bluuebunny/crossref_metadata_2025_split huggingface dataset:
Between the Geneva Conventions: Where Does the Unlawful Combatant Belong?
Authors: Zachary Shlomy 
Published: February 2016

The growing impact of terrorist acts in the past few years has lead to dramatic changes in the internal laws of the growing number of States that suffer from terrorism, but has also lead to various attempts to adapt international law - more specifically, the International Laws of War - to the new situation or threat, as many perceive it. The Laws of War, like most areas of Public International Law, deal with the relations between nations, while hardly dealing with non-governmental entities like terrorist organisations or the individual terrorist, thereby creating an apparent legal “loophole”. One of the solutions found by States in order to deal, legally, with terrorists, was by defining them “unlawful combatants”.This essay tries to examine the development of the term “unlawful combatant”, by examining some complications that might occur from the use of the term “unlawful combatant” as an intermediate, new status in international law. By using it as a new status. States try to exclude terrorists from finding protection under the Geneva Conventions, which are intended to safeguard various individuals during armed conflicts. After examining the term “unlawful combatant”, both from an historical and legal aspect, this essay will attempt to show that the existing Laws of War, which acknowledge only two statuses – the ‘civilian’ and the ‘combatant’ – provide a satisfactory solution to the problem of terrorism in its non-governmental sense. After exploring recent policies and legal developments in Israel and the Unites States, countries that use the term “unlawful combatant”, this essay will criticise the ambiguity of these definitions, and point out future problems that might arise from this ambiguity during armed conflicts.
Enhancing Freedom of Religion Through Public Provision of Religious Services: The Israeli Experience
Authors: Medina Barak 
Published: February 2016

This Article challenges the premise that the separation of state and religion is a necessary predicate for religious free exercise. The state's duty to treat people as equals requires it to ensure that all citizens enjoy reasonable access to religious services. Public supply of religious services thus enhances the exercise of freedom of religion. The extent of public involvement in the provision of a religious service is not by itself a sufficient justification for the regulation of the relevant activity. In certain cases, the intervention is justified by reasons that are unrelated to the scope of government involvement. A prominent example is the case of competition between different religious congregations over limited resources, such as space and time at a holy site. Regulation of activity is then required in order to ensure reasonable access. In other cases, the government enhances the powers of religious bodies, and thus generates a concern of religious coercion. In these cases the governmental role may well result in an infringement of religious freedom. However, such a conclusion is not self-evident, and a detailed assessment of the over all effect of the government involvement is required in order to determine whether the involvement—and what type of involvement—is desirable.These and related arguments are demonstrated through a discussion of the Israeli experience of almost six decades of intensive involvement of a democratic state in supplying religious services. The Israeli case can serve as a thought-provoking hypothetical on the consequences—and thus of the desirability—of adopting a model of extensive establishment of religion(s) by a democratic state.
A Death in the Family: Codex Eshnunna 17–18 Revisited
Authors: Westbrook Raymond 
Published: February 2016

It gives me great pleasure to dedicate this contribution to a teacher and scholar whose now classic study has done so much to enhance our understanding of the Old Babylonian law-code from Eshnunna.Codex Eshnunna (CE) 17–18 read as follows:I13. DUMU.LÚ a-na É e-mi-im tir-ha-tam li-bi-il-ma14. šum-ma i-na ki-la-al-li-in iš-te-en a-na ši-im-tim15. it-ta-la-ak KÚ.BABBAR a-na be-lí-šu-ma i-ta-a-ar16. šum-ma i-hu-ús-si-ma a-na É-šu i-ru-ub17. lu-ú a-hi-za-n[u-u]m [l]u kal-la-tum a-na ši-im-tim it-ta-la-ak18. ma-la ub-lu ú-ul ú-še-ṣi wa-tar-šu-ma i-le-eq-qé17. Should the son of a man bring the betrothal payment to the house of the father-in-law, if one of the two dies, the silver shall return to its owner.18. If he marries her and she enters his house (and) either the marrier or the daughter-in-law dies, as much as he brought he shall not hand over; he shall take its surplus.
Roman Arbitration: An English Perspective
Authors: Stein Peter 
Published: February 2016

