Post-doctoral fellows research 2020-2021

The Term “War” in Modern International Law

Shelly Aviv Yeini

The term “war” in the legal context is considered a term of the past that has no substance in modern international law. The desire to abandon the term has a clear rationale—historically, war was triggered by a formal declaration and fought between states, allowing parties with more power to manipulate the application of international humanitarian law, which would commence only upon a declaration of war. However, the post–Geneva Convention understanding of hostilities has largely changed, most notably in the adoption of the notion of “armed conflict”, which is based on factual assessment rather than on a declaration in both international and non-international contexts.

However, this research would suggest that the term “war” is still in use by many states, international courts, international institutions, and legal scholars. The term “war” has not ceased to exist in the context of international law; rather, it has evolved to indicate an escalation in the intensity of hostilities within the paradigm of “armed conflict”. This new use of the term “war” has significant explanatory value because the term “armed conflict”, especially in the international context, covers a wide spectrum of intensity. While the intensity of hostilities is not relevant to the application of international humanitarian law, once an armed conflict has started, any escalation of intensity and efforts to prevent such an escalation may still be important in various arenas, including the provision of humanitarian aid, humanitarian intervention, the planning of military objectives, and the perception of urgency by international tribunals.

The Persistent Objector Doctrine: Contradicting an Objection

Shelly Aviv Yeini

The Persistent Objector Doctrine (POD) in international law provides that the rule of Customary International Law (CIL) would not oblige a state if it had persistently objected to the development of such rule of CIL. While the requirement of ‘persistency’ has been discussed in the legal literature, the term ‘contradiction’ with reference to such consistency, which disqualifies a state from Persistent Objector (PO) status, has not. Therefore, it is not clear what type of behavior would represent a contradiction to the persistency of an objection and interfere with PO status.

The proposed research would offer that while substantive contradictions should disqualify a state’s PO status, a minor contradiction should not affect its PO status. Given the modern political reality of the contestation and plurality of voices among a state’s branches and institution, some amount of contradiction should be allowed otherwise POD would be practically nullified. Therefore, the proposed research suggests guidelines to differentiate minor contradictions from substantive ones, as only the latter would impair PO status. Such guidelines include the direct connection between the contradiction and the rule in question; the proximity of the statement or action to international relations; the position of the initiator of the contradiction within the inner hierarchy; the legitimacy of the contradictory act (whether the initiator of the contradiction acted with authority); the influence of the contradiction over a state’s behavior; and the accumulation of minor contradictions.

From a state of exception to hyper-legality: Israeli counterterrorism law in the post-two-state era

Rottem Rosenberg Rubins

This research is based on the case study of Israel/Palestine and focuses on Israel’s comprehensive 2016 Counterterrorism Bill. This legislation was adopted to allow Israel to cope with security offences within the confines of its conventional criminal procedure, rather than by using emergency measures. The case study combines a critical analysis of the Bill with an empirical study of the decisions made on the ground in accordance with this legislation.
Using a methodology of Critical Analysis of Law, Rottem identifies the underlying logic of the Counterterrorism Bill and the type of relationship it envisions between Israel and Palestinians living under Israeli occupation. She demonstrates that such Palestinian residents are the main group targeted by the legislation, which views them not as an external enemy but rather as “homegrown terrorists”, who are neither “insiders” nor complete “outsiders” to the Israeli political community. However, the legislation is also likely to apply to two other groups that present a particular threat in the eyes of the state, namely, Palestinian citizens of Israel and Jewish settlers living in the occupied territories. The legislation is largely preventative by nature and focuses on averting anticipated violence incited by these three groups. While striking a new balance between emergency powers and conventional criminal measures, the legislation also constitutes a strategic combination between the two types of measures, allowing the state to apply them interchangeably. This model for preventing terrorism is consistent with what Hussein (2007) has termed “hyper-legality” – an inflation of laws and legal mechanisms that causes the subjects of power to be over-regulated rather than abandoned by the rule of law.
To test these hypotheses, Rottem is conducting an empirical study of the judicial and administrative decisions reached in cases involving the three identified groups of presumed enemies, examining both the concrete decisions and the judicial discourse characterizing each group.

