The issue of whether interrogative torture may ever be tolerated has been discussed explicitly by both the Israeli High Court of Justice and the Frankfurt Regional Court in Germany. The Israeli court ruling related to the use of interrogative torture in the war on terror; the case brought before the German court was one of routine police work. This paper analyzes the two rulings in depth and offers a comparative reading of the rulings. The comparative analysis reveals that, despite some fundamental differences, the Israeli and German rulings should both be seen as an attempt to uphold the ban on torture, on the one hand, and yet to grant fair treatment to an individual interrogator who used, or threatened to use, force in order to save innocent lives, on the other. While determining the lessons to be learned from the German and Israeli experiences, this paper raises doubts as to whether it is possible to keep the ban on torture intact while either excusing the individual interrogator (Israel) or significantly mitigating his punishment (Germany). The paper further suggests that, in order to provide a real barrier against the practice of interrogative torture, the evidence resulting from such interrogations should be inadmissible in any criminal proceedings.

Can there be a general theoretical perspective on civil society's involvement in transitional justice? This article considers this question in its application to the Israeli–Palestinian conflict. Within the study of transitional justice and conflict resolution, civil society – a notoriously plastic concept – can be understood narrowly as rights-oriented groups working ‘for’ peace, but the term is equally available to describe a broader array of communities that can either promote or prevent peace and justice.

It is, in fact, quite difficult to sustain a theoretical distinction between them, because transitional justice does not escape the dictates of politics – of differing human desires expressed through power. Efforts to memorialise imply conflict over the particular memories to be privileged; claims for reparations are not only demands for justice, but for material redistribution that in turn may promote conflict. A narrow view of civil society problematically assumes we even know – let alone agree on – what constitutes positive change.

In the context of the Israeli–Palestinian conflict, that is a fraught proposition. Both an accurate definition of civil society and the valence of justice work slip beyond the narrow confines of the received model's assumptions: both Jewish and Palestinian groups mobilise a spectrum of resources from political engagement, to overseas support, to violent self-help. On both sides, civil society groups are instrumentalised to advance not an agenda of peace or justice in some abstract sense but a parochial claim that, seen from the other side, is, in fact, an obstacle to resolution. Indeed, there may be no peace or justice initiatives that can be analytically separated from efforts the purpose and effect of which is the very opposite of our conventional understanding of the field. The range from vocal activism to violent action, the spectrum of activation, commitment and radicalism, must be understood as fraught but connected and unbroken – as, at most, a kind of punctuated continuum.

The real work performed by civil society in promoting agendas of peace and justice cannot properly be understood without locating it in a defensible theoretical and empirical framework. Imagining a narrow civil society risks skewing our analysis of what civil society can do and actually does in relation to conflict. Civil society can clear the path to peace, or can provide the principal obstacles to it – it can simultaneously do both. In this it very much shares the ambiguous, multivalent profile of its classic counterpart: politics in the public sphere.

It has been said that there are no illegitimate children but only illegitimate parents, a paradox which reflects the view that the iniquity of the fathers should not be visited upon the children, that the rights of children should not suffer deprivation because of the “sin” of their parents. So put, it presents a challenge to those many legal systems which discriminate against children born out of wedlock, treating them as illegitimate and denying them rights against their parents or, in some jurisdictions, against their fathers. For all that, we are now witnessing in a number of countries a process which is blurring and largely doing away with the traditional disqualifications and discrimination against illegitimate children. Not only does the violation of the rights of a child because his parents bore him out of wedlock appear to many of us to be immoral in itself, but we go on and urge that it is wholly unreasonable to release the “sinning” parent from his obligations and place the burden of bringing up his child on society at large.

This last view does not, however, give any moral or legal approbation to bringing children into the world out of wedlock but suggests rather that the protection of the institution of marriage and family should properly find expression in the status of the unmarried parents. The problems to which this understanding of the matter gives rise are the subject of the present analysis of the pertinent Israel legislation.

This article is a section of a doctoral thesis recently presented on “The Juridical Nature of the Bank-Depositor Relationship”. Its object was to determine the legal nature of general deposits of money in a bank account.

After discussing the various explanations in the context of some of the main Civil law systems (those of France, Italy, Spain and Portugal) the Common Law systems (England, U.S.A.) and under Israeli law, the author reached the conclusion that a bank deposit is not a deposit stricto sensu, being neither an irregular deposit nor a loan, nor even a combination of both, but rather a contract sui generis. In his opinion, the depositor, having placed his money in the bank still retains ownership of the fund: the bank acquires possession and may dispose of the customer's money, thus showing part ownership. In other words, a deposit in a bank implies a contractual fragmentation of the depositor's ownership between the customer and the bank. As a result thereof both parties maintain converging real rights in the fund, thus giving rise to a peculiar real relationship.