In all societies disputing parties have similar reasons for choosing to arbitrate rather than to use the regular legal process as a means of resolving their differences. Arbitration may be conducted in private, so that the publicity inevitably attendant on the public hearing which is part of the regular legal process is avoided. Arbitration may be speedier, since the parties do not have to wait until the court is ready; arbitration will normally be less beset by formalities than the legal process and it may be cheaper. These considerations apply whatever the character of the regular legal process.During the formative periods of Roman law and English law, however, disputing parties had a particular reason for preferring to arbitrate and that derives from the nature of a legal action in Rome and in England. Both in the classical Roman procedure and in the classical common law procedure the plaintiff was constrained to bring his claim within one of a number of specified forms of action. These forms of action were set out in the praetor's edict in Rome and the Register of Writs in England. They specified the circumstances in which a legal action could be brought, and directed the plaintiff to the appropriate formula or writ which was required to set the action on the way to a trial.
In Our Image: Colonial Discourse and the Anglicization of the Law of Mandatory Palestine
Authors: Likhovski Assaf 
Published: February 2016

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.
Balancing Union and Individual Rights in Israeli Collective Bargaining: Job Security and the Reinstatement of Wrongfully Dismissed Employees
Authors: Schreiber Herbert 
Published: February 2016

This paper will deal with the reinstatement of wrongfully dismissed employees in the Israeli law of collective bargaining. According to the current state of Israeli labor law, this question is connected with many other issues, such as the difference between individual and collective disputes (a problem most exhaustively developed in the law of strikes), the ability of an individual employee to enforce rights deriving from a collective agreement and the application of the regular contracts remedies law to collective agreements. We begin with the collective agreement and its administration.Israel's Collective Agreements Law of 1957 exhibits an intriguing amalgam of American and continental influences. From America the act borrowed the concept of an exclusive bargaining representative. It was contemplated that in aspecialcollective agreement between a labor organization and a single employer or in ageneralcollective agreement between a labor organization and an employers' association,onelabor organization only would be entitled to enter into the collective agreement — the labor organization with the largest union membership. An agreement made by such a representative labor organization would directly bind all employees in the plant or trade covered by the agreement, whether members of the representative labor organization or not.
Reparation and Criminal Justice: Can they be Integrated?
Authors: Walther Susanne 
Published: February 2016

The role of the victim within the public criminal justice process has traditionally been one of supporting public prosecution. Without the victim's cooperation, police and prosecutors would neither be informed about the occurrence of crimes, nor be able to bring sufficient evidence to secure convictions or extra-judicial settlements. In Germany, for instance, about 90% of all prosecutions are initiated by private complaint.Compared to what the victim gives the state, the state traditionally gives little to the victim. While the victim's procedural position has been strengthened in Germany in recent decades, namely by the expansion of the right to join the prosecution as a collateral complainant, procedural participation alone has not been sufficient to satisfy the victim's need to be made whole. Victimological research indicates that the victim has a profound interest in compensation of damages. However, since according to our traditional understanding, the victim's claims and the State's claims against the offender are inherently different in nature, they ought to be governed by different types of principles and proceedings. Doctrinally, the criminal courts settle theState'sconflict with the offender, while the victim's conflict with the offender is a matter for the civil law and the civil courts. Therefore, the legal consequences of crime, it is believed, reflect primarily the needs of the general public and not the “private” interests of the victim (whether defined as to receive: compensation; reparation; satisfaction; vindication).
Why Must Trials be Fair?
Authors: Trechsel Stefan 
Published: February 2016

Why should fairness be a dominant interest of criminal proceedings? Such questions are shocking, and asking them arouses perplexity. Fairness is quite an obvious value, unquestioned in law, criminal proceedings, in human rights and in everyday life.It is certainly not the purpose of this paper to cast any doubt upon the basic assumption that trials must be fair. However, there is a certain attractiveness in looking for an answer to a question when the answer appears to be obvious. There is also a chance that an analysis of the background of a norm will strengthen that norm and the motivation to respect it. Such a study may even add colour and contour to the norm and assist in its interpretation.
Settling Criminal Cases Without a Trial
Authors: Swart Bert 
Published: February 2016

