A serious issue that has confronted the international community is the legality of humanitarian intervention. Although the majority of scholars reject the existence of a doctrine of humanitarian intervention, could the attacked state invoke the responsibility of an intervening state before an international tribunal? This article attempts to answer this question in light of the often misunderstood clean hands doctrine in international law. It first concludes that under the lex lata, humanitarian intervention is prohibited under international law. This raises the question whether the clean hands doctrine may nevertheless preclude a court or tribunal from adjudicating in favour of a state that has been subject to humanitarian intervention. Although the clean hands doctrine exists under international law in various manifestations, its applicability in cases concerning humanitarian intervention is lacking. The article finally considers whether the jus cogens status of the prohibition of the use of force would prevent the applicability of the clean hands doctrine to humanitarian intervention cases were the clean hands doctrine to evolve into a customary international legal norm.

In 1949, the inclusion of Common Article 3 to the four Geneva Conventions represented a significant advance in the regulation of armed hostilities. That article extended international humanitarian law to the realm of non-international armed conflicts. At that time, these conflicts were considered synonymous with intrastate conflicts such as civil wars. While the scope of applicability of Common Article 3 to internal threats and disturbances has witnessed what is arguably a significant evolution since that time, it is unclear whether and when this baseline humanitarian obligation – and the broader customary laws and customs of war applicable to non-international armed conflicts once this article is triggered – are applicable when a state confronts organised criminal gangs who possess a capability to engage in violence and wreak havoc that rivals, if not exceeds, that of traditional insurgent threats.

Much of this uncertainty derives from the fact that the response to criminal disturbances appears to have been specifically excluded from situations triggering Common Article 3 when it was adopted in 1949. However, it is unlikely that the drafters of the Conventions at that time anticipated the nature of organised criminal gangs and the destabilising effect these groups have today in many areas of the world. The nature of this threat has resulted in the increasingly common utilisation of regular military forces to restore government control in areas in which they operate. This results in the use of force and the exercise of incapacitation powers that far exceed normal law enforcement response authority. It is therefore the thesis of this article that when the nature of these threats exceeds the normal law enforcement response authority and compels the state to resort to regular military force to restore order, international humanitarian law, or the law of armed conflict, provides the only viable legal regulatory framework for such operations. However, it is also the view of the authors that the risk of excess of authority inherent in this legal framework necessitates a carefully tailored package of rules of engagement to mitigate the risk that the effort to restore order will result in the unjustified deprivation of life, liberty and property.

In 2016 Daragh Murray published his book Human Rights Obligations of Non-State Armed Groups (Hart 2016). By way of distinction from many other contributions on this widely discussed topic, Murray tries to provide the reader with a complete overview of the legal framework that enables armed groups to acquire international legal status, and preferably outside the framework of armed conflict. He walks the reader through the path of international legal personality, leading towards the acknowledgement of armed groups as addressees of the law. Murray's attempt is courageous, interesting and innovative, but it has its shortcomings. These include his reliance on international criminal law as a source for defining armed groups, and his insistence on stepping outside international humanitarian law. Nonetheless, his contribution is essential for those who wish to include even more armed groups on the international plane.

In my recent book Not a Suicide Pact: The Constitution in a Time of National Emergency (2006), I argue for a way of understanding constitutional law that would enable sensible adjustments to the pressures that arise when a nation is confronted with a serious threat to the safety or other well-being of its people; and I tried to show how the method that I was advocating could be used to resolve some of the constitutional issues that have arisen in the wake of the terrorist attacks on the United States of September 11, 2001. The analysis is limited to American constitutional law; whether it has possible applications to the law of Israel or of any other foreign country, I leave for others to decide, though, given the audience, I drop a few hints in this Paper.

The starting point of my analysis is recognition that constitutional law, at least in America (but this is even more true of what passes for “constitutional law” in Israel), is very largely the creation of judges rather than of the framers or ratifiers of formal constitutions. The United States Constitution is 222 years old (1787–2009), though the amendments are younger (but the most influential of them—the first ten—the Bill of Rights, by just a few years). Some of the provisions, in both the original Constitution and in the Bill of Rights and later amendments, are precise; but many are not, and it is the vague or open-ended ones that figure most largely in debates over the legal limits of measures to protect national security. Terms like “due process of law,” “unreasonable searches and seizures,” “freedom of speech,” and “habeas corpus” are not self-defining; nor have judges been willing to confine them to the same meaning they had for the framers or to the core meaning that they would have to be given to have any significance at all. Because American judges do not adhere strictly to precedent, the meaning impressed by judicial decisions on constitutional texts is tentative, especially when a case arises that is not within the heartland of a previous decision because of the novelty of its facts or a shift in the social or political context of the relevant issues.

