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.

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.

Members of the United Nations have conferred upon the Security Council “primary responsibility for the maintenance of international peace and security” and have agreed “that in carrying out its duties under this responsibility the Security Council acts on their behalf” (article 24 of the U.N. Charter). The question may be asked whether the Security Council lived up to this responsibility during the May 1967 crisis in the Middle East which preceded the Six Day War. Did the Security Council do everything in its power to avoid the clash, and what were the reasons for its failure to avert the crisis?

In order to be able to evaluate the Council's stand, it will be necessary to recall summarily the developments which led up to the hostilities of June 1967, as well as the Security Council's powers under the Charter of the U.N.

The tension between the norms of gender equality and religious freedom is a major focus of international human rights debate. States that adopt religious law contend that gender discriminatory religious practices are protected under international law guaranteeing rights of cultural autonomy and religious freedom. Others argue that only discriminatory practices that are not the product of State action but, rather, take place in the private realm of civil society should be accorded such protection. Many women's rights activists, on the other hand, urge the State to actively reform religious law and restructure cultural practices even in the private realm, “not only as a means of ending gender-based restrictions on specific human rights but also as an essential step toward dismantling systematic gender inequality” perpetuated in traditionalist cultures. The larger philosophic issue underlying this debate, how to reconcile universal human rights and multiculturalism, understood as the primacy of group cultural identity as a morally and politically significant category, is complex, but not new. It is the age-old one, as Joseph Raz has put it, “of how to combine the truth of universalism with the truth in particularism.”

To mark the twentieth anniversary of the Universal Declaration of Human Rights, the United Nations designated 1968 to be the International Year for Human Rights. The call went out to peoples and States all over the world to give particular thought then to the question of human rights and freedoms and contribute to their promotion and protection. Wherever the subject is raised, discussion will no doubt dwell upon the problems of the present and the future. I believe, however, that this is a suitable occasion to widen the scope, to cast a glance over the past, and to review the role of the Jews and of the “Jewish Question” in the nineteenth, and in the early years of the twentieth, century in instilling the concept of human rights into the conscience of mankind; it is also an opportunity to examine the part played by the Jews in the advancement of those rights at the Paris Peace Conference of 1919–1920.

From an historical point of view, the modern concept of human rights springs essentially from the rationalistic and cosmopolitan philosophy of the Enlightenment prevailing in the second half of the eighteenth century, and from the declarations framed at the end of that century in North America and, subsequently, in France during the Revolution. It was these declarations that laid the foundations of the democratic and liberal State. But the roots of the concept can be traced back to the Stoic philosophy of ancient Greece, to the teachings of the early Roman philosophers and lawyers and to the tenets of the medieval theologians; and it is, indeed, strange that only rarely have those engaged in the history of it made mention of the fact that ancient Hebrew religious thought, too, is concerned with the inherent dignity of Man and gives special prominence to the principle that all who are created in the image of God are equal—a principle clearly reflected in the status which the law of Moses assigns to “the stranger that sojourns among you”, and in the liberal attitude of that law towards the slave, as compared with that of other peoples.

This article compares the Hobbesian realist and Kantian idealist analyses of international law and organizations with respect to the UN General Assembly resolutions and the International Court of Justice (ICJ) advisory opinion on Israel's separation barrier. From the realist perspective, this case highlights the exploitation of moral claims in support of a particularist political agenda. In contrast, the idealist approach interprets the advisory opinion and resolutions as important normative expressions in the developing global system of governance based on universal human rights principles and treaty obligations.

The analysis begins with a detailed comparison of the ideological and intellectual foundations of these core approaches to international law and organizations, the evolution of this debate in the post Cold War international system, and the impact on protracted ethno-national conflicts. This provides the basis for examining the impact of both schools in the context of the Arab-Israeli conflict. The specific case of the UN and ICJ's involvement in the question of Israel's separation barrier is then analyzed in detail from both the realist and idealist perspectives.

