The essay places the ICJ opinion in a broader legal and political contextand argues that the failure to distinguish between democratic andnon-democratic regimes characterizing the ICJ advisory opinion reflectsbroader trends with potentially ruinous consequences for the enterprise ofhuman rights promotion itself. The ICJ opinion's willful ignoring ofIsrael's democratic character yielded a tendentious and inconsistent ruling.By contrast the Israel High Court of Justice's decision invalidatingportions of Israel's security wall reflects a healthy understanding of ademocracy's needs and limitations, as reflected in that court'sproportionality standard of review. The ICJ willingly blurred crucialdistinctions between democratic regimes that genuinely adhere, howeverimperfectly, to principles of human rights in their own governance, andthose states and actors that do not, a distinction made all the moreimperative by the events of September 11.

The judicialization of human rights in the post-Cold War era takes placeagainst the background of a tensile relationship between human rightsadvocacy and democracy promotion during the Cold War. While human rightsrepresent an essentially legal idea, democracy a political idea. In closing,the essay lays out one basic, hopefully workable, conceptual division oflabor between human rights and democracy as complementary elements of abroader project of human dignity, in which human rights represents a “thin”universal conception of human dignity, while democracy offers a processwhereby that conception can be “thickened” in various political, social andcultural contexts around the globe.

It is becoming increasingly apparent to criminal justice scholars that single theory models of criminal procedure — whether termed inquisitorial or adversarial — are being stretched beyond their capacity by the phenomena they are designed to control. Virtually everywhere, formal systems of charge and adjudication cannot possibly be enforced in accordance with the premises underlying them. There are simply too many offenses, too many offenders and too few resources to deal with them all. One result has been a steady movement towards a convergence of legal systems — towards borrowing from others those institutions and practices that offer some hope of relief.

In this transnational effort to cope with system overload, two issues have emerged as more than ordinarily significant: The first is the desirability of abandoning the principle of obligatory prosecution, so common in Continental Europe, and turning instead to the exercise of prosecutorial discretion. The second is the question whether the ban on guilty pleas and plea bargains should be lifted, as in adversarial systems.

The following commentaries are responses to the rough drafts of six lectures—the Hourani Lectures—that I delivered at the University of Buffalo in November of 2006. This draft manuscript is being extensively revised and expanded for publication by Oxford University Press as a book provisionally called The Morality and Law of War. Even though in January 2007 the book was still both unpolished and incomplete, David Enoch at that time generously organized a workshop at the Law School of the Hebrew University of Jerusalem to discuss its ideas and arguments. George Fletcher chaired the meeting and Re'em Segev, Yuval Shany, and Noam Zohar all presented superb commentaries. The following papers have all grown out of that memorable occasion.

The question of Palestinian refugees has long been recognised as one of the core issues that would need to be addressed in any eventual Israeli-Palestinian peace agreement. This article examines compensation for property seizure and forced displacement, an aspect that has figured in every round of major peace talks on permanent status issues for the past quarter of a century. Drawing upon research, informal ‘track two’ discussions and official negotiations, it highlights the challenge of crafting arrangements that would be both politically and practically feasible.

Thank you, Albin Eser. I was very pleased to note in the Program that I amlisted as a member of the Israeli delegation. This is an honor, but I wouldalso would like to think that I am treated as an honorary member of the MaxPlanck delegation. I first studied the theory of criminal law at the MaxPlanck Institute in Freiburg and my work there has had a lasting influenceon my thought.

My subject is complicity, which in general terms refers to the liability ofone person for the act of another. I begin with an example to render clearthe different approaches to this problem of derivative liability. Theperpetrator Paul plans the robbery of a gas station and he offers part ofthe expected bounty to Alex for driving him to and from the scene of thecrime. Carrying out this task, Alex knows of the criminal purpose andtherefore it seems clear that in some way he should be held criminallyliable. The problem is identifying the form of his liability.

Since 1992, the Basic Law: Human Dignity and Liberty has been in force in Israel. Its purpose according to sec. 1 is: “to protect human dignity and liberty, in order to anchor in a Basic Law the values of the state of Israel as a Jewish and democratic state”. In sec. 2 and subsec. it guarantees: preservation of life, body and dignity (sec. 2); protection of property (sec. 3); protection of life, body and dignity (sec. 4); personal liberty (sec. 5); leaving and entering Israel (sec. 6) and privacy (sec. 7). The guarantees in sec. 2 and subs. might thus be seen as a concretization of art. 1. Here we have already an interesting parallel to constitutional theory in Germany. Human dignity is the article with which our constitution begins. The following guarantees may be seen — as Dürig already pointed out in the 1950's — as an emanation of human dignity with its main aspects of freedom/liberty (Art. 2 German Basic Law [GBL]) and of equality (Art. 3 GBL).

The deontological justification of punishment is generally associated with the notion of “retributive justice”. This notion, however, underlies only one of two distinct approaches by which one may attempt to justify punishment within deontological morality. According to this, the classical approach, punishment is to be regarded as an end in itself, intrinsically valuable, from the moral point of view. According to other deontological views, however, punishment has only instrumental value – not, as in consequentialism, in the maximization of some general social good, but in the maintenance and equal distribution of basic individual rights. Borrowing Dworkin's terminology, this view can be called a “right-based” conception of punishment.

