Section IX of the ICRC Interpretive Guidance on Direct Participation in Hostilities asserts: ‘In addition to the restraints imposed by international humanitarian law on specific means and methods of warfare, and without prejudice to further restrictions that may arise under other applicable branches of international law, the kind and degree of force which is permissible against persons not entitled to protection against direct attack must not exceed what is actually necessary to accomplish a legitimate military purpose in the prevailing circumstances’. The present article scrutinises arguments that have been, or can be, advanced in favour of and against a ‘least harmful means’ requirement for the use of force in situations of armed conflict as suggested in Section IX. The principal aim of the article is to examine the question whether such an additional proportionality requirement forms part of the applicable international lex lata.

My story is full of holes. The first hole, or rather, ditch, was dug in 1930 by the municipality of Haifa. An Arab, Dr. Caesar Khoury, fell into the ditch and fractured his shoulder-blade.

Could Dr. Khoury recover? The law of torts of mandatory Palestine was found in the Mejelle — an Ottoman code of Moslem civil law. Did the Mejelle provide a remedy in the case of personal injury? “Unfortunately,” said Judge Francis Baker, who delivered the opinion of the Supreme Court of Palestine, “the Mejelle dealt with liability for damages caused by animals to property, but it was ‘silent’ with regards to injuries caused to persons”. Therefore, Dr. Khoury could not recover.

The second hole in my story belongs to a Jew, Feivel Danovitz. In 1939, Danovitz was run down by a truck in Tel Aviv. He sued the driver and the owner of the truck. The lower courts of Tel Aviv decided that if the Mejelle did not deal with liability for personal injury, that meant that there was a hole in the tort law of Palestine. Such a hole could be filled by recourse to the English common law in accordance with the provisions of Article 46 of the Palestine Order-in-Council, 1922. Since the English common law recognized liability for personal injury, Danovitz could recover.

In 1991, Israel enacted a new mental health law entitled the Treatment of Mental Patients Law, 1991. This law includes, for the first time, a provision authorizing involuntary outpatient commitment (“IOC”). In its simplest form, IOC is the procedure by which an individual who is determined to be mentally ill is ordered to comply involuntarily with mental health treatment outside of a hospital setting. The new Israeli involuntary outpatient commitment provision, known as “compulsory ambulatory care”, provides that an individual who meets the standards for civil commitment may be committed to involuntary outpatient treatment as a condition of release from inpatient care, or as a dispositional alternative to involuntary hospitalization.

Originally enacted in the United States as a condition of release for persons being discharged from mental hospitals, or as an alternative to involuntary hospitalization, involuntary outpatient commitment has now been enacted in various forms in different countries throughout the world. The new Israeli IOC law is modeled after American IOC laws, (particularly those enacted in the early 1980's), which seek to provide involuntary mental health treatment to persons who do not meet a strict test of dangerousness for involuntary commitment.

This article asserts that a challenge exists in deflecting the prevailing view that a general gap of legal applicability exists in respect of legal regulation of the war on terror. This “gap” is articulated by a focus on a new phenomena—namely the emergence of Al Qaeda as a non-nationally motivated, transnational terrorist organization whose actions and actors do not “fit” existing legal norms and sanctions. In addressing that challenge, this article will rebut the argument that suggests a legal lacuna exists, and that no appropriate legal tools are available to states and international organizations as they confront the post September 11th context. In particular, the argument asserts that existing legal norms provide sufficient coverage to respond to the conflicts experienced in the contemporary moment, as well as to the state and non-state entities participating in them. The article suggests that clarity about the boundaries between the legal regime of international human rights law and international humanitarian law would assist closing off perceived regulatory gaps. It contends that the usual rationale given in favor of parallel application, namely higher protection for the victims of conflict, substantially underestimates its other valuable policy and instrumental benefits. Specifically, the traditionally vaunted victim centered rationale does not sufficiently weigh the value of affirming consistent rule of law coverage to situations of conflict. The article asserts that while further regulatory measures may be possible and even desirable to confront the contemporary challenges of conflict forms (including terrorism), a combined or dynamic approach to the law of war and international human rights law provides sufficient traction and norm content to address and be relevant to present needs.

