Medical recourse to organ transplants and the transfer of other material from the body of one person to that of another has increased steadily over the past few decades. This raises new legal questions, and brings once-thought purely academic questions to the forefront.

Organs and other material used for transplants can either be taken from a living person (for example, bone marrow, sperm, or blood); or from a corpse, as is the case with most transplants. Certain material, in particular kidneys, can be taken from both. In Israeli law, this duality in the sources of supply is paralleled by different sources of regulation. With respect to a corpse, the Anatomy and Pathology Law attempts to solve the main problems from a practical point of view. On the other hand, the Israeli legislator has as yet to intervene with respect to the living body.

The most remarkable feature of Scots criminal law is that it is still a common law system. It contains, of course, many statutory offences, mostly recent and concerned with the regulation of modern developments such as road traffic or wireless telegraphy. There are also a large number of statutory frauds, dealing with all kinds of things, such as companies, bankruptcies, the regulation of professions, etc., but many of those are unnecessary, in the sense that the behaviour they prohibit can be dealt with as common law fraud, which covers the achievement of any practical result. There are also some modern preventive crimes created by statute, such as carrying offensive weapons in public, but other preventive offences, such as housebreaking with intent to steal, were created by the common law. There are very few of what might be regarded as basic crimes which are statutory. The most striking example is the crime of incest which, until recently, was dealt with under the Incest Act of 1567, passed by the Scottish Parliament in the wake of the Reformation. The Incest Act incorporated the 18th chapter of Leviticus into the law of Scotland, and with some amendments, it remained the law until the passing of the Incest and Related Offences (Scotland) Act 1986. But that was an oddity, and there is some authority that parent-child incest is a common law crime. The basic crimes, such as those concerned with injuring the person or property of others, are essentially matters regulated by the common law, the creations of judges, without any statutory definitions, and all with the same maximum penalty of life imprisonment.

1. The connection between the proprietary nature of a right and its transferability was discussed at length in my article, “Some Fundamental Concepts of Property Law: A Critical Survey”. The view expressed there was criticised by Prof. Tedeschi in two articles: the first, “On the Right of Preemption in Land”, and the second — “Property and Transferability — Ownership of Organs Taken from a Living Person”. The latter included criticism of certain things I had written in my article, “Organs as Assets”, in relation to the connection between an object constituting an “asset” and it being “transferable”.

According to my approach, transferability is a central feature of a property right, and of the nature of a thing as an “asset”. Prof. Tedeschi, however, believes otherwise.

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.

In this article, I will consider several of the general questions raised by the rule that has long guided Israeli courts when faced with a claim of irresistible desire. The claim can be portrayed thus: “Indeed, the defendant perpetrated the act constituting the offence, and did so consciously (as distinct from certain situations of automatism), while aware of the nature of his conduct and knowing that his conduct was unlawful (as opposed to instances of mistake of fact or law). However, although there was no justification for his conduct (as distinct from certain situations of necessity), he has an excuse in that the conduct was the result of a desire he was unable to resist”.

This claim may be employed as a defence intended to show that the defendant is not morally culpable for his conduct. But, in this article, I shall consider the claim of irresistible desire as a defence intended to exempt the defendant from criminal responsibility. The two are not necessarily related. Criminal responsibility — as opposed to moral culpability — is a function of law. And what the law establishes in one country may differ from what it establishes in another.

Is it possible to view human organs as assets that can be given as “the subject of a gift”? The view most widely accepted in the legal literature is that a dispositionary act in relation to our body cannot constitute the object of a binding contract, if the execution of the contract could endanger the life of the person (i.e. the person making the disposition) or constitute a risk to his physical well-being. In such a case, the contract would contradict the general principles of law and morality.

It is an accepted legal principle that a person may make a commitment to give hair, to nurse a child or to donate blood. In a contract for consideration, the validity of the obligation must be determined, but stipulating specific performance is prohibited, thus the only remedy can be the awarding of damages. The law in Israel is clear that the giver of a gift can retract his promise up until the moment of giving, and if the intended recipient of the promised organ is detrimentally affected, the reluctant giver will be liable, at most, to compensate the frustrated recipient.

Two decisions were rendered recently by Israeli courts of lower instances which concern the field of diplomatic immunities. The first, delivered by the Magistrate Court in Petah Tikwa, deals with the inviolability of diplomatic premises and with the waiver thereof; and the second, by the District Court in Jerusalem, refers to the question of state immunity from attachment and execution, and seems to constitute a clear diversion from the accepted international norms and rules on this issue. Both decisions, rendered in the matter of the residence of the Ambassador of Côte d'Ivoire to Israel, will be examined separately, following the factual background relevant to each.

