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.

Are human rights norms applicable to occupied territories in general, and to the West Bank and the Gaza Strip in particular? The article examines the controversy that had arisen between Israel and the UN treaty monitoring bodies in relation to this question and critically analyzes Israel's three objections to such applicability: 1) the mutual exclusivity of humanitarian regime and human rights regime in occupied territories, the former being thus the only applicable law; 2) a restrictive interpretation of the jurisdictional provisions treaties; and 3) the lack of effective control in some of the territories. The article posits that the universal object and purpose of human rights treaties, which inform the proper interpretation of their jurisdictional clauses, require their applicability in all territories subject to the effective control of the state parties, as well as to other extra-territorial exercises of government power directly affecting individuals. Consequently, international human rights law and international humanitarian law apply in occupied territories in parallel and not to the exclusion of one another. This position is confirmed by extensive practice of the international human rights monitoring bodies, the International Court of Justice (ICJ), and by some decisions of the Israeli Supreme Court. In conclusion, the paper posits that Israel's refusal to apply the six principal human rights treaties to which it is party to the Occupied Territories is incompatible with its international law obligations and proceeds to propose modalities for the co-application of both human rights and humanitarian law in occupied territories.

This article explores the questions raised by the issuance of the Landau Commission Report: What is the legal and moral status of torture of terrorist suspects and others, when that torture is engaged in by the Investigation Unit of the General Security Service (GSS) of the State of Israel for the purpose of extracting information potentially saving many Israeli lives? More specifically, was the Commission right in its retrospective conclusion that “the methods of interrogation … employed [in the past by the GSS] … are largely to be defended, both morally and legally …” (R., 4)? Was the Commission right in its prospective conclusion that no new legislation is needed to deal with the methods of interrogation of the GSS because “the GSS can turn a new leaf … within the framework of the existing law …” (R., 82)?

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.

Two different theories attempt to reconcile problems of application of international human rights law in time of armed conflict, to the extent that there is a potential conflict with norms set out in international humanitarian law. One, posited by the International Court of Justice, presents international humanitarian law as the lex specialis, a kind of prism through which the concept of “arbitrary deprivation of life” (Article 6(1) International Covenant on Civil and Political Rights) is to be understood in time of armed conflict. In effect, international humanitarian law supplants international human rights law during armed conflict. The other theory, advanced by the Human Rights Committee, views the two bodies of law as additive in effect. Both regimes apply, and the individual benefits from the more favorable one (“belt and suspenders” approach). Both theories profess the fundamental compatibility of the two different legal systems, yet they are predicated upon a method for resolving conflicts between them. Both theories encounter serious problems in their application. The author submits that the difficulty with these attempts to reconcile human rights law and humanitarian law lies with the failure to grasp an underlying distinction: international humanitarian law is built upon neutrality or indifference as to the legality of the war itself. Human rights law, on the other hand, law views war itself as a violation. There is a human right to peace. Because of this fundamental incompatibility of perspective with regard to jus ad bellum, human rights law and international humanitarian law can only be reconciled, as both the International Court of Justice and the Human Rights Committee desire, if human rights law abandons the right to peace and develops an indifference to the jus ad bellum. It too must accept the idea of the acceptability of “collateral” killing of civilians in war, even if the war itself is illegal. The author argues that it is preferable not to attempt to find a neat and seamless relationship between international humanitarian law and international human rights law, in the interests of preserving the pacifist strain within international human rights law.

Two recent decisions handed down by the Hebron magistrate, Mr. Hussein El-Shajuchi, and by the Bethlehem magistrate, Mr. Tawfik El-Sakka, on February 5, 1968 and on February 27, 1968, respectively, have brought to the fore some interesting legal problems arising from the Six Day War of June, 1967 as a result of which Judea and Samaria (formerly known as the “West Bank” of the Kingdom of Jordan) have come under Israeli control.

The immediate cause that has given rise to the elaboration by the two learned magistrates of the problems to be dealt with in this paper was the promulgation by the Officer Commanding, Israel Defence Forces in Judea and Samaria, on October 23, 1967, of Order No. 145, concerning the status of Israeli advocates in the courts of Judea and Samaria. Article 2 of the said Order provides that “notwithstanding any existing provisions to the contrary, any party to civil proceedings and any defendant in criminal proceedings may authorise an Israeli advocate to represent him in such proceedings.” Article 4 of the same Order stipulates that the Order shall be in force for a period of six months from the date of its entry into force (i.e. October 23, 1967) unless it is terminated at an earlier date by the Officer Commanding, Israel Defence Forces in Judea and Samaria. In the preamble to the Order the reasons given for its promulgation are “to ensure the efficient maintenance of the law, to enable the uninterrupted functioning of the Courts in the District [of Judea and Samaria] and to make available the services of advocates to the local population.” As will be more fully explained later, the reason for promulgating this Order was the strike of Arab lawyers in Judea and Samaria, which threatened to deprive courts and clients there of legal services.

