Although India and Israel differ dramatically in size, population, and affluence, there are many important similarities. Each is the contemporary vehicle of an old and resilient civilization that expresses a distinctive, influential and enduring arrangement of the various facets of human experience. Each of these cultures underwent a prolonged colonial experience in which its traditions were disrupted and subordinated to a hegemonic European Christian culture; each had an earlier experience with victorious, expansive Islam; each has reached an uneasy but flourishing accommodation with the secular, scientific modernity of the West.

In each case this was achieved by a movement that embraced “Enlightenment” values and in turn provoked a recoil from modernity/rediscovery of tradition. In each there is a conflict between those with “modern” secular views of civil society and those revivalists or fundamentalists who seek to restore an indigenous religiously based society. The secular nationalism that predominated in the struggle for independence and the formation of the state is now countered by powerful tides of fundamentalism.

We are inclined to consider “criminal events” as exceptional, events which differ to an important extent from other events which are not defined as criminal. In the conventional view, criminal conduct is considered to be the most important cause of these events. Criminals are — in this view — a special category of people, and the exceptional nature of criminal conduct, and/or the criminal, justify the special nature of the reaction against it.

People who are involved in “criminal” events, however, do not in themselves appear to form a special category. Those who are officially recorded as “criminal” constitute only a small part of those involved in events that legally permit criminalisation. Among them, young men from the most disadvantaged sections of the population are heavily overrepresented.

The first step in application by treaty of IHL norms to non-international armed conflicts, adoption of Common Article 3 of the Geneva Conventions, 1949, was taken before the dramatic development of international human rights law (IHRL). The assumption was that unless international humanitarian law (IHL) norms were applied to such conflicts, the way States acted would be unrestrained by international law. With the development of IHRL this assumption is no longer valid. Application of IHL in such conflicts should therefore be re-examined. The Article argues that moving away from IHL in non-international armed conflicts should be based on the following principles: 1. In cases other than international armed conflicts, the presumption should be that the prevailing international legal regime is the human rights regime, based as it is on a law-enforcement model of law, rather than an armed conflict model. 2. The only justification for departure from that regime and for action under the armed conflict model, should be that the level and scope of organized armed violence are such that the State cannot reasonably be expected to act in accordance with the law-enforcement model. The rule of thumb in deciding whether this test has been met could be the definition of non-international armed conflicts adopted in APII. 3. There should be a return to the notion of minimum humanitarian standards or fundamental standards of humanity, which apply to all Parties in all situations, whether armed conflict, internal violence, disturbances, tensions and public emergencies. 4. A State should not be allowed to employ the armed conflict model, without at least some of the norms of protection that this model affords Parties in international armed conflicts. The ideal solution would be to demand that a State, which employs the armed conflict model has to draw the legal consequences and recognize as combatants those members of dissident forces who meet the substantive conditions of combatants under Article 4, paragraph 2 of Third Geneva Convention.

This paper explores the conceptual possibility and implications of the concept of unconstitutional constitutional amendments. In the first section, the author argues that unconstitutional constitutional norms are conceptually impossible within the conventional hierarchical model of norms. In the second section, the author discusses the normative particularity of the amending power and concludes that an unlimited power may endanger the constitution. In sections III and IV, the author explains why so-called “eternity clauses,” in order to fend off such a danger, have been designed to place certain immutable elements of the constitution beyond the limits of the amending power. The paradigmatic case is the German Basic Law and a recent decision by the Federal Constitutional Court that discusses the implications of the “eternity clause” with reference to the distinction between constituent power and the constituted amending power. The author develops an alternative understanding of that distinction and its consequences for the amending power. The possible adverse effects of “eternity clauses” on the normality of the constitution are briefly considered in the final section.

Some thirty years after the Bergman decision, Israel's constitutional structure and legal culture are still not responsive to minority needs or, more broadly, to the social needs of deprived communities. The liberal language and judicial review of Knesset legislation that were empowered by Bergman have not reconciled this problematic discrepancy between jurisprudence and social needs.

The Bergman ruling signified the onset of a new era in Israel jurisprudence — the era of liberalism, in that it generated the notion of judicial counter-majoritarianism as the center, however problematic, of democracy. It was a modest ruling and a careful one, dwelling only on procedural deficiencies as cause for judicial abrogation of parliamentary legislation. Later on, after 1992, and propelled by the spirit of judicial activism, the Supreme Court adopted a more expansive judicial policy. It asserted the need for much more active judicial review of the substance of Knesset legislation and even the possibility of annulling it if it fell within the provisions of the Basic Law: Human Dignity and Freedom and the Basic Law: Freedom of Occupation.

