on
policy questions, the question of judges’ expertise in these matters and the
judges’ institutional fear that the executive will ignore their decisions.
However, they usually also serve political goals, which are not always visible.
When courts choose not to pronounce on the legality of a State’s action, or to
denounce its possible illegality, they do not confer explicit legitimacy upon the
executive nor grant legal justification to its acts, but they shield the State from
judicial review and allow it to pursue its political objectives without limitations
imposed by law. Therefore, when a case is declared by the court as non-
justiciable, it may appear that the judiciary is not only deferring to the political
branch, it is also implicitly condoning the action. Deeper examinations of cases
in which these doctrines are not applied—through their rejection or by defining
their exceptions—support this assumption. Studies have shown that a court is
more likely to render a decision on the merits in cases involving foreign relations
or military affairs when the case results in a finding in favour of the home State.8

5
R v Bow Street Metropolitan Stipendiary Magistrate Ex parte Pinochet Ugarte (No 1)
[1998] 3 WLR 1456 (HL) [117].
6
MN Shaw, International Law (5th edn, CUP 2003) 169. See also the following US
cases: Oetjen v. Central Leather Co., 246 U.S. 297 (1918) para 302; Kadic v. Karadzic,
70 F.3d 232 (2d Cir. 1995) 248–49; Tel Oren v. Libyan Arab Republic, 726 F.2d 774
(D.C.Cir. 1984) 80.
7
L Henkin, ‘Is There a “Political Question” Doctrine?’ (1976) 85 Yale L J 5, 599.
8
J Yates and A Whitford, ‘Presidential Power and the US Supreme Court’ (1998) 51
Political Research Quarterly 2, 539–50. See more specifically in the Alien Tort Statute
cases: Weill (n 4) 82–100.
 Reducing the Security Gap through National Courts 53

3. Targeted Killings: A Legal or Political Question?

Courts avoid or adjudicate cases in a way that corresponds to their relation with

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the government and the degree of independency vis-à-vis the political branches.
While courts have established factors for the application of avoidance doctrines,9
it has not always been possible to predict when courts would render a judgment on
the merits as extra-legal considerations are often involved. As is well-illustrated by
targeted killing cases decided before the Israeli High Court of Justice and the US
District Court for the District of Columbia, the willingness to exercise competence
differs therefore from jurisdiction to jurisdiction and is not related to the legal
question itself, regardless of whether there are judicial standards to apply. In one
jurisdiction the issue is not justiciable, yet in another it is. This means the law and
the avoidance doctrines may be applied in an inconsistent manner, depending on
the court’s discretion—even within the same jurisdiction.10
The legality of the Israeli policy of targeted killing in the Occupied Palestinian
Territories was first challenged before an Israeli court in 2002, which firmly
rejected the application of the avoidance doctrine.11 The first ground justifying
the dismissal of the non-justiciability claims in this case was that Israeli courts
tend to not apply the non-justiciability doctrine where it might prevent review
over basic rights, such as the right to life: ‘The petition before us is intended to
determine the permissible and the forbidden in combat which might harm the
most basic right of a human being—the right to life. The doctrine of institutional

9
Banco Nacional de Cuba v Sabbatino 376 US 398 (1964) is the landmark case from
contemporary jurisprudence on the act of state doctrine that provides its formulation
and interpretation in the US (443(a) Restatement [Third] of Foreign Relations Law of
the United States). Sabbatino did not lay down an ‘inflexible and all-encompassing
rule’ for the application of the doctrine. Instead it established a number of factors to
be considered on a case-by-case basis: (i) The international consensus on the inter-
national rule at issue; (ii) The impact on foreign relations; (iii) The continued exist-
ence of the foreign government. The US and other national courts have systematically
considered these ‘Sabbatino factors’ in deciding whether to exercise their jurisdiction.
In parallel, exceptions to the application of the doctrine have been developed so
courts can avoid applying the doctrine and exercise their normal authority.
10
The inconsistent way where courts have applied—or not—avoidance doctrines, open-
ing the door to an application of the law in a double standards mode, is probably the
most apparent in the US Alien Tort Statute cases. See Weill (n 4) 82–100; J Davis,
Justice across Borders: The Struggle for Human Rights in U.S. Courts (CUP 2008).
More generally, Franck observed that ‘the jurisprudence has a powerful whiff of
hypocrisy: judges say they will abstain but fail to do so. Judges proclaim the separation
of powers but almost always decide in favor of the government in a process where the
players – the government and those challenging its actions – appear not to be playing
on a level field’. TM Franck, Political Questions/Judicial Answers: Does the Rule of
Law Apply to Foreign Affairs? (Princeton University Press 1992) 30.
11
The Public Committee against Torture in Israel HCJ 769/02 (2006) (hereinafter The
Israeli Targeted Killings case), paras 48–52 (In English 5http://elyon1.court.gov.il/
files_eng/02/690/007/a34/02007690.a34.pdf4 accessed 15 October 2015).
54 Sharon Weill

non-justiciability cannot prevent the examination of that question.’12 Moreover,

the court found that although the judgment is likely to have political or military
implications, it determined that the question whether the ‘State policy of pre-