Western legal systems diverge radically in their approaches to setting limits on the privilege of self-defence. Some systems incline to the view that a person defending his or another life or property may use all the force necessary to stifle an aggressive attack. Taken to the extreme, this means that if there is no other way to apprehend a thief escaping with a petty bounty, one may shoot him—if necessary, shoot to kill. In contrast to this approach, which is adverse to limits on the use of necessary force, another set of Western jurisdictions insists that the degree of force meet two desiderata: it must be both necessary and proportional to the interest protected. The requirement of proportionality or reasonableness means that there are some cases, like petty thievery, where the cost of protecting a threatened interest may be so great that one must surrender the interest rather than inflict grievous harm on the aggressor.

The Pure Theory of Law is a theory of positive law, not of a definite legal order, but of the law in general. It is a general theory of law. As such it is the most consistent version of that school of jurisprudence which is called legal positivism because it considers as “law” only positive law and refuses to recognize as law any other normative social order even if, in the usage of language, it is called “law”, as e.g. so-called “natural law”.

Law is—according to the Pure Theory of Law—by its very nature a definite type of norm. As a “norm” the law is the specific meaning of an act of will directed at a definite human behavior. This meaning is: that men ought to behave in a certain way. Hence an essential presupposition of the Pure Theory of Law as a positivistic theory is the recognition of the fundamental difference between the “ought” and the “is”, between norms and assertions. Assertions describe a certain object; they are true or false; norms are not describing, but prescribing; they are neither true nor false; they are valid or non-valid. Hence it is necessary to distinguish as clearly as possible between legal norms established by the legal authority, and assertions of the science of law about legal norms, the sentences by which this science describes its object.

The status of Arabic in Israel gives rise to question. Israel is a rare case of an ethnic nation-state that grants the language of minority group with a legal status which is prima facie one of equality. Both Hebrew and Arabic are the official languages of the State of Israel. What are the reasons for this special state of affairs? The answer is threefold: historic, sociological and legal. In various ways the potential inherent in the legal status of Arabic has been depleted of content, and as a result of that, as well as other reasons, the socio-political status of Arabic closely resembles what you would expect the status of a language of a minority group in a state that identifies itself as the state of the majority group to be. This answer, however, is another source of puzzlement – how does such a dissonance between law and practice evolve, what perpetuates it for so long, is change possible, is it to be expected?

We present an analysis of the legal status of Arabic in Israel and at the same time we proceed to try and answer the questions regarding the gap between the legal and the sociopolitical status of Arabic. We reach some of our answers through a comparison with the use of law to change the status of the French language in Canada. One of these answers is that given the present constellation in Israel, the sociopolitical status of Arabic cannot meaningfully be altered by legal means.

The purpose of this paper is to consider and discuss theories as to the nature of the subjective element in the formation of customary international law that have been propounded by various publicists, and to point out certain difficulties which attend all hitherto existing theories. An attempt will be made in a subsequent paper to develop a theory which avoids these difficulties.

I shall address two concerns in this paper: first, what retributivism is, and second, how one justifies retributivism as the only proper theory of punishment. Since this paper is necessarily short, treatment of these topics is likewise abbreviated, although hopefully not so abbreviated but that it whets the appetite for those who wish to pursue them in greater depth.

Retributivism is the view that we ought to punish offenders because and only because they deserve to be punished. Punishment is justified, for a retributivist, solely by the fact that those receiving it deserve it. Punishment of deserving offenders may produce beneficial consequences other than giving offenders their just deserts. Punishment may deter future crime, incapacitate dangerous persons, educate citizens in the behavior required for a civilized society, reinforce social cohesion, prevent vigilante behavior, make victims of crime feel better, or satisfy the vengeful desires of citizens who are not themselves crime victims.

In its judgment concerning the frontier dispute between Burkina Faso and the Republic of Mali (1986), the Chamber ot the International Court of Justice (I.C.J.) summarized its opinion on the applicability of equity as follows:

In a number of related papers Michael S. Moore has advanced a powerful theory of retributive punishment. The position as stated is simple: “retributivism is the view that we ought to punish offenders because and only because they deserve to be punished”. Desert is a necessary and sufficient condition for just punishment. However simple and straightforward the view, it still needs to be defended and Moore has been energetic in defending his corner against traditional objections and against replies that his account has attracted since first publication. His latest effort invites readers to pursue these problems in still greater depth. This is an invitation I am happy to accept. First I want to reexamine the charge that there is circularity in his account and second, I want to look more closely at the intuitions which ground his acceptance of the principle of desert.

One worrying thought, for Moore, is that he may be begging the question. His argument proceeds by inviting us to consider a range of cases. In “The Moral Worth of Retribution” the focus is on a couple of savage murders. In “Justifying Retributivism” we are asked to practice Kant's thought-experiment: how should we deal with the last murderer before we leave the island; and ponder the fate of Dostoyevsky's nobleman who set his dogs to tear a child to pieces.