The digital age has brought new possibilities and potency to state surveillance activities. Of significance has been the advent of bulk communications data monitoring, which involves the large-scale collection, retention and subsequent analysis of communications data. The scale and invasiveness of these techniques generate key questions regarding their ‘necessity’ from a human rights law perspective and they are the subject of ongoing human rights-based litigation. This article examines bulk communications data surveillance through the lens of human rights law, undertaking critical examination of both the potential utility of bulk communications surveillance and – drawing on social science analysis – the potential human rights-related harm. It argues that utility and harm calculations can conceal the complex nature of contemporary digital surveillance practices, rendering current approaches to the ‘necessity’ test problematic. The article argues that (i) the distinction between content and communications data be removed; (ii) analysis of surveillance-related harm must extend beyond privacy implications and incorporate society-wide effects; and (iii) a more nuanced approach to bulk communications data be developed. Suggestions are provided as to how the ‘necessity’ of bulk surveillance measures may be evaluated, with an emphasis on understanding the type of activity that may qualify as ‘serious crime’.

The concept of dignity I discuss has two main historical sources: the religious, biblical idea of humanity's resemblance to God, and the philosophical, Kantian view of human autonomy. I offer an interpretation of the two sources that highlights a common ground, and then point to some aberrations that may result from confounding theological or metaphysical issues with the concept of dignity and its normative implications.

The vocabulary of “reasonableness” invokes a wide margin of discretion that is often needed to temper the excessive rigour of legal rules and to deal with the inevitable problems of over- and under-inclusion associated with application of formal law to individual cases. The acceptability of the use of discretion by a law-applying institution such as the Israeli High Court of Justice is based on the assumption that its preferences and moral sensibilities are broadly reflective of the preferences and sensibilities of the community in which it exercises its jurisdiction. When jurisdiction is exercised in conditions of occupation, however, such consensus cannot be easily presumed. On the contrary, recourse to moral pathos by an institution of the occupying power will appear to normalize its jurisdiction and add an element of hypocrisy to the felt illegitimacy of its possessing jurisdiction in the first place. Moreover, it will undermine the moral and political significance of the fact of the occupation, even diminishing the urgency of bringing it to an end.

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.

The practice of omitting withdrawal clauses from the constituent treaties of many international organizations was highlighted by Nathan Feinberg in his article on “Unilateral Withdrawal from an International Organization”, acknowledged as “…the most thorough study of the subject”. In a detailed study of both State Practice and La Doctrine, Feinberg drew the conclusion

Transnational armed conflicts have become a reality. The increasing sophistication of terrorist organizations, their increasingly transnational nature, and their development of military strike capabilities, push and will continue to push States to resort to combat power as a means to defend against this threat. Relying on the factual fiction that the acts of such terrorists must be attributable to the States from which they launch their operations, or on the legal fiction that the use of military combat power to respond to such threats is in reality just extraterritorial law enforcement, fails to acknowledge the essential nature of such operations. Because these operations invoke the authority of the LOAC, they should and must be treated as armed conflicts.

LOAC principles must be identified and must be broad enough to provide the authority necessary to bring the transnational enemy to submission while ensuring that that authority does not override fundamental humanitarian protections for victims of war: This Article proposes three essential pillars of this regulatory foundation: military necessity, targeting (object/distinction and proportionality), and humane treatment. These principles provide the balance between authority and obligation that is so essential for the effective and disciplined application of combat power Like the treatment of internal armed conflict, these pillars can form a foundation for a more comprehensive treatment of regulatory analysis, encompassing other issues such as command responsibility, criminal liability, access to judicial review, perfidy and treachery, and medical obligations.

The standard form of disposition for most English and American criminal cases is the guilty plea, by means of a plea bargain. Jury trials are the rare exception rather than the rule. Although plea bargaining is the subject of a huge scholarly literature analyzing its nature and functioning, there is a much smaller literature on its origins and development. Most of the literature is highly critical, and much of it rests upon a belief that bureaucratic justice has come to replace the vigorous adversarial jury trial. Some critics lament “our vanishing jury”. Others decry the rise of “technocratic justice”. And still others warn that we are witnessing the “twilight of the adversary process”, or the decline of the adversary system. Even those who defend plea bargaining, such as justices on the United States Supreme Court, tend to regard it as a “necessary evil” required as an expedient to cope with the rising tide of caseloads rather than an ideal process.

Despite important differences of emphasis among these and still other commentators, most share an important commonalty; they adopt a form of functional analysis that understands plea bargaining as an adaptation to caseload pressures. Hence the power of the metaphor “the twilight” of the adversary process. This assessment seems plausible in light of pervasive plea bargaining and the crush of caseloads in American and English courts.

Israel still maintains the personal status system (millet) that it inherited from the Ottoman Empire under which the courts of fourteen ethno-religious communities are granted exclusive jurisdiction over matters of marriage and divorce and concurrent jurisdiction with the civil courts in regard to such matters as maintenance and inheritance. But, why Israel, as a highly centralized and democratic polity, has maintained the old millet system which applies different laws to people from different ethno-religious backgrounds and holds men and women to different legal standards? And, how has such a plural application of law affected fundamental rights and freedoms of Israeli citizens? In brief, the Article argues that Israel utilized the old millet system in the nation-building process as an instrument of vertical segmentation and horizontal homogenization. However, the system has encountered with some serious challenges in producing its intended goals. This becomes particularly visible when we take a closer look at the field of human rights where individuals constantly challenge the legitimacy of Stateimposed religious laws, and seek to advance rights and liberties which are denied to them under the current system by engaging in various strategies of resistance.

