This Paper argues that the traditional international legal discourse on occupation fails to reflect the condition of international relations, and their governability by international law, at the turn of the 21st century. This Paper suggests re-conceptualizing the concept of occupation by linking it to the discourse of failed and fragile states and the responsibility to protect.

A contemporaneous understanding of occupation needs to reflect its transforming relationship to sovereignty. Occupation represents a state of interference with the external aspect of sovereignty, which ultimately infringes also on the state of internal sovereignty. In contemporary world politics, occupation arises also from a chain of successive situations interfering with sovereignty wherein internal sovereignty becomes “vitiated” (“failed and fragile state”), and creates a condition conducive to interference with external sovereignty. The outcome of this order of impingements on sovereignty represents a state wherein sovereignty was suspended.

The condition of suspended sovereignty triggers the new norm of the responsibility to protect. This Paper submits that re-vitalization of the concepts of leasehold and trusteeship offers an elegant, perhaps face-saving outlet, hence potentially constructive approach to empower the failed and fragile state in re-establishing its sovereign plenary control over its territory and ending an occupation-like situation.

The analysis of the Lebanese situation is an example of the arguments raised in this Paper and does not fit the traditional post World War II (WWII) occupation legal mould for neither belligerent nor non-belligerent occupation. The complex inter-state relationship linking Lebanon-Syria-Iran-Israel, and which is intricately interlaced in a state-to-non-state actor (NSA) web as played out in the relationship between Israel-South Lebanon Army on the one hand, and between Iran, Syria and Lebanon-Hezbollah on the other hand, serve to illustrate the new 21st century conditions. These conditions press for an updating of the traditional understanding of occupation.

The Land Law, 1969, brought into statutory effect a class of servitudes under the heading of “Easements”. On a first reading of the relevant provisions (sec. 5 and secs. 92–98) it might appear that their import is reasonably clear. Various questions, however, arise as to the meaning and scope of these enactments.

Are the new provisions founded, to a greater or lesser degree, on either the English or American concepts, or has the legislature in Israel endeavoured not only to broaden the scope of servitudes as such, but also to give legal sanction to a new class of servitudes which would not receive recognition either in England or in America? These questions will be considered in the light of the new Law and its relationship to the general approach and legal thinking on the subject in England and the U.S.A.

The English “Equity of Redemption” was applied by the courts in Israel long before the enactment of the Security Interests Law, 1967. The courts did not hesitate to transplant this doctrine of English law into the body of Ottoman law which was then applicable in Israel in the field of secured transactions. Yet, the extent to which this symbiosis succeeded had still to be examined, and many questions relating to the right of redemption were still unanswered when the decision was taken to prepare the new Security Interests Law. In the new Law the right of redemption was expressly recognized. The influence of English law on this subject was so marked that on one occasion a Supreme Court Justice characterized the right of redemption provided by sec. 13(a) of the Law, as “actually only legislating the equity of redemption of English law”. It is the purpose of this article to examine the way in which Israel law formulated its “equity of redemption”, to analyze it, to point out its main features and expose its shortcomings.

It is well-known that Jewish law forbids ona'ah “overreaching”; that is to say: the act of wronging a person by selling him an article for more than its real (market) value, or, conversely, purchasing from him an article for less than its real value (M. Bava Mezia 3.4, seq.). According to (anonymous—stam) Tannaitic halacha (law), the right to claim against ona'ah was always in the hands of the injured party, and whichever side constituted the injured party (be it the vendor or the purchaser), that side had the right to choose either to declare the transaction void, or to make up, or receive the difference (T. Bava Mezia 4.3). Another view, that of R. Judah (ha-Nasi, flor. c. 170–220), is however recorded. R. Judah states that regardless of which side is the injured party, the choice as to whether to annul the transaction or to settle the difference always lies in the hands of the vendor (B. Bava Mezia 50b, Y. Bava Mezia 4.3). This (minority) view was rejected in the Amoraic period by the great Palestinian scholar R. Johanan (flor. c. 250–79), so that the later halacha follows the anonymous (majority) Tannaitic ruling (Y. Bava Mezia 4.3).

The degree fixed in Tannaitic sources for ona'ah was one-sixth (M. Bava Mezia 4.3, 7; T. Bava Mezia 3.9). That is to say, anything less than one-sixth above or below the market price was not considered ona'ah, and the transaction was valid, while one-sixth or more constituted ona'ah, invalidating the transaction, unless the injured party (stam) or the vendor (R. Judah) agreed to settle the difference.