Criminal laws must conform to each state's constitutional law. In both Israel and Germany, the highest courts have ruled on the compatibility of criminal prohibitions with constitutionally protected rights. One recurrent issue is the relationship between criminal prohibitions and the right to liberty, which is constitutionally guaranteed in both countries. The authors show that there are clear parallels in the case law of Israeli and German courts with regard to liberty. Human dignity is likewise protected in both legal systems, although it plays a different role in each. Under article 1(1) of the German Basic Law, human dignity enjoys “absolute” protection, which leads to problems in defining human dignity and accommodating countervailing interests in individual cases. In Israel, by contrast, human dignity is placed on the same level as liberty in the constitutional hierarchy of rights and is not afforded any “special treatment” by the Supreme Court. The authors suggest an intermediate solution: human dignity should not be granted “absolute” protection but should be treated with the greatest respect when criminal laws are reviewed for their constitutionality.

In Talmudic literature the term lifnim mishurat hadin (i.e., beyond the line of the law) is mentioned a number of times. Before analyzing the various Talmudic passages where this concept is found, we will ask a number of questions, some of which we will answer in this article. Not all of the answers will be unequivocal and some questions will remain, in the end, provocative and open. Hopefully, the paper will encourage further discussion of the concept lifnim mishurat hadin.

Is lifnim mishurat hadin a specific norm of behaviour which can be precisely defined, or is it rather a concept referring to recommended ethical behaviour, similar to general moral values and examples of ethical behaviour which abound in the Talmud but which have no clearly definable characteristics? If we conclude that lifnim mishurat hadin is indeed a precisely defined norm of behaviour does it stand on its own as a specific type of moral behaviour, or is it synonymous with certain other moral norms, dinei shamayim (the Laws of Heaven), midat hassidut (the degree of ethical perfection of men of piety and virtue) or one of the other ethical norms found in the Talmudic sources? If lifnim mishurat hadin is not just another term for some other moral norm, what is the difference between them? (A reasoned answer to this question cannot be given without a full discussion of all the other moral norms in the Talmud; therefore in this article we will only suggest approaches to answering this question). Are there differences of degree within the norm of lifnim mishurat hadin itself? Are there types of behaviour recorded in the Talmud, about which the phrase lifnim mishurat hadin is not used, but which are in fact examples of behaviour lifnim mishurat hadin? If so, is there a reason why such actions were not explicitly described as lifnim mishurat hadin?

To claim that the Land Law, 1969 is the most significant private law enactment to have been promulgated hitherto by the Knesset may perhaps be regarded as somewhat of anexaggeration. Nevertheless, it would seem incontrovertible that this statute is at any rate among the most basic and extensive to have been enacted by the Knesset in the realm ofprivate law. In order to appreciate the particular importance of this statute it is sufficient to consider two provisions thereof, namely, the abolition of recourse to English law as a source for complementing the local law in all matters relating to land; and, secondly, the repeal of the Ottoman land legislation. Some preliminary remarks may be of assistance in appreciating the full import of these two provisions.

The Israel Law of Marriage and Divorce is unique in many aspects. In European and European-based systems of law, the rivalry between Church and State ending in the triumph of the State over the Church is a matter of past history. Ecclesiastical courts were long ago deprived of jurisdiction in matters of marriage and divorce. Canon law, nevertheless, continues to this day to be the source of the law of the land in this field in all jurisdictions of both Roman civil and common law, even after the pollution and dilution in varying degrees of such source by the secular powers. Principles rooted in canon law were incorporated wholesale in the secular law of the land, and thus made to apply to the entire population irrespective of individual religious affiliation. The continuous activity of a single system of lay courts dealing with matrimonial issues in the course of its general preoccupation with the administration of justice, utilizing a single set of laws of evidence and rules of procedure, gradually welded the principles taken over from the canon law and die law emanating from other sources into one homogeneous body.

Israel alone, among all Western systems of law, retains the law relating to the creation, incidences and termination of the matrimonial status in its almost unadulterated form of religious precepts, and maintains a ramified system of religious tribunals for the administration thereof. This enables nearly all to achieve either marital bliss or, if necessary, the happiness resulting from the dissolution of a miserable marriage in the manner sanctioned by the authorities of their own religious denomination.

There is a tendency among the judiciary to apply the standard of ‘effective control’ as the applicable yardstick for apportioning responsibility for wrongful acts between the United Nations and the member states contributing troops to UN peace-support operations. This is evidenced by recent decisions in the cases of Srebrenica (Dutch Court of Appeal, 2011), Al Jedda (European Court of Human Rights, 2011) and Mukeshimana (Belgian First Instance Court, 2010), which appear to repudiate the ‘ultimate authority and control’ standard espoused by the European Court of Human Rights in Behrami (2007). This process may have been set in motion by (the current) Article 7 of the ILC's Draft Articles on the Responsibility of International Organizations, which may in due course reflect customary international law. From a policy perspective, the application of an ‘effective control’ standard is highly desirable, as it locates responsibility with the actor who is in a position to prevent the violation.

