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VOLUME 42 (3) Introduction
Yuval Shany
Symposium on Mark Tushnet's The Rights Revolution in the Twentieth Century
Précis: The Rights Revolution in the Twentieth Century
Mark Tushnet
The Vices of Institutional Instrumentalism
Alon Harel
“Everything Flows”
Margit Cohn
Is it the Right Revolution?
Rivka Weill
Rejoinder
Mark Tushnet
ARTICLES
Judicial Review in Central and Eastern Europe: Rationales or Rationalizations?
Wojciech Sadurski
Constitutional judicial review in Central and Eastern Europe has become an entrenched and powerful factor in the politics and constitutional life of these countries; indeed, it would be impossible to give even a rough account of these new democracies without bringing constitutional courts into the picture. For all their importance and activism, their introduction had not been preceded by any thorough debates concerning the merits and demerits of the model transplanted from Western Europe—especially, from Germany—and the developing jurisprudence of the courts was strangely silent about the grounds and the limits of the courts’ legitimacy, especially when replacing parliamentary choices on rights implicating matters with the courts’ own views about the proper articulation of vague rights-provisions. This Article explores some of the reasons and consequences of this silence.
Volume 41 (1-2) Disengagement from Gaza and Post-Occupation Duties
Benjamin Rubin
Israel’s disengagement from the Gaza Strip has created a situation in which this territory is dependent on the supply of various necessities by Israel, in particular the supply of electricity. In 2008 Israel decided to withhold 5% of the supply of electricity to the Gaza Strip, prompting several Gaza residents as well as human rights organizations to petition the Supreme Court of Israel against this decision. In Jaber Al-Bassiouni Ahmed v. The Prime Ministerthe Court assumed that the Israeli occupation of the Gaza Strip had ended with the disengagement and treated this issue on the basis of general humanitarian law. The basic questions of whether the occupation had ended, and whether certain duties remained with Israel, even assuming that Gaza is no longer occupied, have not been explored. This Article addresses these two questions.
It is the conclusion of this Article that regardless of the terms imposed by Israel after disengagement and other reservations that have been raised in this regard, occupation ended following the complete withdrawal of any Israeli presence in the Gaza Strip. Israel’s disengagement raised difficulties that are not only unique to the Gaza Strip; these difficulties emerge in most cases when occupation is replaced by a process of self-determination rather than the return of the former sovereign. The contention presented herein is that Israel continues to have certain post-occupation duties even after the occupation of Gaza. These duties correspond to the occupant’s duties to care for order and civil life in the territory during the occupation. These obligations will end once the new regime in the area is able to perform the duties that fell upon the shoulders of the occupant during the occupation, or until the non-performance of the new regime is attributable to its own failures and not to the ending of the occupation. In light of these contentions, Israel is still under certain obligations regarding the Gaza Strip, among them the regular supply of electricity to that area.
The Meaning and Liberal Justifications of Israel’s Law of Return
Dan Ernest
The Article argues for a new assessment of the significance of Israel’s Law of Return. It argues that the Law of Return reflects not the sovereign prerogative of a state to control immigration, but the right of every Jew to settle in the Land of Israel. This understanding of the Law of Return explains why Section 4 proclaims that as far as the Law is concerned, the status of Jews born within the State of Israel is the same as those arriving to Israel from abroad. Resolving the anomaly of Section 4 dispels several misinterpretations of the Law of Return and the critiques of the Law which grow out of these misinterpretations. The Article also surveys and answers several liberal objections to Israel’s policy of granting preference in immigration and naturalization based on ethno-national identity and presents an argument for giving priority to Jewish immigration and naturalization based on the extra benefits (religious, political, and communal) that Jews receive from such immigration and naturalization. Finally, it is submitted that the State of Israel has an obligation of justice to admit Jews into the state as full citizens upon their demand, since this was a reasonable expectation of those in past generations who had contributed to the existence and maintenance of the state.
“Otherness” as the Underlying Principle in Israel’s Asylum Regime
Tally Kritzman-Amir
This Article aims to provide the first thorough description of the developing asylum system in the State of Israel. It argues that despite the inherent moral and doctrinal differences between asylum and immigration regimes, the Israeli asylum system is essentially an extension of Israel’s immigration and citizenship regime, which excludes the non-Jewish refugees and frames the refugee as the “other,” with the Palestinians and other enemy nationals facing maximum exclusion. While this phenomenon is not uncommon in today’s world, which suffers from “compassion fatigue,” diluted protection, and adherence to national self-interest, the Israeli example is exceptional for a number of reasons: 1) it came into being only decades after the rest of the democratic developed countries developed their asylum systems; 2) it is rooted in challenging—albeit not exceptional—geo-political conditions; and 3) it works against the background of a very unique immigration law.
