The methodical aspects of comparative law is a field which has, up to now, hardly been cultivated systematically although probably more so in Israel than in some other countries.

The subject normally evokes the question whether comparative law is a legal technique, a method of legal thinking, or an autonomous discipline of legal science, a field of law in its own right. I do not intend to deal with this problem because I think the effort will yield little. Any possible answer I would suggest, is true only to some extent depending on the context: if, for example, comparative law is used for the interpretation of a legal rule, it certainly belongs to the method of interpretation and thus lies in the field of legal method; if a special course in comparative law is taught to introduce students to its techniques and its basic premises, you may properly regard it as a discipline of its own.

Israel's disengagement from the Gaza Strip has created a situation in which this territory is dependent on the supply of various necessities by Israel, in particular the supply of electricity, In 2008 Israel decided to withhold 5% of the supply of electricity to the Gaza Strip, prompting several Gaza residents as well as human rights organizations to petition the Supreme Court of Israel against this decision. In Jaber Al-Bassiouni Ahmed v. The Prime Minister the Court assumed that the Israeli occupation of the Gaza Strip had ended with the disengagement and treated this issue on the basis of general humanitarian law. The basic questions of whether the occupation had ended, and whether certain duties remained with Israel, even assuming that Gaza is no longer occupied, have not been explored. This Article addresses these two questions.

It is the conclusion of this Article that regardless of the terms imposed by Israel after disengagement and other reservations that have been raised in this regard, occupation ended following the complete withdrawal of any Israeli presence in the Gaza Strip. Israel's disengagement raised difficulties that are not only unique to the Gaza Strip; these difficulties emerge in most cases when occupation is replaced by a process of self-determination rather than the return of the former sovereign. The contention presented herein is that Israel continues to have certain post-occupation duties even after the occupation of Gaza. These duties correspond to the occupant's duties to care for order and civil life in the territory during the occupation. These obligations will end once the new regime in the area is able to perform the duties that fell upon the shoulders of the occupant during the occupation, or until the non-performance of the new regime is attributable to its own failures and not to the ending of the occupation. In light of these contentions, Israel is still under certain obligations regarding the Gaza Strip, among them the regular supply of electricity to that area.

That the question what is legal logic should still arise today appears paradoxical, for law is after all one of the oldest of human disciplines and logic has in the twentieth century become one of the most developed of the disciplines of contemporary philosophy. Yet comparison of a number of recent works dealing with the subject, all of which, not being without merit, have enjoyed a measure of success, is enough to show that the problem exists and is even strongly disputed.

Of four such works, two—those by E. Levi and K. Engisch—do not use the word “logic” in their titles, though they deal with legal reasoning and legal thought. The other two, on the contrary, expressly purport to deal with legal logic. Strangely enough, however, their authors explicitly deny the specific existence of such a discipline, whereas Levi and Engisch underscore, without any hesitation, the specific nature of legal reasoning and the existence of a particular logic, legal logic.

Thus in the first paragraph of his work, where Klug attempts to define the concept of legal logic, he states that it comprises the study of the rules of formal logic as used in the judicial application of rules of law (p. 6); that legal logic is therefore practical logic, consisting of the application to law of the rules of pure or theoretical logic which is general logic (p. 7).

In December 2007 the U.S. Supreme Court heard oral arguments in its latest Guantánamo Bay cases, Boumediene v. Bush and Al Odah v. United States. Interestingly, the argumentation offered in this litigation was almost exclusively domestic—international human rights law did not feature in spite of its capacity to add significantly to the weight and persuasiveness of the arguments petitioners' In respect of both the geographic scope and the content of constitutional standards, international human rights law has a well-developed body of jurisprudence that, this Article argues, ought to have been advanced by counsel for the petitioners. This Article both exposes the potentially significant international human rights law arguments that could have been advanced, and explores some possible reasons for the marginalization of this body of law. The Article concludes that this strategic decision on the part of counsel for the petitioners robbed the U.S. Supreme Court of an opportunity to assert the relevance of human rights law to the “War on Terrorism,” and to expand on the relationship between international and domestic constitutional standards and, for those reasons, is to be lamented.

