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Abstract

This Article offers three complementary explanations for the decision of the Israeli administration to deviate from the ruling in the Targeted Killings case. The first explanation relates to the ISC’s willingness to apply judicial review in military operations cases. In addition to its significance for the debate over the substantive rules of asymmetric warfare, the Targeted Killings case serves as a symbol of the willingness to engage in extensive judicial review of a state’s conduct of hostilities policy. The activist role of the ISC in such cases from the late 1990s to 2008 was widely recognized, celebrated, and discussed in the international law literature. This Article suggests that the international law literature has ignored a countertrend in which, since 2009, the ISC has appeared to defer to the executive’s positions in conduct of hostilities cases. The court’s deference enabled the Israeli administration to deviate from the Targeted Killings case without fear of judicial intervention. In addition to the explanatory force of the ISC’s deference to the administration’s decision to adopt a formal membership approach, the analysis of the ISC’s cases offers a new theoretical insight on the complex identity of domestic courts as both national and international actors. When facing significant international pressure, domestic courts’ national identity might be enhanced, resulting in greater deference to the government’s position.

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