Thank you, Albin Eser. I was very pleased to note in the Program that I am listed as a member of the Israeli delegation. This is an honor, but I would also would like to think that I am treated as an honorary member of the Max Planck delegation. I first studied the theory of criminal law at the Max Planck Institute in Freiburg and my work there has had a lasting influence on my thought.

My subject is complicity, which in general terms refers to the liability of one person for the act of another. I begin with an example to render clear the different approaches to this problem of derivative liability. The perpetrator Paul plans the robbery of a gas station and he offers part of the expected bounty to Alex for driving him to and from the scene of the crime. Carrying out this task, Alex knows of the criminal purpose and therefore it seems clear that in some way he should be held criminally liable. The problem is identifying the form of his liability.

Law reform is now under consideration in most countries of the world and practically everywhere, the problem of the instruments of this reform arises: should the reform be carried out by the decisions of judges or by statute, and if by statute, must such law be codified?

Common law countries are both attracted and at the same time frightened by codification. This may well be the situation here in Israel, where the common law tradition is still deeply rooted but where there is also a certain tradition in favour of codification.

At any rate, the subject cannot be treated today as it would have been a century ago. The old controversies about the usefulness of codification in the abstract are out of fashion. In England, the fierce attacks of Jeremy Bentham against the common law—“dog law”—have had no influence on the development of English law. On the continent, Savigny and the German Historical School did not prevent the progressive codification of German law nor the adoption in the other countries throughout the nineteenth century of codes inspired by the French model.

Since 1992, the Basic Law: Human Dignity and Liberty has been in force in Israel. Its purpose according to sec. 1 is: “to protect human dignity and liberty, in order to anchor in a Basic Law the values of the state of Israel as a Jewish and democratic state”. In sec. 2 and subsec. it guarantees: preservation of life, body and dignity (sec. 2); protection of property (sec. 3); protection of life, body and dignity (sec. 4); personal liberty (sec. 5); leaving and entering Israel (sec. 6) and privacy (sec. 7). The guarantees in sec. 2 and subs. might thus be seen as a concretization of art. 1. Here we have already an interesting parallel to constitutional theory in Germany. Human dignity is the article with which our constitution begins. The following guarantees may be seen — as Dürig already pointed out in the 1950's — as an emanation of human dignity with its main aspects of freedom/liberty (Art. 2 German Basic Law [GBL]) and of equality (Art. 3 GBL).

In recent years a new trend has appeared in decisions of the Supreme Court concerning the interpretation of criminal prohibitions. According to this trend – which will be analysed in the course of this article – a penal statute must be interpreted in the same way as every other statute, there being no rule of restrictive interpretation particular to criminal law. The interpreter must choose that interpretative option which best realizes the objective of the legislation, even when that option is based on the irregular and secondary meaning of the words. The legislative objective is often identified by the Court as the broadest possible defence of the social interest protected by the norm. It is this trend that we wish to discuss, or rather, to criticize.

This article is divided into four parts. The first aims to place the Third United Nations Conference on the Law of the Sea in its historical context. The second describes some aspects of the first three sessions of that Conference (1973–1975). In the third an account of major specific interests and conflicts which have appeared in this Conference is given. Finally, some tentative conclusions are drawn—tentative, because the Conference has not yet completed its labours.

During its first session (1949) the newly established International Law Commission, set up by the General Assembly in accordance with the provision of Article 13 of the Charter relating to the codification and progressive development of international law, included the topics of the régime of the high seas and the régime of territorial waters in its provisional list of fourteen topics selected for codification. It placed the régime of the high seas on its priority list, and appointed Professor J.P.A. François (The Netherlands) as special rapporteur. At the recommendation of the General Assembly in resolution 374 (IV) of 6 December 1949 the Commission in 1950 included the régime of territorial waters on its priority list, and in 1951 it initiated work on that topic, for which Professor François was also designated special rapporteur. The Commission was heavily occupied with both these topics until 1956.

