The July 2017 issue of the Israel Law Review celebrated the fiftieth anniversary of its publication, and for that occasion selected five articles (one for each decade) which, in the Editors’ view, ‘had a lasting impact on scholarly debate and beyond’. For the first decade the Editors chose my article ‘The Missing Reversioner: Reflections on the Status of Judea and Samaria’, which appeared in the July 1968 issue, and asked Professor Eyal Benvenisti to comment on my piece, which he did under the title ‘An Article that Changed the Course of History?’ Not unexpectedly, Benvenisti has made a frontal attack on the central thesis of my article, which he reproduced in virtually identical language in the April 2017 issue of the American Journal of International Law.

Under international humanitarian law it is prohibited to make the object of attack a person who has surrendered. This article explores the circumstances in which the act of surrender is effective under international humanitarian law and examines, in particular, how surrender can be achieved in practical terms during land warfare in the context of international and non-international armed conflict. First, the article situates surrender within its broader historical and theoretical setting, tracing its legal development as a rule of conventional and customary international humanitarian law and arguing that its crystallisation as a law of war derives from the lack of military necessity to directly target persons who have placed themselves outside the theatre of armed conflict, and that such conduct is unacceptable from a humanitarian perspective. Second, after a careful examination of state practice, the article proposes a three-stage test for determining whether persons have surrendered under international humanitarian law: (1) Have persons attempting to surrender engaged in a positive act which clearly reveals that they no longer intend to participate in hostilities? (2) Is it reasonable in the circumstances prevailing at the time for the opposing force to discern the offer of surrender? and (3) Have surrendered persons unconditionally submitted to the authority of their captor?

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.

It has long been recognised that ‘non-consent’ is a fundamental element of the law of occupation. Under modern international humanitarian law (IHL), the consensual presence of foreign military forces is generally not seen as belligerent occupation.

However, if we accept the principle that the application of IHL should rely on the objective situation on the ground and not on the subjective judgment of the situation of parties to the conflict, it may be natural to diminish the significance of consent by the territorial states in relation to the application of the law of occupation. It may be somewhat harmful to deny such protection based solely on the existence of the territorial states’ consent without considering the relationship, in reality, between the occupier and the population in the occupied area. According to a teleological interpretation of IHL, especially when it is obvious that the latter has no allegiance to the former, the tense relationship between them should be regulated by the law of occupation.

This article discusses whether and how state consent could be a humanitarian ground to negate the legal protection for its own people, and highlights situations where the local population needs protection by the law of occupation (or comparable rules) in consensual military occupations.

This article explores how the Inter-American Court of Human Rights (the Court) has dealt with allegations of violations of the right to life during an armed conflict and, in particular, how it has dealt with allegations of violation of the obligation to investigate such allegations. The article notes that international humanitarian law (IHL) was initially used by the Court to strengthen the general obligations of states to protect the rights guaranteed by the American Convention on Human Rights (ACHR). Later IHL began informing the interpretation of specific rights. This change has been more significant in relation to the interpretation of the right to life under the ACHR than in the examination of state compliance with the right of access to justice, which encompasses the duty to investigate allegations of violations of the right to life during an armed conflict. The analysis of the Court's jurisprudence demonstrates that the different ways in which the Court has addressed the relationship between IHL and international human rights law (IHRL) have been informed by its primary effort to ensure that the interpretation of the ACHR provides the widest protection possible to individual rights.

The question of Palestinian refugees has long been recognised as one of the core issues that would need to be addressed in any eventual Israeli-Palestinian peace agreement. This article examines compensation for property seizure and forced displacement, an aspect that has figured in every round of major peace talks on permanent status issues for the past quarter of a century. Drawing upon research, informal ‘track two’ discussions and official negotiations, it highlights the challenge of crafting arrangements that would be both politically and practically feasible.

The legal status of the Gaza Strip following the 2005 Israeli ‘Disengagement’, as well as the applicability of the laws of belligerent occupation with regard to this territory, have sparked, and continue to generate, a lively academic debate, involving states, organisations and legal scholars. Nevertheless, this debate has seldom included an examination of the de facto policy exercised by Israel vis-à-vis Gaza residents themselves.

