On Sept. 30–Oct. 1, 1946 the International Military Tribunal in Nuremberg announced its judgment. The trial started on Nov. 14, 1945 and was concluded on Aug. 31, 1946 after 216 working days. The writing and discussing of the Judgment was accomplished in four weeks. The proceedings and judgment represent an extraordinary tour de force.

The Judgment has been a subject of careful study and heated controversy for a quarter of a century. Considering the record speed of the trial and of the writing of the Judgment, it should come as no surprise to discover that the Judgment is far from being a monolithic piece.

In the following, an attempt is made to test the consistency of the positions of the IMT in one of its most sensitive parts: the persecution and the extermination of the Jewish people.

It would be an unforgivable presumption on my part if I attempted to give my observations in this lecture a world-wide focus. At best, they may be suggestive beyond the compass of the small part of the world in which I have gained, by study and by experience, the insights which support my words. At the least, they will bring to light my particular appreciation of the liberties and the constraints which judges of courts in a parliamentary democracy enjoy and endure in the discharge of their duties.

What do I mean by “the institutional character of the judge”? Imagine, if you will, that a man or a woman has been appointed a member of a court. That person has joined an organization which, by constitution or by statute or by both, has been given form, size and function. The position provides security of tenure, an assured salary, and a pension upon due retirement or after a prescribed number of years of service. It demands a stated length of experience in law which has been underpinned by educational qualifications that any aspirant to membership of the Bar must meet. In my country, as in Great Britain and the United States, and as in Israel, the neophyte judge is neither a civil servant, as is the case elsewhere, nor has he joined a specialized branch of the executive government, as is also the case elsewhere. What faces him or her in his or her work, be it as a trial judge sitting alone or as an appellate judge sitting with two or four or more colleagues? To what extent does the judicial system, of which he or she is now part, absorb him or her, and how much freedom does he or she have, to remain or become an individual per se?

The Permanent Court of International Justice was inaugurated on January 30, 1922. The present International Court of Justice held its inaugural meeting on April 18, 1946—the day on which the League of Nations formally ceased to exist. Measured in terms of “business”, the present Court has become a disappointment, and at the beginning of 1970 it had no pending cases on its docket. Today it has one. This situation of decline, which in fact had been evolving ever since the thirties, formed the subject of an important speech by the U.S. Secretary of State on April 25, 1970; it was also commented upon by Secretary-General U Thant in the Introduction to his annual report on the work of the organization submitted to the twenty-fifth session of the United Nations General Assembly. Following this, twelve member States initiated a debate on a new agenda item entitled: “Review of the role of the International Court of Justice”. This debate led to an interim decision inviting the Secretary-General to submit to the next session a comprehensive report, to be based on the replies of States to a questionnaire which he was asked to prepare and circulate.

The methodical aspects of comparative law is a field which has, up to now, hardly been cultivated systematically although probably more so in Israel than in some other countries.

The subject normally evokes the question whether comparative law is a legal technique, a method of legal thinking, or an autonomous discipline of legal science, a field of law in its own right. I do not intend to deal with this problem because I think the effort will yield little. Any possible answer I would suggest, is true only to some extent depending on the context: if, for example, comparative law is used for the interpretation of a legal rule, it certainly belongs to the method of interpretation and thus lies in the field of legal method; if a special course in comparative law is taught to introduce students to its techniques and its basic premises, you may properly regard it as a discipline of its own.

It is a commonplace that Rome's greatest contribution to the modern world is its law. Whether this is strictly true or not, Roman law is certainly the basis of the law of Western Europe (with the exception of England and Scandinavia), of much of Africa including South Africa, Ethiopia and in general the former colonies of countries in continental Europe, of Quebec and Louisiana, of Japan and Ceylon and so on. Perhaps even more important for the future is that International law is very largely modelled, by analogy, on Roman law. Just think of the perfectly serious arguments of a few years ago as to whether outer space (including the moon and planets) were res nullius or res communes and whether they were, or were not, susceptible of acquisition by occupatio. This persistence of Roman law has had undesirable consequences. First, Roman law as an academic subject has got into the hands of lawyers whose love of technicalities has frightened off classical scholars who tend not to use the legal sources. Secondly, scholars of antiquity, since Roman law is left well alone, have also been reluctant to look at other ancient legal systems. So have lawyers since these other systems have no ‘practical” value. Thirdly, following upon these but worse still, the usefulness of Roman law for later ages, coupled with its enforced isolation from other systems of antiquity, has often led to an exaggerated respect for it, and to its being regarded as well-nigh perfect, immutable, fit for all people. Many in “the Age of Reason” were ready to regard Roman law as “the Law of Reason”.

