The following commentaries are responses to the rough drafts of six lectures—the Hourani Lectures—that I delivered at the University of Buffalo in November of 2006. This draft manuscript is being extensively revised and expanded for publication by Oxford University Press as a book provisionally called The Morality and Law of War. Even though in January 2007 the book was still both unpolished and incomplete, David Enoch at that time generously organized a workshop at the Law School of the Hebrew University of Jerusalem to discuss its ideas and arguments. George Fletcher chaired the meeting and Re'em Segev, Yuval Shany, and Noam Zohar all presented superb commentaries. The following papers have all grown out of that memorable occasion.

International human rights law and international humanitarian law are traditionally two distinct branches of law, one dealing with the protection of persons from abusive power, the other with the conduct of parties to an armed conflict. Yet, developments in international and national jurisprudence and practice have led to the recognition that these two bodies of law not only share a common humanist ideal of dignity and integrity but overlap substantially in practice. The most frequent examples are situations of occupation or non-international armed conflicts where human rights law complements the protection provided by humanitarian law.

This article provides an overview of the historical developments that led to the increasing overlap between human rights law and humanitarian law. It then seeks to analyse the ways in which the interplay between human rights law and humanitarian law can work in practice. It argues that two main concepts inform their interaction: The first is complementarity between their norms in the sense that in most cases, especially for the protection of persons in the power of a party to the conflict, they mutually reinforce each other. The second is the principle of lex specialis in the cases of conflict between the norms.

Intellectual work on the law of war suffers from chronic isolation. The commentators on the Rome Statute are international lawyers who pay no attention to the work either of theoretical criminal lawyers or of the philosophers. The philosophers—Jeff McMahan as an outstanding example—ignore the legal details that dominate the books of the international lawyers. Criminal lawyers have much to contribute to the discussion of international law but they seem not to be interested, and so it goes. Writers with limited audiences, living in closed worlds, are unaware of what they have to learn from those with a different take on the field.

From the adoption of the United Nations' Charter, the interplay between international human rights law and international humanitarian law has been subject to many questions to which scholars, judges and institutions still struggle to provide a clear answer. At present, there are a number of divergent stances on the parallel application of the disciplines, but they are generally elusive as to their exact methodology and supporting legal basis. This article argues that a well-coordinated application of international humanitarian law and international human rights law is vital to ensuring adequate protection during armed conflict and the effective implementation of the legal frameworks. It examines the articulation of the relationship between international humanitarian law and international human rights law through the lex specialis model. Considering the theory of lex specialis, this article questions the widely accepted view that this theoretical model, based on the specificity and generality of the law, can clarify the interplay and facilitate the co-application of international human rights law and international humanitarian law. In light of this, it is argued that a new means is needed to clarify the interplay between the disciplines. This article advocates the substitution of the lex specialis principle and development of a more specific methodology to resolve issues linked with the concurrent jurisdiction of the disciplines. It suggests that the theory of lex specialis yields to a different theoretical model based on multiple pre-determined criteria that balance the reality of conflict with the respect of humanity and protection of individuals.

Administrative law in Israel is at the crossroads. Historically, Israeli administrative law was born from English administrative law and like its English counterpart was developed against the background of two significant factors: the relative dearth of constitutional law concerning the protection of human rights on the one hand, and the power of the central government on the other. These two factors had traditionally contributed to the centrality of administrative law that underwent a radical change. First, constitutional law is now an independent source for the recognition and enforcement of human rights following the enactment of new basic laws on human rights—Basic Law: Freedom of Occupation and Basic Law: Human Dignity and Liberty. Second, privatization has changed completely the scope and pattern of activities conducted by administrative agencies in both countries.

This Article discusses the developments in Israeli administrative law as a result of these changes. In this context, it also evaluates the potential recourse to American administrative law, which has grown in the context of a well developed constitutional law and a relatively low level of government activity in the economic sphere.

The Article argues that the main focus of administrative law—in contrast to constitutional law—should be on the protection of interests (that are not considered human rights), on distributive justice, on procedural justice (in the context of bureaucratic decision-making) and on a broader scope of review (not limited to the protection of human rights), with a special emphasis on the executive branch. In the context of adapting to privatization, it also argues that administrative law should strengthen its focus on the challenge of regulation, on the protection of social rights and on the duties of “mixed” bodies, which are, in many cases, the product of privatization.