It may appear unduly pretentious to speak of the Spirit of the Law of a State which just completed but 25 years of independent legislative and judicial life. States with legislative and judicial records of hundreds of years may find it difficult, and perhaps also rather unprofitable, to delve into speculations of the Spirit behind their laws. In most cases, the general trend and the political motivation of the creation and the administration of law are anyhow known beforehand and well defined a priori—be it the realization of democracy by the rule of law, be it the implementation of socialism or communism, or the self-assertion of a fascist or communist dictatorship. Add to such trends and motivations the national legal traditions which a State inherited and consciously or unconsciously continues to maintain—and you will obtain, for what it may be worth or useful, a fair overall picture of the “Spirit”.of its laws.

It is a commonplace that Rome's greatest contribution to the modern world is its law. Whether this is strictly true or not, Roman law is certainly the basis of the law of Western Europe (with the exception of England and Scandinavia), of much of Africa including South Africa, Ethiopia and in general the former colonies of countries in continental Europe, of Quebec and Louisiana, of Japan and Ceylon and so on. Perhaps even more important for the future is that International law is very largely modelled, by analogy, on Roman law. Just think of the perfectly serious arguments of a few years ago as to whether outer space (including the moon and planets) were res nullius or res communes and whether they were, or were not, susceptible of acquisition by occupatio. This persistence of Roman law has had undesirable consequences. First, Roman law as an academic subject has got into the hands of lawyers whose love of technicalities has frightened off classical scholars who tend not to use the legal sources. Secondly, scholars of antiquity, since Roman law is left well alone, have also been reluctant to look at other ancient legal systems. So have lawyers since these other systems have no ‘practical” value. Thirdly, following upon these but worse still, the usefulness of Roman law for later ages, coupled with its enforced isolation from other systems of antiquity, has often led to an exaggerated respect for it, and to its being regarded as well-nigh perfect, immutable, fit for all people. Many in “the Age of Reason” were ready to regard Roman law as “the Law of Reason”.

The main aim of the article is to test how states implement international humanitarian law (IHL) with regard to the families of missing persons. The article shows relevant IHL shortcomings and compares them with rules applicable in cases of enforced disappearance. The national legislation collected in the section titled ‘The Missing and Their Families’ of the National Implementation Database of the International Committee of the Red Cross is then examined. The analysis addresses three core questions that are particularly relevant for families of missing persons: (1) Who is considered a missing person under each law? Approaching this question allows the testing of whether states follow the understanding of ‘missing persons’ under IHL treaty law. The second and third questions address two issues that are crucial for families of missing persons that are not addressed in IHL: (2) How is the legal status of the missing person regulated? (3) Are family members provided with measures of reparation and/or assistance? This approach reveals that states rarely apply the IHL understanding of ‘missing persons’ and predominantly exceed IHL by addressing some of the identified shortcomings. It further shows that states provide families of missing persons either with reparation measures – in cases of human rights violations – or, less often, with measures of assistance in post-conflict situations.

Seen in the context of the Middle East peace process, the security aspects of the Israel/PLO Agreements constitute a small, but important step within this process. Formally, the security arrangements in the bilateral agreements have to be distinguished from the issue of security in terms of strategic needs and arms control dealt with in the multilateral negotiations. However, bilateral security arrangements will in the long run, influence and be influenced by the content of the multilateral negotiations in the field of security. It appears to have become customary in Middle East peace negotiations, that only once an agreement has been reached on a larger issue, do teams of experts deal with the details of security arrangements. This was the case in the negotiations of the Peace Treaty between Israel and Egypt, and of the Israel/PLO Agreements. The approach adopted by Israel in relation to Syria concerning the Golan Heights, is also similar in character.

I have chosen for my subject some of the contributions made to Jewish law — in its widest sense — by German Christian scholars of the 16th, 17th and 18th centuries. Some sixty years or more ago I became acquainted with the writings of John Selden, the 17th century English lawyer, parliamentarian and antiquarian, whose books on the Uxor Hebraica and De successionibus ad legem Ebraeorum, and De synedriis, were a revelation to me: for a non-Jewish scholar of that period to be capable of delving into biblical, talmudical and post-talmudical sources and to compare them with other ancient systems of law, was an unexpected feat. It is not only the impeccable command of Hebrew and Aramaic that excites wonder: it is also a sincere and genuine endeavour to comprehend and describe the workings of Jewish law objectively and without religious bias. We shall see that not all theologians always succeeded in suppressing their innate prejudices; there were even a good many who conducted their Judaistic research for hostile purposes (and with those I shall not deal). Even of Selden it was said that he had voiced now and then some antisemitic remarks, but there is no trace of any personal animus in his books on Jewish law.