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 restriction of personal liberty is a critical feature in all conflicts, whether they are of an international character or not. With the increased prevalence of non-international armed conflict and the drastic proliferation of non-state armed groups, it is critical to explore whether such groups can legally detain or intern persons during conflict. This article proposes that there exists a power and a legal basis for armed groups to intern persons for imperative security reasons while engaged in armed conflict. It is suggested that this authorisation exists in the frameworks of both international humanitarian law and international human rights law, as it does for states engaged in such conflicts. It is proposed that such power and legal basis are particularly strong for armed groups in control of territory, and can be gleaned from certain customary law claims, treaty law, as well as some case law on international humanitarian law and human rights. Certain case law of the European Court of Human Rights on detention by de facto non-state entities conceivably reflects a change in traditional thinking on ‘legal’ detention by armed groups.

Thomas D Grant's Aggression Against Ukraine: Territory, Responsibility and International Law (Palgrave Macmillan 2015) is the first book which offers a careful, meticulous examination of all aspects of Russia's involvement in Crimea in 2014 in terms of international law, as well as of both Russian and Ukrainian municipal legal orders. It covers probably the widest possible spectrum of legal issues connected with Russia's involvement in Crimea and provides a comprehensive, analytical overview of relevant modern rules of international law in the field of territorial integrity, self-determination and use of force.

Under treaty law all civilian objects are protected in international armed conflicts (IAC) whereas it is only certain civilian objects that enjoy protection under treaty law in non-international armed conflicts (NIAC). However, it is commonly argued that all civilian objects are protected in NIAC under customary law. This article examines the reasons for the differences in the protection of civilian objects under treaty law and the argument that customary law now provides equal protection for all civilian objects under both IAC and NIAC. The article argues that this equal protection may hinder the ability of states to maintain law and order under their domestic law in NIAC in situations where they may need to destroy property which belongs to armed opposition groups. The article advances the argument that the law regarding targeting should be that all civilian objects are protected in NIAC but, unlike the protection of civilian objects in IAC, this protection does not bar a state from destroying in its territory objects which were considered to be illegal under domestic law before the commencement of the NIAC, in accordance with international human rights law as lex specialis.

In the comparative constitutional field relating to backsliding democracies, it is difficult to find an example of a single constitutional event that undermines the basic principles of democracy. Democracies die in a slow and gradual process. Each of the laws passed is not in itself fatal for democracy but when the measures are examined together, cumulatively, the whole is greater than the sum of its parts. It is the big picture, the whole series of legal moves, that brings about a fundamental change in the state's regime until it is no longer a liberal democracy. In these situations of gradual erosion there is no single law that can reveal the magnitude of the change inherent in it. To understand the risk, it is therefore necessary to refer to its overall institutional context. The proposed reform in Israel may result in serious harm to the principle of separation of powers. Moreover, given the importance of imposing limits on governmental power as a tool for protecting human rights and the ‘rules of the game’ in democratic regimes, the reform would seriously harm the protection afforded to these rights and principles, and constitute a clear and present danger to Israel's liberal democracy.

The European Union as a prominent regional organization is increasingly expected to contribute positively in terms of the promotion of certain values, both by European Union citizens and by the international community. These values include the promotion and development of international law, including international humanitarian law. The focus of this Article is on the influence, actual and potential, of the European Union in terms of promoting humanitarian law externally, and on ensuring respect of humanitarian law by third States. It briefly discusses the evolution of the duty to ensure respect and outlines the relevance of international humanitarian law to the external action of the European Union. The European Union Guidelines on Promoting Compliance with International Humanitarian Law are introduced and the background, content, and potential are explored. While not constituting binding law, these guidelines represent the position of the European Union in relation to promoting humanitarian law externally and reflect the responsibilities of European Union Member States with regard to ensuring respect for humanitarian law.

This Essay considers the 2006 Sri Lankan Supreme Court case, Singarasa v. Attorney General, which declared unconstitutional the state's eight-year-old accession to the Protocol permitting the Human Rights Committee to examine complaints of violation of the International Covenant on Civil and Political Rights. It places the decision in the context of the Committee's earlier findings of Covenant violations by Sri Lanka resulting from actions by the Court. This forms the basis of a discussion of problems of identifying questionable judicial conduct and the relevance of the Bangalore Principles of Judicial Conduct.

