bluuebunny/crossref_metadata_2025_split huggingface dataset:
A Court of “UN Law”
Authors: Pomerance Michla 
Published: February 2016

Resort to the Court presupposes a disposition to depoliticize the issues; when this precondition is not attained on both sides of the fence, the Court's Advisory Opinions are bound to be ineffective. The Opinions will become part and parcel of the political contest and share in its outcome.[Leo Gross]It would make a mockery of the independence of the Court if it could never “reach conclusions at variance with the conclusions stated by the General Assembly”. … It would also render the Court largely useless as an organ for giving legal advice to the Assembly.[D.H.N. Johnson]There are some worrying signs that, far from developing traditional legal techniques in a way acceptable to old and new States, the Court may depart radically from legal patterns accepted in the West in favour of outright politicization of the Court.[Lyndel V. Prott]In the present case, worrisome trends that have been infecting the ICJ-General Assembly nexus peaked more overtly and ominously than ever before, recalling earlier fears that the Court's advisory pronouncements would be either ineffective political utterances or ex parte quasi-compulsory judgments rendered without the consent of a state principally concerned. The manner in which the JCJ's advisory function was exercised raises grave doubts regarding the “judicial” nature of that function, and more generally, the future role of the Court in clarifying the law and strengthening world order in the age of the global terrorist scourge.Employing inapt analogies and formalistic, formulaic, and occasionally inconsistent reasoning, the Court evinced an unjudicial eagerness to furnish the General Assembly with the imprimatur it sought for its pre-set conclusions. The Court adopted a consistently unevenhanded posture that manifested itself, inter alia, in its embracing the assumptions and nomenclature of the Assembly resolution; ignoring the context of ongoing terrorism; minimizing the status of Israel as an objecting quasi-litigant while magnifying the role and rights of the Assembly; upholding questionable Assembly practices; presenting a sanitized and skewed version of the crucial factual and legal contexts; embracing a simplistic and Manichean view of the rights and obligations of the protagonists in conflicts bearing on self-determination; and unjustifiably restricting the Charter-affirmed inherent right of self-defense. In all this, it faithfully mirrored the perspective of the Assembly and proved itself, more patently than ever before, to be a Court of “UN Law” rather than of consensual international law. And to the extent that its “UN Law” perspective continues to spill over from the advisory to the contentious sphere, the process of “undeifying” the Court may gather strength.
The UN, The ICJ and the Separation Barrier: War by Other Means
Authors: Steinberg Gerald M. 
Published: February 2016

This article compares the Hobbesian realist and Kantian idealist analyses of international law and organizations with respect to the UN General Assembly resolutions and the International Court of Justice (ICJ) advisory opinion on Israel's separation barrier. From the realist perspective, this case highlights the exploitation of moral claims in support of a particularist political agenda. In contrast, the idealist approach interprets the advisory opinion and resolutions as important normative expressions in the developing global system of governance based on universal human rights principles and treaty obligations.The analysis begins with a detailed comparison of the ideological and intellectual foundations of these core approaches to international law and organizations, the evolution of this debate in the post Cold War international system, and the impact on protracted ethno-national conflicts. This provides the basis for examining the impact of both schools in the context of the Arab-Israeli conflict. The specific case of the UN and ICJ's involvement in the question of Israel's separation barrier is then analyzed in detail from both the realist and idealist perspectives.The implications of this debate are of major importance, not only with respect to the specific challenges posed by terrorism and the necessary responses, but also in the wider context of the crisis in the international system at the beginning of the 21st century. The analysis concludes by noting the degree to which this case illustrates a wider process in which international legal principles are manipulated in a manner that contributes to conflict and justification of violence, conforming to the realist interpretation. While still pursuing idealist objectives, wishful thinking cannot conceal the abuse ofuniversalist claims of morality in the pursuit of war by other means.
The Xenokritai in Babatha's Archive: (Pap. Yadin 28 - 30)
Authors: Nörr Dieter 
Published: February 2016

Babatha had a dispute with the guardians of Jesus, her son (from her first marriage). We do not know the reasons for this dispute, however, she seems to have been interested in the formula by which, under Roman law, the tutor could be called upon to account for the loss that the ward had suffered. Hence, we can find three nearly identical Greek translations of the actio tutelae in her archive (about 124/25 A.D.). Here we will only examine the appointment of the judges. The text of Pap. Yadin 28 1.1–4 runs as follows:These lines were translated in the standard edition of the Babatha archive by N. Lewis in this manner:Between a plaintiff X son of Y and a defendant A for up to 2,500 denarii there shall be (local?) judges.Lewis does not comment on his (cautious) translation of xenokritai as “local judges”. Presumably, however, it reflects the opinion of the first editor, H. J. Polotsky, that the xenokritai are non-Roman judges (iudices peregrini). Consequently, the Latin version should have been as follows:. . . . . . dumtaxat denarium MMD iudices peregrini sunto.
Proposal for a General Part of a New Penal Law — Introduction
Authors: Feller S.Z. , Kremnitzer M. 
Published: February 2016