BOOK REVIEWs
The Palestine Question in International Law, compiled and edited by Victor Kattan (British Institute of International and Comparative Law, 2008)
Robbie Sabel
vOLUME 42 (2) Yuval Shany SYMPOSIUM ON RICHARD A. POSNER’S NOT A SUICIDE PACT: THE CONSTITUTION IN A TIME OF NATIONAL EMERGENCY Précis: National Security and Constitutional Law Richard A. Posner Cost-Benefit Analysis and National Emergencies Alon Harel BALANCING, JUDICIAL REVIEW, AND DISOBEDIENCE
Re'em Segev A Comment on Preventative Means in General and on Torture in Particular Mordechai Kremnitzer, Liat Levanon Rejoinder Richard A. Posner ARTICLES End-of-Life Care in Israel—The Dying Patient Law, 2005 Carmel Shalev After years of political stalemate on the issue of end-of-life medical care in Israel, the Knesset enacted the Dying Patient Law in 2005. This Article argues that the new law manifests a paradigm shift in the normative framework regulating end-of-life treatment in Israel, from a patient right approach based on the principle of autonomy, to a physician duty approach based on the principle of the sanctity of life. In so doing the law created a complex web of formal procedural rules and culturally unique legal artifices, which amount to a maze of medicolegal technocracy. The technocratic maze conceals substantive restrictions on rights to patient autonomy which had been recognized in the former case law in relation to the withholding and withdrawal of medical treatment. In particular, under the new law, the request of a competent patient to withdraw artificial respiration may not be respected, and the advance directives of an incompetent patient to withhold artificial nutrition are of no effect. Beyond a question of constitutionality, the Article suggests that the underlying approach of the law to death and dying is an unskillful response to the challenges that have arisen from life extending technology. Television Coverage of the Israeli Supreme Court 1968-1992: The Persistence of the Mythical Image Or Bassok During the 1980s the Israeli Supreme Court went through revolutionary changes, becoming more active in public life and in the political arena. Scholars predicted that the institutional legitimacy of the Court, based on its image as an objective, neutral, and apolitical institution, would decline following these changes. However, public polls showed that the Court’s institutional legitimacy remained very high long after the 1980s. This Article aims to explain the lack of a decline in the institutional legitimacy of the Court during those years by presenting an empirical study of the Court’s news television coverage beginning with the inception of Channel One (1968) until just before the entrance of the commercially financed Channel Two (1993). The Article shows that the increase in the visibility of the Court was not substantial enough to diminish the Court’s image. Moreover, television continued to present the Court, by and large, through a mythical perspective as an objective, neutral, and apolitical body. The Article concludes that the Israeli public, unaware of the changes in the Court’s adjudication, continued to award the Court support based on the Court’s unchanged fabled image presented by the news media. Hence, a politically active court may continue to receive high public support based on in its mythical image if the changes in its adjudication are not visible to the public. Research of the portrayal of courts in the media is thus of utmost importance in understanding changes in the institutional legitimacy of courts. The Transnational Use of Torture Evidence Kai Ambos The Article examines the “transnational” use of torture evidence, i.e., the use of evidence obtained by torture by third states or parties in national criminal trials. The analysis of the law of the international criminal tribunals shows that supranational torture evidence must be excluded since such evidence is unreliable and damages the integrity of the proceedings. The same applies to the admission of transnational torture evidence before national tribunals. The strict exclusionary rule of Article 15 Convention Against Torture (CAT) confirms this view. The rationale for this rule is found in the general unreliability of torture evidence, its offensiveness to civilized values and its degrading effect on the administration of justice. The burden of proof must, as a rule, rest with the state as the party that presents the controversial evidence. For practical and fundamental considerations of fairness, such evidence should not be admitted if there is a real, serious risk that it was obtained by torture. Research on Embryos and Human Dignity Gunnar Duttge The legal framework in effect in Germany since 1991, bars all research on human embryos and permits, since 2002, the import of embryonic stem cells only under the fulfillment of relatively demanding conditions. Legislation linked this position to the goal of ensuring freedom of biomedical research (only) to the extent that it could be justified in view of the state’s obligation to protect human dignity and the right to life. Underlying this was the assumption, understood by the draft of the law that embryonic stem cells, given the destruction of embryos, which necessarily precedes their utilization, “cannot be viewed just like any other biological material from an ethical perspective.” In the meantime, however, the legal-political, would-be “enlightened”; Zeitgeist has become oriented toward a hidden or openly displayed “liberalization” of human embryonic stem cell research, which raises the question of what could have fundamentally changed about the previously named “ethical problem.” Great uncertainties obviously exist regarding the central significance of the “human dignity” guaranteed to be “inviolable” as well as about the relevance of this “iron ration” of libertarian-humanist legal thought in the context of destructive embryo research. The present essay gives an overview of the potential interpretive possibilities and subjects them to critical examination against the background of current legal political developments, which are perceived in Germany not only as a “revolution” not only in the sphere of biological policy, but also ultimately in that of the central determining factors in general in the relationship between state and individual. In this light, how can the kernel of the ideal of human dignity be preserved even against the demands of the (post-) modern (age)? Democracy and Human Dignity: Limits of a Moralized Conception Christoph Möllers The Parliamentary Council, the constitutional assembly for the German Basic Law, split over the question whether the guarantee of human dignity should be understood as the result of a democratic decision or as the incorporation of a pre-existing universal principle of Christian origin. The subsequent constitutional practice was dominated by a moral understanding of the norm that stressed the contradiction between democracy and human dignity. This Article rejects this interpretation and attempts to show, using the exemplary German case, that a democracy-oriented interpretation of human dignity is not necessarily less effective than a moralized understanding. Volume 42 (1)
SYMPOSIUM ON COMPLEMENTING INTERNATIONAL HUMANITARIAN LAW: EXPLORING THE NEED FOR ADDITIONAL NORMS TO GOVERN CONTEMPORARY CONFLICT SITUATIONS Rethinking the Application of IHL in Non-international Armed Conflicts The first step in application by treaty of IHL norms to non-international armed conflicts, adoption of Common Article 3 of the Geneva Conventions, 1949, was taken before the dramatic development of international human rights law (IHRL). The assumption was that unless international humanitarian law (IHL) norms were applied to such conflicts, the way States acted would be unrestrained by international law. With the development of IHRL this assumption is no longer valid. Application of IHL in such conflicts should therefore be re-examined. The Article argues that moving away from IHL in non-international armed conflicts should be based on the following principles: 1. In cases other than international armed conflicts, the presumption should be that the prevailing international legal regime is the human rights regime, based as it is on a law-enforcement model of law, rather than an armed conflict model. 2. The only justification for departure from that regime and for action under the armed conflict model, should be that the level and scope of organized armed violence are such that the State cannot reasonably be expected to act in accordance with the law-enforcement model. The rule of thumb in deciding whether this test has been met could be the definition of non-international armed conflicts adopted in APII. 3. There should be a return to the notion of minimum humanitarian standards or fundamental standards of humanity, which apply to all parties in all situations, whether armed conflict, internal violence, disturbances, tensions and public emergencies. 4. A State should not be allowed to employ the armed conflict model, without at least some of the norms of protection that this model affords parties in international armed conflicts. The ideal solution would be to demand that a State, which employs the armed conflict model has to draw the legal consequences and recognize as combatants those members of dissident forces who meet the substantive conditions of combatants under Article 4, paragraph 2 of Third Geneva Convention.