1. Foreword: The following judgment of the Supreme Court deals with an affair which lies on the periphary of criminal law, but nevertheless may serve as a means of raising a few problems which are of crucial importance in the sphere of penal law. These problems are all attached to one of the two central pillars of every crime, namely: the actus reus. We shall try to prove that even though this concept is well-known and hackneyed, it still contains many deficiencies and is a source of misunderstandings.

First, we shall try to expose the deficiency in the judgment itself, and then we shall proceed to a broader consideration of the perversions in the definitions of the actus reus of certain crimes in the legislation.

2. The Judgment: The matter under trial was as follows: The official receiver (the respondent) applied to the District Court for an order according to sees. 130 and 131 of the Bankruptcy Ordinance to bring the appellant, who is a bankrupt, to trial for offences under these sections. The appellant was invited to the proceedings on that application, gave evidence at the hearing, and after the respective arguments of the parties had been heard, an order was granted by the Court as required by the applicant.

The First Amendment to the United States Constitution erects, in Thomas Jefferson's phrase, “a wall of separation between church and state”. The United States Supreme Court has, with a consistency not evident in all areas of constitutional law, supported the “wall of separation” metaphor even in the face of warnings that “a rule of law should not be drawn from a figure of speech”. The origin of the phrase has been traced to the words of Roger Williams, the founder of the colony of Rhode Island in 1636, who, in his concern over worldly corruption infecting the churches, wrote of “the hedge or wall of separation between the garden of the church and the wilderness of the world…”. With this imposing legal history behind it, the principle of non-intrusion of religious law into American civil law should stand on incorruptible footing. Yet, a survey of recent cases discloses principles of Jewish law relied upon by litigants and on occasion by judges in controversies before tribunals in the United States.

Israel judges usually have regard to English precedents which fit (or appear to them to fit) the case they are dealing with—sometimes, even when a local norm exists that may be applicable. And apparently they have not freed themselves from this practice even in those cases where it is neither Ottoman nor Mandatory law that is involved but Israel law in the narrow sense of that term, or in respect of those statutes which are intended to be part of an evolving Israel codification. The practice is likely to come into conflict not only with the view that English law—as referred to in Article 46 of the Palestine Order-in-Council, 1922–47—is no longer relevant to our current law since the establishment of the State or the view that at least these Israel laws do not require supplementation from outside, but also with the view of those who, having reservations about such outlook, simply urge that English law need not apply, even under Article 46 itself, so long as a domestic legal order exists.

According to Article 24 of its Statute, the International Law Commission “shall consider ways and means for making the evidence of customary international law more readily available”. The existence of such law is indeed difficult to prove even at the national level; how much more so in the international sphere. This, however, should not mislead one to think that there are no problems with regard to treaty law. On the international level it may not be too difficult to determine whether a treaty exists on a particular question, but information about the exact status of the treaty (its entry into force, the parties thereto, the amendments thereof, etc.) in most cases is not easily available. Wherefore, I proposed many years ago the creation of an International Legislation Register which would contain up-to-date information at least about the status of multi-partite treaties of general interest.

I. Generations of lawyers have laboured to establish a code on the law ol treaties. Eventually, a treaty on that subject was signed in Vienna on May 23, 1969—the “Treaty on Treaties”. Without intending now to go into questions regarding the Convention as a whole (it certainly is one of the best prepared pieces of modern international legislation), attention must be paid to a matter which the President of the Conference itself, Professor Roberto Ago, found necessary to point out in a specific Report on the Final Stage of the Codification of International Law to the International Law Commission, and which has been revived as a subject of doctrinal studies, under dramatic pressure, first by the bodies which feel responsible for the security of air traffic. The need for rapid entry into force of certain international Conventions, however, also poses the question whether experience, subsequent to the Vienna Conference, is appropriately helped by that code. This is the point of observation chosen for this paper: treaty-making as part of the functional operation of inter-governmental organizations.

The question is far from being purely academic. As will be seen below, several important IGOs have these last years posed the question of simplification of entry into force of ‘their’ treaty law. It must be asked therefore whether this is—or may become—a general trend or possibly one limited to a specific category of IGOs, and hence of treaties. We will show that there are no short-cuts to “simplification” and “simple” solutions.