Recent years have seen increasing reliance on self-defence as a concept justifying the use of force against armed attacks by terrorists operating from within a foreign state. While the matter has prompted major debates, a good case can be made that contemporary international law now begins to recognise a right of self-defence against attacks by terrorists. (We will refer to this in the following as ‘anti-terrorist self-defence’, meaning a response directed against an attack carried out by a terrorist organisation.) This article deliberately does not rehearse the major debates about the scope of self-defence, but moves beyond them. It seeks to assess whether and how the two main limitations on the exercise of self-defence – namely necessity and proportionality – could be adapted to self-defence outside the inter-state setting. It shows that both limitations do indeed require some adaptation in order to be applied to anti-terrorist self-defence.

With respect to necessity, we argue that this adaptation is actually a chance to make sense of a requirement that is of very limited practical relevance in the inter-state setting. As the article shows, necessity can assume a crucial role in the anti-terrorist setting: in order for trans-border uses of force to be necessary, states invoking self-defence must demonstrate that the terrorist threat cannot be repelled by the host state (on whose territory the terrorists are based).

As for proportionality, recent debates about anti-terrorist self-defence expose the weaknesses of proportionality as a restraint on self-defence. Construed primarily as a prohibition against excessive force, even in the inter-state setting, proportionality has always been dependent on the nature of the aims pursued in the name of self-defence. Recent anti-terrorist practice suggests that many states are prepared to accept far-reaching uses of force against terrorists. It also suggests that, in applying proportionality, the targeted (or otherwise) character of the response is of crucial importance. The law is clearly in a state of flux, but in debates such as those about Turkey's use of force against the PKK or Israel's military operations against Hamas or Hezbollah, one can see the beginning of a process of developing guidelines on proportionality.

Proportionality is a condition provided under both jus ad bellum and jus in bello. Based on a particular interpretation of state practice and international case law, recent legal literature argues that the two notions of proportionality are interrelated in that proportionality under jus in bello is included in the assessment of proportionality under jus ad bellum. This article seeks to refute such a position and, more generally, to clarify the relationship between the two notions of proportionality.

The main argument of the article is in line with the traditional position regarding the relationship between jus ad bellum and jus in bello. It is argued that, although sharing common features and being somewhat interconnected, the notions of proportionality provided under these two separate branches of international law remain independent of each other, mainly because of what is referred to in this article as the ‘general versus particular’ dichotomy, which characterises their relations. Proportionality under jus ad bellum is to be measured against the military operation as a whole, whereas proportionality under jus in bello is to be assessed against individual military attacks launched in the framework of this operation.

This article nonetheless emphasises the risk of overlap between the assessments of the two notions of proportionality when the use of force involves only one or a few military operations. Indeed, in such situations, the ‘general versus particular’ dichotomy, which normally enables one to make a distinct assessment between the two notions of proportionality, is no longer applicable since it becomes impossible to distinguish between the military operation as a whole and the individual military attacks undertaken during this operation.

On Sept. 30–Oct. 1, 1946 the International Military Tribunal in Nuremberg announced its judgment. The trial started on Nov. 14, 1945 and was concluded on Aug. 31, 1946 after 216 working days. The writing and discussing of the Judgment was accomplished in four weeks. The proceedings and judgment represent an extraordinary tour de force.

The Judgment has been a subject of careful study and heated controversy for a quarter of a century. Considering the record speed of the trial and of the writing of the Judgment, it should come as no surprise to discover that the Judgment is far from being a monolithic piece.

In the following, an attempt is made to test the consistency of the positions of the IMT in one of its most sensitive parts: the persecution and the extermination of the Jewish people.

Israel's press plays a distinctive role in the country's political structure. Comprised of 27 dailies and 135 magazines, some with distinctive partisan affiliation and others committed to political neutrality, it has wide circulation and enjoys considerable political influence.

Israeli newspapers were not always as independent as they are today. During the struggle for liberation, the press placed itself at the disposal of the Yishuv (Jewish community) leadership, to be used as a political tool for promoting the objectives of the Jewish population in Palestine. Only in the fifties, after the establishment of the sovereign state of Israel, did the press begin to develop consciousness of its distinct and autonomous role in the political process.

Several institutions founded by the press itself have moulded it into a politically viable establishment: the Editors' Committee, the Press Council, the National Union of Journalists and the Union of the Daily Papers. The Editors' Committee is the most powerful and long standing of the four. Organised in 1948 by the chief editors of the Hebrew dailies, it functions as an intermediary between the Government and the public in matters concerning important policy decisions.