The implications of this debate are of major importance, not only with respect to the specific challenges posed by terrorism and the necessary responses, but also in the wider context of the crisis in the international system at the beginning of the 21st century. The analysis concludes by noting the degree to which this case illustrates a wider process in which international legal principles are manipulated in a manner that contributes to conflict and justification of violence, conforming to the realist interpretation. While still pursuing idealist objectives, wishful thinking cannot conceal the abuse ofuniversalist claims of morality in the pursuit of war by other means.

The Israeli-Palestinian Declaration of Principles of September 13, 1993 (the “DOP”), which establishes the framework for the settlement of the conflict between the parties, sets the stage for a gradual transition towards a peace settlement, or the “permanent status” as referred to in the DOP. The interim arrangements outlined in the DOP provide for a step-by-step assumption of responsibilities by Palestinians in the West Bank and the Gaza Strip. The Agreement on the Gaza Strip and the Jericho Area, signed in Cairo on May 4, 1994, prescribes at length the arrangements for the first steps to be taken towards that goal. During the period of the interim arrangements, the Gaza Strip (excluding Israeli settlements and military installations) and the “Jericho Area” are to be administered by a “Palestinian Authority” (PA), a body established under the Cairo Agreement, which is distinct from the PLO.

In recent years there has been a constant increase in the number and significance of administrative contracts, that is, contracts to which the public administration is a party. Contracts between private individuals and government are a daily occurrence. Such contracts are essential to the performance of the executive's various actions and functions, and apart from their practical importance, they raise theoretical questions.

From a philosophical point of view, an administrative contract can be considered as a contract in which a person is party to a contract with himself, since the State embodies the entire community of its citizens.

The subject of administrative contracts has so far not received sufficient legal-academic attention. Discussion of this issue becomes more and more essential with the rapid increase of administrative contracts regulating complex transactions.

Another spreading phenomenon which is closely linked to administrative contracts is administrative promises (when such promises do not crystalize into administrative contracts).

The first problem arising in connection with administrative contracts and promises is the question of the substantive law to be applied. The problem of the substantive law gives rise to secondary problems as to legal remedies and jurisdiction.

It appears that administrative contracts are to be governed by one of three systems of rules: contract law, administrative law or a system which combines elements of the two systems.

However, no solution is clear-cut. The applcation of the law of contract causes a confrontation between the fundamental principles of the law of contract, mainly the principles of freedom of contract and sanctity of contract, and the needs of the administration, the powers of the sovereign and its duties.

The United Nations Security Council's recent involvement in the protection of children in armed conflict, particularly by seeking to prevent the recruitment and use of child soldiers, has attracted little attention from international lawyers. However, the process, initiated by Council Resolution 1612, has interesting parallels with non-compliance mechanisms in international environmental law and can be seen as an innovative attempt to harness the Security Council's “soft power” to engage both State and non-State parties to conflicts.

Various political realities influence the Israeli occupation of the West Bank and the Gaza Strip and, more generally, the vitality of the international law of occupation. The law of occupation—though ill-suited to modern international relations and ill-equipped for prolonged occupation—has been almost universally invoked as applicable to the Occupied Palestinian Territory (OPT). At the same time, international human rights law is increasingly viewed as applicable to occupation. This creates a dilemma for Israel because international humanitarian law and international human rights law contain conflicting prescriptions and policy goals with respect to the administration of occupied territory. In many instances, occupants seek United Nations Security Council action in order to reconcile this tension and to secure legal and political cover for their actions. By acting under Chapter VII of the United Nations Charter; the Security Council can create a select legal patchwork applicable to a particular occupation. This use of Chapter VII resolutions by the Security Council to create international law by fiat is an important trend in modern occupation. Yet geopolitics determines access to—and the content of—such resolutions, and the sensitive political context of the OPT currently makes this avenue unavailable to Israel. For the same reason, opponents of the Israeli occupation are unable to secure Security Council action to clarify and enforce Israeli legal obligations in the OPT. This Article considers these issues from the perspectives of both Israel and Palestinians in order to examine why the relative gain and loss in each case is not immediately clear. This Article also discusses how the legality of Israeli conduct in the OPT may be gauged in light of the conflicting international legal obligations imposed by human rights law and the law of occupation. A broader exploration of the impact of these phenomena reveals that these political realities serve to increase the influence of the Security Council while further undercutting the utility and relevance of the international law of occupation.

