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.

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”.

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.

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.

This paper critically analyzes the theoretical and pragmatic arguments raised against the refusal of individuals to serve in a specific military campaign that they view as immoral. The Israeli Supreme Court case of Zonshein v Judge-Advocate General will serve as an axis of the discussion, as it combines two related facets: first, the Court's decision touches upon most of the difficult issues in the field of conscientious objection. And second, the development leading up to the decision was accompanied by an exceptional clash of academics, each side summoning expert opinions in support of its claim.

Courts worldwide have accepted that a categorical distinction exists between universal and selective conscientious objection. The combination of the Zonshein decision and the accompanying academic debate presents the opportunity to reexamine the theoretical and pragmatic reasons that are offered as support for distinguishing the two ‘types’ of conscientious objection. Close scrutiny finds them wanting.

Aircraft hijacking projects a vexing problem of criminal jurisdiction. In order to comprehend the ramifications of the problem fully let us take a model case. Suppose that the control over a commercial aircraft—registered in Brazil and leased to an Israeli airline—is forcibly seized, in the course of flight over France, by an Arab nationalist who is a citizen of Jordan, and the aircraft is hijacked to Algeria. The act described is an international offence, as defined by Article 1 of the 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft:

Any person who on board an aircraft in flight:

(a) unlawfully, by force or threat thereof, or by any other form of intimidation, seizes, or exercises control of, that aircraft, or attempts to perform any such act, or

(b) is an accomplice of a person who performs or attempts to perform any such act

commits an offence (hereinafter referred to as ‘the offence’).

This paper examines the politics of defending human rights, based on Public Choice Theory. Human rights organizations in Israel turn to the court to defend human rights. We argue that this strategy may prove ineffective in terms of defending human rights for the long run for various reasons. First, the politics of defending human rights is very complex where the power circle beside the court and human rights organizations includes also the relations between politicians, bureaucrats and the public. Second, the political culture that has been established in Israeli society since the 1980s is such that relations between citizens and politicians are based on a bottom-up orientation. Thus, norms and social changes can be hardly imposed from top down, but mainly evolve from bottom up. Directing all human rights strategies toward an elitist institution such as the Supreme Court may bear results in the short run but in the long run attitude change as well as policy decisions towards defending human rights are likely to emerge due to demands from society. Third, by empowering the court, human rights organizations disconnect these issues from the vast majority of Israeli citizens discouraging belief change. The paper concludes that defending human rights must include also attempts of mass mobilization which will create the grounds for human rights organizations to turn to the legislative authorities.

The following remarks do not constitute a detailed legal commentary on the 29 September 1988 Award delivered by the Arbitration Tribunal, which was established to resolve the dispute between Egypt and Israel regarding the Sinai frontier, particularly in the region of Taba. These remarks do not relate to the origin of the dispute or address the political context in which the arbitration took place. Nor do they dwell on the innovation of introducing, through the Compromis, a conciliation procedure entrusted to a Chamber of the Tribunal in the very midst of the arbitration proceedings. Still less do they make a detailed analysis of the claims of the two parties or of the Tribunal's opinion on each point in dispute. Leaving aside numerous other interesting aspects of the case, the modest purpose of these observations is to shed light on the originality of the position adopted by the Award in two aspects relating to the judicial function in border conflicts. When one considers the place occupied by this type of conflict in judicial disputes and in international arbitration, the interest which this Award deserves, beyond the specific circumstances which generated it, is obvious.

