The laws of the Old-Babylonian kingdom of Eshnunna (LE) were discovered in 1945 and 1947, on two parallel tablets, during excavations on the outskirts of Baghdad. In 1948 a first edition, with English translation, was published by Professor Albrecht Goetze, of Yale University. Since then the LE have been translated into many languages, major and minor, and a considerable literature has grown up around them. Goetze himself has repeatedly returned to the Laws of Eshnunna. His standard edition of the LE, now in general use by scholars, was published in 1956.

Eshnunna, to the east of the river Tigris, flourished during the early second millennium B.C. Much of its history is as yet uncertain. Here it will suffice to note that it finally fell victim to the expansionist policies pursued with success by Hammurabi of Babylon, during the fourth decade of his reign. The date of promulgation of the LE is uncertain, but it is at least agreed that they precede the Code of Hammurabi, though one cannot know by how much. It is then a fair guess that they were issued in the course of the 18th century B.C.; thus they constitute the earliest collection known at present, of legal rules in Akkadian.

This comment relates to a more universal aspect of the Wall opinion, asking whether the ICJ has promoted or undermined international law in its conduct, more particularly the legitimacy of the ICJ's advisory function. The comment argues that the Wall displays two conflicting tendencies in this respect. If one examines the opinion's procedural ‘inputs’ (even setting aside the issues of jurisdiction and propriety), the ICJ may have robbed the advisory procedure of some of its legitimacy by unfairly ignoring the case's contentious aspects on the procedural level. However, if one focuses on the opinion's ‘outputs’, it may have marked a significant, if imperfect, legitimate stage in the ongoing modernization of the ICJ, towards a supra-national, compulsory judiciary that allows a degree of effective access to non-state interests. Which of these evaluations will ultimately hold sway (or how they will weld together), remains to be seen.

When an industrial concern pollutes the environment thereby interfering with neighbouring homeowners' use and enjoyment of their property, may the homeowners enjoin the pollution even where compliance with an injunction could force the polluting industry to stop production?

Faced with this kind of question the initial reaction of people concerned with protecting the environment against pollution is almost certain to be in favour of granting the injunction. However, the problem has received considerable attention in contemporary legal literature and much of what has been written tends to show that this reaction is both simplistic and somewhat unrealistic. It is simplistic because an economic analysis of the facts of any given situation—which for want of a better term may be called a “nuisance-situation”—may well reveal that the defendant should be allowed to continue his polluting activity (though other measures should be taken to protect its victims from its effects); it is unrealistic because even if an injunction is granted by the court, means will probably be found to enable the polluting activity to carry on if it is economically or socially desirable for it to do so.

It is natural for the Israeli legislature to endeavour to free itself of the Laws that were enacted in this country before the establishment of the State and which are still in force. The legislature cannot, however, fulfil this task without first resolving whether the abrogation of these Laws should be effected by simple annulment or by replacement with other laws (and in that event within which framework). The problem is laden with responsibility when fundamentals — such as certain rules incorporated in the Palestine Order-in-Council, the “remnants of the Mejelle” and the Interpretation Ordinance — are involved which affect the entire legal system and give it its special character. Moreover, the one problem leads to another: incidental to annulment and replacement, the need for complete regulation may present itself, including aspects not previously regulated in a direct, express and sure manner.

Rules which belong to a category that can be designated as the “Law of Laws” (“Laws” taken in the sense of all law and not merely statute) are in question. As opposed to others (which are “material” since they attach legal consequences to given facts of life), these rules concern the sources, the effect, the application and the construction of other laws.

One of the most significant recent developments in the law of extradition is the serious consideration that courts are willing to display to the punitive consequences of an extradition order, if capital punishment is the specific penalty that the requested person is liable to have imposed on him if convicted. At the same time, this development serves also as one of the most dramatic examples of the manner in which the subject of human rights has become a factor in international relations, which nation-states can disregard only by exposing themselves to negative assessments linked to reluctance to respond to formal requests. For the most part the “linkage” has been focused mainly on economic aid, where donor countries would approve requested aid contingent on positive accounting in human rights, but now, as a result of a number of novel judicial decisions, it seems that similar factors will be examined, when requests for extradition are submitted. At the moment, the focus is on the use of the death penalty, but the very reasoning process used may well open up further possibilities.

It may be asserted that freedom of navigation is the cornerstone of international intercourse. It has always been indispensable for shipping, but at the same time, in the past, it did not give rise to any significant conflict of interests. No wonder that freedom of navigation has been universally recognized as a basic norm of international law. Indeed, it is often cited as the most classic illustration of a peremptory norm of the law of nations.