This article seeks to evaluate Israel's implementation of the international law of occupation in the territories which it came to control after the Six-Day War, from a new perspective. Many scholars have criticized or justified specific Israeli policies by comparing them to specific norms of international law. Contrary to this scholarship, this article addresses the questions at the core of current debates over the implementation of international law: Why has Israel chosen to implement some specific rules of international law and to ignore others? And what caused the changes in Israel's implementation of international law?

Some of the answers to these questions can be found by examining the interests of various institutions involved in the implementation of International law, and the interplay between them. I suggest that in order to understand Israel's initial behavior one must look at the interests, goals and culture of the Israeli army, the IDF, the institution initially responsible for administering the territories. I shall further argue that subsequent changes in policies are a result of the struggle between the IDF and other Israeli institutions attempting to gain influence over the way the territories were controlled.

Under Israel law a person cannot be convicted for a sexual offence unless there is corroborative evidence. This means that if the accused denies that he has committed the offence, he cannot be convicted solely on the basis of the complainant's evidence.

Under English law the requirement is somewhat less rigorous: the judge must merely warn the jury of the danger of convicting without corroboration in such cases. The jury may convict in the absence of corroboration provided such a warning is given. There are, however, even in England, certain statutory offences where the more exacting requirement found in the Israel law is applied (i.e. that corroborative evidence be actually submitted).

While the rules of the jus in bello are generally operative in cyberspace, it appears to be problematic to apply the fundamental principle of distinction because of the systemic interconnection of military and civilian infrastructure in the cyber realm. In this regard, the application of the accepted legal definition of military objectives will make various components of the civilian cyber infrastructure a legitimate military objective. In order to avoid serious repercussions for the civilian population that might follow from this inherent interconnectedness, different concepts are analysed that could provide potential solutions for a clearer separation of legitimate military targets and protected civilian installations and networks. The approaches discussed range from the exemption of central cyber infrastructure components that serve important civilian functions, to the creation of ‘digital safe havens’ and possible precautionary obligations regarding the segregation of military and civilian networks. As a solution, the authors propose a dynamic interpretation of the wording ‘damage to civilian objects’ within the principle of proportionality of Article 51(5)(b) of Additional Protocol I, an interpretation that would comprise the degradation of the functionality of systems that serve important civilian functions.

Interest in the legal system of Israel is enhanced by the circumstances in which the new State came into being.

The circumstances of place are peculiar, in that the territory of Israel is situated at the cross-roads of two continents and at the very focus of movements of upheaval by which they are both so deeply stirred.

No less unusual are the circumstances of time. The proclamation of independence, for all its novelty, was not in the nature of a birth certificate, but rather of an official record of resurrection witnessed after a hiatus of close on two thousand years. No other people, so it seems, better demonstrates the adage that a nation's history is reflected in its institutions. Driven into exile and scattered to every corner of the earth for so many generations, it is now retrieving its identity in a supreme effort of reunion in its never-forgotten home-land. In the meantime, the fund of experience accumulated during the great dispersion has left its mark on the individuality of every immigrant, so that in many respects the mental attitude of the population is as variegated as the rainbow.

The principle of proportionality is one of the core principles of international humanitarian law. The principle is not easy to apply on the battlefield, but is even harder to apply retrospectively, in the courtroom. This article discusses the challenges in applying the principle during international criminal trials. It discusses the principle itself, followed by an explanation of the general challenges of dealing with violations of international humanitarian law, and more specifically the rules related to the conduct of hostilities, during war crime trials. The way in which the principle has been used before the International Criminal Tribunal for the former Yugoslavia is examined, including an in-depth discussion of the recent Gotovina case. The second part consists of an evaluation of Article 8(2)(b)(iv) of the Rome Statute of the International Criminal Court, and discusses the difficulties the International Criminal Court would face in cases dealing with violations of the principle of proportionality.

In March 1992, Israel underwent a Constitutional Revolution. In March 1992, two new Basic Laws were passed: Basic Law: Freedom of Occupation and Basic Law: Human Dignity and Liberty. Under these new Basic Laws, several human rights — among them Dignity, Liberty, Mobility, Privacy, Property — acquired a constitutional force above the regular statutes. Most of these rights were already protected, prior to the constitutionalization. While a few were protected by the legislator, most were protected by the case law of the Supreme Court, developed by some of our greatest judges since the establishment of the State. The main difference made by the Basic Laws is the strengthening of the normative value of these rights. A regular Knesset (Parliamentary) statute can no longer infringe upon these rights, unless it fulfils the requirements of the Basic Laws (the ‘limitation clause’) namely, it befits the values of the State of Israel, it was passed for a worthy purpose and the harm caused to the constitutional Human Right is proportional to the purpose. Thus, we became a constitutional democracy.