Blog of the IACL, AIDC

a network of constitutionalists from countries throughout the world

IACL World Congress: Workshop 6

2017CongressLogoOver the coming days, we will be featuring each of the 20 workshops in the 10th IACL World Congress 2018 on “VIOLENT CONFLICTS, PEACE-BUILDING AND CONSTITUTIONAL LAW”,  being held in Seoul, Republic of Korea on 18-22 June 2018. Full details are on the congress website, in English and French, along with information on how to submit a paper. Papers may be in either French or English.

  • Suzie Navot (Israel/ Israël) (suzie@netvision.net.il)
  • Javier Couso Salas (Chile/ Chili) javier.couso@udp.cl

Many countries suffer from violent conflicts. War and terrorism defy democracy and challenge democratic states. Clearly, traditional, time-consuming legislative steps fail when states require urgent and emergency tools. Violent conflicts and the war on terrorism might require the reaching of decisions that are inconsistent with democratic values. The end might be confused with the means. Democracies must make difficult and delicate decisions on ways to balance national security and human rights. The question of whether the rule of law and emergency powers may co-exist is problematic in nature and nations worldwide have discovered the hard way that ordinary legal instruments that suit ordinary times may be lacking in times of war or when counter-terrorist action is required.

What is the role of judges during times of war –a traditional war or a war on terrorism? A central question in times of war is whether courts may intervene in the decisions of bodies whose duty it is to actually control the conflict, or fight against terrorism. Special legal tools are employed in times of emergency that might threaten the liberties of the population they are meant to defend, violate human rights and conflict with other democratic values. It has therefore been argued that the courts should avoid intervening when decisions or laws are made to fight terror in times of emergency or during violent conflicts. Some argue that judicial review undermines security, while others claim that judicial review unjustifiably legitimizes governments’ actions in times of war.

This workshop deals with the different aspects of the topic, including the following questions (that are, of course, not exhaustive):

  • Access to courts in times of crisis
  • Political questions in times of war
  • Justiciability and standing
  • Judicial review of emergency legislation, temporary legislation and regulations
  • Unconstitutional constitutional amendments during conflicts and emergency times
  • Applying the principle of proportionality in times of war
  • Balancing between human rights and national security
  • Judicial examination of the military operations
  • The question of the initiation of wars and judicial review
  • War powers
  • Judicial tools and remedies

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This entry was posted on August 27, 2017 by in IACL roundtable and tagged .
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