This article seeks to fill the gap by providing a thorough examination of Israel's legal position towards the residents of Gaza, and a critical analysis of its policy and practice with regard to their movement as well as the movement of goods. This review, based on dozens of policy papers, regulations and procedures, as well as numerous judgments handed down by Israeli courts, reveals that Israel maintains a deliberately deficient and ambiguous legal position with regard to the status of Gaza residents. Under this position, the residents are merely ‘foreign residents’ who have no particular rights in relation to Israel. I argue that this position establishes a major legal vacuum in the protection afforded to Gaza residents and is therefore incompatible with both the reality of Israel's continuous control over Gaza as well as the objects and norms of international humanitarian law.

This article focuses on the adoption of temporary measures within the generally rigid constitutional sphere. Commentators frequently contemplate the extent to which temporary constitutional measures are adequate and necessary within a constitution that is meant to be perpetuated. Some writers are in favour of temporary constitutionalism, claiming that it allows flexibility and relieves the counter-majoritarian problem. Others emphasise the devastating impact of intense implementation of temporary measures on the status and legitimacy of the constitution.

The article contends that as beneficial as temporary constitutionalism may be in some circumstances, its use should be scrutinised with great suspicion, especially when it is employed in weak constitutional regimes. In outlining the history of temporary constitutionalism in the State of Israel, the article illustrates how temporary constitutional amendments can be harnessed to undermine the democratic order. The Israeli use of temporary constitutionalism since 2009 reveals a new under-explored manifestation of ‘abusive constitutionalism’, referred to here as ‘abusive temporary constitutionalism’. With abusive temporary constitutionalism, incumbents can entrench their power against their opponents while avoiding both public accountability and judicial review of their actions. Drawing on the Israeli experience, the article outlines several signifiers (i.e. distinctive markers) which will allow judges in the future to monitor and suppress the development of the abusive employment of temporary constitutional amendments.

Professor Yaël Ronen introduced the workshop as the fourth in a series of events on legal aspects of the Middle East conflict. The first two events concerned the Palestine Mandate of 1922. The third focused on the 1948 refugee issue. All these events have and are being held with the generous support of the Knapp Family Foundation and under the auspices of the International Law Forum of the Faculty of Law. Also, as part of the Shabtai Rosenne International Law Center Initiative, the first session was dedicated to the commemoration of the work of the late Shabtai Rosenne, whose scholarship spanned a host of international law issues but who is most renowned for his work on the International Court of Justice (ICJ).

There has been a growing trend in recent years towards the adoption of evidence-based policy in a variety of fields, including criminal justice. The purpose of evidence-based policy is to guide the activities of organisations based on scientifically verified facts, enabling the development of effective and efficient policies. In this article, we introduce the commitment of the Israel Prison Service (IPS) to the implementation of evidence-based policy by detailing the processes and development of a large-scale research programme in the IPS. We illustrate how the cooperation and commitment of key individuals, including successive IPS Commissioners, have enabled the implementation of evidence-based policy in a hierarchal organisation. Within this context, we demonstrate how human agency is a key factor in the successful implementation of the policy in criminal justice settings. By following the different stages of development and implementation, the example of the IPS also highlights the importance of agencies taking ownership of science. We conclude by arguing that the road to evidence-based policy is a ‘winding road’, highlighting the key turning points that influenced the institutionalisation of the policy in the IPS.

This article advocates limiting the permissive impact of military necessity on the right to life. It has been argued that military necessity justifies deviations from international human rights law (IHRL) because this body of law is inadequate to deal with the necessities arising out of armed conflict. The article argues that while this rationale is convincing, it should not mean that conduct that is lawful under humanitarian law is necessarily also lawful under human rights law. The degree of force that may be used under international humanitarian law (IHL) is often superfluous. In some instances such violence is tempered by the jus ad bellum, but this body of law does not apply in internal non-international armed conflict (NIAC). The article concludes by exploring the potential for IHRL to play a role in tempering superfluous violence in NIAC that is similar to that which jus ad bellum plays in international conflict.