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ventive strikes which cause the death of terrorists and at times of nearby inno-
cent civilians’ is a question of legal character.13
In Al-Aulaqi v Obama (2010), a case that challenged President Obama’s de-
cision to authorize the targeted killing of a US citizen in Yemen, the US District
Court for the District of Columbia responded differently to the question of
justiciability. In its ruling, the court granted the government’s motion to dismiss
on several grounds, including that the claims were political questions and there-
fore not justiciable.14 The court was in the position that the questions posed
require both ‘expertise beyond the capacity of the Judiciary’, the need for ‘un-
questioning adherence to a political decision by the Executive’ and an assess-
ment of ‘strategic choices directing the nation’s foreign affairs [that] are
constitutionally committed to the political branches’.15 Ruling that it is a non-
justiciable political question, the court of first instance left outside the realm of
law enforcement the question of the legality of a targeted killing of an American
citizen who challenged a violation of his constitutional rights. Interestingly, even
the court itself felt uneasy with this result. While it acknowledged that it is a
‘drastic measure’ for the US to employ lethal force against one of its own citi-
zens abroad, even if that citizen is an active part of a terrorist group, it expressed
its discontent with its own judgment: ‘To be sure, this court recognizes the
somewhat unsettling nature of its conclusion – that there are circumstances in
which the Executive’s unilateral decision to kill a US citizen overseas is
12
ibid para 50.
13
ibid paras 51, 52: ‘The question is – as indicated by the analysis of our judgment –
legal; the question is the legal classification of the military conflict taking place be-
tween Israel and terrorists from the area; the question is the existence or lack of
existence of customary international law on the issue raised by the petition; the ques-
tion is of the determination of the scope of that custom, to the extent that it is
reflected in x51(d) of The First Protocol; the question is of the norms of proportion-
ality applicable to the issue. The answers to all of those questions are of a dominant
legal character.’
14
On 30 August 2010, the American Civil Liberties Union and the Center for
Constitutional Rights filed a suit in the name of Nasser Al-Aulaqi against President
Obama and others, challenging their decision to authorize the targeted killing of his son,
a US citizen, in Yemen, before the US District Court for the District of Columbia. They
claimed that the US policy of targeted killing violates the US Constitution and inter-
national law, and asked the court to declare that according to US constitutional law and
international law, the US government is prohibited from carrying out the targeted kill-
ing of American citizens where no armed conflict exists. Al-Aulaqi v Obama 727 F.
Supp. 2d 1 (D.D.C. 2010) 76–775https://www.aclu.org/sites/default/files/field_document/
2010-12-7-AulaqivObama-Decision.pdf4 accessed 15 October 2015.
15
Al-Aulaqi v Obama, ibid 77. See also 80: ‘Because decision-making in the realm of
military and foreign affairs is textually committed to the political branches, and be-
cause courts are functionally ill-equipped to make the types of complex policy judg-
ments that would be required to adjudicate the merits of plaintiff’s claims, the Court
finds that the political question doctrine bars judicial resolution of this case.’
 Reducing the Security Gap through National Courts 55

“constitutionally committed to the political branches” and judicially

unreviewable.’16 Perhaps, as this case involved politically sensitive and complex
questions at the time that the decision was rendered, a lower level court could

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not decide otherwise because of institutional concerns.
The reasoning in the Israeli and the US decisions could have each led to the
opposite result in these specific cases as, in the US case, the claim involves an
allegation of a violation of constitutional right of a US citizen17 and, in Israel,
the case was challenging a policy of general nature and not a concrete case,
which had been previously ruled to be non-justiciable.18 Yet, as shown, their
decisions reflect their different attitudes in adjudicating conduct of hostilities
cases and their internal institutional policy on this matter.
Four years after Al-Aulaqi v Obama, the US District Court for the District of
Columbia rendered a contradictory decision in Al-Aulaqi v Panetta (2014).19
This time the case raised the issue of whether US officials should be held re-
sponsible for the death of a US citizen killed by drone strikes in Yemen.20
Contrary to its prior judgment, the Court refused to apply the political question
doctrine:

The powers granted to the Executive and Congress to wage war and
provide for national security does not give them carte blanche to deprive
a U.S. citizen of his life without due process and without any judicial
review . . . The Bill of Rights was passed to protect individuals from an
over-reaching government, and this Court cannot refuse to provide an
independent legal analysis . . . Because Plaintiffs here pointedly allege
16
ibid 78. ‘It does not appear that any court has ever – on political question doctrine
grounds – refused to hear a US citizen’s claim that his personal constitutional rights
have been violated as a result of US government action taken abroad’. ibid 74.
17
See, for example, Canadian and Australian cases such as Hicks v Ruddock et al (2007)
FCA 299; Habib v Commonwealth of Australia [2010] FCAFC 12; and Amnesty
International Canada v Canada (Minister of National Defence) (2008) FC 336,
(2008) 4 FCR 546. In these cases the claims were based on violations of the consti-
tution and the Courts ruled that avoidance doctrines cannot be applied. See also B
Batros and P Webb, ‘Accountability for Torture Abroad and the Limits of the Act of
State Doctrine: Comments on Habib v. Commonwealth of Australia’ (2010) J Int’l
Crim Just 8.
18
See Bargil v The State of Israel HCJ 4481/91 (1993), challenging the legality of the
settlements policy.
19
Al-Aulaqi v Panetta (2014) 5https://www.aclu.org/sites/default/files/field_document/
tk_2_opinion.pdf4 accessed 15 October 2015. Footnote 21 mentions that, ‘[t]he
Court recognizes that its holding regarding the political question doctrine is incon-
sistent with Judge Bates’s decision in Al-Aulaqi v. Obama’.
20
The case dealt with the drone strike in Yemen that killed Anwar Al-Aulaqi’s son, who
was a US citizen. The claimants argued that ‘these killings, undertaken without due
process, in circumstances where lethal force was not a last resort to address a specific
and imminent threat and where the government failed to take required measures to
protect bystanders, violated the deceased Americans’ fundamental rights under the
Constitution.’ See5http://ccrjustice.org/home/what-we-do/our-cases/al-aulaqi-v-panetta4
accessed 15 October 2015.
56 Sharon Weill

