In the decisions of the Israel Supreme Court delivered since the establishment of the State, one sometimes comes across the express or implied statement of the rule that:

The object of this article is to clarify a few aspects of this rule (which, for the sake of brevity, will be referred to as the rule of “constructive intention”).

In 2016 Daragh Murray published his book Human Rights Obligations of Non-State Armed Groups (Hart 2016). By way of distinction from many other contributions on this widely discussed topic, Murray tries to provide the reader with a complete overview of the legal framework that enables armed groups to acquire international legal status, and preferably outside the framework of armed conflict. He walks the reader through the path of international legal personality, leading towards the acknowledgement of armed groups as addressees of the law. Murray's attempt is courageous, interesting and innovative, but it has its shortcomings. These include his reliance on international criminal law as a source for defining armed groups, and his insistence on stepping outside international humanitarian law. Nonetheless, his contribution is essential for those who wish to include even more armed groups on the international plane.

In my recent book Not a Suicide Pact: The Constitution in a Time of National Emergency (2006), I argue for a way of understanding constitutional law that would enable sensible adjustments to the pressures that arise when a nation is confronted with a serious threat to the safety or other well-being of its people; and I tried to show how the method that I was advocating could be used to resolve some of the constitutional issues that have arisen in the wake of the terrorist attacks on the United States of September 11, 2001. The analysis is limited to American constitutional law; whether it has possible applications to the law of Israel or of any other foreign country, I leave for others to decide, though, given the audience, I drop a few hints in this Paper.

The starting point of my analysis is recognition that constitutional law, at least in America (but this is even more true of what passes for “constitutional law” in Israel), is very largely the creation of judges rather than of the framers or ratifiers of formal constitutions. The United States Constitution is 222 years old (1787–2009), though the amendments are younger (but the most influential of them—the first ten—the Bill of Rights, by just a few years). Some of the provisions, in both the original Constitution and in the Bill of Rights and later amendments, are precise; but many are not, and it is the vague or open-ended ones that figure most largely in debates over the legal limits of measures to protect national security. Terms like “due process of law,” “unreasonable searches and seizures,” “freedom of speech,” and “habeas corpus” are not self-defining; nor have judges been willing to confine them to the same meaning they had for the framers or to the core meaning that they would have to be given to have any significance at all. Because American judges do not adhere strictly to precedent, the meaning impressed by judicial decisions on constitutional texts is tentative, especially when a case arises that is not within the heartland of a previous decision because of the novelty of its facts or a shift in the social or political context of the relevant issues.

The emergence of new technologies might challenge our assumptions about biomedical research: medical progress may not only cure but enhance human capacities. In particular, the emergence of brain-machine interfaces will admittedly allow disabled people to move or communicate again, but also has various military applications, such as remote control of drones and avatars. Although there is no express legal framework pertaining to the experimental phase of human enhancement techniques, they are actually constrained by international law. According to international humanitarian law, civilians and prisoners of war may be subjected to experiments only when required by their state of health or for medical treatment. According to international human rights law, experimentations are permissible when they meet two conditions: (i) free consent, and (ii) proportionality (that is, the adequacy of risk and benefit). In light of these conditions, this article assesses the situations in which experimentation involving brain-computer interfaces would be lawful. It also gives specific attention to those experimentations carried out on members of the armed forces. In fact, owing to the military hierarchy and the unique nature of its mission (to protect national security at the risk of their own lives), it is necessary to determine how the military may comply with this legal framework.

In 2020 the Constitutional Tribunal of Poland held that the legislation that permitted abortion in cases of ‘fatal foetal anomaly’ was an unconstitutional interference with the right to life of the foetus. This article examines the recent decision, which prohibits abortion on the grounds of foetal anomaly, arguing that this decision is part of a broader scheme of Polish and transnational anti-abortion lawfare. This lawfare seeks both to (re)shape Polish law in an anti-abortion mould, and to take advantage of ‘gaps’ in European and international human rights law standards on abortion in order to claim rights compliance for law and policy that, in reality, restricts access to abortion in a manner that is incompatible with international human rights law.