Judicialization in this article is the predisposition to find a solution in adjudication to types of dispute that had been settled previously in a socio-economic-political framework. “Legislative judicialization” (or over-legalization) is also a predisposition according to which the variegated spheres of our lives need to be regulated through a formal code of laws. In the political arena the questions relating to judicialization are: Is the assumption that legal decisions are able to save politics – mainly democratic values and abiding by the derived rules of the game – a valid one? Can one institution of the political system (broadly defined) – the law court – rescue the two other, the parliament and the government, in difficult times? Assuming that “successful” intervention by the judicial institution will cause the other two to abide strictly by the rule of law, could it at the same time curb their effective steering capacity, which is their main task? And conversely, if the steering capacity and the leadership ability to make “good” decisions are so flimsy – would it not be desirable to have judicial review to ensure that the political institutions at least make “proper” decisions that are not extremely unreasonable? These are the main questions discussed in this article.

The findings regarding the judicialization of politics point out not only to the eagerness of the law courts, but mainly to the weakening of the political system, to the point where the Knesset, the Government and the political parties find it most difficult to function without the assistance given them by the law courts. And yet, did the judicial branch “save” the other two branches? Obviously, this has not happened thus far. In Israel, a profound democratic deficit exists in the political system due to the fact, among other things, that the political institutions are incapable of coping with the continuing internal and external crises. In Israeli society, judicialization is but a symptom of a wide-ranging predicament that requires a richer bill of fare than more laws and more adjudication. It consists of: the social grounding of democratic values; renewal of trust and confidence in the political institutions; strengthening the political parties; recognition of the contribution of civil organizations and the media; strengthening the local authorities, and more. This is the real arena, because there is a breaking point to the over-judicialization of the public sphere beyond which lies total anarchy.

The sanctioning policy of a given society may be analysed on a number of levels. It may focus on the actions of the legislative body in the adoption of statutes, or on the legislative and administrative measures taken by the ministers and policy-makers who derive their formal powers from such statutes. Alternatively it may focus on the decisions of the courts, either by examining these on a statistical level or by analysing the content (the rhetoric as well as the substance) of their decisions. The present article will focus primarily upon the legislative policies of the Knesset in the matter of sanctions since the establishment of the state.

Before beginning the analysis of legislative policy in this area, two preliminary observations may be made regarding the informal constraints influencing the formulation of legislative policy in relation to the penal system during the formative years of the state.

1. General: The topic under discussion relates to the incidence of the criminal laws of more than one state applying to the same offence, committed by the same person, and the question with which we are confronted is how—if at all—this phenomenon may be prevented, and, if it is inevitable, and if remedies are called for, what are the available remedies.

The topic falls within the orbit of international criminal law as a branch of law comprising the system of norms of domestic criminal law, which regulates matters containing a foreign element, and of international law, which regulates matters containing a criminal element. And indeed, concurrent incidence of criminal laws as aforesaid is the fruit of the regulation by norms of this nature.

In order to provide answers to the questions concerning concurrent jurisdiction as a consequence of the concurrent incidence of the criminal laws of several states, it is necessary to answer a preliminary question, i.e., is the problem of concurrent jurisdiction a procedural problem of distribution of the judicial functions amongst the courts of a number of states, or, rather, is it a fundamental, substantive problem, of which judicial competence is only the result?

