This Article discusses the Palermo Protocol to Prevent, Suppress and Punish Trafficking in Persons. In the first part it offers a critical discussion of what is entailed by speaking of a “shortfall” of enforcement in dealing with the social problem of human trafficking. It then goes on to show that there are two competing narratives of this problem and of the way it is being responded to, and explains why we need to learn more about the interests and values that condition the “law in action.” In the last section the Article discusses the potential relevance of the idea of the “legal culture” for explaining the patterns of “law in action” in different countries and different agencies. The Article's overall aim is to show the existence of a link between the manner in which the problem of trafficking is socially defined in practice, and the role of legal culture in shaping this link.

It is a conundrum that has long intrigued philosophers, novelists, lawyers, and ordinary citizens: a captured terrorist knows the location of a ticking bomb that threatens hundreds of innocent lives; the only way to prevent the mass murder is to torture the terrorist into disclosing the bomb's location; there is no time for reflection; a decision must be made. Does the noble end of saving innocent lives justify the ignoble means of employing torture?

We know, of course, what all governments would actually do under these conditions of tragic choice: they (or more precisely, some flack-catching underling) would torture (with the implicit approval of the powers-that-be). But could the government justify it? Would they write a law expressly authorizing such means? Or would they choose the “way … of the hypocrites: they declare that they abide by the rule of law, but turn a blind eye to what goes on beneath the surface” (R.,78).

Comparison between the two decisions of the International Court of Justice and the Israeli Supreme Court on the legality of Israel's West Bank controversial separation barrier illustrates some of the inherent differences between national and international legal proceedings. The note critically assesses these differences and advocates a more comity based framework of cooperation between national and international courts. Specifically, the note argues that the fact-gathering and fact-analysis process demonstrated in the Hague Advisory Opinion is problematic, as were the Court's refusal to show any deference to the Israeli authorities and empathy towards the Israeli public. These deficiencies reduce the persuasiveness of the Opinion and render its acceptance by Israel less likely. At the same time, the failure of the Israeli Supreme Court to address the link between the route of the barrier and the alleged illegality of the settlement detracts from the normative value of the judgment and highlight the political constrains in which domestic courts operate. As a result, resort to a comity-based framework in which the national and international courts strive to draw upon each other's institutional advantages in the fields of fact-finding, compliance-pull and international law expertise would have been beneficial.

The world's second-oldest written constitution (1814) still existing presumably also contains the world's oldest substantive “supra-constitutional” or “eternity” clause. According to its text, the “spirit “ and “principles” of the Constitution cannot be amended.

However, it is less than clear that the clause is meant to exclude not only “amendments” but also the adoption of a brand new constitution. Moreover, the meaning of the clause two centuries later cannot be determined without regard to subsequent changes to other parts of the Constitution. The examples discussed include the constitutional monarchy, affected not only by the radical shift in our perception of the role of a hereditary king but first and foremost by formal amendments. In this way, “principles” that may initially have been protected may no longer enjoy a similar status.

Who has the last word as to the substantive limits to amendments? The widely held view in Norway is that the judiciary should stand back. While judicial review of legislation leaves the last word about what norms to apply in the future to the constitution-amending power, judicial review of constitutional amendments would leave the last word about the future meaning of the Constitution itself to judges. Another argument refers to our inherent right as human beings to resist oppression. This argument deserves attention even if it is not substantiated in the text of the Constitution.

Are the “spirit” and “principles” of the Constitution of Norway well protected? If the clause is understood as a contribution to the smoothness of constitutional development over time and thereby to the relative success of the Norwegian Constitution, the assessment is likely to be rather positive.

The Parliamentary Council, the constitutional assembly for the German Basic Law, split over the question whether the guarantee of human dignity should be understood as the result of a democratic decision or as the incorporation of a pre-existing universal principle of Christian origin. The subsequent constitutional practice was dominated by a moral understanding of the norm that stressed the contradiction between democracy and human dignity. This Article rejects this interpretation and attempts to show, using the exemplary German case, that a democracy-oriented interpretation of human dignity is not necessarily less effective than a moralized understanding.

This series of articles is intended to deal with one aspect of the sources of Israel law, namely the influence of foreign legal systems and principles derived therefrom on Israel law and on the attempt in recent years to independent creation of local law.

