Placing Things in Proportion
“Proportionality” has become a common term, widely used by human rights
organizations, politicians, soldiers and laypersons. But its precise legal
meaning is little understood. NGOs allege that a certain attack was
disproportionate because civilians were killed; military officers retort
that the action was proportional because the enemy fired first. From a legal
standpoint, both claims are inaccurate, and based on irrelevant conceptions
of proportionality. The goal of this paper is not to justify or discredit
the use of proportionality, but rather to clarify its parameters, and
identify the problems confronting attempts to apply it, especially in the
context of military operations. The main claim in this paper is the
following: Proportionality cannot be analyzed as a legal term disconnected
from the institutions that apply it. Proportionality may be understood only
in the context of its application by the courts. This paper was presented at
the conference Sixty Years Since the Adoption of the Universal Declaration
of Human Rights and Genocide Convention: Evaluating the Record, at Bar Ilan
University on December 10, 2008.
Gaza Fact-Finding Mission: Responses to the Goldstone Report
On September 15, 2009, the Gaza Fact-Finding Mission, headed by Justice Goldstone, released a 575-page report in which it analyzed the military actions during Operation Cast Lead, also known as the Israel-Gaza war of December-January 2008-2009. The report has been criticized as being one-sided, out of context, and unprofessional. Presented here are studies which address both the report and Israeli actions in Gaza. In addition, critical, introspective editorials and selected news articles are offered.
Israel’s Blockade Stands the Test of International Law
What does international law have to say about blockades against rogue enterprises?
Precision-Guided or Indiscriminate?
Why Are the Palestinians Opposed to Ending the Occupation?
Foreign Minister Lieberman’s plan to assist the Gaza Strip in becoming an independent entity has encountered wall-to-wall Palestinian opposition. The dual-headed Palestinian regime in Ramallah (Fatah) and in the Gaza Strip (Hamas) totally rejects Lieberman’s proposal to recruit the European Union to build power stations to supply electricity, desalination stations and a sewage treatment plant. […]
Analysis: The Blockade on Gaza
Israel, as a democratic State, looks for legal tools to curb such smuggling and respond to Hamas’ terrorist attacks against its citizens. One of the tools available under international law is the maritime blockade. Israel, finding itself in a state of armed conflict with Hamas, has opted to employ this legal measure.
Reasons Not to Join the International Criminal Court in The Hague
There has been talk recently about the possibility of Israel joining the International Criminal Court in The Hague. Unfortunately taking such a step could harm Israel more than benefit it.
Soldiers’ Testimonies to “Breaking the Silence”:
Was It Really Like This?
The public debate about anonymous soldiers’ testimonies to the Breaking the Silence (Shovrim Shtika) organization shows how rarely those testimonies were read in full. The testimonies indicate a state of preparedness for warfare which is different from the ongoing security situation in the territories as part of the Second Lebanese War; they bear witness to the IDF fighting ethic and also include claims (as distinct from hearsay) of a suspected breach of the laws of armed conflict in a number of isolated, localized events which did not originate from orders issued by senior command ranks, and which require in-depth investigation by the IDF.
Opening Remarks
Piracy and International Law
For centuries, aggressive international enforcement, facilitated by a legal regime that was the model of international cooperation, has been key to suppressing piracy on the high seas. Today, as a long-simmering piracy problem boils over off the Horn of Africa, nations have begged off from enforcing the law against this group of international criminals that threatens to bring much of international shipping to a standstill. The global shirking of prosecutorial responsibility is particularly hard to square with the eagerness with which the same countries have sought to prosecute much more complex and politically sensitive offenses. Coming at a time when increasingly bold claims have been made about international law’s ability to resolve massive problems like genocide and decades-long ethnic conflict, its incapacity to deal with the international equivalent of ordinary street crime.
International Responses to Territorial Conquest
While territorial conquest has been relatively infrequent in the post-World War II period, most conquests have not been condemned by the international community. Indeed, open acceptance is as common as condemnation. The small likelihood of international opposition to conquest suggests that the relatively low incidence of conquest should be attributed to causes other than the non-recognition norm. This does not mean that the anti-conquest norm has no force or “compliance pull,” but it does suggest that condemnation and nonrecognition are not likely play a significant role in decisions about whether to conquer.
Double Jeopardy and Multiple Sovereigns: A Jurisdictional Theory
This Article offers a coherent way of thinking about double jeopardy rules among sovereigns. Its theory has strong explanatory power for current double jeopardy law and practice in both U.S. federal and international legal systems, recommends adjustments to double jeopardy doctrine in both systems, and shar pens normative assessment of that doctrine.
Courting Genocide: The Unintended Effects of Humanitarian Intervention
Invoking memories and imagery from the Holocaust and other German atrocities during World War II, many contemporary commentators and politicians believe that the international community has an affirmative obligation to deter and incapacitate perpetrators of humanitarian atrocities.
The ‘Define and Punish’ Clause and Universal Jurisdiction: Recovering the Lost Limits
The article explores the constitutionality (under the U.S. Constitution) of U.S. exercises of universal jurisdiction. The article finds that Article I of the constitution limits American exercises of universal jurisdiction, and calls into question many attempts at universal jurisdiction, including many uses of the Alien Tort Statute.