There can be no quarrel with Prof. Pinhas Shifman's essential thesis. The attempt to have two kings rule the same kingdom at one and the same time has undoubtedly failed. The “mixed marriage” between two legal systems, having different — and at times contradictory — philosophies of law, world outlooks and social goals, has given birth to a child which neither parent is eager to acknowledge. As is usually the case in failed marriages, here too each side blames the other for the failure; the civil system points an accusing finger at the religious system, and the Rabbinical Courts blame the civil courts. Prof. Shifman is certainly correct in his claim that the complexity of this situation has given rise to a certain tendentiousness among both the civil and the Rabbinical Court judges, with each group zealously seeking to enlarge its own kingdom.

Although I do not find fault with the general picture sketched by Prof. Shifman, I cannot agree with some of the finer details; in particular, with certain examples cited by Prof. Shifman in support of his conclusions, which are correct in and of themselves.

The subject matter of our discussion today is entitled “Written or Unwritten Constitutions”—but the real issue before us is the supremacy of the legislature. A written constitution is normally thought and spoken of as a curb upon the supremacy of the legislature; and a constitution under which the legislature is supreme, is normally called “unwritten”. I shall not presume to advise you in Israel as to whether you should give yourselves a written constitution: all I can venture to do is to give you some personal reflections from my own experience, as one who has lived his life and administered the law under an unwritten constitution.

So far as constitutional law deals with the structure of government—how laws are to be made, how they are to be put into effect, how disputes as to rights and obligations under the law are to be decided—it may or may not, in a unicameral legislature, be advisable to require that amendments of what I may call the structure of the constitution should be by a particular majority. Opinions on this may be divided, and I am not going to take any stand. What I should like to give some reflections upon is the proposal that there should be a “basic law” setting out the fundamental human rights and liberties, and what the status of that law should be.

It is a curious quirk of legal scholarship that so much attention has been devoted to the rules and procedures that operate injury trials and so little to the way in which these rules and procedures operate in the vast majority of trials which are conducted without a jury. This “jury-centredness” as it has been called was noted almost thirty years ago by the American scholar Kenneth Culp Davis when he urged scholars and the legal profession to escape from the deep-seated habit of allowing all thinking about evidence law to be dominated by the needs of the 3% of trials that involve juries and to think instead about the needs of the remaining 97% of trials that are tried without a jury. It is certainly true that the withdrawal of the jury from many categories of cases throughout this century in many jurisdictions has not been accompanied by any instant changes in the law of evidence. Certain commentators have noted that in spite of Thayer's claim that the rules are the “child of the jury”, the rules of evidence have proved remarkably resilient in outlasting the demise of the jury. The parent may have ceased to exist in many legal proceedings but the child has lived on.

The role of the victim within the public criminal justice process has traditionally been one of supporting public prosecution. Without the victim's cooperation, police and prosecutors would neither be informed about the occurrence of crimes, nor be able to bring sufficient evidence to secure convictions or extra-judicial settlements. In Germany, for instance, about 90% of all prosecutions are initiated by private complaint.

Compared to what the victim gives the state, the state traditionally gives little to the victim. While the victim's procedural position has been strengthened in Germany in recent decades, namely by the expansion of the right to join the prosecution as a collateral complainant, procedural participation alone has not been sufficient to satisfy the victim's need to be made whole. Victimological research indicates that the victim has a profound interest in compensation of damages. However, since according to our traditional understanding, the victim's claims and the State's claims against the offender are inherently different in nature, they ought to be governed by different types of principles and proceedings. Doctrinally, the criminal courts settle the State's conflict with the offender, while the victim's conflict with the offender is a matter for the civil law and the civil courts. Therefore, the legal consequences of crime, it is believed, reflect primarily the needs of the general public and not the “private” interests of the victim (whether defined as to receive: compensation; reparation; satisfaction; vindication).

To prevent any misunderstanding, I first would like to clarify that I am not a historian dealing with classical studies; my main disciplines are philosophy and law. However, following a seminar I gave dealing with several philosophical-legal aspects of Greek tragedy, and an article I wrote about the relationship between the concept of guilt in Oedipus Tyrannus and the principle of strict liability in modern criminal law, I have found myself in recent years becoming increasingly interested in the unique culture which emerged in Athens during the classical period, particularly in the 5th century BCE. In the course of that century, Athens was involved in many wars – against the Persians in the early decades, against Sparta (the Peloponnesian War) in the latter decades, and other “minor” wars. And yet despite these wars, during the 5th century BCE Athens was in a state of cultural-social-political ferment that left its mark on the whole history of western culture. In the course of that century, there was in Athens a burgeoning of independent-critical thought in the philosophical domain, nature and medicine were systematically studied, tragedies by the Athenians Aeschylus, Sophocles and Euripides were written and performed, and the democratic regime took shape.