Foreign law constitutes on occasion an actual legal source for the law of Israel. This occurs when a local enactment refers to foreign law and makes it applicable in certain situations. In such case the foreign law which we are to apply constitutes an obligatory legal norm in Israel and is, in fact, part of the Israel legal system. In other cases foreign law influences the process of creation of local law but does not constitute a formal source of law in the Israel system. This happens, for example, when Israel case law relies for authority upon some rule established in an American decision (which is, of course, not binding in Israel) or when the Israel legislator is influenced by a principle of law derived from another legal system. We might say there that the foreign law is an historical source for the Israel rule.

A discussion of the role of courts in Israel today demands some introductory remarks. The Supreme Court and the President of the Supreme Court enjoy great acclaim and respect within Israel and abroad, but have recently come under attack from a variety of sources. These attacks are often confused, and many of them are clearly motivated by narrow partisan interests and an inherent objection to the rule of law and judicial review. But these motives do not necessarily weaken the dangers which the attacks pose to the legitimacy of the courts in general, and the Supreme Court in particular, in Israel's public life. The fact that in some sectors extremely harsh criticism of the court is seen to be an electoral boost, testifies to the serious and dangerous nature of the threat. This situation creates a dilemma for those who want a strong and independent judiciary, believing it is essential for freedom and democracy, but who also believe that, during the last two decades, the courts have transgressed limits they should respect. The dilemma becomes especially acute when the political echo sounds out in one's criticism, and when one is part of the group that believes that the legal and the judicial systems have made some contribution to the prevalence of these hyperbolic and dangerous attacks, as I am.

The comment focuses on the construction of time in the normative regime of occupation. Beginning (in section 2) with a critique of the ICJ's reading of Article 6 of 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 for 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.

The Italians have a word for what I want to say about modern constitutionalism: “gattopardesco,” that is “leopardesque”, not as in the animal but as in the novel The Leopard by Tomasi di Lampedusa. The novel is about a noble Sicilian family at the time of the unification of Italy in the mid-nineteenth century. Italian unification was mainly a matter of the northern Savoy monarchy of Piemonte conquering the peninsula and vanquishing the various other monarchs, princes, etc., including the Bourbon rulers of Sicily and Naples. But there were other elements about and stirring up trouble, anti-monarchist and even socialist elements. In a scene early in the novel, the Sicilian Prince of Salina, the main character, is shocked to learn that his favourite nephew, Tancredi Falconeri, is off to join the invading northerners. He remonstrates with the boy:

The debate surrounding the legal status of Gaza after Israel's disengagement in September 2005 exemplifies some of the chronic limits and deficiencies that international humanitarian law in general and the law of occupation in particular suffer from: (a) binary application—the law operates within clear-cut dichotomies and struggles with recognizing ambiguous situations; (b) varying realities—prevalent tensions between “legal reality” and the actual conditions “on the ground” cause the characterization of conflicts to be based upon different law-based and fact-based perceptions of reality: (c) inconsistent legal and policy approaches—parties to a conflict attempt to simultaneously advance different legal and political goals, which leads to a state of affairs that encourages the application of IHL in a selective and inconsistent manner; (d) chronic gaps between law as it is and law as it should be—lex lata may bring about unsatisfactory outcomes—hence, parties and commentators often attempt to modify existing laws through radical reinterpretations. Focusing on the recent debate over the status of Gaza, this Article illustrates how these four fundamental tensions hamper the application of the law of occupation in factually complicated situations.

Human dignity can be a protected interest in criminal law. This paper starts with some reflections about the meaning of human dignity and then examines offense descriptions in the German Penal Code and the Israeli Penal Code. These codes are used as sources for identifying possibly relevant prohibitions. One can indeed find numerous examples of offense descriptions that can be justified by pointing to human dignity, either as a main protected interest or as a protected interest in addition to other interests. The protected interest can be either the individual victim's right to human dignity or human dignity as an objective value. Offense descriptions that can be connected to “protection of human dignity” should, for analytical purposes, be divided into three groups: violations of the dignity of individual human beings through acts other than speech; violations of the human dignity of individuals through speech; and media content that does not contain statements about individuals but shows scenes of severe humiliation (e.g., fictional child pornography). Questions that need further discussion primarily concern the second group (what role should free speech play in cases of human dignity violations?) and the third group (does the acknowledgement of human dignity as an objective value mean to endorse a re-moralization of the criminal law?).

