Judicial Independence in Times of War: Prolonged Armed Conflict and Judicial Review of Military Actions in Israel
34 Pages Posted: 14 Apr 2020
Date Written: 2011
Emergencies, and especially wars, challenge our intuitive approach to judicial independence in two important ways. One relates to the tension between judicial independence as a feature of separation of powers and the need to consolidate powers in times of crisis. The other relates to the tension faced by an (independent) judiciary when the state (of which the judiciary is a part) is threatened by an external enemy. Part II of this Article will present these two challenges and briefly sketch their theoretical roots and possible practical implications. Part III will then examine the issue of judicial independence in times of war in Israel, a state embattled in an armed conflict since its establishment and, as of 1967, faced with administering territories inhabited by over one million residents held under a regime of belligerent occupation. The Article will demonstrate the ability of the Israeli Supreme Court (the Court) to maintain its independence when exercising judicial review over the acts of the military commander in the occupied territories, as revealed by the Court’s reasoning and decisions. Part IV will then outline the limits of such independence, when particularly hard cases are presented for judicial consideration. In conclusion, Part V will address the transnational dimension of judicial independence in times of war. It will suggest that the presence of the international and transnational community places the Israeli judiciary in a state best described as “bounded” independence, in which the Court must navigate between its internal audiences (and constituencies) and the international and transnational legal communities. The latter two may be seen as exercising a kind of peer review over the decisions of the Israeli Court.
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