Immigration often involves the migration of people of specific cultural and religious background to countries in which the predominant cultural and religious background is quite different. This may result in attempts by receiving countries to restrict the new immigrants ‘cultural and religious practices. The Article uses the debate surrounding the wearing of the veil in Europe as a test case for the way in which recognition rights may be affected by the process of immigration. First, the Article maintains that the balance of rights and interests involved in conflicts over immigrants’ rights changes along the process of immigration, and divides this process into three stages—the entry application, the application for citizenship, and the life as an immigrant in the receiving country. Subsequently, it lays out the conflicting rights and interests involved in the veil controversy—the conflict between immigrant and local cultures; the conflict between immigrants’ religious liberty and state interests such as maintaining religious neutrality/laïcité, and protecting from the perceived threat of radical political Islam; the conflicting claims regarding the effects of veiling on women's equality. Finally, the Article analyzes each of these conflicts along the three stages of immigration and offers an assessment of the validity of the conflicting claims surrounding the veil in Europe on the basis of this analysis, claiming that the restrictions on wearing the veil in the public sphere are not justified, but that a much narrower restriction pertaining to some instances of the wearing of the full face burqa can be justified.

There is hardly any United Nations resolution which is quoted and referred to as often as 242. It has become the cornerstone for all stages in the settlement of the Arab-Israel conflict, as, for example, the Camp David Frameworks (1978) and the Peace Treaty between Egypt and Israel (1979). In addition, it has been referred to by the conveners of the Madrid Conference (1991) as the basis for the negotiations which were started at that Conference and are going on as this article is being written.

According to the letter of invitation to the Madrid Conference, the parties are invited to achieve peace through direct negotiations along two tracks, between Israel and the Arab States, and between Israel and the Palestinians. The latter are to be part of a joint Jordanian-Palestinian delegation. With respect to the negotiations between Israel and the Palestinians, they are to be conducted in phases, beginning with talks on interim self-government arrangements which should last five years.

For many years, institutional psychiatry was a major tool in the suppression of political dissent. Moreover, it appears painfully clear that, while the worst excesses of the past have mostly disappeared, the problem is not limited to the pages of history. What is more, the revelations of the worst of these abuses (and the concomitant rectification of many of them) may, paradoxically, have created the false illusion that all the major problems attendant to questions of institutional treatment and conditions in these nations have been solved. This is decidedly not so.

Remarkably, the issue of the human rights of persons with mental disabilities had been ignored for decades by the international agencies vested with the protection of human rights on a global scale. Within the legal literature, it appears that the first time disability rights were conceptualized as a human rights issue was as recently as 1993 when, in a groundbreaking article, Eric Rosenthal and Leonard Rubenstein first applied international human rights principles to the institutionalization of people with mental disabilities.

For people with mental disabilities, in particular, the development of human rights protections may be even more significant than for people with other disabilities. Like people with other disabilities, people with mental disabilities face degradation, stigmatization, and discrimination throughout the world today. But unlike people with other disabilities, many people with mental disabilities are routinely confined, against their will, in institutions, and deprived of their freedom, dignity, and basic human rights. People with mental disabilities who are fortunate enough to live outside of institutions often remain imprisoned by the social isolation they experience, often from their own families. They are not included in educational programs, and they face attitudinal barriers to employment because they have not received the education and training needed to obtain employment or because of discrimination based on unsubstantiated fears and prejudice. Only recently have disability discrimination laws and policies in the United States and elsewhere focused on changing such attitudes and promoting the integration of people with disabilities into our schools, neighborhoods, and workplaces.

The question remains, however: to what extent has institutional, state-sponsored psychiatry been used as a tool of political suppression, and what are the implications of this pattern and practice? After an Introductory section (Part I), I discuss, in Part II, the first revelations of the dehumanization inflicted on persons with mental disabilities, primarily (but not exclusively) in Soviet Bloc nations. In Part III, I discuss developments after these revelations were publicized. In Part IV, I weigh the extent to which the post-revelation reforms have been effective and meaningful. In Part V, I explain the meanings of sanism and pretextuality, and discuss how they relate to the topic at hand. Then, in Part VI, I raise questions that have not yet been answered, and that, I believe, should help set the research agendas of those thinking about these important issues.