This being a presentation of a legislative enactment, not explanatory notes or a commentary on its provisions and certainly not a theoretical, comprehensive analysis of the topics considered therein, it is bound to be most concise and selective. The reader will thus encounter below a brief reference to the main subjects dealt with by the Proposal, with emphasis on the significance of proposed solutions.The reasons why Israel requires a new penal code, generally, and, for a start, its Preliminary and General Parts, in particular, are inherent both in the process whereby the existing Law has developed, and the quality of that Law.Israeli criminal law suffers from old age. Its direct source is the Criminal Code of Cyprus of 1928; the latter having been copied, with certain changes, from the Queensland Code of 1899, which for the most part reflected the judicial decisions of English common law, some of which were formed many years previously, and are largely outdated. Scientific standards have changed and progressed.
Some Questions and Comments on What is Called “The Mental Element of the Offence”
Authors: Burkhardt Björn 
Published: February 2016

In this paper, I shall address three problems: the question of content and limits of the “mens rea” elements (part II), the controversy over the correct concept of negligence (part III), as well as the problem of “divergence from the intended causal chain” (part IV). In doing so, I will compare the regulations of the Israeli draft Code (the “Israeli Draft”) not only with German law, but also with English and American law. Of course, within the scope of this paper I can neither probe deeply into the subject matter nor address all the important questions related to it.Before starting with my questions and comments, I would like to make two introductory remarks:1. First, I have to admit that I am unsure whether I understand correctly the regulations of the Israeli Draft (sec. 19-21, 22, 54). At least three sources of potential misunderstanding exist: first, the English version of the Israeli Draft is a preliminary translation of the Hebrew text. Any translation may shift the meaning of the original and binding Hebrew text. Second, misunderstanding may also result from my rather modest knowledge of the English language.
Private Self-Defence and Necessity in German Penal Law and in the Penal Law Proposal — Some Remarks
Authors: Bernsmann Klaus 
Published: February 2016

Self-defence and necessity are central institutions of the General Part of German Penal Law. Numerous problems of considerable practical and theoretical relevance are connected with them. How to deal with “self-defence” and “necessity” is also an indicator of liberality or, on the other hand, of the minimum solidarity and public spirit which a State can concede to its citizens or demand of them. In German criminal theory, “self-defence” and “necessity” are closely connected with the release of the distinction between justification and excuse and all conclusions derived thereof.Instead of elaborating on fundamental or purely theoretical problems concerning self-defence and necessity, an illustration of the contents of the German provisions of self-defence and necessity from a more technical, but nevertheless practical, point of view will be discussed. In the course of the discussion, some differences between the Israeli Draft law and the German law will be pointed out, and some problems which are unsolved in German law and may possibly confront Israeli law in the future will be brought to your attention.
The Practice and Case Law of Israel in Matters Related to International Law
Authors: Giladi Rotem M. 
Published: February 2016

On July 31, 1996, Israel and Canada signed a Free Trade Agreement in Toronto. This Agreement, which is the culmination of two years of negotiations, will — upon its forthcoming entry into force — set the framework for future trade between Israel and Canada. This is a significant step for Israel's trade: Canada's population, as of 1995, was 28.9 million; it is the seventh largest world market: in 1994, its export was $164.3 billion F.O.B. and its import was $151.5 billion C.I.F. The Canadian trade relies heavily on the United States, and a Free Trade Agreement is in force between the two since 1989.Israel import from Canada totaled $216 million in 1995, most of which included sales of machinery and parts, aluminum, paper and paperboard, electrical equipment and parts, pulp of wood, cereals, sulphur and asbestos, optical measuring and checking equipment, wood and man-made staple fibers. That year, Israel export to Canada was $240.8 million, consisting mainly of diamonds, mechanical and electrical machinery and equipment. Like Canada, Israel has a free trade agreement with the United States. Since 1975, Israel has also had a free trade agreement with the European Community, which is, as of January 1,1996, replaced by the recently signed Association Agreement with the European Communities.
Involuntary Self-Incrimination and the Right to Privacy in Criminal Proceedings
Authors: Roxin Claus 
Published: February 2016

