The article aims to further the understanding of the current constitutional crisis in Israel through the lens of political polarisation. Israel, like other countries around the world, is experiencing a substantial increase in political polarisation. Recent data shows that since 2009 affective polarisation (the extent to which individuals have negative feelings towards members of the opposing party or group and positive feelings towards their own party or group) has risen by 180 per cent. The article discusses the various phenomena associated with an increase in polarisation and the problems it raises, traces the reasons for the increase in polarisation in Israel, and argues that polarisation has played an important role in creating the conflict between the current government and the Supreme Court, and in making it so intense and intractable.

In the last year Israel has been going through its most severe constitutional crisis in its history. The newly elected right-wing government has initiated a judicial overhaul that would limit the authority of the judiciary and grant the executive almost absolute powers. In response, the country has witnessed unprecedented civil protestations and opposition from nearly all segments of civil society, academia and economic sectors. In this article we argue that the judicial overhaul must be analysed as a populist constitutional project. We also explain that compared with other systems, Israeli democracy is especially vulnerable to populism, because of its unique institutional design factors coupled with social factors. Only with understanding these factors can one grasp the risks that the judicial overhaul poses to Israeli democracy.

The protests against the Israeli government's proposed constitutional changes, which started in January 2023, have escalated into overall social upheaval. Protestors, politicians and academics have claimed that the existing ‘social contract’ has been violated, that Israel needs a ‘new contract’, and that such ‘new contract’ should be enacted through a constitution. This article argues that while the calls for the enactment of a constitution are understandable, Israel's current form of control of the West Bank and its commitment to the settlement project hinders the political feasibility of the enactment of a constitution. Those calling for a constitution for Israel perceive it as a solution to the indeterminacy and ambiguity that plague the Israeli constitutional framework. However, Israel's current form of control of the West Bank depends on ambiguity, on the existence of legal grey areas, and on fragmentation of the normative framework. The resolution of these is thus inconsistent with the maintenance of this form of control.

How should the constitutional reform in Israel be assessed in comparative terms? Comparative constitutional understandings point to the centrality of three key sets of norms as part of the ‘democratic minimum core’: (i) commitments to free and fair, regular multi-party elections; (ii) political rights and freedoms; and (iii) a system of institutional checks and balances necessary to maintain (i) and (ii). Any change in judicial power and independence must be assessed against the benchmark of the democratic minimum core, and by reference to its cumulative practical effect on a system of institutional checks and balances.

We claim that recent changes in Israel may already threaten these institutional checks, and have the potential to do more damage in the future, if given broad effect and if combined with further changes in the power and independence of the Supreme Court. On this basis, we suggest, the relevant changes should be viewed as either ‘abusive’ or ‘proto-abusive’ in nature. By threatening to undermine both the power and independence of the Supreme Court of Israel, they directly threaten the health of the constitutional checks and balances system and, hence, the ‘democratic minimum core’ in Israel.

A central element in the Israeli government's agenda to overhaul the judiciary, unveiled in January 2023, is its proposal to give it and its parliamentary coalition control over the selection and promotion of judges. This article shows that this proposal is an attempt to capture the courts. To illustrate this, the article looks at the government's proposal through three different perspectives: first, the perspective of the rationale of the current system of judicial selection, against the background of court governance in Israel and its constitutional system; second, the perspective of changes in Israel's judicial selection system over the past two decades; third, the comparative perspective of trends in judicial selection in other democracies.

There are many ways in which to examine the current Israeli constitutional crisis. This article uses the lens of anti-corruption, a global movement which has changed politics in many countries. The long empowerment of the legal system in Israel arguably has its origins in policing corruption, which may be a particularly powerful motivator for the current governing coalition's efforts to assert more control over the Supreme Court. The dynamics of anti-corruption in Israel are somewhat distinct from those of other countries in ways that may bode well for the Court in its confrontation with the government.

The Knesset has recently amended Basic Law: The Judiciary to eliminate the ability of the courts to issue an injunction against the government or any of its ministers based on the reasonableness of their decisions. This article examines this amendment from various angles. The first section posits the amendment as part of a larger plan of the coalition to eliminate judicial review and provide the government with unlimited power. The second section emphasises that the amendment was legislated by the Knesset for itself, raising concern over a conflict of interest. This is followed by a brief explanation of the reasonableness standard in Israeli law, and an assessment of the duty to act reasonably, which stems from the democratic principle of the rule of law. The next two sections assess the many risks that the amendment creates, such as the types of decision that could be made without adhering to a standard of reasonableness, and the trimming of the power of the Attorney General as a legal ‘gatekeeper’. Special emphasis is given to the dangers that the amendment holds for the quality and diversity of the civil service. Finally, the article discusses the multiple reasons why the government should not be immune from a reasonableness check and tackles the arguments against the use of the standard of reasonableness by the courts.