Introduction: With the increasing tendency in Israel to replace the old Ottoman civil law, thefamiliar question of the reception of Jewish (talmudic) law has once again become the subject of lively discussion. In his policy speech in the Knesset the then new Minister of Justice, Mr. Y. S. Shapiro, declared as his objective the gradual severance of Israel law from the present pervasive influence of the English legal system. He was too cautious to take a definite stand on the question of the reception of Jewish law (or any other specific system) to replace the present law, but aspirations towards this goal have recently been expressed on various occasions by representatives of different parties. The forceful demand “to base the laws of the State on the Halacha” comes especially from die religious parties. But representatives of the non-religious parties also recommend the reception of Jewish law in those areas of private law where no decisions on ideological grounds need to be made.

In point of fact, the unanimity with regard to the reception of Jewish law is based on two outlooks differing in origin. Non-religious circles view Jewish law as a cultural creation of national significance, comparable to the revival of the Hebrew language. The firm establishment of Israel law on Jewish legal principles is advocated as an expression of spiritual independence, stressing the historical continuity of the people residing in Zion.

At issue is the appropriate legal reaction to so-called “selective” conscientious objections in the current Israeli context, accounting for both consequential considerations and deontological ones. It is argued that a relevant distinction in this respect is between objections committed by members of a permanent minority, which are based on views that are practically excluded from the political discourse, and objections which are guided by what Rawls calls “political principles”, that is, “the principles of justice which regulate the constitution”. This distinction can explain and justify the current policy of the Israel Defense Forces (IDF) of granting exemptions to Ultra-Orthodox Jews and to Arabs (even if not all these cases reflect so-called “full” conscientious objection) while denying an exemption to those who refuse to serve based on their opposition to the IDF's activities in the Occupied Territories. However, it is argued that the important expressive role of such refusals requires a more measured approach, by either legitimizing a limited number of such acts or imposing only minimal sanctions (while formally de-legitimizing such acts). These arguments are preceded by an assessment of an alternative possible justification of legitimizing refusals, to prevent the implementation of unlawful activities by the IDF. It is argued that this purpose does not justify legitimization of refusals except in particular instances that are specified.

The nature of armed conflict has changed dramatically in recent decades. In particular, it is increasingly the case that hostilities now occur alongside ‘everyday’ situations. This has led to a pressing need to determine when a ‘conduct of hostilities’ model (governed by international humanitarian law – IHL) applies and when a ‘law enforcement’ model (governed by international human rights law – IHRL) applies. This, in turn, raises the question of whether these two legal regimes are incompatible or whether they might be applied in parallel. It is on this question that the current article focuses, examining it at the level of principle. Whilst most accounts of the principles underlying these two areas of law focus on humanitarian considerations, few have compared the role played by necessity in each. This article seeks to address this omission. It demonstrates that considerations of necessity play a prominent role in both IHL and IHRL, albeit with differing consequences. It then applies this necessity-based analysis to suggest a principled basis for rationalising the relationship between IHL and IHRL, demonstrating how this approach would operate in practice. It is shown that, by emphasising the role of necessity in IHL and IHRL, an approach can be adopted that reconciles the two in a manner that is sympathetic to their object and purpose.

The killing of Osama bin Laden by US Special Forces on 2 May 2011 raises several questions of international law with regard to the legality of this particular operation and the permissibility of targeted killings of international terrorists in general. In this article it will be argued, on the basis of an analysis of the applicable international law, that the killing of bin Laden cannot be justified under international humanitarian law because there is no armed conflict between the United States and Al Qaeda. Even if one were to assume the existence of such an armed conflict, bin Laden's killing would only have been lawful if Al Qaeda were to be considered an organised armed group within the meaning of international humanitarian law and bin Laden could have been killed qua membership of this group. Otherwise, his killing could only have been lawful if he was (still) taking a direct part in hostilities. In any case, in the absence of an armed conflict, under the applicable legal regime of peacetime, the killing could only be justified in a situation of self-defence or an immediate danger for others. As this situation apparently did not exist, the killing of bin Laden amounted to an extrajudicial execution. On another note, the operation may also have violated international law by failing to respect Pakistan's territorial sovereignty. Ultimately, this depends on the recognition of a (pre-emptive) right to self-defence under Article 51 of the UN Charter, in particular taking into account the immediacy criterion.

Disputes about the Christian Holy Places have played a major part in the history of the Middle East and indeed of Europe for many centuries. The main issues of these conflicts are still unsolved, and the fact that the Sanctuaries are now under the control of the State of Israel has added a new dimension to the problems.

