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.

This article applies comparative law tools to portray eight significant aspects of the constitutional right to human dignity in Germany and Israel. The elements considered are: the constitutional status of human dignity; the nature of the right; its effect on other constitutional rights; its scope and definition; waiver of human dignity; human dignity after death; negative and positive aspects of the right; and the right to asylum. The textual foundations of the respective constitutional guarantees are as different as human dignity's core meaning. In Germany, such guarantees are held to be absolute, immune to restriction, and therefore quite narrow in scope. In Israel, the scope of the right is much broader, but it is subject to limitations when placed against the public interest. Still, based on the findings of our comprehensive comparison, similar dynamics can be identified in Germany and Israel The constitutional coverage of both absolute and relative principles is broad, as are the constitutional lacunas, which are those dimensions of constitutional law neglected by the written constitution.

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.

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.

In a recent paper, I argue that the “new constitutionalism” — the transformation in the relations between courts and representative institutions that has swept the world and that is now sweeping Israel too — can best be understood as one of those “changes of everything so that everything would remain the same”. The promotion of courts and the demotion of legislatures through the judicial enforcement of “rigid” Charters and Bills of Rights has “legalized politics,” changing its nature as well as its locus. Contrary to those who regard this as an essentially democratic development, I argue that it is, to paraphrase Reuben Hasson, a weapon in the hands of democracy's enemies. I argue that the new constitutionalism was intended to operate and does operate as an antidote to democracy, that it was meant to preserve the oligarchy of private property from the mortal danger posed by representative institutions elected by people without property, the original Greek “demos” from whence the term.

Traditional legal doctrine pictures land ownership in the form of a cone down to the center of the earth. This article suggests that it is desirable for the law to enable subsurface subdivision into separate, three-dimensional property units, constituting separate subjects for title and transactions. Thus the law would contribute to the public interest in recognizing the subsurface space as a separate property unit from both the functional and the planning aspects.

Before three-dimensional registration can begin, it is necessary to create an infrastructure of professional standards for three-dimensional survey for registration purposes. The creation of such standards constitutes one of the main goals of the world survey profession.

It may be assumed that there is a downward limit below which the subsurface has no effect on the surface space and vice versa. In this case, the traditional doctrine may be seriously contested by the argument that those deep levels of the earth should be defined as a collective property. However, it is not practical to establish a fixed downward limit upon ownership of subsurface space. When expropriating the subsurface, it is necessary to compensate the landowner for the consequential damage, as well as for the direct damage incurred. There is some doubt whether compensation should be paid for subsurface area that the landowner could not reasonably and practically exploit. As soon as the axiomatic impediment to three-dimensional subdivision is removed, the importance of long-term planning for subsurface use will increase.

This article responds to the two articles published in this journal that criticise the approach taken by the International Group of Experts (IGE) who prepared the Tallinn Manual on the International Law Applicable to Cyber Warfare. Their authors took issue with the approach of the majority of the IGE over the question of whether data qualifies as an ‘object’ under international humanitarian law such that, for instance, cyber operations that target civilian data violate the prohibition on attacking civilian objects. The majority of the experts took the position that the law had not advanced that far and that pre-existing law could not be definitively interpreted to encompass data within the meaning of ‘objects’. In this article, the Director of the Tallinn Manual Project responds to the authors' criticism of the majority view by explaining and clarifying its reasoning.

Of the sixty-thousand books said to have been written on the life of Jesus in the last century alone, only a very few were enquiries by lawyers or legal historians into the nature and circumstances of the trial, in which his life culminated and which led to his death. This is surprising, considering that no trial in the history of mankind was of such momentous consequences, that none has ever given rise to such widespread, authoritative and persistent assertions that a grave miscarriage of justice had occurred and that none has had repercussions which have retained their impact and actuality even after the lapse of 1,936 years; It is true that, in their researches, great historians and theologians have made ample use of the legal background material they have painstakingly and (mostly) conscientiously collected from Jewish and Roman sources, and every lawyer approaching the subject today owes them a great debt of gratitude for their preparatory work. But both their approach and their purpose were historical or theological, whereas we as lawyers are not concerned with the historical or theological truth of any statement or description contained in the Gospels. Our purpose is to try and find, within the framework of the prevailing legal institutions and conceptions, some plausible interpretation of the events as to the occurrence of which there is general consensus.

A.Brief Factual Background: It is not proposed here to unfold the entire history of the Arab-Israel conflict. Our purpose is rather to outline briefly the major, and by and large undisputed, events preceding the outburst of all-out hostilities on the morning of June 5, 1967.

In the aftermath of the first Arab-Israel war, in 1949, Israel and the surrounding Arab countries signed armistice agreements, according to which all hostile military activities between the signing parties were to cease. However, throughout the years following the signing of the agreements, innumerable border incidents, military or semi-military raids and reprisals, sabotage and mining operations, and other belligerent actions occurred, each side charging the other with aggression. In May 1948, Egypt closed the Suez Canal to passage by Israeli shipping and, at the end of 1949, installed guns at Sharm-el-Sheikh, overlooking the Straits of Tiran, thus blockading the Israeli port of Eilat. To justify her actions, Egypt persistently asserted the existence of a “state of war” or “state of belligerency” between Israel and herself, irrespective of the armistice agreement and her obligations under the United Nations Charter. In October 1956, the second Arab-Israel war, known as the Suez (or Sinai) Campaign, broke out. But even this violent confrontation and the arrangements which followed, including the stationing of the United Nations Emergency Force (UNEF) in the Gaza Strip and Sharm el-Sheikh, did not bring about stability and peace. Tension continued to mount in the area.