Human Rights Watch (HRW), Amnesty International (Amnesty), and other like-minded organisations have become major actors in the world of international humanitarian law (IHL). Every year they issue hundreds of publications purporting to document violations and to promote IHL enforcement. These publications are ubiquitously cited in the media, and used as source material for governmental and United Nations inquiries, quasi-judicial bodies, the International Criminal Court, academic studies, and other frameworks. Yet, despite the increase in the number, role and influence of non-governmental organisations (NGOs) working on IHL enforcement, conflicts and civilian deaths show no signs of abating. Among the factors that reduce NGO impact in these areas is the demonstrated weakness of these organisations in the realm of fact-finding, and the tension between these activities and emphasis on political advocacy. This article will thus analyse both objective and subjective aspects of NGO fact-finding during armed conflict, including mandates and methodology, selectivity, the application of legal standards, military expertise and sourcing. These issues will be examined through case studies of Amnesty and HRW publications on the conflicts in Yemen, Ukraine and the 2014 Gaza War. The article will conclude with recommendations for NGOs and the actors with which they interact.

In a report to the Security Council of the United Nations in August 2004 the UN Secretary General said that ‘the rule of law’ is a concept at the very heart of the UN's mission. In September 2015 the UN agreed a set of Sustainable Development Goals (STGs) for 2015–30, which came into force on 1 January 2016. Goal 16.3 of the SDGs enshrines a commitment by all UN members to ‘promote the rule of law at the national and international levels, and to ensure equal access to justice for all’. In March 2016 the Council of Europe's Commission for Democracy through Law, known as the Venice Commission, published a report which said that the rule of law is a concept of universal validity. It observed that in an increasing number of cases states refer to the rule of law in their national constitutions. The rule of law is expressly mentioned in a United Kingdom statute: section 1 of the Constitutional Reform Act 2005 says that the Act does not adversely affect the existing constitutional principle of the rule of law. The statute, however, does not contain any definition of the rule of law; nor does any other UK statute. There is no legally binding definition anywhere.

I am particularly grateful to be accorded the honour and privilege of giving this year's Lionel Cohen Lecture as it enables me to examine the position of the judiciary within the state.

A primary purpose of a human rights theory is to provide a foundation from which the actual and complete nature of human rights can be gleaned. Particularly for rights that are controversial or do not enjoy widespread consensus, a human rights theory provides a system for understanding what rights exist or should exist and what rights contain or should contain. The most predominant theories of human rights are based in law, politics and morality. Patrick Macklem's The Sovereignty of Human Rights proposes a new theory of human rights devised to bypass the shortcomings of those predominant theories. He argues that sovereignty is a better foundation for understanding human rights because sovereignty and its distribution in the international legal order has given rise to the need for certain rights to exist. The exercise of sovereign power by individuals also influences how human rights are implemented within state borders. He maintains that understanding the adverse effects of sovereignty and its distribution yields greater insight than other theories into why human rights exist, what they contain, and how they should be implemented.

Following a brief summary of Macklem's argument, the review examines how his theory compares with the predominant theories of human rights, particularly in light of the shortcomings of those theories. The review outlines Macklem's position that the adverse effects of sovereignty can clarify the international community's understanding of why human rights are necessary and what forms of protection they include. The review then examines how Macklem's theory corresponds with traditional classifications of human rights, which depict such rights in terms of generations. Finally, the review concludes with reflections on the theory and poses new questions raised by Macklem's theory of human rights.

This review explores certain challenges related to the notion of customary international law. It seems that it was a long time ago when international law academics and practitioners ever thought that the nature of this source was a well-settled topic. Nowadays international lawmaking processes involve an extraordinary number of interactions, taking place both formally and informally. Such complex features are reflected by an exponential increase in the scholarly study of international legal sources. The legal nature, its applicability and principles regulating customary international law are addressed in the book under review (Brian D Lepard (ed), Reexamining Customary International Law (Cambridge University Press 2017)) through several topical essays. The chapters offer a comprehensive analysis of these lawmaking processes and the challenges they portray from various perspectives and in various fields, such as: What is customary international law and why is it law? Is it law because it reflects a ‘global legislative’ model? What is the current value of the persistent objector theory? Is the two-element definition of customary international law still applicable? By meticulously addressing these and other inquiries, the book presents novel arguments and represents a stimulating addition to the literature on sources of international law.