The origins of the Criminal Code Ordinance of 1936 (hereinafter, CCO) have never been fully explored. The Supreme Court of Israel has indicated that specific provisions were derived from Ottoman law, or were modelled upon an English statute, or based upon a common law doctrine. No one, however, has attempted to describe comprehensively the history of the CCO, and those who have touched upon the subject have usually contented themselves with general statements:

a. The local legislator drew most of the offences included in the Criminal Code Ordinance from the well of English law.

b. Everybody admits that the provisions of the Palestine Criminal Code Ordinance relating to manslaughter and murder were not derived from one source, but include different ideas and pieces of ideas that were taken, a little here and a little there, from different legal systems—English, French, Ottoman, or French in Ottoman clothing, as it existed until 1936. Before us is a mosaic of different colours composed into a single picture. As to this there is no disagreement … What is not so clear and certain is the identity of the concrete source of each of the bricks of the building that comprise the ‘collective’ legislation.

Aircraft hijacking projects a vexing problem of criminal jurisdiction. In order to comprehend the ramifications of the problem fully let us take a model case. Suppose that the control over a commercial aircraft—registered in Brazil and leased to an Israeli airline—is forcibly seized, in the course of flight over France, by an Arab nationalist who is a citizen of Jordan, and the aircraft is hijacked to Algeria. The act described is an international offence, as defined by Article 1 of the 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft:

Any person who on board an aircraft in flight:

(a) unlawfully, by force or threat thereof, or by any other form of intimidation, seizes, or exercises control of, that aircraft, or attempts to perform any such act, or

(b) is an accomplice of a person who performs or attempts to perform any such act

commits an offence (hereinafter referred to as ‘the offence’).

1. In his article “Criminal Jurisdiction over Aircraft Hijacking”, Dr. Y. Dinstein analyzes the provisions of the Convention for the Suppression of Unlawful Seizure of Aircraft, of December 16, 1970—hereinafter referred to as “the Hague Convention”. This convention deals with States' jurisdiction with regard to the offence of “hijacking”, as defined by Article 2 of the convention, in accordance with the nature of their connection with the offence committed.

The learned writer, in the course of his analysis, postulates three premises. The first premise is that Article 4 of the Hague Convention lays down an order of preference with respect to the jurisdiction of the States referred to in that Article. The second premise is that this order of preference is reflected in the order of the paragraphs of Article 4 which specify which are the states in question (paragraphs 1 and 2). The third premise is that the Hague Convention does not provide for universal jurisdiction in respect of the offence of hijacking.

I. Conditions of Protection: (1) A “Bill”: a) General observations, b) conditional instruments i) uncrossed instrument ii) crossed instrument, c) banker's draft i) uncrossed instrument ii) crossed instrument, d) instrument to order of unspecified person, e) instrument with forged drawer's signature or material alteration, f) “bill” distinguished from “cheque”, g) non-negotiable bill.

(2) Indorsement: a) Indorsement distinguished from receipt, b) forgery of signature of drawee bank's customer, c) unauthorized signature

(3) Good Faith

(4) Ordinary Course of Business

(5) Lack of Negligence: a) When this element required, b) meaning of concept

(6) Payment: a) Payment distinguished from collection, b) payment otherwise than by drawee bank, c) protection distinguished from cause of action

The subject of this study is one aspect of the complex of rights and obligations created upon the perpetration of forgery in the indorsement of a bill. In general terms we are concerned here with the conversion of a bill, its forged indorsement, the payment thereof by the drawee and a claim by the owner of the bill upon the drawee for the amount of the bill. The local law recognizes the right to such a claim but interposes a shield protective of the drawee under certain conditions. The purpose of the present study is to examine the nature of this protection, to identify the conditions thereof and to examine its reasonableness. The intention is to confine attention solely to this protection and accordingly no inquiry will so far as possible, be conducted into any principle which possesses broader projections beyond this limited theme. Nevertheless, one cannot ignore a number of relationships which arise as a consequence of this protection but are not created between the true owner and the drawee themselves. In order to examine the reasonableness of the protection, these relationships require investigation, if only briefly.

Two recent English cases bring to the fore the difficulties that controlling shareholders face when they wish to remove incumbent directors. In the case of Bushell v. Faith, the director involved took refuge in an article of association which weighted the voting power of directors for the sole purpose of defeating a removal resolution. Although he held only one third of the outstanding shares, he was able to outvote the controlling shareholders and remain in the saddle. The House of Lords decided that the article in question did not run foul of sec. 184(1) of the 1948 Companies Act, which invalidates articles requiring more than a simple resolution for removal of directors.

The rationale of the Court of Appeal and of the House of Lords was that as long as multiple and restricted voting rights are generally recognized, no different rule can apply to voting rights weighted specifically for blocking a removal resolution. Only Lord Morris of Borth-Y-Gest endorsed the reasoning of Ungoed-Thomas J. at first instance (not reported) who held that the purpose of the article in question was to make a director irremovable and that it was tantamount to a requirement that more than a simple majority be necessary for removal.