In 1982, Canada's written constitution acquired a bill of rights. The Canadian Charter of Rights and Freedoms, 1982 emerged as the product of a prolonged debate as to the propriety and desirability of protecting, by judicial review, an array of constitutional norms as part of the “supreme law” of Canada. The richness of that debate precipitated a new constitutional model that enlisted not only the courts, but the legislature and executive as well, in the project of rights-protection.

This article addresses the constitutional discourse surrounding the status of economic and social rights in Israel. It examines the principal interpretive strategies adopted by the Supreme Court with regard to the 1992 basic laws (in particular, with respect to the right to human dignity) and criticizes the Court's reluctance to apply analogous strategies to incorporate economic and social rights into Israeli constitutional law. Potential explanations for this biased approach are also critically discussed. The ensuing outcome is a constitutional imbalance in Israeli law, which perpetuates the unjustified view that economic and social rights are inherently inferior to their civil and political counterparts, and puts in question Israel's compliance with its obligations under the International Covenant of Economic, Social and Cultural Rights. At the same time, encouraging recent Supreme Court decisions, particularly the YATED and Marciano judgments, indicate growing acceptance on the part of the Court of the role of economic and social rights in Israeli constitutional law, and raise hopes for a belated judicial change of heart concerning the need to protect at least a ‘hard core’ of economic and social rights. Still, the article posits that the possibilities of promoting the constitutional status of economic and social rights through case-to-case litigation are limited and calls for the renewal of the legislation procedures of draft Basic Law: Social Rights in the Knesset.

The German Constitution guarantees freedom of scientific research. This guarantee raises questions, such as its legal definition and scope, as well as possible conflicts with other constitutional rights. This Article suggests that in order to have normative legal consequences, the constitutional concept of science must have an ethical dimension—the importance of the value of research and research for nonbiased “truth.” Such an ethically-loaded definition of science gives rise to internal restrictions, by placing forgery, manipulation, plagiarism and other forms of improper scientific practice outside the scope of constitutional protection. Restrictions to constitutional protection can also be derived from other constitutional rights, such as the right to privacy, environmental protection, and the life and health of others. Another arguably important restriction is derived from the right to human dignity, particularly as it touches upon biomedical questions of human cloning and embryo research. This paper argues that the Kantian proscription of treating human beings as a means to an end, which lies at the heart of the right to human dignity, imposes significant restrictions on current trends in biomedicine. These restrictions warn against an implicit utilitarianism that devalues the rights of vulnerable human beings.

I first visited Jerusalem in 1941. I was looking forward to an agreeable sick leave after a small flesh wound in the desert. Unfortunately as the train moved slowly up from Lydda, I felt more and more ill and finally I collapsed on the platform of Jerusalem station and was removed on a stretcher to a requisitioned Italian hospital. A ridiculous small insect had infected me with a tiresome small disease.

My visit was less disagreeable than its unfavourable beginning would seem. I soon recovered from my sandfly fever, but as they had carelessly placed me in a bed next to a patient suffering from diphtheria, I was incarcerated in the hospital, or so they supposed, in quarantine for another fortnight. This was not quite so aggravating as one might think. The Italian hospital was furnished with an outside staircase just opposite my bed, and after my temperature had been taken in the morning I escaped by it for most of the day. If I was missed, no one informed me, and, as I suppose it is now too late to court martial me, I can explain that with the fortnight's quarantine and the effective sick leave which followed (I spent it at Amdursky's Central Hotel in Ben Yehuda Street) I visited most of the sacred spots without either a professional guide or a Baedeker, except my grandmother's grounding in the Bible. It was not a bad way to see the holy city since, in the middle of the war, there was not much commercialisation, and no one paid much attention to a slightly bandaged lieutenant in the Rifle Brigade wandering about the city and its neighbourhood.

In Beit Sourik the Israeli High Court of Justice struck down most of the planned route for the security fence to be established north of Jerusalem. The Court ruled that the military commander did not properly balance the contribution of this route to the security of the State and the extent of the injury to the rights of the Palestinian inhabitants of the area. It was therefore ruled that this route did not comply with the requirement of proportionality in its strict sense. At the same time, the Court rejected the claim of the petitioners that the motive underlying the determination of the fence's route was a desire to establish a border (a political consideration) and not a security consideration.