This study tries to investigate the question of the jurisdiction over the Christian Sanctuaries as it presents itself today. It does not deal with the Holy Places of Judaism and Islam since their treatment, in spite of many common elements, requires different considerations.

The disputes about the Christian Holy Places are essentially disputes among Christian communities, and not, as might be assumed, controversies between Christians on one side and members of other religions—Moslems or Jews—or the government of the country, on the other. They spring ultimately from the divisions of the Church; and although political and national interests frequently played a part, they must be seen first and foremost in the context of the religious issues involved.

The inter-relation between government policies, public opinion and court decisions are the subject of intense discussion in academic literature. Constitutional theorists maintain that courts are required to defend individual rights, especially minority rights. Courts are also expected to refrain from excessive interference in decision-making processes conducted by the other two branches of government. Both these themes are derived from the assumption that courts, unlike the legislature and the executive branch, are not representative institutions. They are not required to reflect the preferences of the majority in their decisions. Rather, the reverse is expected: to confront decisions which endanger the rights of minorities. The “success” of courts in maintaining their institutional autonomy — according to this view — is evaluated by their ability to withstand political pressures and effect their counter-majoritarian role.

Political scientists, on the other hand, are concerned with the extent to which courts in fact fulfill this counter-majoritarian role. Some argue that the counter-majoritarian function of the court is no more than a doctrinal aspiration, perhaps even a myth. Constitutional courts, they argue, serve more to legitimize socio-political reforms and broader cultural propensities which were previously endorsed by the political establishment and public opinion, than to confront majoritarian decisions. Others maintain that, while courts are not wholly insulated from public opinion, they still manage, on many occasions, to retain their institutional autonomy vis-à-vis political pressures.

If the term “developer obligations” seems unfamiliar, the policies which it denotes are familiar to anyone who deals with planning law: developer obligation s are requirements placed by planning authorities on developers to supply some public facility or amenity as a condition for granting a development permit. Developer obligations come in many forms: land dedication, payment of a fee, construction of a public facility, or supply of a public service. These requirements are known by varying names in many countries: in the U.S.A. they have come to be known as “exactions”, in Britain as “planning gain”, and in France as participation. Other countries may have many terms to indicate each separate tool, or no specific term at all. The term “developer obligations” is here proposed as an international term that, hopefully, has fewer culture-specific connotations than the other terms mentioned. I will use “developer obligations” in the broadest sense, to include some indirect mechanisms for financing public services, such as the land betterment tax, while “exactions” will be used to indicate the methods directly focused at financing such services.

I have chosen this particular topic for discussion not so much because of its intrinsic interest, but rather because of the opportunity it gives us to see ancient Near Eastern sources in their interrelationship. Let me commence with some words of introduction concerning the sources which will be considered. These are altogether four: the Laws of Eshnunna (LE), the Code of Hammurabi (CH), the biblical Book of the Covenant, and finally the Talmud. Between them they extend over some 2,000 years or more; nevertheless, it is my submission that not only may they be compared with profit, but even that there are some actual links which connect them.

The city of Eshnunna is situated to the East of the Tigris, on the bank of its tributary, the Diyala. The kingdom occupied an important strategic position between Assyria (in the North), Babylon (in the West), Isin and Larsa (in the South), and Elam (in the East). Much of its history is as yet uncertain, and it is not my intention, nor am I competent, to trace the fluctuating fortunes of the kingdom, the victories and defeats of its rulers. Eshnunna finally fell victim to the expansionist policies pursued with success by Hammurabi of Babylon, during the fourth decade of his reign.

In the modern age, magic and science are seen to have little in common. Magic is the art of making effects seem real that aren't. Science is concerned with explaining effects that are real through observation and experimentation. Magic is a slight of hand, a manipulation that produces baffling outcomes that we know are illusions, even though we generally have no idea how the magician produces them. Science seeks to understand the underlying principles that govern events using methods that are clearly defined and that encourage replication. There would seem to be little ambiguity as to where magic ends and science begins.

In the last year Israel has been going through its most severe constitutional crisis in its history. The newly elected right-wing government has initiated a judicial overhaul that would limit the authority of the judiciary and grant the executive almost absolute powers. In response, the country has witnessed unprecedented civil protestations and opposition from nearly all segments of civil society, academia and economic sectors. In this article we argue that the judicial overhaul must be analysed as a populist constitutional project. We also explain that compared with other systems, Israeli democracy is especially vulnerable to populism, because of its unique institutional design factors coupled with social factors. Only with understanding these factors can one grasp the risks that the judicial overhaul poses to Israeli democracy.