One of the most influential attempts to describe and comprehend the criminal law system is Packer's celebrated notion regarding the “Two Models of the Criminal Justice System.” Packer regards the criminal justice process as an image constantly shifting between two conflicting models — the “Crime Control Model” and the “Due Process Model” of criminal law. The first model strives to create an effective criminal system that will protect society's right to peace and safety. This aim may be achieved by emphasizing the earlier, informal stages in the law enforcement procedure, namely, police investigation and the decision to prosecute. The second model aims to ensure that the law enforcement process, which is one of the most coercive powers of the state, will be conducted in a lawful manner that will protect suspects and defendants from both intentional wrongdoing and from unintentional mistakes.

A resolved to kill X and equipped himself for this purpose with a bottle containing poison. When X dined at A's house, A secretly poured some of the contents of the bottle into a drink that he offered X. X downed the drink but suffered no ill-effects since A's wife had, without his knowledge, poured away the poison and filled the bottle with water (first case).

B put his hand into Y's coat pocket in order to pick its contents. His fingers scoured the pocket and found it to be empty. Alternatively, B fired at an empty bed with intent to kill Y, who was supposed to be in it (second case).

Pre-transitional justice activities that expose past injustices during entrenched conflicts can incite strong reactions among actors who feel threatened by or dislike such activities, and who thus attempt to silence controversial truths. This article illuminates how attempts to silence controversial truths, in parallel with shutting down debate, can also have the unintended outcome of enlarging public discourse on previously marginalised issues. Thus, paradoxically, efforts to curb freedom of expression sometimes result instead in an expanded public capacity to debate previously silenced truths about the conflict. We conduct a case study of reactions to pre-transitional justice in Israeli society focusing on the so-called Nakba Law, enacted in 2011. Through interviews with members of the non-governmental organisation Zochrot, politicians, teachers and media persons, we first show the relationship between pre-transitional justice and enacting the Nakba Law. We then demonstrate that while the Nakba Law indeed aimed to hamper freedom of expression, it also enabled increased public knowledge about the meaning of Nakba. Our theoretical proposition regarding this paradox, in this case activated by instigating new memory laws, is highly relevant to other conflicts-in-resolution that experience pre-transitional justice processes.

Humanitarian assistance is essential for the survival of the civilian population and people hors de combat in the theatre of war. Its regulation under the laws of armed conflict tries to achieve a balance between humanitarian goals and state sovereignty. This balance, reflected in the provisions of the 1949 Geneva Conventions and their Additional Protocols, is not as relevant to contemporary armed conflicts, most of which involve non-state armed groups. Even those provisions relating to humanitarian assistance in conflicts involving non-state armed groups fail to address properly the key features of these groups, and especially their territorial aspect. This article proposes a different approach, which takes into consideration and gives weight to the control exercised by non-state armed groups over a given territory. Accordingly, it is suggested that provisions regulating humanitarian relief operations in occupied territories should apply to territories controlled by armed groups. This approach views international humanitarian law first and foremost as an effective, realistic and practical branch of law. Moreover, it has tremendous humanitarian advantages and reflects the aims and purposes of the law, while considering the factual framework of these conflicts.

Traditionally, international human rights adjudication relied on the paradigm of extraterritoriality on the rare occasions when it was confronted with cross-border cases. This paradigm recognises only limited circumstances in which states bear extraterritorial human rights obligations. However, with globalisation, transboundary human rights cases have multiplied. This emerging litigation increasingly reveals that the paradigm of extraterritoriality is no longer fit to address global crises. Extraterritoriality demands effective control over a territory, or authority and control over a person, for a state to exercise jurisdiction outside its territory. Thus, several cases of cross-border human rights abuses are inevitably barred on jurisdictional grounds. This is particularly true for obligations of a global character, which are, by their very nature, completely unrelated to the control that states exercise over territories or people. It is therefore necessary to look beyond extraterritoriality. This article analyses the competing paradigms of universality and transnationality as they have been adopted by domestic courts. It argues that international human rights adjudication should reconceptualise extraterritoriality against the background of universality and transnationality to address global crises.

Third party involvement in keeping the peace in the Middle East has been a constant phenomenon accompanying the vicissitudes of the Arab-Israeli conflict from the war of 1948 up to the present day. The dominant pattern has been the employment of United Nations forces and observers, charged with supervising either the implementation of Security Council resolutions calling for the cessation of hostilities, or the implementation of agreements reached between the parties concerned. The uninterrupted presence of UN personnel in the Middle East has shown that the international community as a whole and the parties in conflict have considered UN peacekeeping essential for reducing tensions and instrumental in bringing to an end local flare-ups. It was only natural that immediately after the Yom Kippur War of October 1973 the states actively involved in the pursuit of peace should rely on the establishment of effective UN supervisory machinery to monitor the execution by the parties of the various security arrangements agreed upon. A United Nations Emergency Force was accordingly dispatched to the Egyptian-Israeli sector and undertook the task of supervision, with the cooperation of observers belonging to the United Nations Truce Supervision Organization. However, foreseen and unforeseen problems arose in the process leading from one disengagement agreement to another and to the treaty of peace between Egypt and Israel of March 1979.