Eighteen years after attaining independence Israel remains essentially a common law country. Introduced by the British Mandatory administration to supplement the Ottoman legislation in force at the time of the British occupation of Palestine, the common law has been retained by the Israeli legislator, so far as not modified or replaced by local legislation. But this common law, far from being residual only, also embraces a considerable body of interstitial law developed by two generations of judges, British, Palestinian and Israeli, in the process of applying and interpreting statute law—whether Ottoman, Mandatory or Israeli—according to common law methods. On the other hand the importation of common law institutions was neither wholesale nor systematic and in a number of fields no clear line of demarcation can be drawn between domestic and English law.

This paper has two parts. The first (sections I-III) compares retributive theories measuring criminal desert largely by the harm the criminal did or risked, with a theory measuring it by the unfair advantage the criminal necessarily took, what I shall call “the fairness theory”. This part of the paper summarizes arguments I have made elsewhere. The second part (sections IV-V) defends the fairness theory against five objections recently made against it by two important theorists, Andrew von Hirsch and Hyman Gross. The objections are variations on the charge that the fairness theory of criminal desert is implausible, incoherent, or otherwise fundamentally flawed. Each objection collapses almost as soon as one or another standard distinction is made. I conclude the paper wondering why theorists have not noticed how weak these objections are.

This article discusses the decline of the multicultural doctrine that has governed Western political philosophy and practice in the last part of the 20th century. This decline is felt in the USA as well as in EU countries and manifests itself in new cultural restrictions on immigration policy, in stricter loyalty tests for immigrants who seek naturalization and in statutes regulating behavior in public places (such as the anti-veil acts in Europe) and proscribing deviant acts based on religious tradition (such as the American law criminalizing female genital circumcision). This decline is also accompanied by rethinking the theoretical foundations of the multicultural approach. This rethinking was accelerated by the onset of the Islamist—as distinct from Moslem—crisis, but started before the 9/11 events.

The article surveys the state of multiculturalism in a number of Western countries and pays special attention to the cases of the USA, Britain, France, and the Netherlands. The case of Israel is discussed separately because of its unique features as a society plagued by a national conflict. In all these countries the principal issue is how to tolerate intolerant communities, how to treat religious communities whose tenets clash with the democratic and liberal values of the host country and how to balance the rights of the individual against the rights of the cultural group to which that individual belongs.

The author challenges the notion that all cultures are entitled to equal treatment and excludes from this ambit cultures that clash with the values of democracy and human rights. The author denies the notion that consent of the sufferer validates such cultural practices and demonstrates this by referring to the former Hindu practice of Seti—burning a widow alive, with her consent. Such consent is irrevocable and is always subject that it was given under social and cultural duress.

The main brunt of this article is that the norms of democracy, equality, and human rights are not a culture in the ordinary sense of the word, as they are distinct from all traditional cultures and are the result of an intellectual construct founded upon the autonomy of the individual and on a rejection of traditional culture. This is the reason why these liberal norms should supersede any custom, even when based on cultural tradition, when there is a clash between the two. When there is no such clash, a compromise solution ought to be reached resorting to traditional judicial means of balancing contradictory values.

An impartial observer reviewing the Anglo-American philosophical writings of recent decades on the question of the justification of punishment would very likely label the contest, thus far, a draw. Three major justifications have been put forward as principles constitutive of fairness in punishment, and none can be said to have routed its rivals.

Some modern writers have written forcefully in defence of the rehabilitative justification of punishment — or, more precisely, the replacement of punishment with a system of judicially mandated therapy for criminals. This substitution, however, has been tellingly criticized as demeaning to offenders, violative of individuals' moral rights, and liable to abuse as a pretext for suppression of unpopular ideas. Others have sought to justify punishment on the basis of the societal need to deter crime. But deterrence seems at the same time too severe and too lenient a basis for punishment. Draconian penalties for minor offences and exemplary punishment of the innocent would meet the requirements of deterrence if they proved effective in preventing future crimes; yet offences whose nature or whose pattern of occurrence makes effective deterrence impossible should go unpunished, on this view.