The question of the inviolability of diplomatic premises, as well as that of a diplomat's immunity from jurisdiction, is a separate issue from that of state immunity. The first considers the treatment given to diplomats in foreign countries, and is codified in the 1961 Vienna Convention on Diplomatic Relations (the “Convention”), while the latter consists only of customary international law, and deals with the concepts of acts of state and the immunity of sovereign states from jurisdiction by the courts of another state. In the following survey we will show that in some instances, the two issues have been confused and conclusions drawn from one to the other without consideration of the differences between the two.

The derivative forms of criminal liability — attempt and complicity — are the subject of a vast literature, yet there has not been a systematic, comprehensive examination of the preparatory offences in legislation, case law, or even in scholarly writings. One can hardly even find a satisfactory definition of such offences. Therefore, our first task will be an attempt to provide one, because absent a definition, we will not be able to proceed toward a solution to problems that are of no insignificant practical importance.

First among these problems is the question of the appropriate legislative policy to be followed in deciding when and in what areas to create preparatory offences. Second comes the question of whether it is appropriate to “derive” offences of attempt and complicity from preparatory offences, or, in other words, is it possible to speak of attempting a preparatory offence or being an accomplice to it. Third, should we make recourse to the principles applicable to criminal attempt in construing preparatory offences?

1. Any doctrine or theory of criminal attempts must address a number of basic questions:

At what point does an attempt begin? What is merely preparing a deed, and what is beginning to perform the deed?

What kind of mens rea is required? Is intention required, or is mere belief concerning the outcome sufficient?

Is the attempt basically constituted by the mental (fault) element or the physical (conduct) element of the deed? Should attempts to do the impossible be criminalized?

Should the punishment be the same for an attempt and a completed (consummated) crime, or should the punishment be less severe for an attempt?

I suggest that the first two questions are different from the last two. The answer to the first two questions seems to be a matter of criminal policy and conceptual convenience. The solutions adopted in different jurisdictions depend considerably on the context, the design of the criminal law system, and on how wide the legislator wants to cast the protective net of threat of punishment.

Some twenty years ago my imaginary character the “psychotic aggressor” made his debut in the pages of the Israel Law Review. Of all the hypothetical cases I have devised over the years, the story of the psychotic aggressor in the elevator, attacking someone who must defend herself, has become one of the most vigorous and long-lasting. This unlikely case has proven to be a useful medium for understanding the difference between claims of justification and claims of excuse in structuring criminal liability. Everyone assumes that the person attacked should be able to defend herself; the problem is whether the defense is right and proper (justified) or whether it is simply the human response and therefore free from blame (excused). This classification has implications, in turn, for whether third parties may come to the aid of the person attacked and whether the psychotic aggressor, in turn, has a right to defend himself against efforts to kill him. These issues have given rise to considerable debate over the last two decades, and much of it can be traced to the conundrum whether resisting a psychotic but purposeful aggressor should be treated as right in itself or, alternatively, wrong but free from blame.

Since 1946, the United Nations efforts to codify international crimes and to establish an international criminal court have overlapped, with scant results from either endeavor.

The Assembly began its efforts to codify international crimes in its first session when the United States sponsored resolution 95 (I), adopted on December 11, 1946, which affirmed “the principles of international law recognized by the Charter of the Nuremberg Tribunal and the judgment of the Tribunal”. Furthermore, the Assembly directed the Committee on the Codification of International Law, the International Law Commission's predecessor, to formulate a general codification of offenses against the peace and security of mankind.

In 1947, the United Nations established the International Law Commission (ILC). In a resolution again sponsored by the United States the United Nations directed the ILC to:

(a) formulate the principles of international law recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, and

(b) prepare a draft code of offenses against the peace and security of mankind, indicating clearly the place to be accorded to the principles mentioned in sub-paragraph (a) above.

This paper is concerned with the alternative obligation to extradite or prosecute contained in multilateral treaties requiring suppression of “international offenses”. Such an obligation appears, for instance, in Article 7 of the Hague Convention for the Suppression of Unlawful Seizure of Aircraft of 1970, and in provisions of other anti-terrorism treaties modelled on the Hague Convention. The first part of this paper considers the extent to which the principle underlying Article 7 of the Hague Convention has been incorporated into multilateral treaties; the second part, the question of the extent to which that principle can be regarded as a norm of customary international law generally applicable to “international offenses” even apart from the specific treaties in which it is embodied.

Broadly defined, “international offenses” are offenses on the part of individuals which states have an obligation, usually under a multilateral treaty, to proscribe or prosecute. Such offenses more or less coincide with those which Professor Feller designates as delicta juris gentium (although he further assumes that all such offenses permit the exercise of “universal jurisdiction”).