that Defendants, U.S. officials, intentionally targeted and killed U.S. citi-
zens abroad without due process, the Court finds that this case is justi-
ciable and that it has subject matter jurisdiction.21

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Moreover, the court harshly criticized the government’s lack of cooperation in
providing it with necessary documents, noting that, ‘The United States’ truculent
opposition to the December 26, 2013 Minute Order made this case unnecessarily
difficult’.22
Why did the court reverse course on the question of justiciability within an
interval of four years? Among the factors that may explain the different attitude
of the judiciary are: the time that elapsed after the facts; the prolonged and
extensive practice of Obama’s targeted killing policy23 and its growing harmful
effects in terms of human security; and the growing demand for scrutiny over US
drone policy by public opinion as shaped by different actors, such as the UN,
local and international NGOs, academic writing and media, which were all crit-
ical on international law grounds.
While rejecting the application of the political question doctrine, this case
may represent a significant step towards greater judicial oversight over US ex-
ecutive actions in regards to targeted killings. Yet, the case was rejected at the
preliminary stages on other grounds; the court established that the plaintiff’s
Bivens claim was unviable.24 Whether the court would have delivered the same
ruling on justiciability had it reached a different result on that preliminary
motion to dismiss remains an open question.25 At the same time, the door is
now open for US courts to review similar cases, which could ultimately result in
the courts being more assertive on the merits in the future.

21
Al-Aulaqi v Panetta (2014) (n 19) 20–21.
22
ibid 40.
23
Benvenisti identifies two types of wars: ‘full scale military conflicts’, such as the 1939–
1945 war, and prolonged and low-intensity struggles, such as against terrorist threats.
He argues that the respective needs of the executive to rely on courts as an agent of
legitimacy and the institutional need of the judiciary to be independent from govern-
ment must both take a ‘back seat’ during short and intense crises. In contrast, when
the conflict is prolonged, these factors become relevant again. On the one hand, the
State needs to rely on the courts as a legitimating agency in their exercise of judicial
review. On the other hand, courts will be more willing to review a State’s act and to
safeguard their institutional independency and reputation. E Benvenisti, ‘United We
Stand: National Courts Reviewing Counterterrorism Measures’ in A Bianchi and A
Keller (eds), Counterterrorism: Democracy’s Challenge (Hart Publishing 2008)
309–18.
24
A Bivens claim is a cause of action, developed by US jurisprudence, which allows
access to the courts in order to sue the federal government for their responsibility in
violating victims’ constitutional rights. See generally Bivens v Six Unknown Named
Agents 403 US 388 (1971).
25
See above (n 8).
 Reducing the Security Gap through National Courts 57

4. The Deference Technique: From Political to Legal Questions?

In the forming process of courts’ position within their own society to reinforce

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their authority to apply the law upon the executive also in politically sensitive
cases, courts use the deference technique to deal with the inherent political
complexity of international law. This technique is a nuanced and gradual way
courts can reinforce their authority to apply the law in the complex cases in the
form of an open dialogue with the legislative and executive branches. The judi-
ciary moves away from the traditional tendency to avoid jurisdiction in armed
conflict-related issues and progressively, with the use of deference techniques,
starts to exercise its judicial competence as a law enforcer. This gradualist ap-
proach offers the courts the practical possibility of adjudicating international law
cases despite their fragile position vis-à-vis the executive and public opinion
during armed conflict. It enables courts to review the legality of the acts of
the State, but, if necessary, because of institutional concerns, to defer the
remedy or to exercise discretion in applying the law to the political branches.
Exercising judicial review through the use of deference techniques allows the
judiciary to redefine its role as law enforcer in armed conflict issues; not to be
absent from this field of application, while not exceeding its institutional capa-
cities, and dialoguing with the other branches of government instead of con-
fronting them. In light of courts’ redefinition of their role, the borders of their
institutional limits have been modified, as has the public demand for scrutiny
during armed conflict.
In Al-Aulaqi v Panetta (2014), the US District Court rejected the extension of a
Bivens claim to the context of targeted killings committed abroad. Being a judge-
made cause of action, the District Court discusses at length as to why lower courts
are, and should be, cautious in extending this claim to factual situations distinct
from that of Supreme Court precedent on which it is based—especially when
dealing with national security issues. Thus, the court can deny a remedy under
Bivens when ‘special factors counsel hesitation’ in extending its reach to a new
fact pattern; in this case, that of ‘deprivation of life without due process based on
the overseas killing by United States officials of a U.S. citizen deemed to be an
active enemy’.26 The court mentions similar claims related to detention in
Guantanamo and also found that ‘special factors––including separation of
powers, national security and the risk of interfering with military decisions––
preclude the extension of a Bivens remedy to such cases’.27
In order not to exceed its institutional limits, the court deferred the decision
on whether to grant a cause of action (or not) back to the legislative and ex-
ecutive branches: ‘Whether Plaintiffs can claim damages against the United
States is a decision for Congress and the Executive and not something to be
granted by judicial implication’.28
26
Al-Aulaqi v Panetta (2014) (n 19) 28.
27
ibid 28.
28
ibid 37.
58 Sharon Weill