This multifaceted analysis leads to the conclusion that the elimination of the reasonableness standard undermines basic features of democracy and fractures the social contract between the citizens and the government. Therefore, it should not be immune from judicial review.

The current political landscape in Israel, with countrywide demonstrations occurring weekly, and citizens calling for democracy in the face of initiatives introduced by the coalition, may be regarded as transformative events with potential constitutional implications. This article explores the question of whether Israel is experiencing a ‘constitutional moment’ and what such a moment entails, taking into account the intricate social, legal and political reality of the country. I argue that the current events should be examined and analysed within a broader context of processes that have been occurring in the Israeli society and legal system over the past two decades. These processes may hinder or create challenges for the realisation of a constitutional moment, rather than facilitating progress towards that goal. Correspondingly, the article lays the basic foundations for the occurrence of an Israeli constitutional moment, which I refer to as ‘constitutionalising Israel's constitutional system’.

This article examines the necessity for constitutional adjudication in a democracy. Democracy is not the government of the minority by the majority, but self-government of the people in a pluralist society. The article regards constitutional adjudication as a necessary component of a constitutional democracy to preserve self-government and individual rights as a pre-condition for the acceptance of majority decisions by the minority. Thus, constitutional adjudication is needed to uphold the possibility of democratic change and to protect individual rights also against the majority. Recent critique of individual decisions does not change this basic insight and practice of constitutional democracies.

This article addresses the concept of ‘constitutional moment’ in contemporary Israel, where an illiberal constitutionalisation process is in progress, and in Hungary, where the illiberal constitutional system has been in place since 2010. After discussing the judicial overhaul of the current Israeli government and the widespread protest movement against it, the article raises the question of whether the moment to adopt a written constitution has arrived. In Hungary, where a semi-electoral autocratic constitutional regime has been entrenched, the question is what are the perspectives on a return to a liberal democratic constitution.

The ‘constitutional reform’ planned by the government that assumed power in Israel in December 2022 is not an end in itself. Its aim is to provide the basis for planned policies and actions of the government that are incompatible with Israel's present constitutional order, and that are unlikely to stand up to judicial review before the present judges of the Supreme Court. This article discusses the connection between various parts of the reform and the plans to make a radical change in Israel's policies in the occupied West Bank. It examines the coalition agreement between PM Netanyahu's Likud party and the Religious Zionist Party, and exposes the connection between the commitment in that agreement to the policies regarding the occupation and the planned ‘reform’.

The commission of large-scale international crimes (namely, crimes against humanity, war crimes, and genocide) could result in populations fleeing from their homes, seeking protection. There is an increasing number of victims of these crimes who have been forcibly displaced and currently live in settlements widely known as refugee camps. Victims of international crimes have the right to receive reparations for the harm they have suffered. This means that international criminal tribunals, particularly the International Criminal Court, will have to consider reparations for victims in refugee camps in the near future when the victims seek to enforce their right to reparations. To date, the delivery of reparations in these contexts has not been analysed adequately in the academic literature; this is the gap that this article aims to discuss. The article explores the extent to which it is suitable and feasible to deliver reparations in refugee camps. One of the main arguments is that living in a refugee camp could compound the crime-related harm already sustained by victims. This feature, along with the instability of the situation of victims and the infrastructure of the camp, constitute key characteristics of refugee camps and should each be taken into consideration in delivering reparations. As this article suggests, the instability of the victims’ situation will inform which modalities of reparations are suitable to be delivered in the context of a refugee camp. Subsequently, the compounded harm and the camp's infrastructure will inform which particular reparative measures, corresponding to each modality, will be suitable and feasible – respectively – to be delivered. The methodology includes desk-based and qualitative research and analysis of primary and secondary sources and case studies.