An Israeli lawyer who reads Professor Engel's very interesting remarks “On the Evidence of U.S. Treaty Law” will feel like the poor man who reacted to a rich man's complaints by saying: “For you the diamonds are sparse, for me the soup is thin”.

In Israel there are two official publications which give information about treaties:

1) Kitvei Amana—Israel Treaty Documents; and 2) Yalkut HaPirsumim—Government Notices. The Ministry of Justice is responsible for these two publications but it follows the advice of the Foreign Ministry in all substantive matters concerning the publication of information on treaties.

The treaties to which Israel has become a party are published in Kitvei Amana. So far, some 22 volumes have been published in this series. Bilateral agreements are published in the two languages in which the treaty was concluded, i.e., Hebrew and the official language of the other party. As to multilateral conventions, a Hebrew translation of them is published, together with the original text in one or two of the official languages of the treaty. For example, the English and the French version of the U.N. Charter were published, as well as a Hebrew translation. Together with the text of the treaty, some additional relevant information is also given: a list (with dates) of the signatures and ratifications of the treaty, date of its coming into force, date of its coming into force for Israel.

It is submitted that even if the hapless outsider cannot bring an action for damages because of the existing state of the law regarding fiduciary duties and breach of statutory duties, he still has an equitable remedy of rescission of the contract based on quasi-contractual principles. The crime of fraud, under secs. 13 and 54, respectively, would be made the basis of setting the contract (of sale or purchase) aside. To support this proposition we shall explore the quasi-contractual principles which enable one contracting party, the victim of a crime committed by the other party in entering the contract, to defeat this contract.

In Browning v. Morris, in an oft-quoted statement by Lord Mansfield, the following principle was declared: But, where contracts or transactions are prohibited by positive statutes, for protecting one set of men from another set of men; the one, from their situation and condition, being liable to be oppressed or imposed upon by the other; there, the parties are not in pan delicto; and in furtherance of these statutes, the person injured, after the transaction is finished and completed, may bring an action and defeat the contract.

It is generally assumed that English directors have a carte blanche privilege to engage at arm's length in transactions involving securities of a corporation which they manage. Thus directors of English corporations may utilize inside information for their personal benefit at the expense of their trading partners. This assumption is derived from the calamitous decision of Percival v. Wright which, subject to illusory limitations imposed by Allen v. Hyatt, is still believed to be the law in England today. Israeli directors, it is believed, share this carte blanche privilege with their English counterparts. This belief derives from the fact that Israeli courts resort to English jurisprudence, when necessary to fill in the gaps which are found to exist in Israeli law.

This paper questions the validity of the above assumptions. It is an attempt to evaluate whether or not an English or Israeli director, or another insider, may indeed utilize inside information to trade in the securities of his corporation without regard to rules governing fiduciary relationships and other legal principles, which, it is submitted, the English judiciary and bar have thus far overlooked.

The Administrative Procedure Amendment (Statement of Reasons) Law, 1958 imposed on every public servant, the duty—subject to certain exceptions—to give the reasons in writing, for a negative decision, when requested to use his statutory authority.

However, no time-limit for furnishing its reasons was laid upon the administrative authority and no legal sanction was placed on failure to perform this duty except in the case of litigation, where the burden of proof that the public servant has legally used his authority was placed on the public servant. In other words, the presumption of legality was thus in favour of the citizen and not of the decision (sec. 6(A)). This measure is certainly important, but it is already within the field of litigation, while the importance of the Law is in the realm of non-litigious procedure.

In that situation, deliberate or negligent silence on die part of a public servant was enough to make the Law's provisions ineffective. The citizen could only bring an action before the High Court of Justice, a proceeding which is available in every case. Does this mean, therefore, that the 1958 Law did nothing more than to add another action, for failure to give reasons, to those generally available to the individual? If so, it set about it in a very roundabout way!

The Land Law, 1969, brought into statutory effect a class of servitudes under the heading of “Easements”. On a first reading of the relevant provisions (sec. 5 and secs. 92–98) it might appear that their import is reasonably clear. Various questions, however, arise as to the meaning and scope of these enactments.

Are the new provisions founded, to a greater or lesser degree, on either the English or American concepts, or has the legislature in Israel endeavoured not only to broaden the scope of servitudes as such, but also to give legal sanction to a new class of servitudes which would not receive recognition either in England or in America? These questions will be considered in the light of the new Law and its relationship to the general approach and legal thinking on the subject in England and the U.S.A.