This article criticizes the Court's line of reasoning. I argue that the Court erred in striking down the planned route of the security fence on the ground of not fulfilling the requirement of proportionality in the strict sense. The vague nature of this requirement may cause judicial decisions to assume a subjective character, thus violating the democratic principle according to which fundamental decisions should be determined by the people's elected representatives. Given the suspicious circumstances that had led to the determination of the fence's route, the Court should have applied a different kind of reasoning. Instead of balancing the State's security issues and the Palestinians rights, the Court should have carefully scrutinized whether the security purpose was authentic. Judicial review, based on these premises, increases governmental transparency and thus better complies with democratic principles.

A visit to one of Israel's collective settlements, the Kibbutzim, has in the last decades become an essential part of the normal itinerary of the foreign tourist. So great is the pride which Israelis take in this form of settlement (of which there were 230 in 1965) that a visit to one is assured by the tourist's unwillingness to offend his hosts, if not by his interest in the Kibbutz.

It is therefore interesting to note that the Israel Legislature, unlike the tourist, has for a considerable time not been moved to pay special attention to this unique form of social organization, and only of late have any steps been taken to develop a special body of law specifically relating to the Kibbutz.

The legal regime of human rights entitles individuals and groups to legal protection against the hegemony of the political majority, of the religious establishment and of other powerful social actors. This Article examines the way in which this protection is implemented at the constitutional and international levels. Within states, it is at the constitutional level that the supremacy of human rights is translated into a normative paradigm. However, within states there may be opposition to the human rights regime—pragmatic or ideological—from powerful lobbies: majoritarian or sectoral. This opposition may result in lack of political will to apply or enforce human rights through constitutional mechanisms. The author shows that, in contrast, the formulation of the human rights vision at the international level consistently underwrites the human rights of individuals and groups as against the power of traditionalist religious or cultural norms. She suggests that the future of human rights as a universal paradigm depends on the effectiveness with which international norms can be translated to the constitutional level thus suggesting a reversal of the previously observed process of translating from the constitutional to the regional.

“As long as war is regarded as wicked,
it will always have its fascination.”
Oscar Wilde

According to the textbooks, the unfettered right of a state to go to war was, until modern times, regarded as one of the essential trappings of statehood, an indispensable aspect of sovereignty. Such a broad assertion does however require qualification, as ever since the time of Saint Augustine, scholars have attempted to set limits to the extent of the state's discretion to go to war. The task has not been an easy one, and it may indeed aptly be remarked that “Warfare has been as difficult to justify satisfactorily in theory as it has been endemic in practice”.

Article 4 of the Nation State Law (NSL), entitled ‘Languages’, stipulates that Hebrew is the language of the state (Article 4(a)); the Arabic language has a special status in the state and regulating the use of Arabic in or by state institutions will be set in law (Article 4(b)); and this clause does not harm the status given to the Arabic language before the law came into effect (Article 4(c), the ‘validity of laws’ clause). The question is whether, how, and to what extent these provisions hinder the present legal status of the Arabic language in Israel. The legal status of Arabic had never been determined decisively before enactment of the NSL. The High Court of Israel has always been divided on this matter, particularly between judges who perceived Arabic as an official language and judges who deemed it solely as having been granted its acknowledged ‘special legal status’. Furthermore, the judges who perceived Arabic as an official language of the state were also in dispute among themselves as to the meaning, the scope and the consequences of such recognition. Considering these circumstances, my view is that the NSL perpetuates the legal status of Arabic as prescribed in the laws and case law that already existed, and that the validity of laws clause, coupled with the special status granted to Arabic in a basic law, suggests that the door is still open for the Court to further endorse the legal status of Arabic in Israel.

The use of amnesty for human rights violations has been heavily criticised on legal, ethical and political grounds. Yet amnesties have been the most popular transitional justice mechanisms over the past four decades, particularly in the context of internal armed conflict. States justify these amnesties by claiming they are important tools to secure peace. But how successful is amnesty in accomplishing these goals? This article seeks to answer this question by analysing the use and effectiveness of 236 amnesties used in internal armed conflicts worldwide since 1970. The article first creates a typology of the use of amnesty in the context of internal armed conflict. It then qualitatively examines the impact on peace of each type of amnesty. The article finds that most amnesties granted in the context of internal armed conflict have no demonstrable impact on peace and security. Yet amnesties granted as carrots to entice the surrender of armed actors occasionally succeed in bringing about the demobilisation of individual combatants or even entire armed groups. More importantly, amnesties extended as part of a peace process are effective in initiating negotiations, securing agreements, and building the foundation for long-lasting peace.