According to Article 13 of the International Covenant on Civil and Political Rights and Article 6 of the European Convention on Human Rights everyone is entitled to a fair and public hearing by an independent and impartial tribunal in the determination of any criminal charge against him. The essence of both provisions could be rephrased by saying that criminal sanctions may only be imposed on a person by an independent and impartial tribunal and only if that person has been able to defend himself against a charge during a hearing that satisfies all requirements of a fair trial.Realities, of course, are rather different. In almost all national systems of justice there is an increasing tendency to develop procedures that allow for imposing sanctions without the necessity of a criminal trial. Their main purpose is usually to relieve the system of a burden of cases with which it cannot really cope. Basically, there are two strategies to reduce the workload of courts and public prosecutors. The first is to invite the suspect to waive his right to trial in exchange for certain favours. This usually occurs in the form of an agreement between the public prosecutor and the suspect, while quite often the cooperation of the court that would have tried the case is also required. The second solution is to grant sanctioning powers to administrative bodies and to allow individual persons an appeal against their decisions to an independent and impartial tribunal.
Liability in Bailment in Israeli Law — Rethinking Benefit
Authors: Renner Shirley 
Published: February 2016

While “classical” tort law deals with the liability of those unlawfully in possession of goods for their damage or loss, the law of bailment deals with the liability of those lawfully in possession of goods for their damage or loss.The Israeli statute relating to bailment, The Bailees Law, more closely resembles the law of bailment in common law, than its civil law counterpart, the law of deposit. Similar to the law of bailment in common law, Israel's Bailees Law covers both possession where the primary object is the safekeeping of goods, e.g., a warehouseman, and possession where the primary object is other than safekeeping of goods, e.g., chattel hire, hire of work and labour to be performed upon a chattel, and a pledge.In terms of liability for the loss of or damage to the goods, the Israeli statute roughly resembles the “traditional” law of bailment in the common law, which distinguishes different kinds of bailment according to the existence and location of benefit received.
Leading Decisions of the Supreme Court of Israel and Extracts of the Judgment
Authors: Leissner Omi Morgenstern 
Published: February 2016

Israel Women's Network v. The Government of Israel (1994) 48(v) P.D. 501The petitioner, the Israel Women's Network, petitioned the Supreme Court of Justice against the appointment of a new member to the Ports and Railways Council and against the appointment of two new directors on behalf of the State to the board of directors of the State-controlled Oil Refinery. All three of the new appointees were men, such that neither of the two councils included a single woman in their composition. The petitioner disputed the constitutionality of these appointments arguing that in the particular circumstances and in line with sec. 18A of the Government Companies Law, the appointees ought to have been women. By a majority decision the Supreme Court held that the respondent did not fulfill the duty of affirmative action required by sec. 18A of the Law, and that the cancellation of the appointments made was justified.
Judicial Review and Political Accountability: The Case of the High Court of Justice in Israel
Authors: Dotan Yoav 
Published: February 2016

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.
The Israeli Basic Laws' (Potentially) Fatal Flaw
Authors: Avnon Dan 
Published: February 2016

For generations the question of the political form worthy of its apparentteloshas occupied the best legal, philosophical and rabbinical minds of the Jewish tradition. Resolution of the political question presupposes resolution of the theological question of whether the Jewish people indeed have a uniquetelos, and whether thistelosis linked to a particular political or social form. This ongoing deliberation is one of the defining features of the inter-generational dialogue within the Jewish heritage.When the Zionist movement declared its intention to initiate the founding of a Jewish State in Zion, this decision caused unprecedented turmoil in Jewish communities. For some, the creation of a political entity in the Land of Israel signaled a brash and unwelcome rejection of the Orthodox belief that the return will occur only in the days of the Messiah, until which time political inaction is the appropriate conduct.
The Role of the Supreme Court in a Democracy
Authors: Barak Aharon 
Published: February 2016

There are three constitutional branches: the legislative branch, the executive branch, and the judicial branch, and they are the product of our constitution, our Basic Laws. They are of equal status, and the relationship between them is one of “checks and balances”. This system is designed to assure that each branch operates within the confines of its authority, for no branch may have unlimited powers. The purpose of checks and balances is not effective government; its purpose is to guarantee freedom.In this system of powers, the task of the judicial branch is to adjudicate conflicts according to the laws. For that purpose, the judicial branch has to perform three principal functions. The first is concerned with determining the facts. From the entirety of the facts, one should determine those facts which are relevant to adjudicating the conflict. The second function is concerned with determining the law. The third function is concerned with applying the law to the facts, and drawing the appropriate judicial conclusion.
Canada's Constitutional Revolution: From Legislative to Constitutional State
Authors: Weinrib Lorraine Eisenstat 
Published: February 2016