Thus, although the District Court rejected the non-justiciable arguments, it

did not rule on the merits as it deferred that cause of action (access to court) to
the legislative and the executive branches. Indeed, legislative guarantee of ef-

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fective access to judicial bodies in cases of international/constitutional law vio-
lations is crucial.
One important procedural difference between the Israeli and US legal sys-
tems is that in Israel, plaintiffs have direct access to the Supreme Court while it
is sitting as the High Court of Justice. It has the authority to hear matters ‘in
which it deems it necessary to grant relief for the sake of justice and which are
not within the jurisdiction of another court’.29 Thus, the Israeli Supreme Court is
competent to review the legality of decisions and acts of the State, its agencies
and the armed forces. In the USA, plaintiffs have to submit their claim to first
instance courts, which may be more timid in interfering with politically sensitive
cases. Access to the US Supreme Court—the third and final instance of appeal—
is discretionary, not direct and controlled by the court. In addition, being a third
instance of appeal, it involves a significant amount of costs and time.
Nevertheless, it could very well be that Al-Aulaqi v Panetta (2014) would
have turned out differently had the US Supreme Court been given the direct
opportunity to hear the case.

5. Avoiding or Deferring: Why Does it Matter?

In a lecture given by Lord Justice Richards entitled ‘The International

Dimension of Judicial Review’, the Judge identified an emerging tendency of
English courts to move away from their traditional avoidance position in cases
related to international law and to reject the non-justiciability claims. Yet, it can
be observed that courts are still reluctant to limit the executive.
勉强的
A cynic might say in the light of these cases that things have not changed
greatly since the days when the prerogative powers in relation to the

29
Art 15(c) of the Israeli Basic Law: the Judiciary (28 February 1984). Art 15(d) lists
among its operational authority the competence: (i) to make orders for the release of
persons unlawfully detained or imprisoned; (ii) to order State and local authorities
and the officials and bodies thereof, and other persons carrying out public functions
under law, to do or refrain from doing any act in the lawful exercise of their functions
or, if they were improperly elected or appointed, to refrain from acting; (iii) to order
courts and bodies and persons having judicial or quasi-judicial powers under law . . . to
hear, refrain from hearing, or continue hearing a particular matter or to void a pro-
ceeding improperly taken or a decision improperly given. The Basic Law is available
online at 5http://www.knesset.gov.il/laws/speciaL/eng/basic8_eng.htm4 accessed 15
October 2015. In the Israeli domestic legal structure the High Court of Justice exer-
cises exclusive jurisdiction. Its jurisdiction is exercised as first and last instance. The
procedure is initiated by a petition directly filed by individuals or non-governmental
organizations. In general, the panel is composed of three justices, but for petitions of
particular importance a larger panel of justices up to 15 may preside.
 Reducing the Security Gap through National Courts 59

conduct of foreign affairs were not susceptible to judicial review at all.

The courts have asserted a jurisdiction to intervene but all the claims to
which I have referred have failed.30

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Indeed, these observations might not be limited to cynics. However, in the
long run, the fact that courts assert jurisdiction and reject their traditional avoid-
ance techniques is a turning point in the functioning of national courts and in
their application of international law. Moreover, it may represent a point of no
return: Once a national court has exercised its jurisdiction over armed conflict
issues, it is unlikely to avoid similar cases in future.
Thus, even if contemporary courts’ rulings on the merits produce rulings simi-
lar to those that resulted from judicial avoidance, this move should not be
underestimated. Having opened the gates of judicial review, courts have
initiated a process in which they establish their legitimacy and independence,
in the same way as they did in the domestic domain (such as human rights
protection during peacetime) and the judicial ‘assent’ of the ‘ladder’ of judicial
review is thus only a matter of time.31 Moreover, when courts exercise their
jurisdiction, even if refraining from granting an explicit and binding remedy, in
the course of their review they nonetheless send powerful messages to their
governments, which internalize that next time the courts may be more assertive.
This change is unlikely to occur overnight. It is a process in which courts need
to establish their own legitimacy within their societies as well as a margin of
independence vis-à-vis the authorities. Thus, deference techniques allow an im-
portant transition from the avoidance doctrine towards judicial review. While
cases, previously seen as touching upon a forbidden area, have entered the
sphere of judicial review, courts may well decide to be more assertive in the
future. To turn back to avoidance is less expected. The impact of the court’s
deference on executive policy may give an indication of the court’s institutional
limits within the State in which it operates and may affect the judiciary’s will-
ingness to render similar decisions in the future, given the need for a court to
maintain its authority and reputation.
At the same time, there is a hidden danger with deference. If the State misuses
the discretion allowed by the judiciary, the courts, instead of using their role to
limit abuses of the law, may facilitate a State’s illegal policy. Instead of promot-
ing the normative application of the law, as achievable within the institutional
limits of courts, in the form of a compromise and deference to the executive, the
deference technique may lead to an apologist transformation of the court’s
ruling by the misuse of the discretion allocated to the State.
This was demonstrated well in the follow-up to the Israeli Targeted Killing
case. In the Israeli case, the court ruled that the targeted killings policy could not
be categorically defined as legal or illegal. The legality of the tactic should be
30
Lord Justice Richards, ‘The International Dimension of Judicial Review’ (The 2006
Gray’s Inn Reading, 7 June 2006) 7.
31
Benvenisti (n 23) 257.
60 Sharon Weill

determined on a case-by-case basis and one of the questions to be examined is

whether it complied with the principle of proportionality. The court provided
two further instructions. First, that civilians directly participating in hostilities

