Law

The picture is clear: the activists attacked in the Israeli military’s May 31 nighttime commando raid on a boat bringing humanitarian aid to Gaza were not armed.

In Israel, the media is broadcasting disinformation, using edited videos. But it is clear there was no crossfire during the raid, just Israeli fire.

Israel claims there was an attempt by activists onboard the Mavi Marmara, to steal weapons from soldiers. But either the army’s spokespeople or the soldiers themselves are telling false tales.

The comment Focuses on the construction o/ tine in the normative regime of occupation. Beginning (in section 2) with a critique of the [CJs reading of Article 6 ol the Fourth Geneva Convention concerning the scope of applicability , ratione temporis of the Convention in cases where the duration of an occupation lasts longer than one year, the comment proceeds (in section 3) to argue (a) that the gap between the working assumption informing Article 6 (of relatively short-term occupations) and reality (of prolonged occupations) defines a problem which the Court erroneously construed as a solution; (b) that the problem of prolonged occupation has allowed/lor the substitution of an indefinite for a temporary duration of an occupation. a move which defies the basic tenets of the normative regime of occupation: and (c) that a proper solution involves the construction of the notion of "reasonable time" into the Fourth Geneva Convention. The comment includes (in section 4) a proposal designed to minimize the temporary/ indefinite blurring of boundaries in situations where an occupation has not ended within one year.

In spite of the inconclusive conclusion of its analysis (to the effect that it cannot be determined whether targeted killings are always legal or always illegal, but the matter must be established on a case by case basis), the judgment delivered by the Israeli Supreme Court is important in many respects. Although it inquires into the legality or illegality of targeted killings from the viewpoint of state responsibility , it also takes into account the possibility of individual criminal liability arising out of acts contrary to international humanitarian law, and suggests the dialectics between these two classes of responsibility. The fact that the judgment sets out guidelines for permissible and impermissible actions involving targeted killings provides the condition for investigating the criminality of some of these actions and indeed invites such investigations by the Israeli judicial authorities.

Evans v. United Kingdom (2007) is the first case in which the European Court of Human Rights (ECtHR) contended with the effects of assisted reproductive technologies (ART) human rights. The ECtHR held that the consent provision of the U.K.\s Human Fertilization and Embryology Act, which permits either party whose gametes were used to create an embryo to withdraw consent to the storage and use of that Embryo, does not violate Article 2, 2 or 14 of the European Convention for the Protection of Human Rights and Fundamental Freedom.  The critique of the judgment posits that the human rights framework is not necessarily the most suited framework for making such a decision: Evans may well have a fundamental human right to be a mother to a genetically-related child, but she has no human right to be the genetically related mother of J's child. The right to be a genetically-related mother and the right not to be forced to be a father are far from being, as the ECtHR said, "incommensurate"; they are not even in conflict. Indeed, the court itself refrained from employing the main methodology used in human rights discourse, that is, the balancing of rights to resolve a conflict. It is proposed that a private law paradigm may generate a better framework for the resolution of such conflicting desires.

The blind spot of the wealth of scholarship on the legality or illegality of specific actions undertaken by Israel to maintain its control over the Occupied Palestinian territory (OPT) is the question of the very legality of this occupation. This question is the focus of this article.
The article advances the proposition that the legality of the phenomenon of occupation has to be assessed in relation to two parameters: an intrinsic parameter relating to the occupier's responsibility to manage the territory and an extrinsic parameter relating distinction between the norm of sovereign equality and the exception of belligerent occupation.
The intrinsic legality of an occupation is to be measured in relation to three fundamental legal principles: (a) Sovereignty and title in an occupied territory are not vested in the occupying power. The roots of this principle emanate from the principle of the inalienability of sovereignty through actual or threatened use of force. Under contemporary international law, and in view of the principle of self-determination, sovereignty is vested in the population under occupation. (b) The occupying power is entrusted with the management of public order and civil life in the territory under control. In view of the principle of self-determination, the people under occupation are the beneficiaries of this trust. The dispossession and subjugation of these people violate this trust; and (c) Occupation is a temporary form of control. It may be neither permanent nor indefinite. These principles interrelate: the substantive constraints on the managerial discretion of the occupant elucidated in principles "(a)" and "(b)" generate the conclusion in "(c)" that occupation must necessarily be temporary. Violating the temporal constraints expressed in principle "(c)" cannot but violate principles "(a)" and "(b)," thereby corrupting the normative regime of occupation in the sense that an occupation that cannot be regarded as temporary defies both the principle of trust and of self-determination. The violation of any one of these principles, therefore, unlike the violation of a specific norm that reflects them, renders an occupation illegal per se. This is the nature of the Israeli control over the OPT. Section II.A: Intrinsic Dimensions of the Israeli Occupation of the OPT, substantiates this argument.
The extrinsic dimension of the regime, functioning to create an orderly space that is nevertheless distinct from the normal political order of sovereign equality between states, is to be measured by its exceptionality: once the boundaries between the normal order (i.e., sovereign equality between states) and the exception (i.e., occupation) are blurred, an occupation becomes illegal. The nexus between the two functions is clear: an occupation that is illegal from the perspective of managing an otherwise chaotic situation is also illegal in that it obfuscates the distinction between the rule and its exception. The Israeli occupation of the OPT is illegal both intrinsically and extrinsically. Section II.B: Extrinsic Dimensions of the Israeli Occupation of the OPT, substantiates this argument.
Concluding section III focuses on the indeterminacies of this occupation as reflecting both its essential feature and its legitimizing mechanism, and proceeds to consider the normative consequences of an illegal occupation.