Transnational Armed Conflict: A “Principled” Approach to the Regulation of Counter-Terror Combat Operations Geoffrey Corn & Eric Talbot Jensen Transnational armed conflicts have become a reality. The increasing sophistication of terrorist organizations, their increasingly transnational nature, and their development of military strike capabilities, push and will continue to push States to resort to combat power as a means to defend against this threat. Relying on the factual fiction that the acts of such terrorists must be attributable to the States from which they launch their operations, or on the legal fiction that the use of military combat power to respond to such threats is in reality just extraterritorial law enforcement, fails to acknowledge the essential nature of such operations. Because these operations invoke the authority of the LOAC, they should and must be treated as armed conflicts. LOAC principles must be identified and must be broad enough to provide the authority necessary to bring the transnational enemy to submission while ensuring that that authority does not override fundamental humanitarian protections for victims of war. This Article proposes three essential pillars of this regulatory foundation: military necessity, targeting (object/distinction and proportionality), and humane treatment. These principles provide the balance between authority and obligation that is so essential for the effective and disciplined application of combat power. Like the treatment of internal armed conflict, these pillars can form a foundation for a more comprehensive treatment of regulatory analysis, encompassing other issues such as command responsibility, criminal liability, access to judicial review, perfidy and treachery, and medical obligations.
COMPLEMENTING OCCUPATION LAW? SELECTIVE JUDICIAL TREATMENT OF THE SUITABILITY OF HUMAN RIGHTS NORMS
Ralph Wilde
This Article offers a critical evaluation of the treatment of the suitability of applying human rights law to occupation situations offered by the English House of Lords in the Al-Skeini judgment of 2007. Al-Skeini concerned the application of the European Convention on Human Rights (ECHR) to the United Kingdom in Iraq. In the decision, the majority asserted that the application of human rights law would amount to a form of “imperialism” in requiring an occupying State to impose culturally inappropriate norms in occupied territory. They also found that its application would undermine the status quo norm contained in occupation law, by obliging an occupying State to transform the legal system in occupied territory in order to bring it in line with the human rights standards in play. This Article argues that these two assertions are based on a mistaken understanding of the substantive meaning of human rights obligations in occupation situations, and the effect on this meaning of the interface with other areas of international law. It is suggested that the fear of “human rights imperialism” is, as articulated here, misconceived; that applying human rights law to occupation situations may not actually involve breaching the law of occupation; and that in any case a more sophisticated approach to the question of clashes in normative regimes needs to be adopted.
THE LAW APPICABLE TO NON-OCCUPIED GAZA: A COMMENT ON BASSIOUNI V. THE PRIME MINISTER
Yuval Shany
Although Israel no longer effectively controls Gaza, Israel’s of overwhelming physical dominance over Gaza, coupled with the historical links of dependence, were likely central to the balancing formula applied by the High Court of Justice in Bassiouni v. The Prime Minister. The proposed solution—Israel assumes obligations that go beyond the requirements of International Humanitarian Law (IHL) in situations of siege but that fall short of the requirements applicable in situations of occupation—is the “basic humanitarian needs” standard. The main weakness of the Court’s decision is not the final outcome it prescribes but the underdeveloped legal analysis of the alternative grounds for imposing obligations on the Israel. This unnecessarily complicates attempts to grasp the full implications of the decision and to identify its precedential value. However, the judgment should be viewed as endorsing the need to step outside IHL and look for additional legal norms governinghumanitarian interests which may reflect our moral sensibilities and contemporary needs in a more appropriate manner than the traditional rules of IHL.
ECONOMIC SANCTIONS IN IHL—SUGGESTED PRINCIPLES
Amichai Cohen
Armed conflicts are always harmful for civilians and hence all attempts should be made to avoid them. However, considering that armed conflicts do occur; economic sanctions provide States with a viable alternative. This Article illustrates the need for limitations on the use of economic sanctions. It describes the characteristics of economic sanctions and the existing International Humanitarian Law (IHL) limitations and also suggests that economic sanctions should be further regulated offering three main principles to guide these limitations: the principle of severity, according to which the most severe economic sanctions should be prohibited; the principle of effectiveness, according to which economic sanctions should be allowed only if the State imposing the sanctions can plausibly demonstrate that the sanctions are effective; and the principle of conditionality, according to which the imposing State should declare specific achievable goals for the sanctions, and lift the sanctions immediately when these goals are achieved.