Towards an Israeli doctrine and legislative-regulative framework dealing with emergencies

Robert Neufeld

See PI initiated research- with Prof. Eli Salzberger

City at War: Haifa in the Aftermath of the 1948 War

Ronnen Ben-Arie

Cities are known to be targets of war and violence and the urban space often functions as a vehicle of war and terror, as cities are becoming more and more the primary space in which war, terror and violence are taking place and war itself is becoming more and more urbanized. However, the transformation and management of cities and of urban life and the city’s resilience that enables its perseverance and sustainability through the conditions of war and its aftermath, still lack research and conceptualization. The research aims to address this lacuna by exploring the concrete and specific practices, regulations, procedures and policies that were implemented during and following the 1948 war in the city of Haifa, intended to restore order and sustain urban life. The 1948 war was a time of extreme conditions for the city of Haifa. After decades of rapid development and growth, within a short time the city transformed completely. Throughout the years of the war (1947-1949), the city has lost half of its population, as around 70,000 Arab-Palestinian residents, out of a total population of 145,000, have fled and were forced out of the city and only 3,500 remained. At the same time and during the few years following the war, tens of thousands of Jewish immigrants arrived at the city and by 1951 the city’s population reached again the total of 147,000. The city, its population and its management have radically transformed, while the city sustained through these transformations. The aim of the proposed research is to explore and analyse this ability of the city to sustain through radical transformation in a time of extreme conditions. The research will pay particular attention to the management of the city as a whole and the connections and relations between the different parts of the city and neighborhoods; to the continuity of operation of major urban infrastructures and industries; to the utilization, reconstruction and rehabilitation of the derelict parts of the city and abandoned property through the inhabitation of incoming migrants; and the interrelations between the different levels of governance, the municipal and the national, and the different authorities and organizations involved.

Babysitter Jutice

Tamar Megiddo

With the rise of populist politics around the world, progressive, activist courts have been a primary target of criticism by populist politicians and thinkers.Plausibly, one consequence of the threatened legitimacy of courts may be a renewed reluctance to rule on politically high-stakes issues. This project studies one course of action to which courts may resort in such situations: evading ruling on the merits of a case, preferring, rather, to “babysit” it, in the hope that the underlying conflict resolves itself without explicit judicial intervention. By “babysitting” a case, a court keeps a case pending, refraining from ruling on its merits for an extended period of time. During that time, the court might hold occasional hearings, urge the parties to negotiate, or require them to report on the underlying dispute.
The court’s choice to keep cases pending rather than rule on their merits raises concerns, as the court’s formal mandate is to decide the cases brought to it,2 and not preside over negotiations, and given that rights may continue to be gravely violated in the interim. Simultaneously, the value of the court’s function as an arena for inter-party engagement should not be easily dismissed.
The practice of judicial evasion from ruling on the merits has received little scholarly attention. There is a robust literature on the strategy of, and conditions under which courts have expanded their judicial review powers. Voluminous scholarship also exists with respect to the motives for instigating, and the benefits for parties who engage in public interest litigation. However, the research argue that there is an important qualitative
difference between cases where a final decision on the merits is realistically anticipated – and cases where it is not (e.g., babysitting), regardless of the favorability of such decision.
The paper explores an Israeli case study in order to illustrate and analyze the practice of judicial babysitting. In 2007, a petition was filed with the Supreme Court of Israel against the pushback policy exercised by the
IDF against migrants and asylum seekers crossing the Israeli-Egyptian border. This practice was alleged to violate the non-refoulement principle, which prohibits the deportation of person to a place where she faces
risk to her life or liberty. Although voicing its discomfort with the practice in hearings, the court kept the case pending for almost four years, declining to issue an interim injunction. In 2011 the government
decided to halt the practice. Shortly after, the court finally ruled that the petition has exhausted itself and should be denied.
By babysitting the case, the court achieved several things: (1) it avoided having to render a decision and commit to a specific normative position and thus exposing itself to political criticism; (2) it was able to convey to the government certain signals which triggered reconsideration of its position, even without issuing an explicit decision; (3) it was also able to provide litigants with certain benefits, including, primarily, a forum in which the government was bound to engage with them.
The government was able to avoid an adverse decision at the price of having to undertake certain steps which it might not otherwise wish to take. Following the court’s guidance, it promulgated and later amended a procedure regulating the pushback policy and occasionally reported on its implementation.
Nonetheless, the government was forced to operate under some legal uncertainty as the court refrained from legitimizing its practice.
As for the petitioners, even though they were not able to obtain the judicial decision they were hoping for, they were able to utilize the proceedings to generate support for their cause otherwise. Among others, the proceedings served as a measure to force the government’s attention and responsiveness to their arguments; as an axis around which to beckon the intervention of international bodies, including UN bodies and global NGOs, and to generate public awareness and media attention.
Nevertheless, babysitting continues to suggest certain foundational difficulties. First, the court clearly did not fulfill its role as a settler of disputes. Arguably, the petitioners’ right to access to justice also includes a right to have their case decided, not only heard. Second, babysitting did a disservice to the court’s role as a guide for behavior and as an institution entrusted with furthering the coherence of the law and its implementation on the ground. Further, when deciding to babysit, the court seems to operate on a certain tentative assessment of the facts and the law, but this remains preliminary, unspecified and unreasoned.
Third, the deterring factor of babysitting vis-à-vis the government that is attached to the threat of an adverse ruling may over time erode if the court often resorts to babysitting and rarely acts on the threat.
Finally, and most importantly, the court’s refusal to rule on the case and even to issue an interim injunction allowed for the pushback of over 600 individuals, some of which are known to have been held incommunicado in Egypt or deported back to their countries, tortured or killed. This, most starkly, was babysitter justice’s highest price.
The contribution of the paper is threefold. First, at the descriptive level, by calling attention to the phenomenon of judicial babysitting that is likely to expand in the present political climate. Second, by conceptualizing the practice of babysitting, mapping and categorizing the conditions under which a court may engage in babysitting, and evaluating the practice’s implications for litigants. Finally, from a theoretical and normative point of view, by evaluating the implications of this practice for democratic checks and balances and rights’ protection.