This comment to Jeff McMahan's thought-provoking contribution does not aim to take issue with the interesting and rather compelling philosophical arguments he raises in support of moral-based norms. In the same vein, the comment does not criticize the way in which McMahan describes the international law doctrines governing war situations—a description which is generally accurate. Instead, I comment on the policy reasons that have led international law-maker to move away from some of the morality-based distinctions and normative choices expounded by McMahan. Hence, my focus in this comment is on the pragmatic constraints that limit the influence of moral ideas on the laws of war. Of course, the resort to pragmatism may be in itself morally justifiable, as the insistence on the application of pragmatic consideration is often linked to the promotion of laudable goals—aversion of war and reduction of casualties and damage. Hopefully, a better understanding of the reasons underlying the rejection of “pure morality” in the context of the regulation of war would contribute to a critical assessment of the desirability of McMahan's ideas and to identification of the institutional conditions that could facilitate their application.

The events of recent years have prompted a closer examination of the legal complexities arising from transnational armed conflicts pitting a state against a non-state organized armed group based outside the state's territory. For much of the Twentieth Century it remained unclear whether human rights law apply to a state's conduct during armed conflict or occupation. Despite continuing objections on the part of a handful of states, a consensus is evolving in favor of the view that human rights law applies in full alongside humanitarian law.

Once it is settled that human rights law does not cease to apply by reason of the inception of a state of armed conflict, it is easy to see how this body of law would apply alongside humanitarian law in an internal armed conflict. The situation becomes more complex, however, when a state is engaged in a non-international armed conflict taking place outside of that state's territory.

Unlike human rights law, the law of armed conflict was designed to apply primarily in an inter-state context. Thus, the vast majority of its provisions clearly apply to a state's extraterritorial conduct, specifically in the territory of the opposing state. But what of that branch of humanitarian law that developed to regulate non-international (i.e., non-inter-state) armed conflict? Recently, controversy arose as to whether Common Article 3 applies only to internal conflicts. The question of the extraterritorial application of Common Article 3 must be examined in light of the more general evolution in humanitarian law in favor of recognizing rights of individuals as such.

There has been a substantial degree of convergence between the law of international armed conflict and the law of non-international armed conflict. A result of this convergence has been that individuals involved in a non-international armed conflict can now benefit from many of the protections once available only in the context of inter-state conflicts.

At the same time, some have relied on this convergence to extend to non-international armed conflicts not only the prohibitions of the law of international armed conflict, but also, controversially, authorizations. In any event, notwithstanding continuing controversy over its content, there seems to be a general consensus supporting the proposition that the law of non-international armed conflict applies extraterritorially. As noted above, demonstrating the applicability of humanitarian law outside of a state's territory is facilitated by the fact that the bulk of the law of armed conflict was designed to apply in an interstate context, presupposing that states would be acting on each other's territory. That some of these rules are now deemed to apply even in an internal setting does not lessen the presumption that they will still apply extraterritorially, at least insofar as they consist of prohibitions and do not purport to impose obligations on third states.

The situation is more complex under human rights law, which was not primarily designed to apply extraterritorially. In order to ascertain whether human rights law is applicable in the context of transnational conflicts with non-state groups, it is essential to consider the extent to which human rights law is applicable in relation to individuals outside the state's territory.

Most of the jurisprudence of human rights bodies, which have greatly elaborated on the content of states' obligations under the various human rights treaties, has been developed in the context of alleged violations committed on the territory of the respective state party. Can these same standards be transposed onto the state's conduct abroad?

Thus, it would seem that there may be an identifiable trend toward recognizing varying levels of obligation. In particular, it may be that negative obligations apply whenever a state acts extraterritorially (at least with respect to intentional human rights violations, as opposed to indirect consequences), but that the degree of positive obligations will be dependent upon the type and degree of control (or power or authority) exercised by the state. Such obligations are limited by a scope of reasonableness even when applied to a state's conduct within its territory; there is no reason why application to a state's extraterritorial conduct would not similarly be bounded by a scope of reasonableness, such that the adoption of affirmative measures is only required when and to the extent that the relevant party de jure or de facto enjoys a position of control that would make the adoption of such measures reasonable. This approach would preserve the integrity of the respective treaties and would vindicate the universal nature of human rights, which is proclaimed in the preambles of all of the human rights treaties considered in this analysis. At the same time, it would not place unreasonable burdens on states parties. From its inception, the international law of armed conflict followed the projection of power. The jus in bello would apply to armed conflicts irrespective of physical location, so long as opposability as between the warring parties was satisfied. The same could be said of the law of state responsibility for injury to aliens. While the application of both bodies of law clearly extended beyond the state's jurisdictional reach, neither could penetrate into the sphere of the state's domestic jurisdiction in the narrowest sense. Human Rights law was developed to fill that gap.