In an article published in this journal in 1973, Professor George P. Fletcher maintained that there ought to be no limitation of proportionality on the exercise of self-defense. The requirement of proportionality signifies that there is a limit to the price society is willing or agreeable to pay for the protection of a legitimate interest against an unlawful attack. The right to use self-defense therefore rests upon the condition that there be some kind of relationship, which is not one of equivalence, between the interest attacked and that sacrificed in order to save it. In the absence of such a relationship, self-defense may not be employed. Thus, for example, in the case of a petty theft, if the interest attacked (ownership or possession of the property) can be defended only by inflicting serious injury—death or grievous bodily harm—upon the aggressor, one must refrain from doing so, even if this means sacrificing the interest at stake. If self-defense is not circumscribed by the requirement of proportionality, then the owner of an apple orchard who shoots and kills a thief, lacking any other means of stopping him from running off with the fruit he has stolen, will bear no criminal responsibility for his act.

The second half of the 20th century has been a period of innovation in medical technology, with much significance for the social relations of reproduction. The invention of the contraceptive pill changed our attitudes towards the control and prevention of pregnancy, and allowed us to differentiate between female sexual and reproductive activities. The development of blood-typing and genetic tests radically altered the legal procedures for proving paternity, and deeply influenced our understanding of the uncertainty of biological fatherhood. The innovation of various methods of medical imaging gave concrete and human shape to the image of the fetus in its mother's womb. The very moment of conception was transformed, by means of in vitro fertilisation, from a mysterious event taking place in the hidden spaces of a woman's body to an overt and exposed occurrence in a laboratory petri-dish.

During the short period since the middle of the present century the courts of more than one country have been called upon to deal with unprecedented claims: actions against a parent in respect of his liability for the plaintiff's birth under handicap, whether physical (congenital disease) or social (illegitimacy). Proceedings have also been taken against the State of New York, to hold it liable for an institution for which it was responsible, a Manhattan hospital, which failed to prevent a rape from which the birth resulted.

Together with our juridical interest in the solution of the problem—and perhaps even preceding it—we are curious to understand why it has not arisen before and now suddenly emerges simultaneously in a number of countries without apparently any mutual influence or awareness.

1. The Vienna Convention on the Law of Treaties of 1969 has defined in its art. 2 the international treaty as an international agreement between states concluded in written form. Only in art. 3 the said Convention makes clear that other international agreements might be valid, too. The United Nations Charter art. 102 ensures that international treaties concluded by the member states are registered and published by the Secretariat of the United Nations. These rules and the practice of our actual Law of Nations are the results of a complicated development which has its origins in antiquity. From the early beginnings in the third millenium B.C. until the 16th century A.D. we can observe that international treaties, in spite of their being reported, registered and passed on in written form, are concluded not through written instruments, but through declarations of the treaty-making parties, solemnly confirmed by mutual oaths. We shall not delve into the history of medieval and modern international law but limit our observations to the legal history of preclassical and classical antiquity, which Reuven Yaron has enriched by so many important contributions.

1. Any doctrine or theory of criminal attempts must address a number of basic questions:

At what point does an attempt begin? What is merely preparing a deed, and what is beginning to perform the deed?

What kind of mens rea is required? Is intention required, or is mere belief concerning the outcome sufficient?

Is the attempt basically constituted by the mental (fault) element or the physical (conduct) element of the deed? Should attempts to do the impossible be criminalized?

Should the punishment be the same for an attempt and a completed (consummated) crime, or should the punishment be less severe for an attempt?

I suggest that the first two questions are different from the last two. The answer to the first two questions seems to be a matter of criminal policy and conceptual convenience. The solutions adopted in different jurisdictions depend considerably on the context, the design of the criminal law system, and on how wide the legislator wants to cast the protective net of threat of punishment.

This Article aims to provide the first thorough description of the developing asylum system in the State of Israel. It argues that despite the inherent moral and doctrinal differences between asylum and immigration regimes, the Israeli asylum system is essentially an extension of Israel's immigration and citizenship regime, which excludes the non-Jewish refugees and frames the refugee as the “other;” with the Palestinians and other enemy nationals facing maximum exclusion. While this phenomenon is not uncommon in today's world, which suffers from “compassion fatigue,” diluted protection, and adherence to national self-interest, the Israeli example is exceptional for a number of reasons: 1) it came into being only decades after the rest of the democratic developed countries developed their asylum systems; 2) it is rooted in challenging—albeit not exceptional—geo-political conditions; and 3) it works against the background of a very unique immigration law.

This paper deals with the question of an amendment to the constitution that has been made pursuant to the formal requirements of the constitution but deviates from its basic structure. The paper explores different views regarding this question in comparative law. It also examines the applicability ofthe doctrine of unconstitutional constitutional amendments in Israel.