Israeli family law is essentially governed by the personal law of the parties concerned since the religious affiliation of the litigants forms the basis for determination of the applicable personal law. This phenomenon is historically rooted in the milet (religious communities) system practised in the Ottoman Empire, which included Palestine until 1917. Ottoman law, regarding itself as an integral part of Moslem law, adopted the fundamental Islamic notion that its law applied to the “faithful” alone. Hence the judicial autonomy extended to “non-believers”, especially the Jewish and Christian communities. These were subject to their own ecclesiastical courts, administered and supervised by their respective religious heads and authorities. In the second half of the 19th century, with the development of contemporary legal systems, the Ottoman legal system underwent a transition from a personal law to a uniform territorial law in most legal fields. The jurisdiction of the ecclesiastical courts, Moslem as well as Jewish and Christian, was restricted to purely religious and family matters. The British Mandate, which in 1917 replaced the Ottoman rule in Palestine, principally retained the existing legal order under which the ecclesiastical courts of the respective religious communities were invested with exclusive jurisdiction in matters of marriage and divorce as well as other matters of personal status.

In his case note on the famous Bergmann decision of the Supreme Court, Professor Akzin wrote:

These remarks probably express the most original view ever put forward on this land mark case. They emphasize the crux of the complex constitutional problem discussed in the Bergmann case, i.e., the definition of the legal nature of the basic laws in the legal order of Israel. The extremely abstract questions involved in that discussion, indeed, the most abstract that exist in public law, concern the definition of the nature of the power which adopts the Constitution and more specifically, of the power which amends the Constitution.

The growing impact of terrorist acts in the past few years has lead todramatic changes in the internal laws of the growing number of States thatsuffer from terrorism, but has also lead to various attempts to adaptinternational law - more specifically, the International Laws of War - tothe new situation or threat, as many perceive it. The Laws of War, like mostareas of Public International Law, deal with the relations between nations,while hardly dealing with non-governmental entities like terroristorganisations or the individual terrorist, thereby creating an apparentlegal “loophole”. One of the solutions found by States in order to deal,legally, with terrorists, was by defining them “unlawful combatants”.

This essay tries to examine the development of the term “unlawfulcombatant”, by examining some complications that might occur from the use ofthe term “unlawful combatant” as an intermediate, new status ininternational law. By using it as a new status. States try to excludeterrorists from finding protection under the Geneva Conventions, which areintended to safeguard various individuals during armed conflicts. Afterexamining the term “unlawful combatant”, both from an historical and legalaspect, this essay will attempt to show that the existing Laws of War, whichacknowledge only two statuses – the ‘civilian’ and the ‘combatant’ – providea satisfactory solution to the problem of terrorism in its non-governmentalsense. After exploring recent policies and legal developments in Israel andthe Unites States, countries that use the term “unlawful combatant”, thisessay will criticise the ambiguity of these definitions, and point outfuture problems that might arise from this ambiguity during armedconflicts.

On 13 September 1993 Israel and the Palestine Liberation Organization (hereinafter “PLO”) signed on the lawn of the White House in Washington, in the presence of United States President William J. Clinton, a “Declaration of Principles on Interim Self-Government Arrangements” (hereinafter “the DOP”), the text of which had been initialled the previous month in the Norwegian capital Oslo, following several months of secret negotiations. This occurred almost exactly fifteen years after the signing at the White House, on 17 September 1979, by the President of Egypt, Muhammad Anwar Al-Sadat, and the Prime Minister of Israel, Menachem Begin, of the “Framework for Peace in the Middle East” that had been negotiated and agreed at Camp David, Maryland (hereinafter “the Framework”).

Both the Framework and the DOP aim at resolving one of the most complex conflicts of our time, namely, the dispute that first developed between the Arab and Jewish communities in Mandatory Palestine and which widened, with the establishment of Israel in 1948, into a conflict between Israel and the entire Arab world. While both agreements provide for interim arrangements (and the DOP even stresses this aspect in its title), pending the negotiations for a definitive solution, and while both even use similar terms, the basic concepts underlying each of these agreements widely diverge.

On January 1, 1989, the State of Israel abolished the remaining customs duties and charges, having equivalent effect on imported products originating in the European Communities (hereinafter the Community), in accordance with the Free Trade Agreement (hereinafter the FT Agreement) concluded on May 11, 1975, between the Community and Israel.

