Reichman, A. (2011). Judicial Independence in Times of War: Prolonged Armed Conflict and Judicial Review of Military Actions in Israel. Utah L. Rev., 63.
Introduction
Emergencies, and especially wars, challenge our intuitive approach to judicialEmergencies, and especially wars, challenge our intuitive approach to judicialindependence in two important ways. One relates to the tension between judicialindependence as a feature of separation of powers and the need to consolidatepowers 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 anexternal enemy. Part II of this Article will present these two challenges and brieflysketch their theoretical roots and possible practical implications. Part III will thenexamine the issue of judicial independence in times of war in Israel, a stateembattled in an armed conflict since its establishment and, as of 1967, faced withadministering territories inhabited by over one million residents held under aregime of belligerent occupation. The Article will demonstrate the ability of theIsraeli Supreme Court (the Court) to maintain its independence when exercisingjudicial 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 thelimits of such independence, when particularly hard cases are presented for judicialconsideration. In conclusion, Part V will address the transnational dimension ofjudicial independence in times of war. It will suggest that the presence of theinternational and transnational community places the Israeli judiciary in a statebest described as "bounded" independence, in which the Court must navigatebetween its internal audiences (and constituencies) and the international andtransnational legal communities. The latter two may be seen as exercising a kind ofpeer review over the decisions of the Israeli Court.