The Article discusses the difficulties of establishing a hierarchy of norms in international law, particularly with regard to human rights norms. A number of arguments have been put forward but none of them has proven to be conclusive: be it the distinction between treaty-based norms and norms of customary law, be it the non-restrictability or non-derogability of some treaty rights, be it their erga omnes character or the inadmissibility to make reservations. The best way to address the issue of hierarchy seems to be the concept of jus cogens. However, the consequences of some rights being “superior” to others are by no means clear. The fact that certain rights are addressed in court decisions as being “most fundamental” or representing a “supreme value” does not necessarily mean that these rights prevail over other, seemingly “inferior” rights in a given case. This is so because it is difficult to decide in abstracto and in advance possible conflicts of human rights positions of different human beings. The Article therefore recommends a very reluctant use of a terminology pointing at a hierarchy between human rights.

The origins of the Criminal Code Ordinance of 1936 (hereinafter, CCO) have never been fully explored. The Supreme Court of Israel has indicated that specific provisions were derived from Ottoman law, or were modelled upon an English statute, or based upon a common law doctrine. No one, however, has attempted to describe comprehensively the history of the CCO, and those who have touched upon the subject have usually contented themselves with general statements:

a. The local legislator drew most of the offences included in the Criminal Code Ordinance from the well of English law.

b. Everybody admits that the provisions of the Palestine Criminal Code Ordinance relating to manslaughter and murder were not derived from one source, but include different ideas and pieces of ideas that were taken, a little here and a little there, from different legal systems—English, French, Ottoman, or French in Ottoman clothing, as it existed until 1936. Before us is a mosaic of different colours composed into a single picture. As to this there is no disagreement … What is not so clear and certain is the identity of the concrete source of each of the bricks of the building that comprise the ‘collective’ legislation.

This Article explores the grounds and consequences of illegal occupation. It proposes that an occupation may be considered illegal if it is involves the violation of a peremptory norm of international law that operates erga omnes, and is related to territorial status. Accordingly, illegal occupations are primarily those achieved through violation of the prohibition on the use of force and of the right to self-determination, or maintained in violation of the right to self-determination. This examination forms the basis for a systematic analysis of specific occupations that have been declared illegal by U.N. organs. The second part of the Article addresses the consequences of an occupation's illegality, in view of the political and legal objectives of determining such illegality. It considers the international responsibility for an illegal occupation; the obligation of non-recognition and the law applicable to an illegal occupation; and the right to self-defense. The Article concludes by commenting on the role of “illegal occupation” as a category under international law.

In her instructive article, Professor Lapidoth discussed, inter alia, the applicability of the laws of war to the territories administered by the Israel Defence Forces since the Six Day War of 1967. Being in full agreement with Professor Lapidoth that from the legal standpoint the situation is in need of improvement, I wish to deal more extensively with two questions: (1) What is the position of the Government of Israel regarding the applicability to Judea and Samaria and to the Gaza Strip of the Hague Regulations of 1907 respecting the Laws and Customs of War on Land, and of the Fourth Geneva Convention of 1949 relative to the Protection of Civilian Persons in Time of War? (2) What is the position of the Supreme Court with regard to the applicability of the Regulations and the Convention to these territories.

The events of recent years have prompted a closer examination of the legal complexities arising from transnational armed conflicts pitting a state against a non-state organized armed group based outside the state's territory. For much of the Twentieth Century it remained unclear whether human rights law apply to a state's conduct during armed conflict or occupation. Despite continuing objections on the part of a handful of states, a consensus is evolving in favor of the view that human rights law applies in full alongside humanitarian law.

Once it is settled that human rights law does not cease to apply by reason of the inception of a state of armed conflict, it is easy to see how this body of law would apply alongside humanitarian law in an internal armed conflict. The situation becomes more complex, however, when a state is engaged in a non-international armed conflict taking place outside of that state's territory.