PRAGMATISM AND PRINCIPLE IN INTERNATIONAL HUMANITARIAN LAW Michael M. Lieberman
As we seek to identify new norms to bridge the gaps between extant law and the challenges that new conflict modes pose today, we confront a threshold question as to which methodological ground we should stand upon in doing so. Based on a background assumption of positivism as the source of substantive norms, the issue for some observers comes down to a clash between pragmatism and formalism. To formalism’s proponents, the concept of pragmatism—which sees law as a functional instrument to be used in pursuit of pre-envisioned ends—has contributed to a dearth of moral obligation in international humanitarian law discourse. Such a view considers that the emphasis on empiricism found in pragmatism both legitimizes and shrouds the reality of effective power lurking behind the law. The alternative they prefer, championed most articulately by Professor Koskenniemi, is a “culture of formalism” that sees law as an object of universal obligation and as a form of critique that unmasks the pragmatic mode for what it is, namely, a rationalization of might. As this Article suggests, this understanding misapprehends the true nature of pragmatism, which is neither a smokescreen nor an apology. Rather, pragmatism’s focus on real-world effects and consequences holds far greater promise for advancing the actual humanitarianism of IHL. Formalism, moreover, is subsumed within the constellation of factors that pragmatic analysis demands. These ideas are explored on a theoretical level, and are then illustrated by a look at the Israel separation barrier cases decided by the International Court of Justice and the Israeli High Court of Justice.
THE INTERNATIONAL LEGAL ORDER OF INTERNATIONAL AND REGIONAL ORGANIZATIONS AS A COMPLEMENTARY FRAMEWORK FOR THEIR OBLIGATIONS UNDER IHL: THE CASE OF THE EUROPEAN UNION Valentina Falco
When exploring the sources of International Humanitarian Law (IHL) obligations of multinational peacekeeping forces, legal scholars have thus far focused mainly on the UN (and, to a lesser extent, NATO), whilst other organizations have remained largely in the shadows. Whereas the UN Secretary-General’s Bulletin on the Observance by UN Forces of International Humanitarian Law has been widely debated and extensively investigated, little or no attention has been paid to self-regulatory solutions adopted by other international and regional organizations. This Article focuses on the European Union (EU), holding that this regional organization—by virtue of its sui generis nature and of its increasing engagement in the field of crisis management—can be regarded as one of the most interesting newcomers to the realm of jus in bello. More specifically, it looks at the EU’s internal legal order with a view to verifying whether and to what extent it may complement customary IHL in regulating the conduct of the EU as a military actor. The Article surveys the primary and secondary sources of EU legislation which may prima facie spell out obligations for the EU-led troops engaged in European Security and Defence Policy military operations. Finally, the Article seeks to draw some broader conclusions on the nature of the relationship between EU law and IHL, as well as on the complementarity and inherent normative value of their sources.
BOOK REVIEW
Exploring Social Rights: Between Theory and Practice,
Daphne Barak-Erez & Aeyal M. Gross eds.,
(Hart Publishing, 2007) Pp. 409.
Allan Rosas
Volume 41 (3) Winter 2008
Lionel Cohen Lecture
Reflections on Holocaust
Claims in International Law
Lawrence Collins
A Symposium on Constitutional Rights
and International Human Rights Honoring
Professor David Kretzmer
INTRODUCTION
Yuval Shany
TWO SIDES OF THE SAME COIN?:
DEMOCRACY AND INTERNATIONAL HUMAN RIGHTS
Henry J. Steiner
The Article explores relationships between contemporary international human rights and democracy. In what respects are they two sides of the same coin, in what respects are they different coins? Do they depend on and complete each other? Can the two be in contradiction? The Article looks at these questions from several perspectives, including their historical connections, the changing definitions and understandings of each, their functional links, their determinacy, and their character as universal phenomena. It also indicates ways in which courts, which have long interpreted and applied human rights, now also reach decisions about constitutional issues by drawing on their conception of democracy.
ESTABLISHING A HIERARCHY OF HUMAN RIGHTS:
IDEAL SOLUTION OR FALLACY?
Eckart Klein
The Article discusses the difficulties of establishing a hierarchy of norms in international law, particularly with regard to human rights norms. A number of arguments have been put forward but none of them has proven to be conclusive: be it the distinction between treaty-based norms and norms of customary law, be it the non-restrictability or non-derogability of some treaty rights, be it their erga omnes character or the inadmissibility to make reservations. The best way to address the issue of hierarchy seems to be the concept of jus cogens. However, the consequences of some rights being “superior” to others are by no means clear. The fact that certain rights are addressed in court decisions as being “most fundamental” or representing a “supreme value” does not necessarily mean that these rights prevail over other, seemingly “inferior,” rights in a given case. This is so because it is difficult to decide in abstracto and in advance possible conflicts of human rights positions of different human beings. The Article therefore recommends a very reluctant use of a terminology pointing at a hierarchy between human rights.
THE TRANSFORMATION OF CONSTITUTIONAL LAW
THROUGH THE EUROPEAN CONVENTION
ON HUMAN RIGHTS
Jochen A. Frowein
Only five years after the end of the Second World War terminating the complete disregard for human rights in one of the important European countries and in the occupied territories, the governments of European countries agreed on a European Bill of Rights and took the first steps toward collective enforcement of certain rights of the Universal Declaration, adopted by the General Assembly of the United Nations in 1948. Evidently the Convention was a response to the totalitarian ideologies prevailing in national socialism but also to the communist ideology and practice governing the Soviet Union and the European countries behind the iron wall. Was the Convention intended to be more than a response and clarification of the fundamental principles which were well recognized in the constitutional structure of the free European states? If this is the case it should have had an impact on the legal system of member states. How far that impact would go was certainly not foreseen in 1950 or 1953 when the Convention came into force. By hindsight we may say that the establishment of the European Commission of Human Rights and the European Court of Human Rights as judicial organs to enforce the Convention had something that is called “List der Vernunft” in German, a certain rule of reason, not fully understood by the drafters.