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could not be attacked if a less harmful means could be employed. Secondly, the
court deferred the responsibility of conducting independent investigations of a
targeted killing operation to the executive, in order to examine the legality of its
action and to pay compensation to innocent victims in appropriate cases.32
The example of an act that would be obviously disproportionate cited by
President Barak Obama bore an amazing resemblance to another case that was
pending before the court—the targeted killing of Shehadeh, Hamas’ head of
the military wing in Gaza.33 In that case, on 22 July 2002, at around midnight,
an Israeli Air Force plane dropped a one-ton bomb on a densely populated
residential neighbourhood in Gaza in order to kill Shehadeh, who at that time
was in his house with his family. As a result of the operation, Shehadeh and 14
civilians were killed and 150 people were injured, about half of them severely.
In 2003 an Israeli NGO petitioned the Israeli High Court of Justice, demand-
ing that the court review the authorities’ decisions not to open a criminal
investigation into the matter of Salah Shehadeh.34 The court decided to sus-
pend the Shehadeh case until it had given a decision on the Targeted Killings
petition, which it did in December 2006. A few months later, the court held a
hearing on Shehadeh. The court did not review the merits of the authorities’
decisions not to open an investigation. Instead, the court deferred the decision
to the State, instructing it to establish an objective and independent body ‘in
the spirit of the guidelines set down by the Court in the principled ruling on the
Targeted Killings case’.35 Thus, the State was shielded from independent

32
The Public Committee against Torture in Israel HCJ 769/02 (2006) para 40: ‘after an
attack on a civilian suspected of taking an active part, at such time, in hostilities, a
thorough investigation regarding the precision of the identification of the target and
the circumstances of the attack upon him is to be performed (retroactively)’.
33
‘One must proceed case by case. . . Take the usual case of a combatant, or of a terrorist
sniper shooting. . . . Shooting at him is proportionate even if as a result, an innocent
civilian neighbour or passerby is harmed. That is not the case if the building is bombed
from the air and scores of its residents and passersby are harmed’. See also, O Ben-
Naftali, ‘A Judgment in the Shadow of International Criminal Law’ (2007) 5 J Intl
Criminal Justice 322, 330.
34
Yoav Hess and others v. The Judge Advocate General HCJ 8794/03 (2008) 5http://www.
adh-geneva.ch/RULAC/pdf_state/HCJ-decision-8794-03-1-.pdf4accessed 15 October 2015.
The sState’s position was that a debriefing carried out by the defence authorities found that
the collateral damage was caused because of an intelligence failure and therefore was not
anticipated by the decision-makers. The attorney general adopted this position and
decided that there was no reason to order the opening of a criminal investigation regarding
these facts. For more details, see Adalah—Briefing Paper, ‘Israeli Military Probes and
Investigations Fail to Meet International Standards or Ensure Accountability for Victims
of the War on Gaza’ (2010); S Weill, ‘The Targeted Killing of Salah Shehadeh: from Gaza
to Madrid’ (2009) 7 Journal of International Criminal JusticeJICJ, 617–31.
35
Yoav Hess and others, ibid para 8.
 Reducing the Security Gap through National Courts 61

judicial scrutiny following the deference established in the Targeted Killings

case. The State committee established in January 2008 consisted of four former
military and security officials.36 The legal saga, which lasted for more than

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eight years, ended with the State Commission decision not to open an inves-
tigation, while the evidentiary basis for their decision remains essentially un-
known.37 Since the Shehadeh case, the High Court of Justice has never
reviewed the legality of any other specific targeted killing case, nor has any
other State committee.
Therefore, although deference may be required at first to establish the
courts’ position and legitimacy in reviewing such cases, once the position is
established, a court should refrain from using the deference technique.
Instead, courts need to instruct the State explicitly and unequivocally as to
what the law says and the legal consequences of wrongdoing, as required by
the rule of law.

6. Reducing the Security Gap through the Enforcement of

International Law by National Courts: Factors and Conditions

What are the factors that lead courts to choose any of these roles and, in par-
ticular, what are the necessary conditions for reaching their optimal functional
role from the standpoint of the rule of law and the protection of human security?
The following section addresses a number of necessary conditions, consisting of
legal and extra-legal factors.