Are human rights norms applicable to occupied territories in general, and to the Occupied Palestinian Territories (OPT) in particular, or are they not? This is the question explored in this paper. The Israeli government and international human rights bodies have taken antithetical positions on this matter: Israel maintains that they do not and international human rights bodies find that they do. The examination of the validity of these respective positions pertaining to the applicability of human rights instruments to areas beyond the recognized national borders of a State party lies at the core of this paper.

The issue of the applicability of human rights standards in occupied territories is one of fundamental theoretical and practical importance. From a jurisprudential perspective, it goes to the very essence of the principle of the universality of human rights and involves the delicate, yet fascinating problem of coordinating between overlapping international regimes – in this case, international human rights (IHR) law and international humanitarian law (IHL). From a practical perspective, it may well generate a redefinition of the precise scope of an occupying power's human rights obligations under international law, serving as a yardstick for measuring the lawfulness of a variety of concrete measures which affect human well being. While the effect of introducing IHR law in situations of occupation is mitigated by the more specific provisions of IHL, it still serves several important functions: it affects the interpretation of IHL norms, it fills normative gaps in the scope of protection afforded by IHL and it validates the legitimacy of the involvement of international supervisory mechanism in situations of occupation. 

The main proposition of this paper is that the doctrinal position that IHR law is not applicable to occupied territories is untenable. Rather, both IHR law and IHL regimes apply, in a manner which, while taking legitimate military considerations into account, is informed by the principle of the universality of human rights and provides a safety net designed to ensure that no person shall find her-self in a legal vacuum bereft of protection. We further submit that it is the very interaction between IHL and IHR law which determines the precise scope of the legal obligations the Belligerent Occupant has to shoulder vis-à-vis the population and the corresponding scope of the protection the latter enjoy, in any concrete situation. 

In order to substantiate this position, section II details the position of the Israeli government with regards to the inapplicability of human rights law in the Occupied Territories, expounding on both its legal and policy underpinnings. This position rests on three main grounds: the mutual exclusivity of both regimes; the narrow construction of the jurisdictional clauses of the major human right treaties; and, the lack of effective Israeli control over the territories pursuant to the Oslo Accords. Section III advances a critique of the Israeli official position, addressing each of its arguments in a manner substantiated by theory, policy, legal analysis and international jurisprudence. Section IV offers concluding observations regarding the interplay between IHR law and IHL and presents a broad yet flexible approach to the question of the applicability of human rights law in occupied territories in a manner that takes into consideration the legitimate concerns of an Occupying Power without sacrificing the principle of legality at the altar of political expediency.

This article deals with the legal and moral imperatives arising out of the Kapo trials, which took place in Israel between 1951 and 1964. Section 2 considers substantive aspects of the Israeli Nazi and Nazi Collaborators Law (adopted in 1950), as well as the moral quagmire embedded within this Law. Section 3 explores the dialogue that these trials advanced (and the dialogue that they failed to advance) in Israeli society. Section 4 offers some reflection on the reasons why these trials have been expunged from Israel's collective memory. The authors also attempt to shed some light on the impact that this deliberate collective forgetting has had on the construction of Israel's national identity and examine the central role that judicial institutions have played in reconstructing the past and providing meaning for the Kapo trials as a nation-building mechanism.

This essay focuses on Koskenniemi's contribution to Realizing Utopia, the first substantive chapter of the book. In it, Koskenniemi locates the source of international legal and institutional projects purporting to bring about world government in an 'oceanic feel-ing' – a primordial sentiment of transcendental unity with the world. Following Freud's analysis of the infantile nature of this sentiment in Civilization and its Discontents, Koskenniemi suggests that it invariably generates hegemonic utopias. My proposition complements this focus on the failing of uncritical utopianism with a focus on the weaknesses of uncritical realism, a realism that has given up on utopian thinking altogether. It may well be that 'fundamentalist' realism, no less than uncritical utopianism, accounts for the proliferation of mechanistic blueprints for the management of global problems, a phenomenon which Koskenniemi rightly laments. The observation that a certain kind of utopian thinking is objectionable need not generate an objection to all utopian thinking. The dialectic between hegemonic utopias and pluralistic utopias, a dialectic that I trace back to the book of Genesis, informs this proposition. In this manner, I further seek to complement while complicating the linear Enlightenment narrative of progress from religious to critical thinking. The paradox is the thinker's passion and the thinker without a paradox is like a lover without feeling: a paltry mediocrity. 1 Passionate thinking was the Ariadne's thread woven into the rich fabric of Antonio (Nino) Cassese's life and work, as a scholar, a judge, and an expert in international law. It is also his legacy. Indeed, it is no surprise that the delightfully complex marriage of the seemingly paradoxical notions of passion and reason culminate in conceiving a 'realistic utopia' (which was the title proposed originally for the book).

The article focuses on the decision of the Israeli Military Advocate General (MAG) to charge an officer who ordered the shooting of a handcuffed, blindfolded Palestinian demonstrator, and the soldier who executed the order, for 'conduct unbecoming'. It advances the following propositions: (i) from the perspective of the applicable international law, the facts of the case qualify the shooting as a war crime; (ii) said decision of the Israeli MAG is indicative of a policy of tolerance towards violence against non-violent civilian protest against the construction of the Separation Wall; (iii) the implication of such policy is twofold: first, it might transform 'conduct unbecoming' - which as a matter of law is a war crime -  into a crime against humanity; second, it may well be construed as an invitation to the international community to intervene through the exercise of universal jurisdiction.