In any rule-of-law system the law of criminal procedure is bound to weigh the intended investigation of the truth against the interest of the person charged with a criminal offence in protecting his privacy. The German law of criminal procedure is a typical example of the permanent struggle with these conflicting demands. While the majority of the courts are making an effort to reinforce the protection provided to the accused, the latest pieces of legislation reveal a tendency of allowing increasingly far-reaching invasion of privacy. I will try to map out the most important aspects of this development.In doing so I will distinguish between state-enforced, involuntary self-incrimination and the right to privacy. These two problems overlap because enforced self-incrimination will often entail invasion of privacy and, conversely, because an invasion of privacy by the state will often result in involuntary self-incrimination. But although these problems are intertwined I will differentiate between them and I accept that there will be some overlapping. After all, there may be invasions of privacy without self-incrimination and there may be cases of self-incrimination which are not caused by an invasion of privacy.
Converging Criminal Justice Systems: Guilty Pleas and the Public Interest
Authors: Goldstein Abraham S. 
Published: February 2016

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.
Victims of Crime and the Criminal Process
Authors: Spinellis Dionysios 
Published: February 2016

In the last two decades the victim of crimes has been moved from the periphery to the centre of interest of penal law and criminal policy.In the domain of substantive penal law the victimological approach created a trend toward the restriction of the field of application of certain penal provisions, especially in cases where the victim could have protected himself or herself more effectively, e.g., in fraud cases.In the area of criminal procedure the trend has been toward an increased protection of the victim. This trend was extended gradually to the policies of crime prevention and influenced even the policies of enforcement of penal decisions and treatment of offenders. In this paper, however, I am going to address myself mainly to the problems of the protection of and assistance to the victim in the penal process, which raise a special concern, since they seem sometimes to be in conflict with other purposes of the penal law in general and the criminal process in particular.
Against ‘Free Proof’
Authors: Stein Alex 
Published: February 2016

Consider the following statements, which describe the Anglo-American laws of evidence:The rules of evidence state what matters may be considered in proving facts and, to some extent, what weight they have. They are largely ununified and scattered, existing for disparate and sometimes conflicting reasons: they are a mixture of astonishing judicial achievements and sterile, inconvenient disasters. There is a law of contract, and perhaps to some extent a law of tort, but only a group of laws of evidence.In one of our classics of literature, Alice in Wonderland, one of the characters is the Cheshire Cat who keeps appearing and disappearing and fading away, so that sometimes one could see the whole body, sometimes only a head, sometimes only a vague outline and sometimes nothing at all, so that Alice was never sure whether or not he was there or, indeed, whether he existed at all. In practice, our rules of evidence appear to be rather like that.
Leading Decisions of the Supreme Court of Israel and Extracts of the Judgment
Authors: Omi  
Published: February 2016

Ganimat v. The State of Israel (1995) 49(iv) P.D. 589.The appellant was indicted in the Jerusalem Magistrate Court for two incidents of car theft. His detention was requested on the grounds that he posed a “danger to society”. The Magistrate Court agreed to his arrest, holding that a custom has been established whereby custody may be justified in crimes which have become “a nationwide scourge”, including car theft. The District Court rejected the appeal. The appellant was granted permission to appeal the decision in the Supreme Court (decision of Dorner J. and Barak J.; Cheshin J. dissenting) and his conditional release was ordered. However, it was decided to hold Special Proceedings in order to discuss some of the important issues raised by the case. The principal constitutional question raised by the case was whether the Basic Law: Human Dignity and Liberty influences the interpretation of the existing law, in the present case, the law of arrest as regulated by the Law of Criminal Procedure.
Reconciling Israeli Antidumping Law With WTO/GATT International Trade Law Rules
Authors: Einhorn Talia 
Published: February 2016

Dumping is defined, basically, as the sale of goods to an export market at a price below that charged for comparable goods in the exporter's home market. The General Agreement on Tariffs and Trade (GATT) does not forbid such action, not even when injurious to the competing domestic industry. However, it has taken the view that dumping constitutes an unfair trade practice. Under GATT, Article VI Contracting Parties (or Members, as they are now termed in the GATT 1994 Agreements) are authorized, as an exception to other GATT obligations, to unilaterally impose antidumping (hereinafter: AD) duties to counteract the effects of dumping. The duties should create a level playing field in which producers all over the world will be able to compete fairly with each other. The principles sound simple and straightforward, yet their application is one of the most contentious topics in international trade law.The economic coherence of AD rules is controversial. In international trade, price discrimination between national markets is typically made possible when the exporter has a powerful position in the home market and re-exportation to that market is not feasible. In the domestic arena price discrimination is countered by the laws of competition and antitrust. International trade law offers states a very different remedy, that first and foremost protects the competing local industry, regardless of the procompetitive or anticompetitive effects of dumping on the market as a whole.
Self-Determination in Perspective: Palestinian Claims to Statehood and the Relativity of the Right to Self-Determination
Authors: Becker Tal 
Published: February 2016