36
The Prime Minister appointed the commission on 23 January 2008. It was composed
of Brigadier General (Res) Zvi Inbar, Major General (Res) Iztchak Eitan, formerly
the head of the IDF Central Command, and Mr Iztchak Dar, who formerly held a
large number of operative positions in the Security Services, among others as the
Head of the Service’s Israeli and Foreign Interests Section. Its mandate was to func-
tion in accordance with the law that applies to the conduct of a military debriefing,
meaning that all the testimonies and evidence remained classified. Announcement
from the State Attorney’s Office to the HCJ (4 February 2008) para 8 (on file with
the author).
37
In its public report the Commission recognized that, ‘The principle of proportionality
must be carefully adhered to. . . . In this context, maximum caution must be exercised
in the selection of the method of striking the target and the type of weapon to be used
in the operation.’ It affirmed that other ‘possible courses of action were explored, as
well as various methods of operation and the type of weapons that could be used to
ensure a successful outcome’, but these were found not to be suitable. It did not,
however, offer any further explanation as to why a one-ton bomb could lawfully be
chosen and how that choice would possibly accord with international humanitarian
law customary rules of distinction, proportionality and precautions in attacks. The
Commission’s report was published in February 2011. Prime Minister’s Office, ‘Salah
Shehadeh—Special Investigatory Commission’ (27 February 2011) 5http://mfa.gov.il/
MFA/AboutIsrael/State/Law/Pages/Salah_Shehadeh-Special_Investigatory_Commission_
27-Feb-2011.aspx4 accessed 15 October 2015.
62 Sharon Weill

A. The Independence of Courts

When the structural requirements related to independence of courts are ful-

filled,38 the extent of the application of international humanitarian law by na-

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tional courts is dependent on the domestic judicial tradition and the level of
independence and strength of the courts vis-à-vis the political branches of the
government. Here, an analogy to the court’s authority for judicial review of
administrative acts of the State under domestic law can be useful.39 The more
a legal system is used to limit the State, through far-reaching constitutional
powers of review, the more it can be expected that the judiciary will enforce
international humanitarian law, even to the extent of imposing limits on State
acts or legislation. At the same time, because of the special nature of interna-
tional law and, more specifically, the law applicable during armed conflict, too
much ‘activism’ is not necessarily a guarantee of a better enforcement of inter-
national humanitarian law; courts have to take into account political concerns
and the political consequences of their ruling and they have to be concerned
with the effect each ruling might have on the courts’ own legitimacy in their
societies.40
Scholars describe the court’s position in the national system as having a pact
with the political branches, which attributed judicial review competence to the
协议
court.41 A court that exceeds the implicit limits of this pact risks a legislative

38
The independent position of courts vis-à-vis political powers is structurally guaranteed
by several requirements prescribed by human rights law. These include formal pro-
cedural requirements relating to the appointment of judges and their working condi-
tions, the demand that judicial proceedings be conducted openly, fairly and that the
rights of the parties be respected. Art 14 of the International Covenant on Civil and
Political Rights; Art 6(1) of the European Convention on Human Rights (adopted 4
November 1950, entered into force 3 September 1953) 213 UNTS 222; UN Basic
Principles on the Independence of the Judiciary Adopted by the Seventh United
Nations Congress on the Prevention of Crime and the Treatment of Offenders held
at Milan from 26 August to 6 September 1985 and endorsed by UN General Assembly
Resolution 40/32 (29 November 1985) UN Doc A/40/32 and UN General Assembly
Resolution 40/146 (13 December 1985) UN Doc A/40/146.
39
‘If national constitutional courts are willing to strike down laws passed by the national
legislature, then they should have the institutional clout to do the same thing when
enforcing international law.’ M Kumm, ‘International Law in National Courts: The
International Rule of Law and the Limits of the Internationalist Model’ (2003) 44
Virginia J Intl L 19, 24. See also Benvenisti, who proposes on the basis of that analogy
to adjust the requirement of standing. E Benvenisti, ‘Judges and Foreign Affairs: A
Comment on the Institut de Droit International’s Resolution on “The Activities of
National Courts and the International Relations of their State”’ (1994) 5 EJIL 1, 438.
40
Paradoxically too much independence can limit the effectiveness of international law
as the judiciary may lose its ability to compel the executive to act. Nollkaemper argues
that the political dimension of international law not only de facto limits the possibility
of full independence of national courts but also questions the very desirability of such
independence. Nollkaemper (n 1) 59.
41
Benvenisti, ‘Judges and Foreign Affairs’ (n 39) 425–27. In 1994, Benvenisti held the
view that this pact did not include judicial review in foreign affairs, both because of
 Reducing the Security Gap through National Courts 63

counter-response that may impose limitations on the court’s authority for judi-
cial review. Thus, courts must consider the consequences of their ruling, which
may result in follow-up legislation that would invalidate the ruling or, more

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generally, their jurisdiction. As opposed to other fields of private civil and
penal law, the State does not have the same interest in the law of armed conflict
being independently and impartially applied.42 This is because in cases of this
kind, public opinion generally prevails over State national interest and does not
demand the same level of scrutiny as with regard to compliance with the law in
other fields. Courts cannot be expected to stand alone against the State and/or
public opinion in the name of law, particularly in relation to sensitive issues such
as armed conflicts. On the other hand, when the public demand for judicial
scrutiny over international humanitarian law is growing, the court’s independent
position is reinforced.