Freedom of navigation could not be confined to the high seas. It was soon realized that to ensure free access to and from the open sea, as well as free passage between its various parts, rights of navigation in several sea spaces other than the open sea should be recognized too. Consequently the ships of all nations are also entitled to enjoy certain rights of navigation in some areas which are subject to the sovereignty of the coastal State, particularly in international straits, even though they may form part of the territorial sea of the riparians. Whereas freedom of navigation on the high seas has long been taken for granted, these limited rights of passage have been the subject of friction and compromises between the users and the littoral State.

The three great monotheistic religions, Judaism, Christianity and Islam — the subject matter of this survey — have several distinctive marks in common: they postulate the belief in and worship of God; they each have holy scriptures and other canonical texts and vest authoritative interpretations or applications thereof with binding force; each designates a class of officials or functionaries to preserve and propagate the faith; each seeks to imbue its religious, ethical and legal norms into the daily lives of individuals and communities; and none suffers dissidents from within. In addition there are, at least in Christianity and Islam, certain fundamental dogmata (for example, the Holy Trinity in Christianity, the divine prophecy of Muhammad in Islam) which everybody is duty-bound to believe. In each religion, ancient or medieval scholars of authority have compiled lists of articles of faith, the dissent from which by any individual coreligionist is proscribed. It will be shown that these lists are not necessarily exhaustive: the possibilities of dissidence are virtually unlimited.

When Dean Feller did me the honour of inviting me to give the Lionel Cohen lecture for 1973 one of the subjects I submitted, and the one accepted by him, was “Reforming the Law of Evidence—The English Experience”. For me those were the halcyon days before the publication of the 11th Report of the Criminal Law Revision Committee; the law of evidence in civil cases had been modernised by the Civil Evidence Acts of 1968 and 1972, and I pictured the draft Criminal Evidence Bill annexed to the 11th Report going merrily through Parliament, if not without some protest and amendment, at least with celerity and the certitude of becoming law. Alas, this was not to be. To describe the reception of the Report as “unenthusiastic” would be the understatement of the century; but, although I must confess to considerable pessimism concerning the questions when and to what extent the draft Bill will become law in England, I am pleased that it should continue to be the subject of my lecture, although the title of the latter had perforce to undergo some change in order to cater for the fact that the English experience of reforming the law of evidence is too incomplete to allow for profitable discussion.

Political agreements are an integral part of the political system in Israel. For various reasons — mainly the proportional representation electoral system and the existence of a “third bloc” of religious parties that do no fit into the centre-right and centre-left political alliances — no political party has ever enjoyed an absolute majority in the Knesset. The dominant parties have therefore always had to rely on coalition agreements with smaller parties in order to obtain, and subsequently maintain, the parliamentary majority required for a government to rule under Israel's parliamentary system. A similar situation exists in many municipal councils and in other elected bodies, such as the Bar Council.

It has been asserted by Gunnar Myrdal, the renowned Swedish economist, that one of the three major obstacles to the satisfactory progress of international economic cooperation and integration is that the methods of settling international disputes are ineffective and primitive.

That the lack of adequate institutional facilities for the settlement of investment disputes has in particular hampered the flow of capital from the affluent to the developing nations (at a time when the revolution of rising expectations so extensively depends upon it) cannot be seriously doubted. As pointed out by one writer: “It does not appear realistic to expect a foreign investor to allow adjudication of his grievance before a tribunal of the nation in which the grievance arises, or before a tribunal of a nation allegedly causing the grievance… For similar reasons, a nation which is a party to a grievance will not normally allow its rights to be adjudicated by a tribunal of a nation of which a complaining foreign investor is a national.”

A new creature has been welcomed into Israel's family of law. While some refer to it as a political agreement, and others a public agreement, I prefer to call it a political contract.

It was greeted with curiosity, suspicion, and even disapproval. And, although much has been written about it of late, its character has as yet to be determined. What distinguishes it from other agreements? Is it legally binding, or does it merely draw upon the force of public opinion? Is it justiciable? If binding, does it fall within the scope of private law or of public law? And what consequences attach to breach of the agreement?

In this article, I will examine the primary questions regarding political agreements, present the existing case law and opinions, and express my views on the subject.