From Contested Sovereignty to Urban Politics:Palestinian Rights-Claiming and ‘Accessing the State’ in post-Oslo East Jerusalem

Oren Shlomo

This study empirically describes and theorizes new forms of Palestinian encounters with the state in Jerusalem hypothesizing their shifting in the post-Oslo era from non-recognition and rejection of Israeli rule, to the utilization of state governmental and legal apparatus to make claims on the state. The analyses facilitates an assessment of the implications of this development in relation to Palestinians’ partial inclusion in state apparatus and the restructuring of their political positioning, the development of civil sentiment between the Palestinians and state agencies, and the overall restructuring of urban politics, governance and modes of control under the extreme urban and political conditions in Arab Jerusalem.
Thus this research is situated within a growing body of knowledge which investigates new forms of governance, control and resistance that have emerged in the post-Oslo era of the Israeli-Palestinian conflict – an era which is characterized by a shift from peace resolution to ‘conflict management’ (Bar-Siman-Tov 2007). In the context of East Jerusalem (EJ), the so-called ‘post-Oslo era’ refers mainly to the events that have brought about the political, social, and economic ‘fall’ of the intended Palestinian capital, as it has gradually transformed from the urban center of the West Bank to a poor, isolated and neglected city with its urban functionalities and economy oppressed and weakened to near collapse (Cohen 2011; Klein 2005; Shlomo 2017).
This research innovates by applying the urban ‘southern’ approach to EJ which focuses on the politics of marginalized groups and informal settlements, such as slums, favelas, and refugee camps of the cities in the Global South, whose dwellers are largely excluded and disassociated from the state’s formal governmental, legal and administrative orders (Bénit-Gbaffou and Oldfield 2011). Situated within this framework, the study examines how the transition from ‘politics of favors’ and encroachment to a formal discourse and political practice of rights claiming evolves. Further, It explores what political subjectivities have been produced in this right claiming process within a context of not only poverty, marginality, urban informality and alienation from the state as described in the literature on the politics of urban informalities (Bayat 1997; Roy and AlSayyad 2004), but one where the very legitimacy of the ruling power is rejected – as in the case of EJ.

