Skip to Main Content

Judicial Review of National Security

Online ISBN:
9780199393398
Print ISBN:
9780199393367
Publisher:
Oxford University Press
Book

Judicial Review of National Security

David Scharia
David Scharia

Senior Legal Officer and Coordinator (Legal and Criminal Justice Group)

Counter-Terrorism Committee Executive Directorate, at the United Nations Security Council
Find on
Published:
20 November 2014
Online ISBN:
9780199393398
Print ISBN:
9780199393367
Publisher:
Oxford University Press

Abstract

In recent years, countries around the world introduced numerous national security programs and military campaigns. Yet, very few of these measures, despite the complex legal questions they raise, have been the subject of rigorous judicial review, much less so in a time that could actually affect the situation on the ground. There are good reasons for this judicial absence, which are discussed. Nevertheless, the absence of real-time review has enormous effect on both human rights and national security. The Israeli Supreme Court provides an excellent case study of a different approach. Its activisism in national security matters is well-known. What is less known is how the Court actually rises to this challenge. This book shows how the Court developed unconventional judicial review tools and practices such as advice-giving and signaling. These tools allowed it to provide judicial guidance to the Executive in real time, often when forces are still fighting terrorism or hostages are being taken. Its aim is to demonstrate that courts could play a much more dominant role in reviewing national security. The most important tool that allowed the Israeli Court to provide such review is intensive real-time inter-branch dialogue with the Executive. The book does not suggest that this model could be copy-pasted anywhere else—it cautions against it. Its aim is to show that if one Supreme Court was able to provide rigorous judicial review of national security in real time, we should reconsider the conventional wisdom regarding the limits of judicial review of national security.

Contents
Close
This Feature Is Available To Subscribers Only

Sign In or Create an Account

Close

This PDF is available to Subscribers Only

View Article Abstract & Purchase Options

For full access to this pdf, sign in to an existing account, or purchase an annual subscription.

Close
-