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| Home Page / Publications / Israel Law Review / Volume 43(3) |
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VOLUME 43(3)
Michele Manspeizer
David Nelken
This Article discusses the Palermo Protocol to Prevent, Suppress and Punish Trafficking in Persons. In the first part it offers a critical discussion of what is entailed by speaking of a “shortfall” of enforcement in dealing with the social problem of human trafficking. It then goes on to show that there are two competing narratives of this problem and of the way it is being responded to, and explains why we need to learn more about the interests and values that condition the “law in action.” In the last section the Article discusses the potential relevance of the idea of the “legal culture” for explaining the patterns of “law in action” in different countries and different agencies. The Article’s overall aim is to show the existence of a link between the manner in which the problem of trafficking is socially defined in practice, and the role of legal culture in shaping this link.
Guy Harpaz & Yuval Shany
On December 29, 2009, the Israeli Supreme Court, sitting as the High Court of Justice, delivered its judgment in Abu Safiya v. The Minister of Defense, annulling an order issued by an Israeli Military Commander, which completely barred Palestinians from travelling on Route 443, a major road in the West Bank. This note criticizes the Abu Safiya judgment as indicative, notwithstanding its specific outcome, of the Supreme Court’s ongoing willingness to expand the ratione materiaeand ratione personaeof occupation law and to allow the military authorities to protect the interests of Israelis in the West Bank, even at the expense of the stronger rights conferred upon the local Palestinian population by the lex specialis—the laws of belligerent occupation. Matthew Zagor
The language of morality and legality infuses every aspect of the Middle East conflict. From repeated assertions by officials that Israel has “the most moral army in the world” to justifications for specific military tactics and operations by reference to self-defense and proportionality, the public rhetoric is one of legal right and moral obligation. Less often heard are the voices of those on the ground whose daily experience is lived within the legal quagmire portrayed by their leaders in such uncompromising terms. This Article explores the opaque normative boundaries surrounding the actions of a specific group within the Israeli military, soldiers returning from duty in Hebron in the Occupied Palestinian Territories. By examining interviews with these soldiers by an Israeli NGO, it identifies different narratives of legality and illegality which inform their conduct, contrasting their failure to adhere to conventional legal discourses with the broader “legalization” of military activities. Seeking an explanation for this disjunction, it explores the ways in which the soldiers’ stories nonetheless reflect attempts to negotiate various normative and legal realities. It places these within the legal landscape of the Occupied Palestinian Territories which has been normatively re-imagined by various forces in Israeli society, from the judicially-endorsed discourse of deterrence manifested in the day-today practices of brutality, intimidation and “demonstrating power,” to the growing influence of nationalist-religious interpretations of self-defense and the misuse of post-modernist theory by the military establishment to “smooth out” the moral and legal urban architectures of occupation. The Article concludes by considering the hope for change evident in the very act of soldiers telling ethically-oriented stories about their selves, and in the existence of a movement willing to provide the space for such reflections in an attempt to confront Israeli society with the day-to-day experiences of the soldier in the Occupied Palestinian Territories. Haim Sandberg
A fairly common premise in academic research about Israel is that the State of Israel has expropriated large tracts of land from Arabs, whether citizens or Palestinian refugees. This premise does not distinguish between the taking of property, which was expropriated from Arab refugees during the War of Independence, and the expropriation of land during the State’s “regular course of business.” Blurring the distinction between land belonging to refugees and land belonging to citizens creates the impression that the State of Israel has expropriated large tracts of land as a regular “course of business.” This research isolates and clarifies the extent of “regular” expropriations on the national level according to the Lands (Acquisition for Public Purposes) Ordinance 1943— the main and permanent tool for large scale expropriations in Israel. It shows that the common premise about expropriation of Arab citizens’ land is highly exaggerated. The Arab population’s share in the burden of expropriation was fairly small in absolute terms and is not significantly greater than the Jewish population’s share.
While a quantitative analysis of the expropriations cannot in itself produce a conclusion about harmful and unjustified influences of the expropriations on Arab citizens, a quantitative analysis of each expropriation may produce information on which to make such a conclusion. Moreover, arguing against all expropriation of lands—which actually results in the transfer of resources from Arabs to Jews, irrespective of its scope and circumstances—may entail an a priori negation of Israel’s right to use land resources and police powers to answer real public needs of the Jewish majority and can entail an a priori negation of the nature of Israel as a Jewish and democratic State—rather than a legitimate criticism on the merits of each expropriation. Claudia Morini
This Article focuses on the approach of the European Court of Human Rights, based in Strasbourg, concerning the relationship between secularism and freedom of religion and the application of the “margin of appreciation doctrine.” Through the investigation of the relevant jurisprudence of the Court dealing with religious freedom and the principle of secularism (the Şahin, Dahlab, and Lautsicases), the Author demonstrates that Court jurisprudence is moving from the application of principles of “pluralist secularism” toward a “fundamentalist approach” to secularism. Having evaluated the modus operandi of the Court in the light of the competing interests at stake, the Author suggests that in deciding cases where secularism and freedom to manifest religion collide, the Court should follow a case-by-case approach primarily aimed at protecting individual liberties and has to consider the political and cultural background of each situation and the effective impact on the State’s life of the individual behavior. Yüksel Sezgin
Israel still maintains the personal status system (millet) that it inherited from the Ottoman Empire under which the courts of fourteen ethno-religious communities are granted exclusive jurisdiction over matters of marriage and divorce and concurrent jurisdiction with the civil courts in regard to such matters as maintenance and inheritance. But, why Israel, as a highly centralized and democratic polity, has maintained the old millet system which applies different laws to people from different ethno-religious backgrounds and holds men and women to different legal standards? And, how has such a plural application of law affected fundamental rights and freedoms of Israeli citizens? In brief, the Article argues that Israel utilized the old millet system in the nation-building process as an instrument of vertical segmentation and horizontal homogenization. However, the system has encountered with some serious challenges in producing its intended goals. This becomes particularly visible when we take a closer look at the field of human rights where individuals constantly challenge the legitimacy of State imposed religious laws, and seek to advance rights and liberties which are denied to them under the current system by engaging in various strategies of resistance.
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