The article seeks to raise awareness about the non-application of the norms of international humanitarian law (IHL) of international armed conflicts in situations of so-called internationalised armed conflicts – namely, when a non-state armed group (NSAG) that is engaged in an armed conflict against the territorial state enjoys a degree of support from another state. Debates in academic circles and international case law have focused largely on the appropriate test and threshold for establishing the relationship between the NSAG and the supporting state. Practice, however, shows that regardless of the legal test, the foreign state support to the NSAG in a (or an initially) non-international armed conflict is so politically charged that it leads to a complete non-application of the law of international armed conflict by the relevant actors. The article demonstrates its conceptual findings through four case studies: the armed conflicts in Donbas, Nagorno-Karabakh, Democratic Republic of the Congo, and Yemen. Regardless of strong indications of foreign state support to the NSAG in these armed conflicts, no relevant actors applied the IHL norms of international armed conflict. The article provides broader suggestions on the possible avenues for remedying the issue.

After being kidnapped by the FARC-EP guerrilla group in 1994, the Colombian war reporter Herbin Hoyos created the radio show Las Voces del Secuestro (roughly, The Kidnapped Voices). Every morning, for 24 years, the families of those abducted by the guerrilla group sent out public messages of remembrance, hoping that their loved ones, deep in the jungles of Colombia, would be able to hear the broadcasts on their radios. Although the show closed in 2018, its legacy lives on, not only in the collective memory of many Colombians but also as an exhibition at the International Red Cross and Red Crescent Museum in Geneva (Switzerland). This article examines this show as a dispositif of power and knowledge that (re)produces a particular understanding of law, justice and memory. The show was used by far-right actors in Colombia to mobilise against the recent (2016) peace process – its crown jewel, the Special Jurisdiction for Peace (JEP). As the JEP tackles the question of the FARC-EP kidnapping through its macro-case 01, the shadow of the Voces looms large over Colombia's transitional justice system. In the longest non-international armed conflict in Latin America, even radio waves served the continuation of war by other means.

In 2023 the 1998 Belfast/Good Friday Agreement marks its twenty-fifth anniversary. For many the Agreement projects a global image of a successfully concluded end to conflict. However, key aspects of the agreement remain under-enforced or simply undelivered: in particular, provisions related to significant and wide-ranging guarantees addressing human rights and equality of opportunity. As a result, socio-economic and cultural deficits persist, undermining the capacity to achieve a ‘positive peace’. In this article we address the question of how transformative the Agreement and associated reforms have been in addressing the root causes of the conflict and the structures that underpinned it. In doing so, we deploy Clara Sandoval's typology of different forms of societal change – ‘ordinary’, ‘structural’ and ‘fundamental’ – to guide our thinking and analysis, and tackle the most fundamental of questions in peace agreement literature and practice: whether, in fact, peace agreements can undo the fundamental causes that trigger and sustain violence. The article outlines the transformative promise of the Agreement, the multiple interlocking factors that have undermined that promise and the role of civil society in sustaining that transformative potential. Our conclusions point to a more nuanced understanding of what constitutes the ‘ordinary’ in transitional settings and a caution against the hyperbole of the transformative. We view transformative change as slothlike in its emergence, specifically grounded in progressive and cumulative re-orderings that can accompany peace processes. Rather than a moment of radical change, transformation follows from the cumulative impact of symbolic gesture, specific legal provision, procedural practice, mechanisms of accountability, and an engaged and vibrant civil society.

This article contributes to the understanding of why states resort to targeted, or smart, sanctions to meet the threat of cyber intrusions and whether this type of response is a forced measure or an effective tool to halt, prevent and punish attacking states. The tools of analysis used in the article are legal positivism and political theories, including Mancur Olson's theory of groups and Francesco Giumelli's analytical framework for assessment of sanctions. The authors address the effectiveness of sanctions as a reaction to cyber-enabled activities through the lens of regulation introduced in the United States, the European Union and the United Kingdom, which are the most developed counter-cyber sanction regimes, analysing publicly known cases of cyber-related sanctions.

An expert panel formed by Stop Ecocide International has proposed an amendment to the Rome Statute of the International Criminal Court which, if adopted, would create a new international crime of ecocide. However, the panel's proposal is compromised throughout by anthropocentrism in the sense that it places too much emphasis on the needs of humans and not enough on the needs of the environment. It is argued here that this anthropocentric dilution of ecocide resulted from the panel's lack of standing, influence and confidence on the international stage. Its weakness pushed it towards a strategy of producing something palatable to states in the hope of securing their support. That strategy will prove futile. The article considers whether other actors, such as the international courts or experts working in different contexts, might be better placed to design the blueprint for ecocide. It concludes, tentatively, that the International Law Commission remains the architect best positioned to set out a bold vision of ecocide.