Seen in the context of the Middle East peace process, the security aspects of the Israel/PLO Agreements constitute a small, but important step within this process. Formally, the security arrangements in the bilateral agreements have to be distinguished from the issue of security in terms of strategic needs and arms control dealt with in the multilateral negotiations. However, bilateral security arrangements will in the long run, influence and be influenced by the content of the multilateral negotiations in the field of security. It appears to have become customary in Middle East peace negotiations, that only once an agreement has been reached on a larger issue, do teams of experts deal with the details of security arrangements. This was the case in the negotiations of the Peace Treaty between Israel and Egypt, and of the Israel/PLO Agreements. The approach adopted by Israel in relation to Syria concerning the Golan Heights, is also similar in character.

Given the burgeoning literature on the devaluation of national citizenship and the effects of globalization, the sources and beneficiaries of individual legal rights assume increased importance. This Article seeks to distinguish those legal rights that states should confine to their own citizens from those that flow from residence, immigration status, territorial presence, or simply personhood. Section I examines the very reasons for states to distribute citizenship in the first place. These reasons relate to participatory democracy, immigration privileges, other rights and disabilities, personal emotional fulfillment, building community, continuity over time, sovereignty, and the world order. It finds unconvincing those reasons that rest on the municipal interests of states but, given the present world order, finds those reasons that are rooted in international relations more compelling. Building on those conclusions, Section II considers a second normative question: What are the key variables that should determine whether a given legal right should be confined to citizens rather than made more generally available to all persons or at least selected classes of noncitizens? Section III then illustrates how one country—the United States—parcels out legal rights and examines whether its decisions comport with the demands of international human rights law.

The entrance of Israeli forces into Lebanon in June 1982 (“Operation Peace for Galilee”) raises far-reaching legal issues that transcend this particular occurrence. One of the issues raised in this context is the legality of the use of armed force by a State to counter terrorists directing their attacks against its citizens from the territory of another State. Israel considered the action it took against the Palestine Liberation Organization (PLO) in Lebanon to be legitimate self-defence, directed not against the territorial integrity of Lebanon, but rather against the armed PLO terrorists operating from it against Israel. Others viewed Israel's actions as aggression, and Israel as an invader violating Lebanon's sovereignty. This invasion, it was asserted, was contrary to international law.

International tribunal backlash remains poorly understood: hampered by conceptual challenges, systematic research into the causes of this phenomenon remains nascent. The present article makes two contributions to advancing this endeavour. First, building on existing literature, it sets out a working definition of international tribunal backlash, tailored to facilitate mixed method empirical research into the causes of backlash across institutions and sectors. Second, drawing on international relations’ pluralist turn, the article provides an analytically eclectic theoretical scaffold for causal analysis of international tribunal backlash, enabling standardised cross-institutional and sectoral comparison without over-simplifying the complexity of backlash in various instances. The article accordingly provides the building blocks for improved understanding of the causes of – and the potential scope to manage – international tribunal backlash across institutions, regions and sectors.

Extradition law and process is the complex vehicle for the return by one state of accused or convicted fugitives from the criminal justice of another state. From an international law perspective, it is for the most part, a treaty matter bearing on the rights and duties of states and the emphasis is on inter-state cooperation, reciprocity and mutuality of obligations. However, it is also part of the domestic criminal law process and as the result will be the potential or actual deprivation of the liberty or even the life of the fugitive, if the requesting state retains the death penalty, today extradition is seen as necessarily protecting the human rights of the fugitive.

The focus of this article is on the protection given to the fugitive by the double or dual criminahty rule under the extradition law of Canada. Two major issues will be analyzed. Firstly, whether the crime for which the extradition request is made by the foreign state is an extraditable crime meeting the requirement of double criminality and secondly, whether the extradition judge in Canada is mandated to inquire into and seek evidence of the foreign criminal law.

In English law—and Israel law in this respect follows English law—there is a firm principle that a person who collaborates in the commission of a tort by another is considered as having concurrently caused the tort along with that other, even if his participation is merely indirect—as in influencing the person actually committing the tort by stimulating or strengthening the latter's desire to commit it. This hypothesis, the hypothesis of indirect participation, is related in our law to the principle that liability in torts is not limited to compensation for damages of which a person's act was the sole cause, but it may be imposed if the act was one of the causes. The principle, which is expressed in sec. 64 of the Civil Wrongs Ordinance (New Version), seems to have its roots in the theory of equivalence of conditions. According to this latter theory, but not according to it alone, there is no reason for denying X's liability simply because Y is also liable, or because the causal effect of Y's act or his culpability is likely to be regarded as greater than that of X. Neither is any distinction to be made between direct participation and merely indirect participation, that is to say, between participation in the actual commission of the tort on the one hand and influence on the person actually committing the tort on the other.

Law reform is now under consideration in most countries of the world and practically everywhere, the problem of the instruments of this reform arises: should the reform be carried out by the decisions of judges or by statute, and if by statute, must such law be codified?

Common law countries are both attracted and at the same time frightened by codification. This may well be the situation here in Israel, where the common law tradition is still deeply rooted but where there is also a certain tradition in favour of codification.

At any rate, the subject cannot be treated today as it would have been a century ago. The old controversies about the usefulness of codification in the abstract are out of fashion. In England, the fierce attacks of Jeremy Bentham against the common law—“dog law”—have had no influence on the development of English law. On the continent, Savigny and the German Historical School did not prevent the progressive codification of German law nor the adoption in the other countries throughout the nineteenth century of codes inspired by the French model.