A serious issue that has confronted the international community is the legality of humanitarian intervention. Although the majority of scholars reject the existence of a doctrine of humanitarian intervention, could the attacked state invoke the responsibility of an intervening state before an international tribunal? This article attempts to answer this question in light of the often misunderstood clean hands doctrine in international law. It first concludes that under the lex lata, humanitarian intervention is prohibited under international law. This raises the question whether the clean hands doctrine may nevertheless preclude a court or tribunal from adjudicating in favour of a state that has been subject to humanitarian intervention. Although the clean hands doctrine exists under international law in various manifestations, its applicability in cases concerning humanitarian intervention is lacking. The article finally considers whether the jus cogens status of the prohibition of the use of force would prevent the applicability of the clean hands doctrine to humanitarian intervention cases were the clean hands doctrine to evolve into a customary international legal norm.

This article contributes to the understanding of why states resort to targeted, or smart, sanctions to meet the threat of cyber intrusions and whether this type of response is a forced measure or an effective tool to halt, prevent and punish attacking states. The tools of analysis used in the article are legal positivism and political theories, including Mancur Olson's theory of groups and Francesco Giumelli's analytical framework for assessment of sanctions. The authors address the effectiveness of sanctions as a reaction to cyber-enabled activities through the lens of regulation introduced in the United States, the European Union and the United Kingdom, which are the most developed counter-cyber sanction regimes, analysing publicly known cases of cyber-related sanctions.

One of the recurring issues of Israel labour law has been whether an employee may validly waive statutory rights conferred upon him. This issue had led to a head-on collision between the Supreme Court and the Labour Court, with the latter adopting a position directly contradicting the Supreme Court's precedents on this issue.

On certain issues the Courts are in agreement. Both concede that a waiver is unenforceable where the employee is unaware of his statutory rights. Both concur that labour legislation is cognitive in nature and that an employee may not initially “contract-out” statutory rights conferred upon him. However where the right has already “accrued”—that is, where the employee is entitled by law to claim certain statutory benefits as a result of past employment—the Courts are in open conflict. The Supreme Court has adopted the position that an employee may waive such existing and accrued rights by agreement, may compromise them by settlement and may submit any disputed issue respecting them to an arbitrator for determination.

It would be an unforgivable presumption on my part if I attempted to give my observations in this lecture a world-wide focus. At best, they may be suggestive beyond the compass of the small part of the world in which I have gained, by study and by experience, the insights which support my words. At the least, they will bring to light my particular appreciation of the liberties and the constraints which judges of courts in a parliamentary democracy enjoy and endure in the discharge of their duties.

What do I mean by “the institutional character of the judge”? Imagine, if you will, that a man or a woman has been appointed a member of a court. That person has joined an organization which, by constitution or by statute or by both, has been given form, size and function. The position provides security of tenure, an assured salary, and a pension upon due retirement or after a prescribed number of years of service. It demands a stated length of experience in law which has been underpinned by educational qualifications that any aspirant to membership of the Bar must meet. In my country, as in Great Britain and the United States, and as in Israel, the neophyte judge is neither a civil servant, as is the case elsewhere, nor has he joined a specialized branch of the executive government, as is also the case elsewhere. What faces him or her in his or her work, be it as a trial judge sitting alone or as an appellate judge sitting with two or four or more colleagues? To what extent does the judicial system, of which he or she is now part, absorb him or her, and how much freedom does he or she have, to remain or become an individual per se?

The reactions to the reports of Osama bin Laden's death were many: shock, relief, joy, wariness, elation, reservation. Not surprisingly, an intense debate soon emerged over the legality of killing Osama bin Laden. Critics – including the authors of the article, ‘Has “Justice Been Done”? The Legality of Bin Laden's Killing under International Law’, Kai Ambos and Josef Alkatout – raise many interesting and thought-provoking questions. The purpose of this submission is to respond to the arguments of Ambos and Alkatout. This response article argues that the killing of Osama bin Laden was lawful under international humanitarian law. More specifically, a careful legal analysis demonstrates that a non-international armed conflict exists between the United States and Al Qaeda. The evidence overwhelmingly establishes that Al Qaeda is an organised armed group under international humanitarian law. Osama bin Laden most accurately could be thought of as a strategic level commander of Al Qaeda. He has been actively involved in planning and co-ordinating armed attacks against military and civilian targets for years, including the most recent planning of attacks commemorating the tenth anniversary of September 11. As such, he is clearly targetable under international law. Finally, the United States was well within its rights under international law to launch an attack into Pakistan against bin Laden.