This question is closely connected with substantive law. It is interesting to note that whilst the Israel legislature has purported to revise only the procedure with respect to criminal insanity, the substantive issues were also attacked by the courts soon after the enactment of the procedural innovations in 1955, thus perhaps also reflecting the close interdependent relationship between the procedural and the substantive aspects of the problem. The setting up of a somewhat detailed procedural machinery has, curiously enough, led to far-reaching liberalization of the tests of irresponsibility by the Israel courts who, after a persistently strict adherence to the McNaghten Rules, are now willing to add the test of “irresistible impulse” by an ingenious interpretation of the Criminal Code Ordinance (the terms of which have not been changed in this respect since its enactment in 1936), straining the “natural” meaning of its provisions almost to breaking point.

The first attempt to achieve this far-reaching change of policy was made by Justice Agranat (as he then was) in the Mandelbrot Case but despite his scholarly and forceful opinion he was overruled by the majority of the court. The same issue, however, came up again in the Mizan Case, where a panel of five Justices (two dissenting) confirmed Justice Agranat's minority opinion in the MandelbrotCase, thus incorporating in substantive law the additional test of pressure of irresistible impulse derived from mental illness.

The essay places the ICJ opinion in a broader legal and political context and argues that the failure to distinguish between democratic and non-democratic regimes characterizing the ICJ advisory opinion reflects broader trends with potentially ruinous consequences for the enterprise of human rights promotion itself. The ICJ opinion's willful ignoring of Israel's democratic character yielded a tendentious and inconsistent ruling. By contrast the Israel High Court of Justice's decision invalidating portions of Israel's security wall reflects a healthy understanding of a democracy's needs and limitations, as reflected in that court's proportionality standard of review. The ICJ willingly blurred crucial distinctions between democratic regimes that genuinely adhere, however imperfectly, to principles of human rights in their own governance, and those states and actors that do not, a distinction made all the more imperative by the events of September 11.

The judicialization of human rights in the post-Cold War era takes place against the background of a tensile relationship between human rights advocacy and democracy promotion during the Cold War. While human rights represent an essentially legal idea, democracy a political idea. In closing, the essay lays out one basic, hopefully workable, conceptual division of labor between human rights and democracy as complementary elements of a broader project of human dignity, in which human rights represents a “thin” universal conception of human dignity, while democracy offers a process whereby that conception can be “thickened” in various political, social and cultural contexts around the globe.

In an article published in an earlier issue of this Review, the question was raised whether the courts of Israel have finally reached a conclusion on the question of their own power of judicial review of legislative measures passed by the Knesset. It was submitted that the question should be solved by a political rather than a judicial decision.

In the present article it is intended to examine a hypothetical constitutional question, namely, can the Knesset, acting within the framework of the existing legal system, adopt or develop a written, rigid Constitution which would become the “supreme law of the land” and which would be effectively protected by the courts?

A military operation is about to take place during an ongoing international armed conflict; it can be carried out either by aerial attack, which is expected to cause the deaths of enemy civilians, or by using ground troops, which is expected to cause the deaths of fewer enemy civilians but is expected to result in more deaths of compatriot soldiers. Does the principle of proportionality in international humanitarian law impose a duty on an attacker to expose its soldiers to life-threatening risks in order to minimise or avert risks of incidental damage to enemy civilians? If such a duty exists, is it absolute or qualified? And if it is a qualified duty, what considerations may be taken into account in determining its character and scope?

This article presents an analytic framework under the current international humanitarian law (IHL) legal structure, following a proportionality analysis. The proposed framework identifies five main positions for addressing the above queries. The five positions are arranged along two ‘axes’: a value ‘axis’, which identifies the value assigned to the lives of compatriot soldiers in relation to lives of enemy civilians; and a justification ‘axis’, which outlines the justificatory bases for assigning certain values to lives of compatriot soldiers and enemy civilians: intrinsic, instrumental or a combination thereof. The article critically assesses these positions, and favours a position which attributes a value to compatriot soldiers' lives, premised on a justificatory basis which marries intrinsic considerations with circumscribed instrumental considerations, avoiding the indeterminacy and normative questionability entailed by more expansive instrumental considerations.

The advent of the principle of complementarity under the Statute of the International Criminal Court has shifted the focus on prosecuting international crimes to the national courts. One of the potential difficulties in this shift is that there is no uniform standard for incorporating and applying international legal norms in the national systems. This article examines how two very distinct national courts – the state Court of Bosnia and Herzegovina and the military courts of the Democratic Republic of Congo – have implemented and applied international legal norms. Despite the differences between these particular courts in the methods of implementation and application, international courts have had an impact on the national systems that have helped the latter to follow international criminal legal norms.