Security Considerations, the Duty to End Belligerent Occupations and the ICJ Advisory Opinion on Israeli practices and policies in the Occupied Palestinian Territory
This contribution discusses three possible rationales for the Court’s rejection of the relevance of Israel’s security concerns: Lack of proof of serious and legitimate security concerns by Israel, the insufficiency of broad security concerns to justify the continued use of force, and the insufficiency of broad security concerns to deny realization of Palestinian self-determination. As long as international law doctrine on the duty to end a belligerent occupation despite the prevalence of serious security concerns remains contested, and as long as security conditions in the region remain extremely unstable, it is unlikely that a withdrawal will be deemed practicable
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The Legality of the Occupation and the Problem of Double Effect
The conflict between Israel and Palestine, or more accurately, between the two Peoples, has persisted for over a century. A tragic reminder of the unbearable costs of this conflict is the deadly October 7 attack by Hamas on Israel, and the ensuing war, which has led to horrific consequences, with thousands of Israelis and Palestinians killed, many severely injured, and extensive damage to the civilian infrastructure in the Gaza Strip. In these circumstances, an important question arises: what role should international law and international tribunals play in mitigating the grave harm to all those involved in the conflict?
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The principle of uti possidetis juris and the borders of Israel
The principle uti possidetis juris, raised in the Dissenting Opinion of Vice-President Sebutinde and according to which a new State established in formerly colonial territory inherits the former (colonial) borders is untenable in the situation of Israel. The reason is that at the time of independence Israel’s leaders accepted the principle of partition. No claim was made then or subsequently that the State of Israel inherited the borders of Mandatory Palestine and legislative acts reveal that Israel even regarded territories not within the UN Partition Plan borders as occupied territory.
Continue reading >>Influences of the Holocaust on the Constitutional Law of Israel
The trauma of Auschwitz continues to reverberate in the collective consciousness of Israelis and manifests in Israeli laws across several primary domains. However, the primary impact of the Holocaust trauma on Israeli constitutional law has been the concerted efforts to prevent Israel from descending into a fascist, racist regime akin to Germany in the 1930s. The incorporation of the concept of Intolerant Democracy, which occupies a central role in Israeli constitutional law, was explicitly inspired by German history.
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The Battle for Immunity
The International Law Commission is preparing to continue discussions on Draft Articles on the Immunity of State Officials from foreign criminal jurisdiction at its forthcoming 75th summer session. This article focuses on two issues: the scope of immunity and its exceptions. These issues, which are widely discussed internationally, are far from being resolved. In this state of flux, a common ground is needed to move forward, which I try to outline in this blog post.
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Taking War to Court
A surprise attack launched by Hamas on October 7 ignited yet another period of violence in Israel and Gaza. In response, Israel launched an unprecedented invasion of the Gaza Strip, which resulted in the deaths of over 25,000 Gazans, most of them civilians. While the war does not seem to come close to an end, Israel has meanwhile encountered a different kind of problem; following the October 7 attack, Israel captured hundreds of Hamas fighters. Immediately following the start of the war, voices in Israel urged the government to launch criminal prosecutions of these attackers, with some arguing that Israel should impose the death penalty on the perpetrators.
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How the War in Gaza May Upend Israel’s Constitutional Limbo
The war in Gaza serves, this blog post argues, as the final nail in the coffin of Netanyahu's judicial overhaul. The Israeli political climate, relentless opposition and the political fallout after Hamas' surprise attack on Israel and the current war thwarted the judicial overhaul. However, populism is far from overcome. Therefore, the current failed judicial overhaul remains a warning sign for the democracy-seeking public in Israel and should raise demand for constitutional entrenchment of the democratic values of the Israeli state. As the judicial overhaul of 2023 has shown us – democracy is not safe if it hangs by the thread of a simple majority in parliament.
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What is Permissible in the War against Hamas?
What is permissible for the Israeli government to do in response to the murderous attack by Hamas? The answer to this is difficult, not only because blood is boiling and hearts are broken, but also because there is a complex moral dilemma here. In this blog, we hope to offer some guidelines to clarify the issue. We do not claim to provide definitive answers. The required analysis is complex, and it is incumbent upon the Israeli government and the IDF to ensure that the various steps taken are morally justified.
Continue reading >>A Government of Laws, not of Men
The Israeli Supreme Court will hear this week (on September 12, 2023) petitions to invalidate an amendment to one of Israel’s Basic-Laws. The amendment, enacted in late July, denies the court the power to review the “reasonableness” of any governmental decision. This amendment is the first part of larger judicial overhaul plan, initiated by the Israeli government. Based on the court’s existing jurisprudence, I expect that the Supreme Court will declare the amendment unconstitutional, as it violates the core principle of the rule of law. In this post I offer a brief overview of the relevant background, before addressing the merits of the current case.
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The Proposed Constitutional Putsch in Israel
February and March 2023 have seen hundreds of thousands of demonstrators protesting against new proposed constitutional amendments designed to transform the constitutional foundations of the State of Israel. This is an exceptional phenomenon. Israel has seen mass demonstrations in the past, but it has never seen mass demonstrations on what may seem like issues which should concern, at best, lawyers or law professors. But looked at more attentively, this reaction is not surprising: beneath the legalistic debate on the constitutional amendments lurk deeper issues: should Israel be more western or more Jewish? What is the status of Jewishness in the Jewish State? What should the status of Palestinians in a Jewish State be? Is Israel primarily a western state, or is it a nationalist theocracy? A lot is, therefore, at stake for every Israeli citizen!
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