THE SINGARASA CASE: QUIS CUSTODIET ...?
A TEST FOR THE BANGALORE PRINCIPLES
OF JUDICIAL CONDUCT
Nigel Rodley
This Essay considers the 2006 Sri Lankan Supreme Court case, Singarasa v. Attorney General, which declared unconstitutional the state’s eight-year-old accession to the Protocol permitting the Human Rights Committee to examine complaints of violation of the International Covenant on Civil and Political Rights. It places the decision in the context of the Committee’s earlier findings of Covenant violations by Sri Lanka resulting from actions by the Court. This forms the basis of a discussion of problems of identifying questionable judicial conduct and the relevance of the Bangalore Principles of Judicial Conduct.
WHAT'S HAPPENING TO THE RIGHT TO A FAIR HEARING
Arthur Chaskalson
The policies of the U.S.—developed in response to the threat of terrorism have been criticized. This is of importance, not only because of the harm it does to the United States own reputation, but because of the influence such measures have on other countries with less commitment to the protection of human rights than the United States has historically had. It is, however, a crucial issue because of the impact that such policies can have on the political will of the international community to respect and promote half a century of endeavor to build an international human rights culture, and on attitudes and behavior in countries affected by such measures. The exception becomes the rule; the temporary becomes permanent; and fairness and due process cease to have the meaning they once had. This Article’s remarks are directed to the right to a fair hearing which must be seen, however, in a broader context as a concern about a discourse which, whilst retaining the label, seeks to change the content of established principles of human rights.
A SKEPTICAL VIEW OF DEFERENCE TO THE
EXECUTIVE IN TIMES OF CRISIS
Fionnuala Ni Aoláin
Oren Gross
In times of crisis there is an unmistakable tendency to augment and extend the powers of the executive branch. This centralizing tendency has been exhibited in numerous legal systems and through varied kinds of crisis. More recently, similar trends have been much in evidence in the United States, and a corresponding academic discourse defending and extolling the virtues of such augmentation has emerged. This Article is skeptical of the virtues of such advice and its ultimate policy benefits. We assert that there are substantial dangers to the centralization of crisis powers in times of emergency. These tendencies hold particular perils for the democratic state. Moreover, the rush to create or cement decision and review making hierarchies can be antithetical to the project of utilizing the strengths of rule of law based societies to respond to the challenges posed by violent actors. The purported benefits of excluding, or at best sidelining, the courts from review of executive actions of crisis regulation are particularly ill conceived. Such proposals consistently fail to engage with the importance of across-the-board institutional legal engagement with state action in times of crisis. The success and value of such engagement cannot be measured from the crisis vantage point. Rather it requires an assessment beyond the moment of exception, factoring in a return to normalcy and the impact on law and legal institutions in the post-crisis phase. We assert that scholars advocating for exclusive executive supremacy in times of crisis fail to measure the harms that may be caused by inept or illegal state action, not only as experienced by individual victims but to the broader project of discouraging and dissuading the resort to group based violence.
WHAT HUMAN RIGHTS LAW COULD DO: LAMENTING
THE ABSENCE OF AN INTERNATIONAL HUMAN RIGHTS
LAW APPROACH IN BOUMEDIENE & AL ODAH
Fiona de Londras
In December 2007 the U.S. Supreme Court heard oral arguments in its latest Guantánamo Bay cases, Boumediene v. Bush and Al Odah v. United States. Interestingly, the argumentation offered in this litigation was almost exclusively domestic—international human rights law did not feature in spite of its capacity to add significantly to the weight and persuasiveness of the arguments petitioners’. In respect of both the geographic scope and the content of constitutional standards, international human rights law has a well-developed body of jurisprudence that, this Article argues, ought to have been advanced by counsel for the petitioners. This Article both exposes the potentially significant international human rights law arguments that could have been advanced, and explores some possible reasons for the marginalization of this body of law. The Article concludes that this strategic decision on the part of counsel for the petitioners robbed the U.S. Supreme Court of an opportunity to assert the relevance of human rights law to the “War on Terrorism,” and to expand on the relationship between international and domestic constitutional standards and, for those reasons, is to be lamented.
TRADITIONALIST RELIGIOUS AND CULTURAL
CHALLENGERS—INTERNATIONAL AND CONSTITUTIONAL
HUMAN RIGHTS RESPONSES
Frances Raday
The legal regime of human rights entitles individuals and groups to legal protection against the hegemony of the political majority, of the religious establishment and of other powerful social actors. This Article examines the way in which this protection is implemented at the constitutional and international levels. Within states, it is at the constitutional level that the supremacy of human rights is translated into a normative paradigm. However, within states there may be opposition to the human rights regime—pragmatic or ideological—from powerful lobbies: majoritarian or sectoral. This opposition may result in lack of political will to apply or enforce human rights through constitutional mechanisms. The author shows that, in contrast, the formulation of the human rights vision at the international level consistently underwrites the human rights of individuals and groups as against the power of traditionalist religious or cultural norms. She suggests that the future of human rights as a universal paradigm depends on the effectiveness with which international norms can be translated to the constitutional level thus suggesting a reversal of the previously observed process of translating from the constitutional to the regional.