The general rule is established that anyone may lawfully be called to give evidence and to produce every document in his possession, unless he can show a just ground for refusal. In a number of instances the law relieves a witness from the duty of replying, or of producing a document. These are exceptional cases, however, and the burden of establishing their applicability lies on the party claiming the exemption. The modern legal tendency is, so far as possible, to restrict the claims of privilege.

Rules of evidence recognize mainly the privilege against self-incrimination, the legal professional privilege, the marital privilege, and “State secrets”, when the Administration objects to the disclosure of information relating to public security, foreign relations or other important public interests. This article deals with the last mentioned privilege—a “thorny topic”, in more than one country. Both case law and doctrinal writings have, over the years, held various views on this problem. In England, the House of Lords' opinion on it has undergone a radical change within the last twenty-five years and it is also under present examination of the Law Reform Committee. The question arose before the Israeli courts on several occasions and the Ministry of Justice drew up three separate bills aimed at its solution, the last of which is now before the Knesset for consideration.

Article 215 of the Constitution of the Democratic Republic of Congo (DRC) is the entry point for international law into the DRC legal complex. It provides that international treaties and agreements duly ratified by the state predominate over Acts of Parliament. Cases and studies involving the direct effect or self-executing norms of international law in domestic cases are rare in the DRC. The correct ways of applying Article 215 of the Constitution and international law in domestic cases have not yet been authoritatively settled. The basic dilemma is whether courts should read the provisions of relevant international treaties into disputed provisions of DRC laws or read the disputed provisions in the light of the relevant treaty provisions.

Using as a case study the emerging practice of DRC military courts of directly applying international criminal law in domestic cases, the article argues that carelessly cutting and pasting formulations found in international treaties into the texts of applicable municipal laws infringes state sovereignty. Instead, the article proposes a strategy that would avoid unpleasant friction between international criminal law and municipal law, while encouraging cultural pluralism and the judicious intervention of international law in municipal law.

In recent years, the increasingly frequent and, in certain contexts, extremely severe impediments to the provision of humanitarian assistance to civilians in need have focused attention on how to enhance compliance with the rules of international humanitarian law (IHL) that regulate humanitarian relief operations. Efforts to hold accountable parties to armed conflict and persons responsible for unlawfully impeding humanitarian relief operations face the challenge that the underlying rules give parties latitude in how to implement the central obligation to allow and facilitate the rapid and unimpeded passage of humanitarian supplies, equipment and personnel. This article outlines the rules of IHL regulating humanitarian relief operations and highlights the difficulties, in the majority of situations, of determining whether they have been violated. It then presents current endeavours to promote accountability. It concludes with some reflections on whether the threat of accountability is the most effective way of enhancing compliance with this area of IHL, at least while efforts are under way to negotiate access.

Under international humanitarian law it is prohibited to make the object of attack a person who has surrendered. This article explores the circumstances in which the act of surrender is effective under international humanitarian law and examines, in particular, how surrender can be achieved in practical terms during land warfare in the context of international and non-international armed conflict. First, the article situates surrender within its broader historical and theoretical setting, tracing its legal development as a rule of conventional and customary international humanitarian law and arguing that its crystallisation as a law of war derives from the lack of military necessity to directly target persons who have placed themselves outside the theatre of armed conflict, and that such conduct is unacceptable from a humanitarian perspective. Second, after a careful examination of state practice, the article proposes a three-stage test for determining whether persons have surrendered under international humanitarian law: (1) Have persons attempting to surrender engaged in a positive act which clearly reveals that they no longer intend to participate in hostilities? (2) Is it reasonable in the circumstances prevailing at the time for the opposing force to discern the offer of surrender? and (3) Have surrendered persons unconditionally submitted to the authority of their captor?

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.