The present article analyzes the expected implications of the recent Advisory Opinion of the International Court of Justice on the legal status of East Jerusalem in accordance with international law. The Court stated that East Jerusalem is occupied territory and Israel is the occupying power in this territory. Generally, the Opinion lends support to the Palestinians' arguments and is likely to enhance their bargaining position in the future negotiations regarding the regime to be applied to East Jerusalem. Unlike the differential approach undertaken by the parties during the recent stage of negotiations (that suggested applying different legal regimes to the city's different areas), the Court's Opinion did not make distinction between the different parts of East Jerusalem. Analysis of these distinct approaches indicates that the differential approach (adopted during the recent negotiations)is more likely to enhance the prospects of attaining an agreed solution to the dispute over East Jerusalem. The Court's emphasis on the interests of third parties as well as the role of the UN tends to multilateralize the dispute between Israel and the Palestinians regarding the West Bank, including East Jerusalem. The impacts of possible multilateralization of the dispute over East Jerusalem on the prospects of achieving an agreed solution are not clear. In contrast to the Court's multilateral approach with regard to the general Israeli-Palestinian dispute, the analysis of Israel's obligation regarding access to the holy places is essentially premised on two bilateral treaties (the 1949 General Armistice Agreement and the 1994 Peace Treaty between Israel and Jordan). In light of the major importance of numerous holy places in other parts of the globe, a preferable legal analysis could have been founded on a reasonable interpretation of general international human rights instruments, particularly the 1966 Covenant on Civil and Political Rights.

The paper describes the origins and implications of the principle of culpability in Germany and Israel. The comparison shows that the principle of culpability is more closely related to human dignity in German law and that it carries more weight there than in Israeli law. However, the adoption of the Basic Law: Human Dignity and Liberty and the new General Part of the Israeli Criminal Code in the 1990's have increased the role and impact of the principle of culpability in Israeli law.

At the end of the Ottoman rule the legal system in Israel was ripe for change. The British conquest was welcomed, at least by the Jewish population, and under the circumstances there was no objection to absorbing the legal system of the new conqueror.

British conquest in 1917 brought military rule but by 1920 a civil administration headed by High Commissioner Sir Herbert Samuel had already been installed. On July 24, 1922 the League of Nations bestowed upon Britain the Mandate over Palestine, and less than a month thereafter, on August 10, 1922, the Palestine Order-in-Council was enacted. This legislation was designed to serve as a “Constitution” for Mandatory Palestine. It established institutions of the Government—the executive authority, the legislative branch, the judiciary—and defined their powers. In particular, the sources of law to be applied by the civil courts were enumerated in Art. 46, while matters of personal status jurisdiction remained vested in the courts of the various religious communities.

‘Force protection’ is a primary concern of every military commander. Undoubtedly, it is an important and legitimate factor in the planning of every attack. However, when it comes to the humanitarian proportionality principle there is considerable controversy over the question to what extent ‘force protection’ can be factored into the humanitarian proportionality calculus as a relevant military advantage to be weighed against expected civilian casualties, injuries and damage. This question is pursued in this article.

Crime seriousness research indicates that respondents from varying social and cultural groups rank the perceived seriousness of offenses similarly, with violent offenses as the most serious, followed by property, economic, and victimless offenses. It has also consistently been found, however, that the specific ratings of offenses by respondents from different social groups often differ. Because Israel is considered a deeply divided society, this article focuses on the comparison of public perceptions of the seriousness of varied criminal offenses between respondents belonging to varying central social groups in the countiy. As expected, the findings show similar, albeit not identical, rankings of offenses and important differences in the rating of specific offenses across groups. These findings are interpreted in the context of the Israeli society.

This article considers how arguments relating to the principle of joint applicability of international human rights law (IHR) and international humanitarian law (IHL) are playing out in the United Kingdom's courts. The core of the article is a case study of the decisions of the Divisional Court, the Court of Appeal and the House of Lords in Al-Skeini v. Secretary of State for Defence. The central issues of the case concerned the application of the UK's European Convention on Human Rights (ECHR) obligations in the context of its activities in Iraq, and the extraterritorial application of the Human Rights Act, 1998. This case study of the domestic application of the principle is particularly useful for considering (i) its practical implications on the specific facts of particular cases; (ii) the argumentation used by the UK government and judges; (iii) the difficulties of national courts in analyzing the IHR and IHL rights jurisprudence; and (iv) the significant differences between IHR and IHL in terms of positive obligations and domestic remedies.

Religious education in Israel is inextricably linked with the more general aspects of the complex role of religion in Israel, which in turn cannot be understood without a basic understanding of Israel as a Jewish state, as well as that of the traditional status of religious-ethnic-national groups in the Middle East.

A comprehensive discussion of these complex issues would take us well beyond the confines of this paper. Thus, we will discuss them only briefly herein, thereby necessarily dealing in generalizations which may, at times, be overly simplistic.