This issue of the Israel Law Review features three distinct international law articles: a positivist case study, a normative analysis, and an assessment of an as-yet futuristic means of warfare. It also features two articles focusing on domestic public law issues in Israel and Bangladesh.
Saeed Bagheri's ‘Turkey's Extraterritorial Use of Force against Armed Non-State Actors’ assesses Turkey's use of force and alleged extraterritorial self-defence. It explores the Turkish military intervention in Syria against bilateral security treaties and defence treaties to which Turkey is a party.
Steven van de Put's ‘In Search of Humanity: The Moral and Legal Discrepancy in the Redress of Violations in International Humanitarian Law’ examines the role of humanity under international humanitarian law and under international human rights law (IHRL). Van de Put argues that under IHRL humanity is regarded as the source of rights, whereas under international humanitarian law it is interpreted as a moral obligation to avoid harm. He challenges this distinction, based on contemporary interpretations of international humanitarian law. Van de Put argues that international humanitarian law is best seen as a reflection of TM Scanlon's contractualism as opposed to utilitarian reasoning. The article argues that the similarities in moral reasoning should also be reflected in redress for violations. In a concrete sense, this presents a moral requirement to recognise individual claims within international humanitarian law. To give legal effect to this moral demand, van de Put suggests that IHRL might play a role in bridging the gap between the moral and legal considerations in international humanitarian law.
Joao Fabiano's ‘Should Weaponised Moral Enhancement Replace Lethal Aggression in War?’ examines the proposal to develop technologies that improve moral behaviour, referred to as ‘moral enhancement’, in order to address global risks such as pandemics, global warming and nuclear war. He argues that this technology could be weaponised to manipulate the moral dispositions of enemy combatants. Despite being morally controversial, weaponised moral enhancement would be neither clearly prohibited nor easily prohibitable by the laws of war. Unlike previous psychochemical weapons, physically it would be relatively harmless. Weaponised moral enhancement will loosen just war requirements in both traditional and revisionist normative just war theories. It will particularly affect revisionist theories’ jus ad bellum requirements for humanitarian and preventive wars. Nonetheless, Fabiano concludes that the approach that weaponised moral enhancement would gravely harm combatants can be supported by arguing that it would severely disturb personal identity, which could potentially ground future prohibitions.
In ‘Anti-Terrorism Criminal Law: Where Emergency Regime Meets the Investigative Agenda’, Sigal Shahav argues that terrorist law reform creates not only new criminal procedures but a distinct, parallel field operating alongside general criminal law: namely, anti-terrorism criminal law (ATCL). Shahav discusses state responses to terrorism through reform of military law, immigration law, administrative law and criminal law. She compares the United States and Israel in their respective approaches to combating terrorism. The comparison highlights Israel's more sweeping and significant reforms over the last four decades, mainly in criminal procedure, which have changed the criminal procedural landscape to such a degree that it constituted the new field of ATCL. Shahav contends that this move was anti-liberal in its definition and targeting of terrorism suspects and in its pursuit of emergency aims and intelligence gathering. She further holds that the theoretical framings by Carl Schmitt and Michel Foucault may explain this model more effectively than liberal theory.
Finally, in another examination of domestic law, Kawser Ahmed's ‘Revisiting Judicial Review of Constitutional Amendments in Bangladesh: Article 7B, the Asaduzzaman Case, and the Fall of the Basic Structure Doctrine’ examines the adoption in 2011 by the Bangladesh Parliament of Article 7B of the Constitution, which introduced explicit or codified unamendability of a substantial number of provisions of the Constitution. Ahmed argues that through this amendment, the basic structure doctrine adopted by the Supreme Court of Bangladesh in 1989 in the Anwar Hossain Chowdhury case has lost its relevance as the most important normative tool for determining the validity of future constitutional amendments. This view, Ahmed argues, was confirmed in the Asaduzzaman case, in which the parliamentary mechanism for the removal of Supreme Court judges was held to be unconstitutional on the basis of Article 7B. Ahmed also argues that the reasoning provided in the majority opinion of the Asaduzzaman case is not entirely flawless.
We wish you all an interesting read.