Some twenty years ago my imaginary character the “psychotic aggressor” made his debut in the pages of the Israel Law Review. Of all the hypothetical cases I have devised over the years, the story of the psychotic aggressor in the elevator, attacking someone who must defend herself, has become one of the most vigorous and long-lasting. This unlikely case has proven to be a useful medium for understanding the difference between claims of justification and claims of excuse in structuring criminal liability. Everyone assumes that the person attacked should be able to defend herself; the problem is whether the defense is right and proper (justified) or whether it is simply the human response and therefore free from blame (excused). This classification has implications, in turn, for whether third parties may come to the aid of the person attacked and whether the psychotic aggressor, in turn, has a right to defend himself against efforts to kill him. These issues have given rise to considerable debate over the last two decades, and much of it can be traced to the conundrum whether resisting a psychotic but purposeful aggressor should be treated as right in itself or, alternatively, wrong but free from blame.

Since 1950 four Basic Laws have been enacted: The Knesset, Israel Lands, The President of the State and The Government.

Some months ago the Ministry of Justice presented to the Ministerial Committee on Legislation the draft of a new Basic Law called Basic Law: Legislation. If this draft is approved by the Government, it will be presented to the Knesset as a Government Bill. The draft includes an outline of the basic principles and powers relating to legislation and the provisions which call for specific attention are as follows:

a) A Basic Law shall bear the name “Basic Law”.

b) A Basic Law, a law amending a Basic Law or a provision of law contradicting a provision of a Basic Law, shall require—on its final reading—the vote of a majority of members of the Knesset, provided the Basic Law involved does not explicitly require a larger majority.

c) A provision amending a Basic Law or contradicting it shall have the force of law only if it states explicitly that it is to have that effect.

The term “guilt” connotes many different phenomena: theology, philosophy, ethics, psychology and law all contributed to the variety of connotations. It is not my purpose, nor do I pretend to engage in etymological or anthropological research into the evolution of the various aspects and concepts of guilt: I shall try to describe and distinguish only those phenomena of guilt of which judges may have to take cognizance for the proper exercise of punitive discretion.

First and foremost, there is “guilt” within the meaning of criminal law. On the one hand, guilt is spoken of as denoting the mental element in crime: the guilt of one who committed a criminal act — actus reus — presupposes the criminal mind — mens rea; or, an actus reus is transformed into guilt by the supervenience of mens rea. Whether the mens rea is intent or wilfulness, or only negligence or recklessness, does not affect the incidence of guilt, but may well raise the question of degree of guilt. On the other hand, “guilt” is the result of a verdict to the effect that the accused is criminally responsible (“finding of guilty”), and it is in this sense that the accused may “plead guilty”.

This article outlines the building blocks of transitional justice in democracies. Grounded in the premises of Historical Institutionalism, the article analyses the institutions and processes established and their effect on the outcomes. It offers a comparative analysis of two cases of transitional justice processes in democracies. These are the investigations of the disappearance of Yemeni children in Israel and the Indian Residential Schools Settlement in Canada. There are important similarities and differences between the two cases. In both settler societies the transgressions were part of aggressive assimilation policies directed at children in an attempt to wipe out the particular cultural influences of the children's family and community. In both cases, children were isolated from the influences of their ethnic group in order to be resocialised into the dominant culture. The dire consequences of both these were suppressed, denied and forgotten in official narratives. The different outcomes of these processes are explained by the differences in the intent to redress, the types of institution and the processes implemented.

The International Criminal Court (ICC) Prosecutorial Strategy 2009–12 reaffirmed the commitment of the Office of the Prosecutor (OTP) to positive complementarity. The Prosecutor recognised the inability of the ICC to deal with all cases of mass atrocities and the importance of relying on national systems if international criminal justice is to be effective. The article first proposes a two-pronged approach to complementarity that distinguishes between its legal and policy dimensions. On the basis of the analysis of the situations in the Democratic Republic of Congo, Uganda and Colombia, it will be argued that the OTP has taken controversial decisions from the viewpoint of complementarity stricto sensu and positive complementarity that may undermine filling the impunity gap as well as the legitimacy of the ICC. Attention is then drawn to the common substratum of the ad hoc tribunals' completion strategy and positive complementarity. It is explained how the experience of the completion strategy offers a valuable cluster of lessons to be applied within the spectrum of positive complementarity. In concluding, the article suggests measures for the execution of positive complementarity and the Law Enforcement Network, with the intention of optimising efforts and resources within the ICC system.