It does not need to be said that to be asked to give the Lionel Cohen lecture is a great honor. One of the first books on private international law which I acquired when I became interested in the subject was a volume of the Lionel Cohen lectures delivered by Sir Otto Kahn-Freund. I have chosen a topic which involves the subjects in which I have my primary academic interests, public and private international law, but also a subject in which I had some professional involvement before I became a judge.

My immediate family was safely in England at the time of the Holocaust, but I am particularly glad that some of my cousins are here at this lecture. Their families in Poland were tragically involved in the Holocaust and my cousin Rony Lerner made a film in 2006, which was shown on Israeli TV, about the murder in Poland of his grandmother and his search for her murderers. His grandmother was my grandmother's sister.

The emergence of new technologies might challenge our assumptions about biomedical research: medical progress may not only cure but enhance human capacities. In particular, the emergence of brain-machine interfaces will admittedly allow disabled people to move or communicate again, but also has various military applications, such as remote control of drones and avatars. Although there is no express legal framework pertaining to the experimental phase of human enhancement techniques, they are actually constrained by international law. According to international humanitarian law, civilians and prisoners of war may be subjected to experiments only when required by their state of health or for medical treatment. According to international human rights law, experimentations are permissible when they meet two conditions: (i) free consent, and (ii) proportionality (that is, the adequacy of risk and benefit). In light of these conditions, this article assesses the situations in which experimentation involving brain-computer interfaces would be lawful. It also gives specific attention to those experimentations carried out on members of the armed forces. In fact, owing to the military hierarchy and the unique nature of its mission (to protect national security at the risk of their own lives), it is necessary to determine how the military may comply with this legal framework.

Since the preceding article was written, the Kahn Committee, mentioned therein, has presented its report with a minority report by one of its members on the communications media. The central feature of the report is the Bill of a Protection of Privacy Law which the Committee recommends; a copy of the Bill is appended to show Israel thinking on the subject and to illustrate how far the Bill meets the matters raised by Dr. Gavison.

Apart from a very general discussion of the problems involved, the report contains a brief sketch by Dr. N. Rakover of those aspects of the subjects which are covered by traditional Jewish law and a comparative study by Dr. Gavison herself of the position mainly in the U.S.A., England, Germany, France and Canada and incidentally in Sweden, Switzerland, the Argentine, Brazil, Mexico and Venezuela, with special reference to recent legislation.

For the record it may be noted that the Committee was appointed in August 1974 by the Minister of Justice to examine the means by which protection of privacy can be secured. It held 16 meetings and heard or received in writing the views of various institutions and individuals.

In Israeli law eighteen statutes now regulate the legal status of various kinds of disabled persons. These statutes apply to about twice the number of different categories of disabled persons, classified in groups or classes, according to the cause and circumstances of disablement. Ignoring voluntary arrangements, the number of legal statuses or classifications (i.e. the complex of legal rights, pecuniary and in specie, together with the conditions of entitlement) may be put at eleven, which includes groups of people disabled de facto who are not recognised as disabled under law since they do not come within the statutory definition of disablement or otherwise meet the conditions of entitlement. The number of statuses is smaller than the number of statutes because some of the latter merely extend the application of other statutes in pari materia.

If we address ourselves to the substance of the legal status of these disabled persons, the general impression obtained reflects a kind of order of preference among the different groups, sometimes with considerable gaps. At the lowest level are the most deprived, the de facto disabled, who lack all rights as such, and the ordinary disabled (those who do not fall into any specific category but are recognised as disabled—the “new” and “long-standing” invalids of Chapter 6B of the National Insurance Law (Consolidated Version), 1968, in respect of whom a paucity of rights exists, in the nature only of ultimum subsidium. At the upper level stand the most preferred groups under existing law, traffic-accident victims and disabled soldiers.