2018-19 Post-doctoral research

Emergency, Power and Proper Authorisation

Nadav Dagan

This normative research explores two main fields of the law that regulate governmental powers and the exercise thereof in national emergencies: vires and discretion. The requirements of due authorisation as well as discretion law are of special importance during large-scale emergencies, since situations of this sort dramatically increase the tendency to centralise powers and control.
During emergencies the general public and political institutions may show an increased propensity to grant the executive all tools deemed necessary to deal with the evolving emergency, including extraordinary measures, or acquiesce to governments’ demands. Hence, new powers may be granted to the authorities by the legislature, and the government usually pushes to deepen and widen its discretion as per existing powers as far as it possibly can.
Exploring the complementary and closely connected fields of vires and discretion, this research aims to construct a normative framework for legal examination which powers are (and should be) conferred on government officials and how these powers ought to be exercised in times of emergency. The research presently focuses on the legal requirement of authorisation in public law.
This stage of the research concentrates on the nature of governmental powers during national emergencies and the justifications for the legal requirement of authorisation, with special emphasis on statutory authorisation. In particular, it investigates various theoretical and doctrinal approaches that can be classified into one of two broad categories: legality and non-legality, inclusive of prerogative powers and contra-legal acts.

Informal Jus ad Bellum Lawmaking

Yahli Shereshevsky

This project focuses on the continuous debate over the right to self-defense against an imminent armed attack by non-state actors. The law on the use of force against non-state actors is vague and the path of traditional lawmaking and soft law initiatives have proven futile since the relevant actors cannot reach an agreement on the substance of such outputs. Under these circumstances any significant gap filling initiative has a potential to be influential and relevant states have strong incentive to use informal lawmaking technics to influence the law.
The project will mainly explore the involvement of former state officials as significant actors in these new lawmaking initiatives. While state unilateral lawmaking initiatives are expected to be influential, their perceived partiality might decrease their persuasive force. Academic works by former state officials, while still associated with state interests, might receive greater legitimacy in the international legal community. The proposed project focuses on the role Sir Daniel Bethlehem’s article in the American Journal of International Law as a focal point of reference in the legal battle over the use of force in such situations. The project offers a unique account on the way in which academic work is used by states to justify they legal positions. It will use this concrete example to explore the importance of allegedly neutral sources that are not directly produced by states as legitimizing tools of state positions in contemporary international law making.

Political theories of the rule of law under extreme conditions

Idit Shafran Gittleman

The famous Latin phrase inter arma enim silent leges (“in times of war, the laws fall silent”) demonstrates an approach by which war is not part of civilized human life, subject to laws of decency and morality, but rather an outburst of primeval instincts of aggression or survival, therefore not subject to any set of rules. War strips man of all dress of human civilization, and takes him back to his primal, primitive, pre-civilized form.
At least prima facie, the existences of just war theories, as well as laws of war, stand in some contradiction to this approach. They reflect the view according to which even at times of war there are basic human rules that should be maintained and observed, and that some actions should never be performed, whatever the circumstances. Indeed, putting moral realism supporters aside, it is widely agreed that both the law, as well as morality, speak, and should be speaking, inter arma as well.
However, we do tend to accommodate some flexibility to the rules under extreme circumstances or severe conditions, sometimes allowing violation of human rights for example, under such conditions, when unavoidable in order to prevent greater harm, or when characterized as security measures.
This tension between the approach according to which at times of such conditions the law should be silent, and the insistence that even when facing extreme conditions, we should nevertheless maintain the rule of law, at least to a certain degree, is present not only with regard to war-time, but also to other sorts of extreme conditions times such as natural disasters, etc.
During such times, it is often the case that states announce a “state of emergency” which allows them to either apply a whole different set of laws, or to amend the existing laws. For example, article 16 of the French constitution provides for “exceptional powers” (Pouvoirs exceptionnels) to the president in times of acute crisis. In Israel too, the continuation of the emergency regulations is approved every six months since the country’s establishment in 1948, since, according to the state: “There’s a fundamental need for the laws due to the war on terror”.
The research reviews the different political theories facing this question. It first maps the theories, locating them on an imaginary graph at the one end of which stands the view that there should be no changes in the rule of law even under extreme conditions, while at the other end stands the view reflected by the above mentioned Latin phrase. The aim is to conclude with a normative theory of the role which law should play under extreme conditions

Between The Rule of Law and the Law of the Ruler: A political Biography of the Prevention of Terrorism Ordinance

