I. Cultural Property: Protection in Armed Conflict

The Return of Antiquities from Israel to Egypt

Halil Iscander Shahin Candu v. The Minister of Defence.

Muhamad Hussein Suliman Shachrur v. The Military Commander of Judea and Samaria.

On 21 January, 1993 an Egyptian archeological delegation visiting Israel and the Israeli Antiquities Authority signed an agreement whereby all archeological findings taken from the Sinai after 1967 (while Israel controlled the area) would be returned to Egypt within two years and no later than 31 December, 1994. It was agreed that artifacts which had already been processed and documented would be returned to Egypt within two months. The first shipment of these antiquities was transferred to Egypt on 29 March, 1993.

The following observations exclude from their scope two questions that are customarily brought into the discussion whenever the problem of self-determination is analyzed, namely:

1) Is self-determination to be equated necessarily with independence or are there any other conceivable models of self-determination?

2) What is a “people” for the purpose of exercising this right and where is the borderline to be drawn between peoples entitled to invoke this right and other entities not so entitled?

It is suggested that for the purposes of these brief observations it be assumed that self-determination is indeed to be equated with political independence and that there exists a way of establishing what group of persons qualifies for the term “people” and which entities do not.

This article examines the separation of boys and girls in religious schools in Israel and the current Israeli policy that aims to balance the right of equality with the right of denominational education in state-funded, religious schools. It draws on the legacy of the case of United States v Virginia and the subsequent regulations published by the United States Department of Education in 2006 in order to determine when single-sex education may be compatible with equality. It then examines both the relevance and the application of the criteria developed in the United States to religious schools in Israel.

The article reviews and examines the two main justifications for single-sex education: cultural/religious and feminist. The right to establish single-sex educational institutions is perceived to be part of a minority group's right to culture. In conservative cultures, separation between men and women is often justified as a means of preserving modesty and as a necessity in order to educate and train men and women towards their respective social roles. More often than not, their justifications are incompatible with liberal notions of gender equality and dignity.

Separation of men and women in the area of education is often also justified, however, from a feminist standpoint, which is rooted in pedagogical theories. Proponents of single-sex education argue that women-only educational institutions circumvent the inherent bias against women prevalent in coeducational schools, relying on research that indicates that girls perform better in girl-only schools, and attributing this both to the method of study and the educational environment of girl-only schools. They argue that, while separation in other areas of life may be humiliating, in education it has the potential of being empowering.

The goal of this article is to examine how the two types of justification come into play in single-sex religious education in Israel. The article claims that where separation between boys and girls is justified by cultural and religious arguments, it must withstand the tests developed in the case law for the legality of practices that are incompatible with equality. It also argues that even where separation is permissible, the manner in which it is carried out should be regulated and supervised to ensure the minimum violation of equality.

Discussions and depictions of lawyers in Canada largely ignore a significant segment of the legal population: government lawyers. Canada is a modern liberal democratic state with a significant public sector employing a large number of lawyers in many public sector settings. Lawyers who work directly for the executive branch – government lawyers – are a special subset of public lawyers. These government lawyers are ‘unique’ in many respects. They do not have paying clients as do private sector lawyers. Their client is ‘the Crown’ – an abstract emanation of the state. This article explains the unique role of government lawyers in Canada as derived from the historic and legislative responsibilities of the Attorney General. It then addresses questions that arise for government lawyers in Canada in public law litigation.

While this comment primarily addresses the article by Anat Horovitz and Thomas Weigend on human dignity and victims' rights in the German and Israeli criminal process, it begins with a consideration of the role of the victim in other component parts of the criminal justice system, and in particular the substantive criminal law—a topic addressed in other articles included in this issue. There follows a review of the comparative analysis of the victim's role in Germany and Israel put forward by Horovitz and Weigend and a critique of the issues they raise, particularly as to the salience of the victim's procedural role. It is argued here that the victim should have a somewhat more meaningful role than that envisaged by these authors. The comment concludes with a brief consideration of the potential for the advancement of alternative remedies currently neglected by both systems, such as restorative justice.

This article analyses the scope of the jurisdiction of the International Criminal Court (ICC) over the Israeli settlement enterprise in the West Bank. The author has found that this scope differs fundamentally between acts of direct transfer and indirect transfer because of Israel's status as a non-member state of the Rome Statute of the ICC and the specific nature of Article 8(2)(b)(viii). Whereas procedural arguments relating to third party rights do not prove to be valid jurisdictional obstacles, the Court's temporal and territorial jurisdiction could nevertheless be limited to acts of direct population transfer committed after April 2015. In conclusion, the article argues that the most promising strategy for the Office of the Prosecutor would be to focus on recent large-scale instances of direct transfer.

The recent proliferation of external investigations into military operations raises important questions for the conduct of military operations and the interpretation and implementation of international law. The impact of such investigations and their reports, however, extends beyond how they influence the military and the implementation of the law of armed conflict. As countries and societies embroiled in lengthy conflicts begin to explore the value and effectiveness of undertaking transitional justice efforts during conflict, rather than only after conflict, investigations into military operations and specific incidents can play an important – and perhaps unexpected – role. This article focuses specifically on the inter-relationship between investigations and transitional justice efforts. As investigations into military operations become a common tool in the international and national arsenal, understanding how they interact with and affect broader transitional justice efforts and goals becomes important, both for the conceptualisation of investigations and the development of transitional justice mechanisms. This article addresses the relationship between investigations and the truth-telling aspect of transitional justice mechanisms, as well as the impact of the use of law and legal analysis on the legitimacy of the investigations and on potential transitional justice mechanisms.

The reactions to the reports of Osama bin Laden's death were many: shock, relief, joy, wariness, elation, reservation. Not surprisingly, an intense debate soon emerged over the legality of killing Osama bin Laden. Critics – including the authors of the article, ‘Has “Justice Been Done”? The Legality of Bin Laden's Killing under International Law’, Kai Ambos and Josef Alkatout – raise many interesting and thought-provoking questions. The purpose of this submission is to respond to the arguments of Ambos and Alkatout. This response article argues that the killing of Osama bin Laden was lawful under international humanitarian law. More specifically, a careful legal analysis demonstrates that a non-international armed conflict exists between the United States and Al Qaeda. The evidence overwhelmingly establishes that Al Qaeda is an organised armed group under international humanitarian law. Osama bin Laden most accurately could be thought of as a strategic level commander of Al Qaeda. He has been actively involved in planning and co-ordinating armed attacks against military and civilian targets for years, including the most recent planning of attacks commemorating the tenth anniversary of September 11. As such, he is clearly targetable under international law. Finally, the United States was well within its rights under international law to launch an attack into Pakistan against bin Laden.