The Permanent Court of Arbitration was established by the First Hague Convention of 1899 on the Peaceful Settlement of Disputes, as revised by the First Hague Convention of 1907 on the Peaceful Settlement of Disputes. It is not a court in the accepted sense of the word, but consists of a panel of persons able and willing to assume the duties of arbitrator in international disputes. Israel acceded to the First Hague Convention of 1907 on 17 June 1962. Under the Convention, each State Party is entitled to form a “national group” of arbitrators, not more than four in number, and their names are included in the panel. The Israel national group today consists of the following (in order of appointment): Shabtai Rosenne (1962), Moshe Landau (1968), Meir Shamgar (1989), and Ruth Lapidoth (1989).

In connection with section 27 of the Contracts (General Part) Law of 1973, Prof. D. Friedmann has dealt with the nature of the conditional contract. In his view a conditional contract is complete, valid and effective, and only differs from an absolute binding contract in its contents.

One reason for that he finds in the fact that section 27 does not appear in Chapter One of the Law, which treats of the making of a contract, or in Chapter Two, that deals with avoidance of a contract because of a defect in its making, but in Chapter Three, that is concerned with the form and contents of a contract.

To make a contract subject to a condition is certainly not a defect in its making. But the location of section 27 does not of itself yield any of Prof. Friedmann's conclusions. Chapter Three covers contracts which are illegal and therefore invalid (section 30, a propos illegal or immoral contracts, or contracts contrary to public policy) or are at all events void (contracts lacking form ad substantiam, falling within section 23) or contracts that are not enforceable by specific performance or actionable in damages (gaming, betting and lottery contracts, under section 32) or are unjusticiable (contracts for giving marks and the like, regulated by section 33).

In the decisions of the Israel Supreme Court delivered since the establishment of the State, one sometimes comes across the express or implied statement of the rule that:

The object of this article is to clarify a few aspects of this rule (which, for the sake of brevity, will be referred to as the rule of “constructive intention”).

The hearing framework known as a further hearing has been familiar to the general public in Israel for some time. This procedure is granted upon the petition of the parties or by the justices of a specific panel of the Supreme Court. However comprehensible the concept appears to be, in view of its simple designation, this legal device has not merited meaningful attention in legal research. By law, a further hearing is a situation where “in a matter on which the Supreme Court has ruled, with a panel of three or more justices, it may rule at a further hearing as a panel of five or more justices.” In such a case, an expanded Supreme Court bench hears a matter that has already been ruled, but the Court may also convene an expanded panel in other instances. It may also do so in a case that was originally heard by an expanded panel without being designated a further hearing, in which case, it will simply be designated an “expanded panel.” This article will address the concept of the further hearing, as opposed to the phenomenon of “expanded panels” in general. The first part of this article will be theoretical, and we will seek a conceptual understanding of this legal institution. In the second part, the article will address empirical research on this subject and will present quantitative data on further hearings held in the course of over thirty years of Supreme Court adjudication (1970-2000). The third and last part of this article will present possible conclusions that may be drawn from the empirical results and will question the need for such an institution.

The late Sir Hersch Lauterpacht once expressed the view that “if international law is, in some ways, at the vanishing point of law, the law of war is, perhaps, even more conspicuously, at the vanishing point of international law”. This led him to the conclusion that the international lawyer must therefore do his duty, in the three particular areas to which he was then drawing the attention of his readers, “with determination though without complacency, and perhaps not always very hopefully”. The three spheres which Lauterpacht considered as meriting the attention of international lawyers at the time at which he wrote, 1953, were “further legal regulation of the humanitarian fringe of the problems involved in the use of new weapons of war, sustained exposition and clarification of the far-reaching provisions of the 1949 Geneva Conventions, and the further clarification of matters not covered by the Geneva Conventions, including the implication of the principle that the law of war is binding not only upon States but also upon individuals”. This great jurist did not live to see the current endeavours that are being made to carry out a revision of the international law of war and the increasing attention that is being paid to the humanitarian content of that law, and even more specifically, to the quest for better and more effective means of implementation of that law.

According to the famous “Coase Theorem”, market forces, under given conditions, will automatically, without any external intervention, bring about an efficient allocation of resources. These conditions, necessary for the smooth operation of the “invisible hand” which leads to efficiency, are denoted as “absence of transaction costs”, as the presence of transaction costs may impede this desired process. The main legal implication outlined by Coase is that absent transaction cost, there is no need, and no place, from an efficiency point of view, for liability rules: resource allocation would be the same either with or without them. An act which is efficient will be carried out despite a liability rule which imposes the burden of compensation on the actor. On the other hand, an inefficient act will be barred by market forces without the help of liability rules.