Maya Mark

The first act of terrorism in the history of Israel – the terrorism ordinance , and the way in which the government reacted to it – makes the ordinance, and the legal and political process in which it was created and shaped, an important and interesting case study for the study of the rule of law under extreme conditions. The first stage of the proposed study analyzes the legal, political and historical context in which the terrorism ordinance was legislated. The second stage of the proposed study will reflect on theoretical questions regarding the Rule of Law under terrorism. More specifically, the research discusses the three main issues delineated below: Firstly, the balance between maintaining the rule of law and presenting the government with the necessary tools to deal with terrorism. In the case of the Prevention of Terrorism Ordinance, the state was called upon for the first time to determine how it would cope with acts of terrorism. The dispute over the content of the order raised the fundamental question of the proper balance between the government’s need to obtain all necessary authorities to deal with terror and the democratic principle of the rule of law.

Secondly, The Terrorism Ordinance, as a case study, offers important insight on the boundaries of the rule of law as a legal term. The dispute over the Terrorism Ordinance broke out several months before the first elections for parliament and became a key issue in the elections while generating a public battle between political forces that threw all their weight into the debate. The rule of law represents the crux of the argument over the terrorism ordinance, when both sides of the debate use, and in some cases exploit, the rule of law as an argument and a justification for their viewpoint. In this sense, the rule of law emerges as an elusive concept charged with different meanings and as an ideological standpoint that is subject to interpretation. Thirdly, the research argues that anti-terrorism laws may – in certain cases – serve as a juridical instrument toward a political end, which weakens the rule of law in the pursuit of a political agenda. This political agenda delineates the boundaries of a camp and of a discourse and also, in particular, defines and marks those who are located beyond the borders of the camp and the discourse.

Public Resource Allocation in Socio-Economic Crises: A Trust-Based Perspective on Judicial Review

David Vitale

This research uses the concepts of trust and trustworthiness to develop a novel and valuable perspective on the judicial review by constitutional courts of public resource allocation decisions. It is especially interested in the relevance of such a perspective during/following socio-economic crises like the 2008 Global Financial Crisis.

Social scientists have long stressed the importance of public trust in government to well-functioning democracies. Research has shown that trust encourages public cooperation, affecting the public’s willingness to accept authority decisions, its feelings of obligation to obey laws and its performance evaluations of authority figures. Given the link between trust and public cooperation, many scholars have called for greater attention to be paid by lawyers and lawmakers to the concept of trust. Thus, this research addresses two principal questions: (i) can (and if so, how can) trust be used to analyze public resource allocation disputes?; and (ii) can (and if so, how can) trust be used to define an appropriate role for constitutional courts in such disputes (both in normal financial circumstances as well as during/following socio-economic crises)?

From drones to cyberspace: the evolving concept of warfare and the legal challenges

Anna Evangelidi

This project is motivated by the constant development towards weapon technologies that seek to achieve more and have greater consequences with less and less risk, as manifested in the use of unmanned aerial vehicles (UAVs) or drones and promised by the advancement of increasingly autonomous weapon technology, which represent models of violence that challenge the fundamental legal and ethical premises of the existing law of armed conflict (LOAC). Against this background, this research considers the rise of cyberspace as a more and more prominent means and method of warfare, and the range of cyber activities that pave the way for the increasing militarisation of cyberspace. Concerned about the legal argumentation which tends to concede too much to the dubious promises of advanced and sophisticated weapon technology, and which claims to speak to humanitarian sensitivities, this research suggests that there are still important questions to be asked and answered. With that in mind, it explores the multi-layered structure of the cyber domain and unpacks the essential and unique features of a realm that is at once virtual and real, intangible and physical, and examines what this means for the law conceptually and normatively. In this context, it considers whether the ways of conceptualising and understanding more traditional forms warfare and kinetic hostilities are well-suited to the peculiarities and particularities of cyberspace, and looks at the contribution of the work of expert groups like the Tallinn Manual on International Law applicable to Cyber Warfare in that respect. In the rapidly evolving world of conflict, the research also examines how the adversarial relationship of those found on the opposite ends of cyber activities is shaped both at the collective and the individual level, and how the lines between the military sphere and the civilian lifeworld in cyberspace are re-drawn.