Consider the following statements, which describe the Anglo-American laws of evidence:

This paper is based on a study prepared for the National Insurance Institute. Originally a comprehensive field study was envisaged, to include empirical data concerning the compensation of victims of automobile accidents in Israel, with the intention of examining the possibilities of necessary reform. It transpired that the field study needed substantial expansion in connection with a separate and independent study of the National Insurance Institute, relating to the rehabilitation of accident victims. It was therefore decided to deal with those areas which did not depend directly upon the empirical data. The absence of such data, however, restricted the possibility of drawing definite conclusions as to the state of affairs in Israel.

The first public proposals in the matter appeared in the Report of the Ben-Ze'ev Committee, appointed by the Ministers of Justice and of Labour in 1964, which was published in the summer of 1966. The gist of the Report lay in the recommendation to leave the implementation of the proposed scheme to the National Insurance Institute. The insurance companies and others came out in opposition and for that reason apparently the Report was shelved.

Any scientific discipline worthy of the name is successful in eliciting the essential nature of the area with which it is concerned and in identifying its basic categories and determining the rules applicable to the inter-relationship of these categories. On these conditions alone can scientific inquiry fulfil its major, perhaps only, task of solving the practical problems that arise in the particular area of study. In every science, therefore, a central place is assigned to an examination of its specific categories.

Jurisprudence establishes general juridical categories that prevail in every branch of law. Yet each branch of law, including the criminal law, has laid down and delimited its own particular categories and continues to do so. From time to time social phenomena appear which do not lend themselves to the classificatory grouping of the current jurisprudential theory. In such cases, the scholar must extract the basic constituents of these phenomena, trace their specific consequences, determine their special nature and dovetail them into the classificatory system of the relevant branch of the law. From this process also derives the practical interest of the scholar in facilitating the smooth articulation of the actual phenomena with the previously prescribed categories and relating to them the legal effects specific to the category under which they fall to be grouped.

In this paper, I address the relevance of the normative dimension of international relations against the background of the Advisory Opinion of the International Court of Justice of July 9, 2004, with reference to the legality of the security barrier/fence being erected by the Israeli government since March of 2002. I examine different approaches to the study of norms in international relations, focusing upon the Grotian approach, which represents a middle ground between the extreme Hobbesian (Realist) and Kantian (idealist) traditions of international relations. According to the Grotian approach, international norms affect the foreign policy of individual countries through their institutionalization in the international society, usually through multilateral instruments of international law. In this sense, both the ruling of the Israeli Supreme Court of June 30, 2004, and the Advisory Opinion of the ICJ of July 9, 2004, represent and reflect those instruments. The International Court of Justice is the major legal institution of the United Nations, which is the embodiment of our international society. Hence, even if its ruling is considered biased or distorted (by Israel), it still carries an important normative and political baggage, by underlining paramount norms such as self-determination and protection of human rights.

In this comment I wish to defend Antony Duff's final conclusion; namely, that punishment is to be seen as a deterrent system constrained by requirements of justice. I shall do this, however, mainly by using John Kleinig's arguments. My aim is to show that although Kleinig himself rejects deterrence as part of punishment's justification, some of his arguments can best be defended if deterrence is taken into account. In the final section of the comment I shall return to Duff's arguments in this context, but only in order to raise some doubts as to their underlying assumption.

Before doing so, let me compare, briefly, Duff's and Kleinig's attitudes which seem to be relevant to the purpose of this comment.

Both Kleinig and Duff believe that, ideally, punishment is to be justified by retributive considerations. According to Kleinig, even in such an imperfect society as ours, punishment should still remain retributive.

Four fundamental and inter-related points must be borne in mind when discussing existing or prospective legislation on the treatment of mentally-sick offenders:

First, the basic misconception in regard to the true nature of the issue of criminal insanity; secondly, the long-standing conflict between the legal and medical professions in regard to this issue, and the need to shift the centre of the conflict from the substantive to the procedural levels where considerable progress towards close cooperation has already taken place; thirdly, the inter-relationship of the procedural and substantive levels and the great power which the former is capable of wielding over the latter; and fourthly, the effects of the typical, traditional modes of procedure and trial techniques of individual countries on their existing laws and on future legislative progress.

The dual nature of the problem of the mentally-sick offender has been the source of much confusion. The substantive tests of criminal responsibility predicated on the mental condition of the accused at the time of the offence have been confused with the distinct problem of the modes of ascertaining his mental condition before, during or after criminal trial, and the setting up of machinery for disposal or treatment.