… ‘true’ democracy recognizes the power of the constitution — fruit of the constituent authority — to entrench the fundamental human rights and the basic values of the system against the power of the majority. Such a limitation of majority rule does not impair democracy but constitutes its full realization.In 1982, Canada's written constitution acquired a bill of rights. The Canadian Charter of Rights and Freedoms, 1982 emerged as the product of a prolonged debate as to the propriety and desirability of protecting, by judicial review, an array of constitutional norms as part of the “supreme law” of Canada. The richness of that debate precipitated a new constitutional model that enlisted not only the courts, but the legislature and executive as well, in the project of rights-protection.
Constitutional Rights and Finnish Criminal Law and Criminal Procedure
Authors: Lahti Raimo 
Published: February 2016

The constitutional aspects of criminal law and criminal procedure only began to receive serious attention in Finland in the 1990s. The remarkable change in legal thinking and practice in this respect was connected to two major legislative reforms: firstly, Finland ratified the European Convention on Human Rights and Fundamental Freedoms (ECHR) in 1990 and, secondly, new provisions on fundamental (basic) rights were incorporated in the Finnish Constitution in 1995. A fully revised new Constitution of Finland was enacted in 1999 (to be entered into force on 1 March 2000), but the substance of fundamental rights and freedoms was confirmed already in the constitutional reform of 1995.Those aspects had not, however, been completely overlooked before. Most of the relevant human rights treaties were eventually ratified in Finland (e.g., the International Covenant on Civil and Political Rights, CCPR) and, when ratified, they were incorporated into the domestic legal order. Nevertheless, courts or administrative authorities very seldom referred to human rights treaties or constitutional rights before the late 1980s; a tradition of invoking constitutional rights in the courts was lacking. Instead, human rights treaties and constitutional rights were primarily regarded as binding the legislator.
The Impact of the Basic Law: Human Dignity and Liberty on the Law of Criminal Procedure and Evidence
Authors: Harnon Eliahu 
Published: February 2016

In March 1992, Israel's Parliament, the Knesset, enacted Basic Law: Human Dignity and Liberty. Some believe that this Basic Law has created a constitutional revolution in Israel, while others feel this view to be exaggerated. In any event, there is general agreement that the Basic Law, with its 13 brief sections, has effected many significant changes in numerous areas of law.It is well known that criminal procedure and some parts of the law of evidence are particularly sensitive to constitutional changes. To what extent is this also true in Israel as a consequence of the Basic Law and interpretations given to it?More particularly, what precisely does the Basic Law say, and what has the Supreme Court inferred from the principles of human dignity and liberty beyond the express provisions of the Basic Law? What influence does the Basic Law exert on new legislation and indeed on legislation preceding the enactment of the Basic Law itself? May one expect that the Supreme Court will adopt the idea that the Basic Law embodies an exclusionary rule of evidence obtained in breach of a constitutional right? These, and other relevant questions, will be discussed below. First, however, we shall refer briefly to the legal and social background of the Basic Law.
Unjustified Retribution
Authors: Knowles Dudley 
Published: February 2016

In a number of related papers Michael S. Moore has advanced a powerful theory of retributive punishment. The position as stated is simple: “retributivism is the view that we ought to punish offenders because and only because they deserve to be punished”. Desert is a necessary and sufficient condition for just punishment. However simple and straightforward the view, it still needs to be defended and Moore has been energetic in defending his corner against traditional objections and against replies that his account has attracted since first publication. His latest effort invites readers to pursue these problems in still greater depth. This is an invitation I am happy to accept. First I want to reexamine the charge that there is circularity in his account and second, I want to look more closely at the intuitions which ground his acceptance of the principle of desert.One worrying thought, for Moore, is that he may be begging the question. His argument proceeds by inviting us to consider a range of cases. In “The Moral Worth of Retribution” the focus is on a couple of savage murders. In “Justifying Retributivism” we are asked to practice Kant's thought-experiment: how should we deal with the last murderer before we leave the island; and ponder the fate of Dostoyevsky's nobleman who set his dogs to tear a child to pieces.