公正性
B. The Impartiality of Courts

Koskenniemi observes a structural bias within the international legal order: ‘Out
of any number of equally “possible” choices, some choices—typically conserva-
tive or status quo oriented choices—are methodologically privileged in the rele-
vant institutions.’43 This observation also seems to be valid for national courts
that apply international humanitarian law. The inherent impartiality of national
judges is related to the combination of a number of factors that influence na-
tional judges to be willing to serve their State’s national interest while applying
international humanitarian law. First, the judge’s subjective default orientation
tends to cause the judge to defend and favour their own understanding of the
national interest. This is especially true in times of armed conflict. Courts are
State institutions, which consist of judges who are citizens of the State, and who
may share the same sociological and psychological mind-set in time of crisis.44

the absence of the state’s interest in having legal legitimization for its acts abroad and
because of little public demand to have scrutiny over them. R Cotterrell, The
Sociology of Law (Butterworths 1984) 232–36; Franck (n 10) 10–12.
42
‘While in the domestic sphere all branches of government stand to gain from judicial
independence and judicial review, the situation is different with respect to foreign
affairs. In this sphere, the political branches of government do not have the same
interest in impartial judicial scrutiny of their policies. . . . Their only interest is the
judicial vindication of their action abroad.’ Benvenisti, ‘Judges and Foreign Affairs’ (n
39) 426.
43
M Koskenniemi, From Apology to Utopia—The Structure of International Legal
Argument (CUP 2005) 610. See also D Kennedy, A Critique of Adjudication (fin du
sie´cle) (Harvard University Press 1997) 59–60. On the structural bias and the Israeli
High Court of Justice see, Weill (n 4) 37–40.
44
See generally the critique of American Legal Realism, an intellectual movement in
the US during the 1930s: ‘How a judge responds to the facts of a particular case is
determined by various psychological and sociological factors, both conscious and un-
conscious. The final decision, then, is the product not so much of “law” (which gen-
erally permits more than one outcome to be justified) but of these various
64 Sharon Weill

Second, when two sides fall into a conflict that they cannot resolve between
themselves, it is natural for them to resort to a third-party conflict solver. This
is the prototype triadic structure of courts (two disputing parties and a third-

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party decision-maker). The condition for this structure to be legitimated is for
the conflict solver to be perceived as independent and impartial vis-à-vis the two
parties in conflict. As the judge is a State agent, in cases in which the State is a
party to the proceedings, the triadic structure is necessarily weakened as one of
the parties may perceive the third as an ally of its adversary.45
Presumptions, burden of proof and other general rules may serve as legal tools
to mask this structural bias through factual determination. Despite the complex-
ity of establishing the facts in international humanitarian law cases (in which the
State usually possesses exclusive information, already giving it an advantage
over its adversary), additional presumptions are granted in favour of the
State, leading to further weakening of the triadic structure. Unlike when adju-
dicating two private sides, the courts do not always assess where the predomin-
ance of evidence lies. The authority’s version of the facts is given special weight.
The general presumption of honesty, good faith and integrity afforded to
agency officials assumes that the authority’s factual claims are true. See, for
example, the US District Court in the targeted killings case (2014): ‘The per-
sons holding the jobs of the named Defendants must be trusted and expected
to act in accordance with the U.S. Constitution when they intentionally target
a U.S. citizen abroad at the direction of the President and with the concur-
rence of Congress. They cannot be held personally responsible in monetary
damages for conducting war.’46
Coupled with the more general presumption that assumes that the judiciary’s
lack of expertise prevents it from intervening in a decision that was taken fol-
lowing the professional authority’s assessment—the result is that as long as the
agency claims it was guided by reasonable considerations, the decision will likely
be upheld. Moreover, it becomes extremely difficult to prove that the authority’s
decision was arbitrary as States are most often in an excellent position to conceal
the facts of their misdeeds from courts and, unlike the other party, also possess
all the resources necessary to do so.

psychological factors, ranging from the political ideology to the institutional role to
the personality of the judge.’ B Leiter, ‘American Legal Realism’ in DM Patterson
(ed), A Companion to Philosophy of Law and Legal Theory (2nd edn, Blackwell 2010)
249.
45
M Shapiro, Courts: A Comparative and Political Analysis (The University of Chicago
Press 1981) 27. Kosekenniemi observes a structural bias within the international legal
order: ‘Out of any number of equally “possible” choices, some choices—typically
conservative or status quo oriented choices—are methodologically privileged in the
relevant institutions.’ Koskenniemi (n 43) 607. See also Kennedy (n 43) 59–60.
46
Al-Aulaqi v Panetta (2014) (n 19) 37–38.
 Reducing the Security Gap through National Courts 65

C. The Duration of the Conflict and the Public Demand of Judicial Scrutiny

The duration of the conflict, the timing of the review and the length of time

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elapsed since the facts occurred are important factors for courts in determining
their willingness to exercise their authority. An active and independent civil
society and media, which could influence public opinion and increase the
demand for judicial scrutiny during that time, are also of major importance.
The initial stages of armed conflicts are typically characterized by a strong
sense of patriotism and unity of the State in support of the executive. As courts
are State institutions, and judges are State citizens, they are an integral part of
this position. This may partially explain the fact that ‘State interests are attrib-
uted particular weight during wars’.47 However, this is not necessarily the case
when the review is carried out for months or years after the facts (which fre-
quently happens when a case is heard before a second or third instance). The
time interval and public opinion, which has meanwhile crystallized due to
media, NGO and academic reports concerning international humanitarian
law violations, may impact on the court’s willingness to exercise its authority.
Once the conflict becomes protracted it becomes easier for a court to exercise
its authority. It may make it more likely, institutionally, to rule against the
State, a situation that is barely imaginable during the initial stages of an in-
tense conflict.48
Another aspect to be taken into account is the idea that national courts are a
part of a global legal system, a fact of which they are more and more aware while
adjudicating international humanitarian law cases. Thus, if international tribu-
nals, other leading national courts, or UN bodies have already reviewed the
same issue/context, it may be legally and politically easier for a court to
choose a more active role.