But just as humanitarian law ultimately began to press inward against that external membrane of a state's domestic jurisdiction, human rights law has now begun to exert outward pressure against the inner wall of the state's jurisdiction. Indeed, these two processes—of inward penetration and outward projection—can be seen along a single continuum with a common seam. That seam is manifested in the structural evolution of the international legal system that was consolidated in the years immediately following World War II. The principal structural development of that period was the emergence of the individual human being as a subject of international law, capable of bearing international rights and duties.

This structural development corresponded to a coalescence of values around a principle conceived as transcendental and universal—human dignity. Recognition by the newly reconceived international community that the dignity of the individual human being was something entitled to legal protection led to the transformation of this principle into positive law. It is this conception of human rights as both transcendental and universal that pushes against the concept of jurisdiction—pushing simultaneously into the domestic sphere and out of it—and underscores both its artificiality and diminished existence. It is this conception, far more than the force of legal reasoning from positive law that has enabled both human rights law and humanitarian law to grasp the outer and inner reaches of the power of the state.

To the extent these rules are designed to protect individuals from abuses of state power, realization of that design entails application coextensive with the projection of that power. While the exact contours of their application may not be settled, the traditional principles of good faith and reasonableness in the circumstances provide ample guidance for shaping those contours.

In the United States, administrative law suffers from a perceived lack of legitimacy largely due to a lack of democratic accountability or what some have called a democratic deficit. These misgivings stem, in part, from a deep-seated American distrust of bureaucracy. This Article examines how the quest for legitimacy has led practitioners (and theorists) of administrative law to undertake four interrelated projects: the Accountability Project, the Rationality Project, the Transparency Project, and the Participatory Project all designed to create a substitute or shadow form of democratic legitimacy.

Through an examination of these projects, I clarify how they try to address the democratic deficit, and whether they effectively do so. Specifically, this article investigates the impact of judicial review, informal rule-making, increased access to information, and public participation as efforts to meet the legitimacy challenge. Moreover, it disputes the contention that the pursuit of democratic legitimacy is less consequential for administrative law than the need for bureaucratic rationality, by illustrating that bureaucratic rationality is but one component of a larger scheme intended to serve as a functional substitute for legitimacy. At bottom, because Americans do not share the fondness for the technocratic model displayed by many other legal systems, legitimacy projects have an enduring place in American administrative law.

The main aim of Jeff McMahan's manuscript The Morality and Law of War is to answer the question: why and accordingly when, is it justified or permissible, to kill people in war? However, McMahan argues that the same principles apply to individual actions and to war. His main claim is that “a state of war… does not call forth a different set of principles, but merely complicates the application of moral principles that are of universal application.” In other words, “…in war, people have the same rights, immunities, and liabilities that they have in other contexts.” McMahan rejects “all doctrines of collective responsibility” and “liability” according to which “individuals can share in responsibility… or liability simply by virtue of membership in a collective.” His claim is that every individual is liable for what he has done and not for the actions of others—even if both are part of the same collective. Accordingly, McMahan challenges the common view that it is much easier to justify killing in war compared to killing in other contexts. Therefore, the scope of his project exceeds the context of war and extends to interpersonal conflicts between individuals that do not qualify as war. Indeed, McMahan has argued in the past for a similar account of self-defense in the individual context.

I find myself in agreement with much of Jeff McMahan's analysis. Yet I have argued in the past (initially against Judith Jarvis Thomson, but also against McMahan) that it is insufficient, and misleading, to think about warfare and its moral assessment in merely individualistic terms. My disagreements with McMahan's discussion here are mostly linked to the same fundamental reservation.

McMahan describes a clear-cut dichotomy between the individualist perspective— which he endorses—and collectivist approaches. These he characterizes as recognizing (in warfare) only collective moral agency, precluding individual responsibility. But in my view, we should reject this very dichotomy and adopt instead a dual moral perspective. Our focus should not be exclusively on individual choice, action, and responsibility: This should be combined with a collective perspective. In my comments here I will illustrate this by examining McMahan's discussion of terrorism and intention. I hope thereby to show that the description of warfare as a set of individual acts must be supplemented by its description as a conflict between collectives—between nations acting through their respective armies.