TOWARD PARTICIPATORY EQUALITY: PROTECTING
MINORITY RIGHTS UNDER INTERNATIONAL LAW
Yousef T. Jabareen
The principal claim made by this Article is that the realization of full and effective equality for all citizens and residents within a multi-ethnic state requires “participatory equality.” Creating a system of participatory equality entails, for most states, making drastic and fundamental changes to the state’s legal system, public spaces, social and economic structures, and funding and space provided for ethnic, cultural, and religious institutions; however, this type of transformation is the only means of respecting human dignity and ensuring peace. This claim is first made as a normative moral claim based on principles of justice and dignity; as this Paper will show, a broad and effective interpretation of international law concerning minority rights supports the same normative claim.
This Article first reviews existing international law and other legal frameworks regarding national minority rights, including discussions of the specific case of indigenous peoples’ rights and the intersection between individual and collective rights. The bulk of the Paper proposes a universal model, building upon existing legal frameworks, for building participatory equality for all members of a society, which requires the full and equal sharing of its resources in three primary domains: the public, the internal, and the historical domain. The need for such a model is all the more so for indigenous and minority groups of substantial size living under systems that cater to a majority based on ethnicity, religion, race or other dominant traits. Only when a nation’s legal system secures the rights of all citizens to share equally in all of these domains can that nation fulfill the purpose of international minority rights legal bodies and deliver substantive equality to majority and minority concerns, both in law and practice.
CONSTITUTIONAL RIGHTS AND THEIR RELATIONSHIP
WITH INTERNATIONAL HUMAN RIGHTS IN GHANA
A. Kodzo Paaku Kludze
Particularly in developing nations, the movement has been toward the articulation of elaborate provisions in constitutions which guarantee the basic human and peoples’ rights of the citizenry. In many cases these are reflections of the immediate past history of the young nations which were strewn with ugly spectacles of dictatorships on their path to democracy. The history of Ghana is unfortunately an illustrative example. The Ghana Independence Constitution of 1957—a very brief document—was brief to a fault and bereft of any provision for human rights. It is clear that the experience of years of abuse of human, political, and civil rights in Ghana explains many of the current constitutional guarantees of basic rights spelt out in the 1992 Constitution in order to protect citizens against future abuses. In the past, treaty obligations under municipal laws of Ghana were such that even ratification of human rights treaties did not directly confer enforceable legal rights in the domestic courts of Ghana and implementing legislation was necessary to make a treaty right justiciable. In the 1992 Constitution of Ghana, the provisions of the Universal Declaration of Human Rights and of the African Charter on Human and Peoples’ Rights, as well as others, are entrenched as constitutional provisions, are to be interpreted as such, and enforceable under the laws of Ghana. To the extent that drafters of the Ghana Constitution relied on the principles of the international human rights law enshrined in treaties and declarations, there are many similarities between the domestic law and some principles of international human rights law.
Forty Years after 1967: Reappraising the Role and Limits of the Legal Discourse on Occupation in the Israeli-Palestinian Context
Introduction Yuval Shany Occupied Zone—a Zone of Reasonableness
Martti Koskenniemi Rules and Standards in the Application of International Humanitarian Law Amichai Cohen Binary Law Meets Complex Reality: The Occupation of Gaza Debate Yuval Shany Human Rights, Israel, and the Political Realities of Occupation Grant Harris Maintaining Law and Order during Occupation: Breaking the Normative Chains Kenneth Watkin Illegal Occupation and Its Consequences Yaël Ronen The Jus Ad Bellum/Jus in Bello Distinction and the Law of Occupation Rotem Giladi Suspending Sovereignty: An Alternative to Occupation in the 21st Century? Neomi Gal-Or Enforcement of Occupation Law in Domestic Courts: Issues and Opportunities Tristan Ferraro Book Reviews
Dignity, Compassion, Care and Safety Valves at the End-of-Life
Marc Groenhuijsen and Floris van Laanen (eds.),
Euthanasia in an International and Comparative Perspective
(Nijmegen: Wolf Legal Publishers, 2006), 283 pp.
Raphael Cohen-Almagor
Jean J. Kirkpatrick, Making War to Keep Peace Robbie Sabel Case Note
“In the Name of the Child”
A Critical Assessment of the Legislative Norm Regarding Paternity Examinations Shani Pogoda Special Issue on Parallel Applicability of IHR and IHL
Introduction to the Symposium on International Humanitarian Law and International Human Rights Law: Exploring Parallel Application
David Kretzmer, Rotem Giladi, Yuval Shany The Interplay between International Humanitarian Law
and International Human Rights Law in Situations of Armed Conflict Cordula Droege Lex Specialis:
Oversimplifying a More Complex and Multifaceted Relationship? Nancie Prud’homme Jurisdiction and Power: The Intersection of Human Rights Law & the Law of Non-International Armed Conflict in an Extraterritorial Context
John Cerone Application of Civil and Political Rights Treaties Extraterritorially
During Times of International Armed Conflict Michael J. Dennis Triggering State Obligations Extraterritorially:
The Spatial Test in Certain Human Rights Treaties Ralph Wilde Human Rights and Humanitarian Law in the UK Courts
Dominic McGoldrick The No-Gaps Approach to Parallel Application in the Context of the War on Terror
Fionnuala Ni Aoláin Lex specialis? Belt and suspenders?
The Parallel Operation of Human Rights Law and the Law of Armed Conflict, and the Conundrum of jus ad bellum William A. Schabas The International Committee of the Red Widget?