D. Access to Court

National courts will not be able to apply international law beyond the compe-
tence accorded to them by their national constitutional framework. Therefore,
the applicability of international law norms within domestic systems and the
competence of courts to enforce them must be guaranteed at the national
level. In view of the fact that international norms are not always sufficiently
detailed to be enforced by a court, even in States where courts may directly
apply international humanitarian law treaty and customary law, States should
enact adapting legislation.49 In order to make these laws enforceable, access to
the courts must likewise be guaranteed by legislation.
47
ibid 37–38. See more generally the critique of American Legal Realism (n 44).
48
On the US Hamdan case, see Weill (n 4) 124–30.
49
M Sassòli, A Bouvier and A Quintin, How Does Law Protect in War? (3rd edn, ICRC
2011) 360–61.
66 Sharon Weill

At the same time, whether international humanitarian law rules represent

applicable norms in the domestic legal system is not merely a normative deci-
sion, but may be also the courts’ policy choice. While national constitutions may

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explicitly allow the importing of international law into their respective domestic
legal systems, the courts still have the ability to decide, by using their interpret-
ative tools, whether international humanitarian law is enforceable or not, like
the avoidance doctrines developed by judges, which impose de facto limitations
upon the access to the court. These include doctrines of non-justiciability and
standing—all doctrines developed by courts for policy considerations.
Violations related to individual rights in specific cases are more readily adju-
dicated. One factor that explains this tendency is the endorsement of interna-
tional human rights law within domestic law, facilitating the access to court and
the development of local political culture in support of its legal enforcement.
Following the human rights law movement of the past 50 years, and its pene-
tration into domestic law and international jurisprudence, national courts have
developed their own important jurisprudence related to human rights and have
thus become their guardians.50 This allows judicial intervention, from a practical
and policy standpoint, and indeed the courts have an established domestic pos-
ition in which they are empowered to limit the State in human rights violations.
Human rights jurisprudence has also become gradually applicable in situations
of armed conflict, as evidenced by the Guantanamo Bay-related cases from
different jurisdictions. Thus, national courts increasingly tend to apply interna-
tional human rights law applicable during armed conflicts, as endorsed by na-
tional constitutional law and providing easier access to court.
As petitioners address courts more and more during actual combat, it can be
reasonably expected that this emerging trend of reviewing armed conflict cases will
be expended also to issues of conduct during hostilities. Interestingly, international
human rights jurisprudence influences that process, as the decision of the
European Court of Human Rights in the Al Skeini case suggests. According to
the British Act of State doctrine, English courts are prevented from considering a
claim of an alien regarding the acts of the UK on foreign soil on behalf of the
Crown.51 Yet, the European Court of Human Rights in Al-Skeini ruled that the
European Convention of Human rights applied extraterritoriality and bound the
UK forces in Iraq (from the moment armed forces exercise effective control),
resulting in access to UK court through the UK domestic Human Rights Act.52
50
Benvenisti (n 23) fn 52 and accompanying text.
51
The British Act of State doctrine prevents English courts from considering a claim of
an alien regarding the acts of the UK on foreign soil on behalf of the Crown. FA
Mann, Foreign Affairs in English Courts (OUP 1986) 184–90.
52
Al-Skeini and others v United Kingdom (Judgment) App No 55721/07 (ECtHR, 7 July
2011) (hereinafter The Al-Skeini case). The Al-Skeini case, para 148: ‘[..] the use of
force by a State’s agents operating outside its territory may bring the individual
thereby brought under the control of the State’s authorities into the State’s Article
1 jurisdiction.’ ‘[..] the United Kingdom assumed authority and responsibility for the
maintenance of security in South East Iraq. In these exceptional circumstances, the
 Reducing the Security Gap through National Courts 67

7. Conclusion

Obviously, legal choices are also motivated by political preferences. Indeed,

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international humanitarian law was drafted by States to govern the use of
force during armed conflicts and an important degree of discretion was left to
accommodate the necessity needs of the armed forces. Therefore, positive law
itself provides a margin of discretion. Yet this is not to be confused with a
position that positive limits do not exist and all positions can be endorsed due
to the indeterminacy of the law.
More and more cases related to armed conflict issues are coming before na-
tional courts. This is so especially in prolonged armed conflicts and situations of
occupation in which the emergency and insecurity that initially brought a society
to renounce judicial scrutiny, slowly becomes routine and then the habitual
domestic democratic public interest of checks and balances regain their natural
place.
It would appear that national judges are in the process of defining their own
role as enforcing organs of international law, which provide scrutiny over State
acts during armed conflicts. From a rule of law and human security perspective,
it is hoped that the courts’ growing practices will gradually replace the diplo-
matic enforcement of international law and that the proper function of national
courts in applying international law, along with the work of international courts,
will result in an international order governed by the rule of law, which genuinely
stands for the protection of human security particularly vulnerable in times of
conflicts.

Court considers that the United Kingdom, through its soldiers engaged in security
operations in Basra during the period in question, exercised authority and control
over individuals killed in the course of such security operations, so as to establish a
jurisdictional link between the deceased and the United Kingdom for the purposes of
Article 1 of the Convention.’