“Self-determination” is not a mere phrase. It is an imperative principle of action, which statesmen will henceforth ignore at their peril.U.S. President Woodrow Wilson, 11 February 1918, reprinted in R.S. Baker and W.E. Dodd, eds., War and Peace, Presidential Messages, Addresses and Public Papers, vol. 1 (1927) 182.The phrase is simply loaded with dynamite. It will raise hopes which can never be realized. It will, I fear, cost thousands of lives. In the end it is bound to be discredited, to be called the dream of an idealist who failed to realize its danger until too late to check those who attempt to put the principle in force. What a calamity that the phrase was ever uttered. What misery it will cause!Robert Lansing, U.S. Secretary of State, 30 December 1918, reprinted in Robert Lansing, The Peace Negotiations — A Personal Narrative (1921) 97.
Constitutionalization of Substantive Criminal Law: A Realistic View
Authors: Kremnitzer M. 
Published: February 2016

The purpose of this short essay is to examine how the constitution could contribute in the area of substantive criminal law. We should distinguish between two levels: the theoretical level and the realistic level. From a theoretical point of view, a lot could be expected from judicial review. The reason is the very broad gap between the principles of criminal law and the norms and real life of criminal law. Judicial review can function as a guardian — perhaps the guardian of the principles of criminal law.To exemplify the gap between criminal law in theory and criminal law in practice, it is sufficient to mention three issues: Criminal law in theory is an instrument of last resort, but the reality of criminal law is that it is often an instrument of first resort. Secondly, in theory, the most basic principle of criminal law is the principle of legality, of prior warning, but when we read the statutory provisions of criminal law we understand that the citizen is not the real addresee of these norms. When we read case law in criminal law, we find out that real interpretation in criminal law has very little to do with prior warning.
Preparatory Offences
Authors: Bein Dan 
Published: February 2016

The derivative forms of criminal liability — attempt and complicity — are the subject of a vast literature, yet there has not been a systematic, comprehensive examination of the preparatory offences in legislation, case law, or even in scholarly writings. One can hardly even find a satisfactory definition of such offences. Therefore, our first task will be an attempt to provide one, because absent a definition, we will not be able to proceed toward a solution to problems that are of no insignificant practical importance.First among these problems is the question of the appropriate legislative policy to be followed in deciding when and in what areas to create preparatory offences. Second comes the question of whether it is appropriate to “derive” offences of attempt and complicity from preparatory offences, or, in other words, is it possible to speak of attempting a preparatory offence or being an accomplice to it. Third, should we make recourse to the principles applicable to criminal attempt in construing preparatory offences?
Criminal Attempts and Moral Luck
Authors: Jareborg Nils 
Published: February 2016

1. Any doctrine or theory of criminal attempts must address a number of basic questions:At what point does an attempt begin? What is merely preparing a deed, and what is beginning to perform the deed?What kind of mens rea is required? Is intention required, or is mere belief concerning the outcome sufficient?Is the attempt basically constituted by the mental (fault) element or the physical (conduct) element of the deed? Should attempts to do the impossible be criminalized?Should the punishment be the same for an attempt and a completed (consummated) crime, or should the punishment be less severe for an attempt?I suggest that the first two questions are different from the last two. The answer to the first two questions seems to be a matter of criminal policy and conceptual convenience. The solutions adopted in different jurisdictions depend considerably on the context, the design of the criminal law system, and on how wide the legislator wants to cast the protective net of threat of punishment.
The Obligation to Extradite or Prosecute
Authors: Wise Edward M. 
Published: February 2016

This paper is concerned with the alternative obligation to extradite or prosecute contained in multilateral treaties requiring suppression of “international offenses”. Such an obligation appears, for instance, in Article 7 of the Hague Convention for the Suppression of Unlawful Seizure of Aircraft of 1970, and in provisions of other anti-terrorism treaties modelled on the Hague Convention. The first part of this paper considers the extent to which the principle underlying Article 7 of the Hague Convention has been incorporated into multilateral treaties; the second part, the question of the extent to which that principle can be regarded as a norm of customary international law generally applicable to “international offenses” even apart from the specific treaties in which it is embodied.Broadly defined, “international offenses” are offenses on the part of individuals which states have an obligation, usually under a multilateral treaty, to proscribe or prosecute. Such offenses more or less coincide with those which Professor Feller designates asdelicta juris gentium(although he further assumes that all such offenses permit the exercise of “universal jurisdiction”).