Unlike human rights law, the law of armed conflict was designed to apply primarily in an inter-state context. Thus, the vast majority of its provisions clearly apply to a state's extraterritorial conduct, specifically in the territory of the opposing state. But what of that branch of humanitarian law that developed to regulate non-international (i.e., non-inter-state) armed conflict? Recently, controversy arose as to whether Common Article 3 applies only to internal conflicts. The question of the extraterritorial application of Common Article 3 must be examined in light of the more general evolution in humanitarian law in favor of recognizing rights of individuals as such.

There has been a substantial degree of convergence between the law of international armed conflict and the law of non-international armed conflict. A result of this convergence has been that individuals involved in a non-international armed conflict can now benefit from many of the protections once available only in the context of inter-state conflicts.

At the same time, some have relied on this convergence to extend to non-international armed conflicts not only the prohibitions of the law of international armed conflict, but also, controversially, authorizations. In any event, notwithstanding continuing controversy over its content, there seems to be a general consensus supporting the proposition that the law of non-international armed conflict applies extraterritorially. As noted above, demonstrating the applicability of humanitarian law outside of a state's territory is facilitated by the fact that the bulk of the law of armed conflict was designed to apply in an interstate context, presupposing that states would be acting on each other's territory. That some of these rules are now deemed to apply even in an internal setting does not lessen the presumption that they will still apply extraterritorially, at least insofar as they consist of prohibitions and do not purport to impose obligations on third states.

The situation is more complex under human rights law, which was not primarily designed to apply extraterritorially. In order to ascertain whether human rights law is applicable in the context of transnational conflicts with non-state groups, it is essential to consider the extent to which human rights law is applicable in relation to individuals outside the state's territory.

Most of the jurisprudence of human rights bodies, which have greatly elaborated on the content of states' obligations under the various human rights treaties, has been developed in the context of alleged violations committed on the territory of the respective state party. Can these same standards be transposed onto the state's conduct abroad?

Thus, it would seem that there may be an identifiable trend toward recognizing varying levels of obligation. In particular, it may be that negative obligations apply whenever a state acts extraterritorially (at least with respect to intentional human rights violations, as opposed to indirect consequences), but that the degree of positive obligations will be dependent upon the type and degree of control (or power or authority) exercised by the state. Such obligations are limited by a scope of reasonableness even when applied to a state's conduct within its territory; there is no reason why application to a state's extraterritorial conduct would not similarly be bounded by a scope of reasonableness, such that the adoption of affirmative measures is only required when and to the extent that the relevant party de jure or de facto enjoys a position of control that would make the adoption of such measures reasonable. This approach would preserve the integrity of the respective treaties and would vindicate the universal nature of human rights, which is proclaimed in the preambles of all of the human rights treaties considered in this analysis. At the same time, it would not place unreasonable burdens on states parties. From its inception, the international law of armed conflict followed the projection of power. The jus in bello would apply to armed conflicts irrespective of physical location, so long as opposability as between the warring parties was satisfied. The same could be said of the law of state responsibility for injury to aliens. While the application of both bodies of law clearly extended beyond the state's jurisdictional reach, neither could penetrate into the sphere of the state's domestic jurisdiction in the narrowest sense. Human Rights law was developed to fill that gap.

But just as humanitarian law ultimately began to press inward against that external membrane of a state's domestic jurisdiction, human rights law has now begun to exert outward pressure against the inner wall of the state's jurisdiction. Indeed, these two processes—of inward penetration and outward projection—can be seen along a single continuum with a common seam. That seam is manifested in the structural evolution of the international legal system that was consolidated in the years immediately following World War II. The principal structural development of that period was the emergence of the individual human being as a subject of international law, capable of bearing international rights and duties.

This structural development corresponded to a coalescence of values around a principle conceived as transcendental and universal—human dignity. Recognition by the newly reconceived international community that the dignity of the individual human being was something entitled to legal protection led to the transformation of this principle into positive law. It is this conception of human rights as both transcendental and universal that pushes against the concept of jurisdiction—pushing simultaneously into the domestic sphere and out of it—and underscores both its artificiality and diminished existence. It is this conception, far more than the force of legal reasoning from positive law that has enabled both human rights law and humanitarian law to grasp the outer and inner reaches of the power of the state.