Cities in Israel are regulating religion and controlling religious liberty. They decide whether to close down roads during the Sabbath, whether to limit the selling of pork meat within their jurisdiction, whether to prohibit sex stores from opening, and whether to allocate budgets and lands to religious activities. They do all that by using their regular local powers as well as special enablement laws which the Israeli parliament enacts from time to time. The immediacy of these issues, the fact that the traditional powers – business licensing, traffic and road control, spending, and more – of local authorities touch upon many of them, and the inability of central government to obtain a nationwide consensus over religious matters have caused the localisation of religious liberty in Israel. In addition, some legal rules induce and even force religious-based residential segregation, thus resulting in a relative religious homogeneity of local populations. Hence, cities are able to decide to advance a religious – or a secular – agenda much more easily than the national councils. This process, however, has gone unnoticed by most scholars and courts. As a result, religious liberty doctrine has failed to live up to the challenges Israel is now facing: growing religious and national extremism and the ensuing risk of fragmentation and oppression of minorities. This article shifts the focus from the role of central government in regulating religion to that of cities. I argue that the particular form of decentralisation of religious liberty in Israel has a mixed outcome: it has helped to weaken the monopoly of orthodox Judaism in some locations and enabled diverse communities to flourish and express their unique religious vision; but it has also radicalised some religious practices, exacerbated tensions among competing religions and denominations, heightened religious-based residential segregation and jeopardised minorities.

L'internationalisation du crime terroriste ne pouvait laisser indifférents les criminalistes et les internationalistes pas plus que les gouvernements, d'autant que, souvent, des crimes d'une telle gravité restent impunis, car à l'internationalisation du terrorisme ne répond encore l'internationalisation de la répression.
Antoine Sottile, 1938

The great upbuilding of international law which set in with the end of World War II did not overlook the penal aspects affecting the social substratum and organizational assignments of international law. Matters were no longer envisaged in the rather simplistic manner of Art. 231 of the Treaty of Versailles which had, authoritatively though not arbitrarily, decreed that “Germany accepts the responsibility … for causing all the loss and damage to which Allied and Associated Governments and their nationals had been subjected as a consequence of the war imposed on them by the aggression of Germany and her allies”, and, not less authoritatively, though more arbitrarily, decided “publicly [to] arraign William II for a supreme offence against international morality and the sanctity of treaties”. More realistically, Art. 228 postulated the “right of the Allied and Associated Powers to bring before military tribunals persons accused of having committed acts in violation of the laws and customs of war”. To the great loss of mankind, these provisions were in time eroded to the point of becoming less than meaningless.

Over-burdening of the prison system and serious reservations as to the usefulness of the prison sentence as a means of reducing crimes rates have led penologists and policymakers to seek ways to broaden the repertoire of criminal punishments available to the courts. In the search for effective and affordable sentencing policies, there has been increasing interest in the development and elaboration of intermediate sanctions as part of a menu of sentencing choices that match the severity of punishment to the seriousness of the crime.

This trend is clearly reflected in the development of the penal system in Israel. In elaborating alternatives to imprisonment, an integrated model, incorporating welfare and rehabilitation considerations, has emerged. Nevertheless, Israeli judges have remarkably few sentencing alternatives at their disposal, and the penal sanctions available to them can be counted on the fingers of one hand, namely, imprisonment, suspended prison sentence, probation, community service, and the fine.

In the absence of a written constitution in Israel, the protection of fundamental rights of the citizens depends upon a variety of legal sources. In the course of resolving questions concerning individual rights, the courts rely upon statutory law as well as basic principles of democratic government and concepts of individual freedoms as expressed in the Israel Declaration of Independence and in international covenants.

In the Draft Basic Law: Rights of the Man and the Citizen (hereinafter referred to as the Draft Basic Law), which has passed the first reading in the Knesset, the fundamental rights will be embodied into a written Basic Law. This Basic Law together with the Basic Laws already enacted and those in preparation will eventually become the Constitution of Israel. The chapter by chapter legislative policy for enacting Israel's Constitution was laid down in 1950 by the Knesset in what has become known as the Harari Resolution. In the last eight years the drive for legislating Basic Laws, i.e., the chapters of the future Constitution, has gained momentum. It is hoped, therefore, that the day when the State of Israel will have a Constitution is not very far off.

The Draft Basic Law extends its protection over the basic civil rights commonly recognized by civilized nations and their constitutions and by international covenants. But social rights, except for the freedom of workers to “associate in labour unions for the protection and furtherance of their economic and social interests”, which is explicitly provided, are not dealt with in the Draft Basic Law.