The Diversity Debate and International Humanitarian Law René Provost Parallel Application of International Humanitarian Law and International Human Rights Law: An Examination of the Debate
Noam Lubell Volume 40(3)
The Morality and Law of War Précis: The Morality and Law of War Jeff McMahan Is Justice Relevant to the Law of War? George P. Fletcher A Pragmatic Objection to Moral Distinctions: A Comment on The Morality and Law of War Yuval Shany Comments on Jeff McMahan’s Analysis of the Morality of War Re’em Segev Double Effect and Double Intention: A Collectivist Perspective Noam J. Zohar Contrasting Approaches to War: Some Thoughts on the Views of Fletcher, Segev, Shany, and Zohar Jeff McMahan The Demise, but not the Decline of Multiculturalism Amnon Rubinstei Volume 39 (3)
Constitutionalism and Judicial Review in a Rifted Democracy: Symposium on Jeremy Waldron’s Law and Disagreement
Introduction
Barak Medina Notes on Waldron's Law and Disagreement: Defending Judicial Review
Alon Harel Taking Disagreement Seriously: On Jeremy Waldron’s Law and Disagreement
David Enoch Law and Disagreement: Some Disagreements
Naomi Sussmann Disagreement and Response
Jeremy Waldron International Human Rights and Comparative Mental Disability Law: The Role of Institutional Psychiatry in the Suppression of Political Dissent
Michael Perlin
The (Lack of) Economic Analysis by Courts in Israeli Antitrust Cases Concerting Restraints of Trade
David Gilo
Israeli Copyright Law—A Positive Economic Perspective
Guy Pessach What Is Missing in Corporate Bankruptcy Theories? Revisiting the Efficiency Rationale
Yaad Rotem Legislation Notes
Treaty-Making Power: Approval of the Israel-Egypt “Philadelphi Accord” by the Knesset
Moshe Hirsch The New Israeli Anti-Dumping Legislation One More Modest Step in Israel’s Gradual Advance from Unilateralism Towards Trans-National Co-operation
Guy Harpaz Book Review
Skeptical Reflections on Justice Aharon Barak’s Optimism: On The Judge in Democratic Society, by Aharon Barak
Alon Harel Volume 39 (2)
Special Issue: In Honor of Professor Claude Klein
Introduction
Barak Medina Human Rights in Israel
Aharon Barak Constitutional Interpretation
Michel Troper Equality and the Dialectic between Identity and Difference
Michel Rosenfeld Human Dignity in Combat: The Duty to Spare Enemy Civilians
Eyal Benvenisti Freedom of Scientific Research and its Limits In German Constitutional Law
Christian Starck Enhancing Freedom of Religion Through Public Provision of Religious Services: The Israeli Experience
Barak Medina Hans Kelsen and Political Parties
Yigal Mersel Judicial Review of the Legislative Process
Suzie Navot Volume 39 (1)
The Impact of Economic Theory on the Israeli Case Law on Property
Daphna Lewinsohn-Zamir The Politics and Strategies of Defending Human Rights: The Israeli Case
Assaf Meydani & Shlomo Mizrahi Public Perceptions of Crime Seriousness: A Comparison of Social Divisions in Israel
Sergio Herzog Privatization of Prisons in Israel: Gains and Risks
Uri Timor When “More” of a Program is Not Necessarily Better: Drug Prevention in the Sharon Prison
Efrat Shoham, Lior Gideon, David L. Weisburd & Yossi Vilner Case Note
Statutory Compensation in Software Copyright Violations C.A. 2392/99, Ashraz Data Processing Ltd. v. Transbeton Ltd.
Sima Kramer Book Review
Therapeutic Keys of Law: Reflections on Paradigmatic Shifts and the Limits and Potential of Reform Movements Bruce J. Winick and David B. Wexler eds., Judging in a Therapeutic Key: Therapeutic Jurisprudence and the Courts
Michal Alberstein Volume 38 (3)
Lionel Cohen Lecture
Equality: The New Virtue
Baroness Hale of Richmond Administering the Territories: An Inquiry into the Application of International Humanitarian Law by the IDF in theOccupied Territories
Amichai Cohen Rewrite Copyright: Protecting Creativity and SocialUtility in the Digital Age Richard H. Chused Book Reviews Human Rights Lawyer’s Existential Dilemma David Kretzmer, The Supreme Court of Israel and the Occupied Territories
Michael Sfard Moral Issues in the Distribution of Organs for Transplantation: An Equitable Distribution of Human Organs for Transplantation, Alfredo Mordechai Rabello ed. Ori Lev Leora Bilsky, Transformative Justice: Israeli Identity on Trial Allan E. Shapiro Volume 38 (1-2)
Special Double Issue: Domestic and International Judicial
Review of the Construction of the Separation Barrier
Introduction
David Kretzmer
Judicial Decisions
Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, 2004 I.C.J.
H.C.J. 2056/04 Beit Sourik Village Council v. the Government
of Israel 58(5) P.D. 807
Articles
A. Jurisdiction and Justiciability
A Court of “UN Law”
Michla Pomerance
More than a Huge Imbalance: The ICJ’s Advisory
Opinion on the Legal Consequences of the
Construction of the Barrier
Karin Calvo-Goller
The Legitimacy of the ICJ’s Advisory Competence in the
Shadow of the Wall
Tomer Broude
B. Examination of Issues of Substantive Law
‘A La Recherche du Temps Perdu’: Rethinking Article 6
of the Fourth Geneva Convention in the Light of the Legal
Consequences of the Constructionof a Wall in the
Occupied Palestinian Territory Advisory Opinion
Orna Ben-Naftali
Capacities and Inadequacies: A Look at the Two
Table of contents continued on back
Separation Barrier Cases .