To the extent these rules are designed to protect individuals from abuses of state power, realization of that design entails application coextensive with the projection of that power. While the exact contours of their application may not be settled, the traditional principles of good faith and reasonableness in the circumstances provide ample guidance for shaping those contours.

The Law of Return grants every Jew the right to immigrate to Israel; this also applies to non-Jewish relatives of Jews. The Citizenship Law grants every such “returnee” automatic citizenship. The wave of immigration from the former Soviet Union in the 90s brought a large number of immigrants not considered Jewish under the definition accepted in Israel. Is this large group of Israeli citizens—who do not, at least formally, belong to the Jewish people—an emerging second substantial national minority in Israel? This Article argues that regardless of formal definitions based on Orthodox religious law under which a religious conversion is the only way for a non-Jew to become Jewish, these immigrants, through their successful social and cultural integration in the Hebrew-speaking Jewish society in Israel, are joining, de facto, the Jewish people. It is no longer true that religious conversion is the only way to join the Jewish people.

This article provides a critical examination of the debate over the relationship between international humanitarian law and international human rights law. On the question surrounding the very fact of co-application, it appears that the dominant view supports the co-applicability of the two legal regimes. Opinion is however far from settled on the scope of application of international human rights law, especially insofar as it relates to the issue of extra-territorial applicability. The approach taken in the event of co-applying the two frameworks to specific circumstances, and whether and how one is to use the doctrine of lex specialis, reveals further questions in need of coherent answers. Finally, there remain particular areas in which the co-application faces challenges that must be surmounted, if it is to prove a useful approach. These include the issues of the so-called “war on terror,” the distinction between the jus ad bellum and the jus in bello, non-international armed conflicts, and more. Whilst the co-application of the two regimes is now almost undisputed, it appears therefore that obstacles remain that must be dealt with in order for the relationship of the regimes to be of a fully harmonious nature.

After years of political stalemate on the issue of end-of life medical care in Israel, the Knesset enacted the Dying Patient Law in 2005. This Article argues that the new law manifests a paradigm shift in the normative framework regulating end-of-life treatment in Israel, from a patient right approach based on the principle of autonomy, to a physician duty approach based on the principle of the sanctity of life. In so doing the law created a complex web of formal procedural rules and culturally unique legal artifices, which amount to a maze of medicolegal technocracy. The technocratic maze conceals substantive restrictions on rights to patient autonomy which had been recognized in the former case law in relation to the withholding and withdrawal of medical treatment. In particular, under the new law, the request of a competent patient to withdraw artificial respiration may not be respected, and the advance directives of an incompetent patient to withhold artificial nutrition are of no effect. Beyond a question of constitutionality, the Article suggests that the underlying approach of the law to death and dying is an unskillful response to the challenges that have arisen from life extending technology.

Singapore's immigration discourse is deeply influenced by its need to “right-size” its population. As a society that has and remains in need of immigration, contemporary immigration and globalization have rigorously challenged the conventional thinking and understanding of citizenship, as well as notions of who belongs and who does not. Nevertheless, international marriages and pervasive in-and out-migration for purposes of employment, study, and family, conspire to make more pronounced the decoupling of citizenship and residence in Singapore. This transnational dimension sits uncomfortably with the policy makers' desire for, and the imperatives of, state sovereignty, control, and jurisdiction.

Although one quarter of people living in Singapore are foreigners, concerns of human rights and justice are largely peripheral, if not absent from the immigration discourse. This is seen most clearly in employment issues pertaining to foreign female domestic workers (FDWs), most of who come from other parts of Southeast Asia. ‘Rights talk’ is largely absent even as activists seek to engage the key stakeholders through the subtle promotion of rights for such workers.

The government, however, has resisted framing the FDW issues as one of rights but instead has focused on promotional efforts that seek to enhance the regulatory framework. This dovetails with the reality that immigration law also functions as quasi-family law in which the freedom of FDWs and other foreign menial workers to marry Singapore citizens and permanent residents are severely restricted. As such, the immigration regime's selectivity functions as a draconian gatekeeper. Justice and human rights are but tangential concerns.