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.

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.

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 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.

The use of force in foreign territories has been contained in the Constitution of the Republic of Turkey, with the authorisation of the Grand National Assembly of Turkey, in ‘cases deemed legitimate by international law’ and where required by international treaties to which Turkey is a party. Yet Turkey's extraterritorial use of force against armed non-state actors lead to the most important question of identifying the circumstances under which the Turkish authorities have long justified military intervention in foreign territories. This article aims to assess whether Turkey's use of force and alleged extraterritorial self-defence contravenes international law. In order to address how Turkey interprets the right to use armed force and the right of self-defence, and to bring clarity to the state's approach to international law on the use of force (jus ad bellum), the article explores Turkey's practice based on the assessment of the Turkish military intervention in Syria, in line with both bilateral security or defence treaties to which Turkey is a party and the use of force in self-defence. The aim is to determine whether Turkey's justifications are compatible with the jus ad bellum criteria.

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.

This article focuses on the application of autonomous weapons (AWs) in defensive systems and, consequently, assesses the conditions of the legality of employing such weapons from the perspective of the right to self-defence. How far may humans exert control over AWs? Are there any legal constraints in using AWs for the purpose of self-defence? How does their use fit into the traditional criteria of self-defence? The article claims that there are no legal grounds to exclude AWs in advance from being employed to exercise the right to self-defence. In general, the legality of their use depends on how they were pre-programmed by humans and whether they were activated under proper circumstances. The article is divided into three parts. The first discusses how human control over AWs affects the legality of their use. Secondly, the article analyses the criteria of necessity and proportionality during the exercise of the right to self-defence in the context of the employment of AWs. Finally, the use of AWs for anticipatory, pre-emptive or preventive self-defence is investigated.

Military artificial intelligence (AI)-enabled technology might still be in the relatively fledgling stages but the debate on how to regulate its use is already in full swing. Much of the discussion revolves around autonomous weapons systems (AWS) and the ‘responsibility gap’ they would ostensibly produce. This contribution argues that while some military AI technologies may indeed cause a range of conceptual hurdles in the realm of individual responsibility, they do not raise any unique issues under the law of state responsibility. The following analysis considers the latter regime and maps out crucial junctions in applying it to potential violations of the cornerstone of international humanitarian law (IHL) – the principle of distinction – resulting from the use of AI-enabled military technologies. It reveals that any challenges in ascribing responsibility in cases involving AWS would not be caused by the incorporation of AI, but stem from pre-existing systemic shortcomings of IHL and the unclear reverberations of mistakes thereunder. The article reiterates that state responsibility for the effects of AWS deployment is always retained through the commander's ultimate responsibility to authorise weapon deployment in accordance with IHL. It is proposed, however, that should the so-called fully autonomous weapon systems – that is, machine learning-based lethal systems that are capable of changing their own rules of operation beyond a predetermined framework – ever be fielded, it might be fairer to attribute their conduct to the fielding state, by conceptualising them as state agents, and treat them akin to state organs.

Traditionally, international human rights adjudication relied on the paradigm of extraterritoriality on the rare occasions when it was confronted with cross-border cases. This paradigm recognises only limited circumstances in which states bear extraterritorial human rights obligations. However, with globalisation, transboundary human rights cases have multiplied. This emerging litigation increasingly reveals that the paradigm of extraterritoriality is no longer fit to address global crises. Extraterritoriality demands effective control over a territory, or authority and control over a person, for a state to exercise jurisdiction outside its territory. Thus, several cases of cross-border human rights abuses are inevitably barred on jurisdictional grounds. This is particularly true for obligations of a global character, which are, by their very nature, completely unrelated to the control that states exercise over territories or people. It is therefore necessary to look beyond extraterritoriality. This article analyses the competing paradigms of universality and transnationality as they have been adopted by domestic courts. It argues that international human rights adjudication should reconceptualise extraterritoriality against the background of universality and transnationality to address global crises.

This article tackles the question of the legality of section 5B of the Civil Wrongs (Liability of the State) Law, which precludes the Palestinian residents of the Gaza Strip, members of terrorist organisations and their agents from obtaining compensation for injuries suffered as a result of the negligent conduct of Israeli security forces. The question is examined through the lens of Israel's tort law, comparative law, the law of occupation, and international human rights law.

A special focus is given to the amendments made in the said section and its interpretation by Israeli courts, while addressing the state's tort liability towards nationals of enemy states and members of terrorist organisations. In order to emphasise the legal difficulties arising from the Law and the need for its re-examination, the 2018 protests near the Israel-Gaza border are used as a case study. The article concludes by offering to revoke the legal identification as enemy state nationals of Gaza's residents for the purposes of applying state liability in tort. In addition, it recommends the adoption of an individual examination mechanism in relation to members of terrorist organisations. These suggestions are expected to better fulfil the purposes underlying the state's tort liability exemptions, while increasing Israel's compliance with its legal obligations.

To Professor Martin Shapiro, With friendship, gratitude, and admiration

The ruling of 22 October 2020 concerning termination of pregnancy in Case K 1/20, handed down by the body once known as the Polish Constitutional Court, has devastated the legal and social landscape in Poland. The decision ruled as unconstitutional the provision that allowed medically assisted termination in cases where prenatal screening or other medical considerations indicated a high probability of a severe and irreversible abnormality or an incurable disease of the fetus. This analysis argues that the ruling is the most serious attempt to discredit and humiliate the Polish Constitution of 1997, and stands as the ultimate proof of weaponising judicial review. The argument will be made that if one wishes to understand the extent of the capture of independent institutions by the ruling majority, the ruling under consideration must be read and considered in the light of a more general context. Only by going beyond and contextualising it, can one grasp the extent to which the constitutional profile of a state has been altered by methods of unconstitutional capture. The analysis argues that once we contextualise the ruling and view it in a more systemic light, there are important systemic signposts that will help to explain how we arrived here and, more importantly, what is next. These signposts, in turn, contain a cautionary tale of the institutional fragility that is relevant for liberal democracies.

Families often have particular vulnerabilities following armed conflict. As international humanitarian law focuses primarily on regulating the conduct of hostilities, its scope for addressing the vulnerability of families and other victims of armed conflict is, at present, conceptually and practically limited. A human security approach invites consideration of the shortcomings of existing legal frameworks in addressing vulnerability, and the development of such frameworks, in a manner that helps to build resilience and address threats. For families harmed during armed conflict, this means identifying features of the existing legal regime that operate in a manner that entrenches or fails to address their vulnerabilities, as well as structural challenges that hinder access to legal opportunities such as reparations. The article identifies several structural issues and features of the legal framework that overlook or entrench the vulnerability of families. Drawing on a human security approach, it suggests that supplementing the existing legal regime with a victim assistance framework could help to address the vulnerability of families and others harmed by armed conflict.

International humanitarian law (IHL) categorically prohibits all types of collective punishment. However, neither treaty nor customary sources provide a clear definition of what should be deemed a collective punishment. Given this lack of clarity, it is no surprise that little attention has been paid to the way in which resorting to different forms of collective punishment during a belligerent occupation might lead to additional violations of international law, including IHL and international human rights law (IHRL). This article explores the notion of collective punishment under the law of occupation and connects it with other relevant rules of international law. Based on this analysis, and using the Occupied Palestinian Territory as a case study, the article argues that violating the prohibition of collective punishment in a situation of belligerent occupation in all likelihood will trigger the breach of other concomitant rules of IHL and IHRL, thus shedding light on the scope of the prohibition contained in Article 33 of the Fourth Geneva Convention.