Yuval Shany
An Examination of the Authority of the Military
Commander to Requisition Privately Owned Land for
the Construction of the Separation Barrier
Nir Keidar
The Formal and the Substantive Meanings of
Proportionality in the Supreme Court’s Decision
Regarding the Security Fence
Moshe Cohen-Eliya
C. The Status of the Territories
The Advisory Opinion and the Jewish Settlements
Ruth Lapidoth
The Legal Status of Jerusalem Following the ICJ Advisory Opinion on the Separation Barrier
Moshe Hirsch
The International Court of Justice Decision on the Separation Barrier and the Green Line
Robbie Sabel
D. The ICJ’s Advisory Opinion and International Relations Theory
The UN, The ICJ and the Separation Barrier:
War by Other Means
Gerald M. Steinberg
The Normative Dimension of International Relations
and the Advisory Opinion of the ICJ on the
Separation Barrier
Arie M. Kacowicz
Human Rights, Democracy and the Inescapability
of Politics; or, Human Dignity Thick and Thin
Yehudah Mirsky
Additional Article
Between the Geneva Conventions:
Where Does the Unlawful Combatant Belong?
Shlomy Zachary
Volume 37 (3)
Sociological Perspectives on the Origins of Child Abuse Legislation in Israel
Mimi Ajzenstadt & Gabriel Cavaglion
Living in Denial: The Application of Human Rights in the Occupied Territories
Orna Ben-Naftali & Yuval Shany
Three-Dimensional Partition and Registration of Subsurface Land Space
Haim Sandberg
Book Review
INTERNATIONAL LAW, Robbie Sabel and others, [Sacher Institute and the
Faculty of Law at the Hebrew University of Jerusalem, 2003] 733 pp. including
tables and index.
Amichai Cohen
Volume 36, Number 3 • Winter 2002
Special Issue: Refusals to Serve - Political Dissent in the
Israel Defense Force
Case
H.C. 7622/02, Zonshein v. Judge Advocate General
Articles
Right and Left: Ideological Disobedience in Israel
Chaim Gans
Political Disobedience in the IDF: The Scope of the Legal Right of Soldiers to be Excused from Taking Part in Military Activities in the Occupied Territories.
Barak Medina
The Fallacies of Objections to Selective Conscientious Objection
Amir Paz-Fuchs & Michael Sfard
Selective Conscientious Objection and International Human Rights
Leonard Hammer
Comments
Refusals: Neglected Aspects
Asa Kasher
Civil Disobedience and Conscientious Objection
Avi Sagi & Ron Shapira
Unconscionable Objection to Conscientious Objection:
Notes on Sagi and Shapira
Alon Harel
Some Arguments Against Conscientious Objection and Civil Disobedience Refuted
David Enoch
Rejoinder: Civil Disobedience and Conscientious Objection
Avi Sagi & Ron Shapira
Volume 36 (2)
Articles
The Status of Arabic in Israel:
Reflections on the Power of Law to Produce Social Change
Ilan Saban & Muhammad Amara
Foundations in Germany and Israel:
An Analysis of the Legal Framework
Pablo Lerner
The Criminal Responsibility of Psychopathic Offenders
Maya Mei-Tal
Interpretation in Law: Chief Justice Barak's Theory
Gabriela Shalev
Case Notes
Takings and the Requirement of "Ongoing Public Purpose": The Effect of Constitutionalization of the Right of Property on the Law of Takings
(Karsik v. The State of Israel, Israel Land Authority).
Danielle Marx
Judicial Review of the Detention Conditions of Suspected Terrorists
(Center for Defense of the Individual v. IDF Commander in the West Bank and Yassin v. Commander of Kziot Military Camp).
Leora Dahan
Book Reviews
Jewish Law Annual.
Shmuel Shilo
Volume 36 (1)
Lionel Cohen Lecture 2002
Civil Liberties in an Age of Terrorism
David Pannick
The Legacy of Fiest Revisited—A Critical Analysis of the Creativity Requirement
Guy Pessach
Cyclical Market Power
Amitai Aviram
Shock-Incarceration Programs in Israeli Sanctioning Policy: Toward a New Model of Punishment
Tomer Einat
Case Notes
The "Assigned Residence" Case: Kipah Ajuri et al v. IDF Commander in The West Bank et al
Reuven (Ruvi) Ziegler
Book Review
Murder, Inheritance, and all that is in the Bible - Book Review of To Kill and Take Possession - Law, Morality and Society in Biblical Stories, by Daniel Friedmann
Haim H. Cohn
Volume 35 (2-3)
Preface
David Weisburd, Mimi Eisenstadt, & Yoav Dotan
Three Voices of Socio-Legal Studies Malcolm Feeley
Can Law Learn from Social Science
David Nelken
Magic & Science in Multivariate Sentencing Models: Reflections on the Limits of Statistical Models
David Weisburd
The Productivity of Judges in the Courts of Israel Michael Beenstock
A Research Evaluation of the Israeli New Pretrial Detention Act
Hagit Lernau
Regulating (Hetero)Sexual Offences in British Columbia, 1885-1940
Dorothy Chunn
Further Hearing—Theoretical and Empirical Aspects
Chanan Goldschmidt
Senior Public Figure Offenders and the Criminal Justice System: The Public's Perception
Simha Landau, Leslie Sebba, David Weisburd
The Israeli Supreme Court Social Science Insights
On Equality—Judicial Profiles
Frances Raday
Government Lawyers as Adjudicators: Pre-Petitions in the High Court of Justice Department 1990-1997
Yoav Dotan
Temporary Appointments & Judicial Independence: Theoretical Analysis & Empirical Findings from the Supreme Court of Israel
Eli Salzberger
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