The search for truth lies at the basis of German criminal procedure. Human dignity can be protected by basing criminal judgments on the truth, and human dignity must be protected against overreach by law enforcement agents in their effort to determine the truth. New instruments of investigation, including secret methods and measures affecting non-suspects, jeopardize human dignity. The same is true for plea bargaining, which signifies the abandonment of the search for the truth in the criminal process.

The object of this paper is to examine the obligations assumed by Israel, by virtue of its acceptance of the compulsory jurisdiction of the International Court of Justice (hereinafter: “the Court”), in accordance with Article 36, paragraph 2, of the Court's Statute, which reads as follows:

“The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning:

• (a) the interpretation of a treaty;

• (b) any question of international law;

• (c) the existence of any fact which, if established, would constitute a breach of an international obligation;

• (d) the nature or extent of the reparation to be made for the breach of an international obligation.”

An attempt will be made to compare Israel's declaration of acceptance of the compulsory jurisdiction with the declarations of other countries, and to analyse the reasons underlying Israel's particular declaration. The paper will not purport to consider the many problems concerned with the Court's compulsory jurisdiction. These problems, and the considerable jurisprudence of the Court dealing with them, are well known to students of international law. Indeed, probably no other aspect of the Court's jurisdiction has been the object of such rich legal literature, some of it quite recent.

In the 1939 edition of Meyers Lexikon the following item appears:

Kelsen, Hans, Staatsrechtlehrer, Jude, * 11.10.1881 Prag, 1919 Prof. in Wien, 1930 in Köln, 1933 in Genf, seit 1936 in Prag, schrieb u. a. ≫Allg. Rechtslehre≪ 1925, ≫Théorie générale du droit international≪ 1932, ≫The legal process and international order≪ 1934; radikaler Vertreter der ≫Reinen Rechtslehre≪, die typischer Ausdruck jüdisch zersetzenden Geistes in der Nachkriegszeit auf dem Gebiete der Rechts- und Staatslehre ist. In der völligen Entleerung seiner allg. Formalbegriffe von jedem Wirklichkeitsgehalt leugnet K. jede Substanz des Rechts und Staats. Seine gemeinschaftszerstörenden Auffassungen stehen als polit. Nihilismus im schärfsten Gegensatz zur nat.-soz. Anschauung. Heute noch in der rechtsphilos. Logistik nachwirkend.

In 1929, Hans Kelsen published a relatively slim book named On the Essence and Value of Democracy. Surprisingly, only a few segments of it were translated into English. One of the underlying theories elaborated by Kelsen is the need for political parties. Kelsen outlines the main justifications for the existence of political parties as derived from the concepts of liberty, equality, and representation. He concludes that political parties are essential for a modern democracy, and thus the modern state should be a party-state (parteienstaat). The goal of this Article is to outline Kelsen's theory on political parties and understand its historical and theoretical background. Furthermore, it strives to evaluate the relevance of Kelsen's theory on political parties nowadays. Kelsen's work is confronted thus with different parties malfunctioning such as non democratic and self interested parties. Reviewing Kelsen's work, there are also doubts about the proper constitutional status of political parties. Furthermore, there are some interesting possible observations regarding Kelsen's suggestion to recall a representative who shows disloyalty to the party line. This Article will demonstrate that Kelsen's work on political parties was not only innovative, but that it is also relevant to any modern debate about the constitutional status of political parties.

In Israel, in the field of the law of personal status, at the center of which stand the laws of marriage, the law is not territorial but personal, and the law applying to an individual changes in accordance with his religious affiliation. Consequently, any discussion of the comprehensive position of Israeli law on the institution of marriage would seem to be impossible, for Israeli law lacks its own, independent regulations on matters of marriage. The law of the State on these matters has been likened to a mirror, having no image of its own and serving only to reflect the religious law. In this mirror, various laws are reflected, and it is difficult to find in them a common denominator of the differing and contradictory conceptions they express towards the institution of marriage.

The most frightening debacle of democracy is not caused by a revolution or a coup d'etat but by the creeping process of delegitimization, in which the Giant's leap (“Quantensprung”) is hardly conceivable. The most notorious example to date is the Weimar Republic, as the German Reich was called between 1918/9–1933. This example has served as a constant warning for all democratic systems since then, and is therefore always present and relevant.

It is not for a social or cultural historian to intervene in a purely professional discussion of jurists or legal historians concerning the question of constitution, law and democracy. His aim is to concentrate on the complex relationship between the social and cultural contexts and the constitutional text and subtext.

It is my contention that the concepts which hide behind the terms constituting the title of this essay, have many traits in common and to a large extent deal with the same problem.

This, however, is not sufficiently admitted. Further theoretical and philosophical clarification is overdue.