Do the protections provided by the core international human rights treaties apply extraterritorially, outside the government-governed relationship, during periods of armed conflict and military occupation? The traditional view has been that human rights are essentially applicable in peacetime while humanitarian law (i.e. the law of war) governs situations of armed conflict and military occupation. More recently, a conflicting school of thought, reflected in decisions of the ICJ and the UN treaty bodies, has concluded that the law of war no longer automatically excludes the law of peace. But, while these views are entitled to respect, the international human rights instruments (unlike the regional human rights instruments) do not grant the treaty bodies or any other entity the authority to issue legally binding views on the nature of state obligations under the treaties. Applying the standard rules for treaty interpretation leads to the conclusion that the international human rights treaties apply in the context of armed conflict only with respect to acts of a state's armed forces executed within its own territory.

This Article analyzes the probative standard set by Section 25 of the Succession Law, which, provided that certain basic conditions are met, enables the validation of flawed wills. The Article presents the position taken by the Supreme Court, according to which Section 25 requires that prior to its validation, the authenticity of a will be proven beyond any doubt. This standard is criticized as impracticable and normatively flawed, as is another standard, suggested by some Supreme Court Justices, which would impose on those wishing to validate a flawed will a standard of proof similar to that required in criminal law.

The Article then attempts to create a desirable model for the probative standard found in Section 25. This model is based on disutility equations for decision-making under conditions of uncertainty; it leads to the conclusion that the standard that should be required in order that flawed wills be validated is considerably lower than that demanded by today s case law. The Article claims that there is no significant risk that testators might be led to disregard or neglect the formal requirements set by the Succession Law for writing wills.

In conclusion, some arguments are presented in support of a revolutionary hypothesis: I suggest that the Supreme Court's interpretation of Section 25 reflects an ideology that prefers the mode of asset distribution prescribed by inheritance law over alternative modes, created by individual wills. The Court's preference, however, is not grounded (and cannot reasonably be grounded) in the desire to fulfill the testator's wishes; but rather perhaps it is an expression of the legal system's conception of distributive justice.

I am greatly honored that these four distinguished moral and legal theorists, who have all made substantial and important contributions to our understanding of the problems with which I am concerned in my book, have been willing to engage themselves so constructively with my arguments. The published book will be significantly better, or less bad, as a result of my having had to address their challenges. I find myself in substantial agreement with much of what each commentator has to say and concede that on some points they have proven me wrong. But I am obstinate by nature, and perhaps a little obtuse, and thus am prepared to resist some of their suggestions, however sensible they may seem.

The Turkish Constitutional Court in 1998 questioned whether values such as human rights and democracy are consistent with values raised and supported by the Shari'a. The Court's implicit assumption is that it is impossible to find a concept in Islamic law that respects human rights. With regard to the Shari'a, there are different positions concerning democracy and human rights depending on the legal corpus included in the definition of the Shari'a. The thesis of incompatibility is based on the classical definition of the Shari'a as invariable and unchanging. But once other perceptions of the Shari'a are incorporated, some of these conceptions are compatible with human rights and democracy.

The spatial test for triggering the extraterritorial application of the main treaties on civil and political rights law has been the subject of significant judicial comment in recent years. This piece offers a critical evaluation of an important common theme in these judicial determinations: the suggestion that the spatial test is to be understood in a manner that covers a sub-set of extraterritorial activity involving territorial control occurring as a matter of fact. It provides a sustained explanation and critical evaluation of four different ways such a suggestion can be identified in some of the key judicial determinations on the issue of the extraterritorial application of treaties on civil and political rights generally. Since one of the other main areas of law potentially relevant to extraterritorial activity—the law of occupation—also uses a test of territorial control as a trigger for application, the interplay between the approaches taken in each area of law on the question of what type of control is required mediates the extent to which the fields of activity covered by the two areas of law overlap. Understanding the merit of the determinations concerning human rights law discussed in this piece is significant, then, not only on its own terms, but also because of its significance to the broader question of the overlap between human rights law and the law of occupation.

This article considers how arguments relating to the principle of joint applicability of international human rights law (IHR) and international humanitarian law (IHL) are playing out in the United Kingdom's courts. The core of the article is a case study of the decisions of the Divisional Court, the Court of Appeal and the House of Lords in Al-Skeini v. Secretary of State for Defence. The central issues of the case concerned the application of the UK's European Convention on Human Rights (ECHR) obligations in the context of its activities in Iraq, and the extraterritorial application of the Human Rights Act, 1998. This case study of the domestic application of the principle is particularly useful for considering (i) its practical implications on the specific facts of particular cases; (ii) the argumentation used by the UK government and judges; (iii) the difficulties of national courts in analyzing the IHR and IHL rights jurisprudence; and (iv) the significant differences between IHR and IHL in terms of positive obligations and domestic remedies.