The FT Agreement, which sets out to create a free trade area in the territories of the contracting parties, was the result of the previously existing relationship between the Community and Israel, as well as the emergence of the Global Mediterranean Policy within the Community. The FT Agreement attempts to foster economic activity by promoting expansion of trade and cooperation in reciprocal areas of interest, thus creating fair competition and contributing to the development and expansion of world trade.

The Canadian Charter of Rights and Freedoms enacted in 1982 set off a “constitutional revolution” with profound effects on criminal justice. A criminal lawyer who left the country in 1982 would find that the law has changed dramatically in less than two decades. A system based on legislative supremacy and judicial reluctance to exclude evidence because of unfairness outside of the courtroom has evolved into one based on judicial review and the judicial application of standards of due process or adjudicative fairness at all stages of the criminal process. The law reports and reviews are now dominated by Charter jurisprudence whereas previously they focused on common law, statutes and legislative law reform. American notions of Miranda warnings, warrant and disclosure requirements and the exclusion of unconstitutionally obtained evidence have taken root in Canadian law. This paper will outline some of the major changes brought about by the Charter.

This article explores the possibility of elaborating a strong rights foundation for ‘weak’ legal pluralist arrangements, consisting of the recognition by the state of a degree of autonomy for the legal practices of minorities. It finds unhelpful and reductionist those arguments based merely on whether certain aspects of minority law are in violation of human rights or are more effective at protecting rights than state law. Instead, the article seeks to tackle the central issue of whether there is more generally a human rights case for legal pluralism, despite the modern rights movement's strong historical association with state monism and egalitarian universalism. Traditional rights bases for minority protection, both group and individual based, are envisaged specifically from the point of view of recognition of minority legal traditions. Both are found to raise difficulties that are magnified by the entry into play of legal considerations. When it comes to collective rights, there is a fear that endowing certain communities with legal autonomy will increase their ability to oppress the minority within; when it comes to individual rights, the idea of a ‘right to one's law’ misses the degree to which law is an institutional construct which requires a new division of power within the state that goes far beyond what are generally understood as basic freedoms. Rather than assessing the problem merely from an individual or group point of view, the rights validity of legal pluralist arrangements is seen as dependent on how they relate to society at large. Specifically, a case is made that legal pluralism can be part of a beneficial coming to terms by societies with their diversity, a reinforcement of democratic forms and, in some cases, a type of transitional justice that recognises the extent to which the deprivation of law has been a traditional means of subjugation of minorities. The article concludes with an effort to recast the entire debate from the point of view of international human rights law and to critique its somewhat arbitrary focus on the state as the only locus of significant legal diversity.

This paper is devoted in the main to one aspect of the problem of reciprocity in matters of extradition focusing attention on its impact on the admissibility of a request for extradition when Israel is the requested state and the person sought is an Israeli national.

The State of Israel has entered into bilateral extradition treaties with eight states and through the multilateral European Convention on Extradition with thirteen other states.

A. Three categories of agreements: These agreements may be grouped into three categories according to their treatment of offenders who are nationals of the requested state.

(1) There are in the first place those agreements which contain no reference to or limitations upon the extradition of the parties' nationals, namely, the agreements with the United Kingdom, Swaziland and Canada.

In thinking about the sentence-setting process, it is important to recognize the different perspectives associated with the two different levels at which sentencing questions must be addressed. The first is the macro policy level. This is the level of issues faced by a judicial council, a legislature, or a sentencing commission. Such a body must establish a range of permissible sentences from which the individual judge chooses the sentence for any particular case. The policy body must develop principles for establishing those ranges. Most of the discussion in this paper appeals to this policy level.

The second level is the micro level of the individual judge who must choose, from the range of sentences that the policy permits, the particular sentence that is most appropriate for the particular case. As part of its policy, the policy body may also provide guidance to the individual judge on how to choose a particular sentence from within the available range.