In the first place the theorist in each field finds it difficult to confess to what extent the prevailing terminology is misleading; the more so because in spite of defective terminology he is—in a general way—in agreement with his fellow-specialists as to the object of their study.

In the second place the theorist in each field, finding it hard enough to follow the torrent of literature in his chosen specialty, tends to neglect developments in fields which however closely interrelated are considered to be distinct.

On 26 November 1968 the General Assembly of the United Nations adopted and opened for signature, ratification and accession a Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity. The purpose of this paper is to explain the origin of the Convention, to summarize its principal provisions and to comment briefly upon them, particularly in the light of the discussions that preceded its adoption. We shall not deal in depth with the general principles of law involved in such discussions nor with the historical and political matters closely connected with the reasons that made it “necessary and timely”—to use the wording of the Preamble of the Convention—to affirm that international law does not recognize any period of limitation for some major crimes. Of course, the informative nature of this paper will not preclude some criticism, when pertinent.

In speaking to an international congress on a given field of Israel law it would be natural, in order to facilitate communication with our guests from abroad, to compare the local law with the rules prevailing in one or more foreign systems. By doing so, similarities as well as dissimilarities could be pointed out and thereby the local picture put into proper perspective.

Such comparison would have been easier had this congress taken place some years earlier, say in 1967. At that time a sweeping statement to the effect that the law of contract in Israel was the same as in England would have been fairly correct. To be true, some remnants from the pre-Mandate period of Ottoman legislation were still in force. But their impact on the living law was almost negligible in the face of the pervasive influx of English law and its nearly total domination in the field of contracts.

English principles and precedents were applied throughout, whether in compliance with the mandate contained to that effect in art. 46 of the Palestine Order-in-Council of 1922 (which was maintained on the establishment of the State) or, simply because English law and English law reports were better known to most lawyers, both on the bench and at the bar. The papers read by Judge Baker and Advocate Shimron at the International Lawyers' Convention here in Jerusalem in 1958 bear ample witness to this state of affairs.

A few years ago a Supreme Court Justice remarked that in Israel the strike was a sacred tradition. Indeed it was. But now, it is more often regarded as a nuisance. This change of attitude has been reflected in the law.

In this country, as in some other countries, the law concerning labour disputes has swung back and forth during the years like a pendulum: from severe restrictions under the Ottoman Empire, through de facto recognition during the British mandatory period, to a privileged status after the establishment of the State of Israel. True, even after the establishment of the State, the right to strike has not been expressly guaranteed by any statute. But in this respect, it is not different from other basic rights, such as the freedoms of expression or assembly, which are in the nature of common law rights. In fact, it fares better, since other rights are subject under various statutes to substantial restrictions. Only the right to strike was left virtually free from such legal restraints. One might be led to believe that to the socialist leaders of the country, most of whom rose to the Government from the ranks of the trade union movement, the right to strike was dearer than other civil liberties. During the first twenty years of the State, on the few occasions on which the legislature touched upon the right to strike, it only acted to protect it. Most conspicuous is the provision that a strike shall not be regarded as breach of a personal obligation on the part of the individual employee.

The Jewish legal system's concept of Kofin al midat S'dom (kofin, in this essay) is a rule of equity whose scope of application is almost without parallel in other legal systems. Strict translation of this phrase, which is “one is compelled not to act in the manner of Sodom” is not very helpful. The rule is interpreted to mean that if A has a legal right and the infringement of such right by B will cause no loss to A but will remove some harm from, or bring a benefit to B, then the infringement of A's right will be allowed. Such a concept at once brings to mind the modern view concerning abuse of rights. There is, in fact, much in common between the two principles but they are certainly not the same. According to one legal system a certain given fact situation can have the legal principle of abuse of rights applied to it, while in another legal system a different rule of law would be resorted to. To illustrate: In certain jurisdictions the right to privacy is based on the concept of abuse of rights, while in others, as is the case in Jewish law, such a right is independent of the equivalent abuse of rights—kofin. So with other rights such as the right to light or unfair trade competition. An attempt will be made in this essay to show the range and the limits of the kofin principle. We will discuss those problems which are dealt with within the framework of kofin even if their non-Jewish parallel is one which is far from the concept of abuse of rights. Conversely, we will not examine those questions which, in other legal systems, fall within the ambit of abuse of rights but are not looked upon, in Jewish law, as problems to which the rule of kofin is to be applied, since they have been solved by other legal rules.

Should judges have discretion in sentencing? The answer cannot be “yes” or “no” but only the further question “how much?”. The bulk of this statement will be devoted to this second question, but I will first explain why there is no absolute answer to the issue of judicial discretion in sentencing.

Most legal systems grant the sentencing judge (practically) unlimited freedom to choose among a vast array of dispositions in any given case. Legal standards guiding their decision-making are typically non-directive, vague, or non-existent. The result, not unexpectedly, is a great disparity in sentencing outcomes. This state of affairs can best be explained in terms of unquestioned tradition and judicial self-image.