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 practice of house demolition in the Occupied Palestinian Territories (‘the Territories’) pursued by Israel for the purpose of deterring potential terrorist activities (as opposed to planning or operational purposes) has attracted voluminous literature, most of which is critical. Scholarship postulates that the practice is immoral and ineffective, that it is contrary to Jewish morals and international law, and that it may amount to an international crime. Some of the critical writings focus on the practice of the Israel Defence Forces; others concentrate on the failure of the Israeli Parliament to curb the practice, while others examine the practice in its wider context, namely the Israeli–Palestinian conflict. This article focuses on the regulation of the practice by the Israeli Supreme Court (‘the Court’). This theme has already been examined by numerous scholars including, in particular, Kretzmer and Simon, who found that the Court's jurisprudence is contrary to public international law and its reasoning is unpersuasive. This article aims to add to the existing scholarly corpus by using a different prism. It contrasts the Court's house demolition jurisprudence with its own jurisprudence in comparable areas in which it is called upon to resolve tensions between security and human rights in the Territories, postulating that in handling house demolition measures the Court is unfaithful to its own jurisprudence. Building upon these findings, the article distils the manifestations of that unfaithfulness and its negative repercussions in normative, coherence and legitimacy terms. It concludes with the call that when the issue of house demolition is brought back before the Court, it should apply the same approach, spirit, techniques and benchmarks that it has employed in analogous areas of law.

Over the years, the Security Council has on several occasions dealt with humanitarian assistance issues. However, it is Security Council Resolution 2165(2014), related to the situation in Syria, that has brought the role of the Security Council to the forefront of the debate. It is against this background that the article discusses the legal issues arising from Security Council action facilitating humanitarian assistance to be delivered in situations of non-international armed conflict.

Following a brief survey of relevant practice of the Security Council related to humanitarian assistance, the article considers the relevance, if any, of Article 2(7) of the Charter of the United Nations (UN) to humanitarian assistance to be delivered in such situations. It then moves on to analyse whether a rejection by the territorial state of humanitarian aid to be delivered by third parties may amount to a situation under Article 39 of the UN Charter. It then considers in detail whether (at least implicitly) Resolution 2165 has been adopted under Chapter VII and, if this is not the case, whether it can be still considered to be legally binding.

The article finally considers what impact the adoption of Security Council Resolution 2165 might have on the interpretation of otherwise applicable rules of international humanitarian law and, in particular, the right of third parties to provide humanitarian assistance in a situation of a non-international armed conflict in spite of the absence of consent by the territorial state, and the obligations that members of the Security Council, permanent and non-permanent, have under Common Article 1 of the Geneva Conventions when faced with a draft resolution providing for the delivery of humanitarian assistance, notwithstanding the absence of consent by the territorial state.

To Professor Martin Shapiro, With friendship, gratitude, and admiration

The ruling of 22 October 2020 concerning termination of pregnancy in Case K 1/20, handed down by the body once known as the Polish Constitutional Court, has devastated the legal and social landscape in Poland. The decision ruled as unconstitutional the provision that allowed medically assisted termination in cases where prenatal screening or other medical considerations indicated a high probability of a severe and irreversible abnormality or an incurable disease of the fetus. This analysis argues that the ruling is the most serious attempt to discredit and humiliate the Polish Constitution of 1997, and stands as the ultimate proof of weaponising judicial review. The argument will be made that if one wishes to understand the extent of the capture of independent institutions by the ruling majority, the ruling under consideration must be read and considered in the light of a more general context. Only by going beyond and contextualising it, can one grasp the extent to which the constitutional profile of a state has been altered by methods of unconstitutional capture. The analysis argues that once we contextualise the ruling and view it in a more systemic light, there are important systemic signposts that will help to explain how we arrived here and, more importantly, what is next. These signposts, in turn, contain a cautionary tale of the institutional fragility that is relevant for liberal democracies.

The absence of control of a territorial state over part of its physical territory is closely associated with online human rights violations, on the one hand, and the state's restricted (but not necessarily absent) control over the cyberspace, on the other. Notwithstanding the lack of its effective territorial control, the territorial state continues to be entitled to exercise its sovereignty over both territory and cyberspace. The consequence of sovereignty in international human rights law is the territorial state's presumed jurisdiction over its entire national territory. The article claims that the territorial state, while lacking the effective means to control its cyberspace fully as it does in the government-controlled areas, has continuing jurisdiction, and consequently obligations, to protect human rights online from wrongful acts that originate, occur or have effect in the area outside its effective control. Treaty monitoring bodies have recommended various positive measures that any territorial state is required to take while seeking to restore its ‘internet sovereignty’ in the separatist region, depending on the means in its power that are feasible in the particular situation.

The Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip (“the Interim Agreement”) represents another stage in the implementation of the framework established in the Declaration of Principles signed between the Government of Israel and the Palestine Liberation Organization (the “PLO”), commonly known as the “Oslo process”. In essence, the Interim Agreement provides for the establishment of self-government arrangements in the West Bank and the Gaza Strip, as envisaged in the Declaration of Principles, while explicitly superseding the arrangements which applied in the Gaza Strip and the Jericho Area since May 1994. In addition, the Interim Agreement provides for “direct, free and general political elections” to be held in the West Bank and the Gaza Strip.

The aim of this section is to acquaint lawyers with the general framework of the Agreement, and the primary legal and political issues dealt with by the Interim Agreement, rather than to describe the specifics of each of its many provisions. Where required, reference will be made to the Declaration of Principles and to previous Agreements concluded between the Parties. At times, reference will also be made to the Camp David Framework of 1978.

This article seeks to give an impression of the way in which domestic courts are contributing to the development of international criminal law. Have they predominantly followed the case law of international tribunals and, by doing so, have they corroborated those standards? Or have they rather ventured in new directions and, as a consequence, been involved in a creative process, establishing and refining international criminal law?

Four different approaches, reflecting the position of domestic courts vis à vis the standards and case law of international criminal tribunals, are identified and analysed: strict compliance, antagonism, judicial construction, and ‘casuistry’. The author concludes that the most important contribution of domestic courts to the development of international criminal law consists of further interpretation of open-ended norms. While this is obviously inherent in the process of ‘judicial creativity’, the feature is reinforced by the non-hierarchical nature of international criminal law. As a consequence, international criminal tribunals lack the power and authority to impose their interpretation of international criminal law on domestic courts. The risk of fragmentation is mitigated, however, by the nature of criminal law, which requires strict and clear standards, and by the increasing interactions between courts at different levels.

This article explores how the Inter-American Court of Human Rights (the Court) has dealt with allegations of violations of the right to life during an armed conflict and, in particular, how it has dealt with allegations of violation of the obligation to investigate such allegations. The article notes that international humanitarian law (IHL) was initially used by the Court to strengthen the general obligations of states to protect the rights guaranteed by the American Convention on Human Rights (ACHR). Later IHL began informing the interpretation of specific rights. This change has been more significant in relation to the interpretation of the right to life under the ACHR than in the examination of state compliance with the right of access to justice, which encompasses the duty to investigate allegations of violations of the right to life during an armed conflict. The analysis of the Court's jurisprudence demonstrates that the different ways in which the Court has addressed the relationship between IHL and international human rights law (IHRL) have been informed by its primary effort to ensure that the interpretation of the ACHR provides the widest protection possible to individual rights.

The Knesset has recently amended Basic Law: The Judiciary to eliminate the ability of the courts to issue an injunction against the government or any of its ministers based on the reasonableness of their decisions. This article examines this amendment from various angles. The first section posits the amendment as part of a larger plan of the coalition to eliminate judicial review and provide the government with unlimited power. The second section emphasises that the amendment was legislated by the Knesset for itself, raising concern over a conflict of interest. This is followed by a brief explanation of the reasonableness standard in Israeli law, and an assessment of the duty to act reasonably, which stems from the democratic principle of the rule of law. The next two sections assess the many risks that the amendment creates, such as the types of decision that could be made without adhering to a standard of reasonableness, and the trimming of the power of the Attorney General as a legal ‘gatekeeper’. Special emphasis is given to the dangers that the amendment holds for the quality and diversity of the civil service. Finally, the article discusses the multiple reasons why the government should not be immune from a reasonableness check and tackles the arguments against the use of the standard of reasonableness by the courts.

This multifaceted analysis leads to the conclusion that the elimination of the reasonableness standard undermines basic features of democracy and fractures the social contract between the citizens and the government. Therefore, it should not be immune from judicial review.

How should the constitutional reform in Israel be assessed in comparative terms? Comparative constitutional understandings point to the centrality of three key sets of norms as part of the ‘democratic minimum core’: (i) commitments to free and fair, regular multi-party elections; (ii) political rights and freedoms; and (iii) a system of institutional checks and balances necessary to maintain (i) and (ii). Any change in judicial power and independence must be assessed against the benchmark of the democratic minimum core, and by reference to its cumulative practical effect on a system of institutional checks and balances.

We claim that recent changes in Israel may already threaten these institutional checks, and have the potential to do more damage in the future, if given broad effect and if combined with further changes in the power and independence of the Supreme Court. On this basis, we suggest, the relevant changes should be viewed as either ‘abusive’ or ‘proto-abusive’ in nature. By threatening to undermine both the power and independence of the Supreme Court of Israel, they directly threaten the health of the constitutional checks and balances system and, hence, the ‘democratic minimum core’ in Israel.