Pub Date : 2021-09-27DOI: 10.1017/S0021223721000200
Eran Fish
Memory laws are often accused of enforcing an inaccurate, manipulative or populist view of history. Some are also said to violate fundamental rights, in particular the right to free speech. These accusations are not entirely unjustified. Yet, a discussion of memory legislation that concentrates on these faults might be missing its mark. The main problem with memory legislation is not necessarily with the merits of any particular law. Rather, the determination of historical facts is not the kind of matter that should be entrusted to the legislator in the first place. The role of legislation is to make social cooperation possible despite substantial disagreement, but only when such social cooperation is indeed required. Disputes about historical facts, I argue, are not a coordination problem that requires a legislative solution. Still less can they justify legal coercion.
{"title":"Memory Laws as a Misuse of Legislation","authors":"Eran Fish","doi":"10.1017/S0021223721000200","DOIUrl":"https://doi.org/10.1017/S0021223721000200","url":null,"abstract":"Memory laws are often accused of enforcing an inaccurate, manipulative or populist view of history. Some are also said to violate fundamental rights, in particular the right to free speech. These accusations are not entirely unjustified. Yet, a discussion of memory legislation that concentrates on these faults might be missing its mark. The main problem with memory legislation is not necessarily with the merits of any particular law. Rather, the determination of historical facts is not the kind of matter that should be entrusted to the legislator in the first place. The role of legislation is to make social cooperation possible despite substantial disagreement, but only when such social cooperation is indeed required. Disputes about historical facts, I argue, are not a coordination problem that requires a legislative solution. Still less can they justify legal coercion.","PeriodicalId":44911,"journal":{"name":"ISRAEL LAW REVIEW","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2021-09-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49095610","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-09-22DOI: 10.1017/S0021223721000169
Or Avi-Guy
This article explores the tension between the theoretical conceptualisations of liberal peace, transitional justice and reconciliation by focusing on power sharing as a liberal peace institution-building mechanism. Power sharing is based on the premise that identities in conflict in deeply divided societies are difficult, if not impossible, to change. The article outlines the limitations of liberal peace by demonstrating how the implementation of power-sharing arrangements creates a political reality in which conflict patterns are further entrenched, thus hindering the prospects of conflict transformation. In order to address the limitations of liberal peace, the article draws on models of transformative justice to highlight the growing need for a new conceptualisation of reconciliation as a political and transformative concept, in which both justice and reconciliation are recognised as intrinsic goals for post-conflict societies. Thus, the re-establishment of political structures and institutional reforms is envisaged not only as a tool to promote political stability, but as a means of facilitating transformation in conflict patterns in the political and social spheres.
{"title":"Transformation – Overcoming the Limits of Liberal Peace and Transitional Justice in Deeply Divided Societies: Reconciliation in Liberal Peace Theory","authors":"Or Avi-Guy","doi":"10.1017/S0021223721000169","DOIUrl":"https://doi.org/10.1017/S0021223721000169","url":null,"abstract":"This article explores the tension between the theoretical conceptualisations of liberal peace, transitional justice and reconciliation by focusing on power sharing as a liberal peace institution-building mechanism. Power sharing is based on the premise that identities in conflict in deeply divided societies are difficult, if not impossible, to change. The article outlines the limitations of liberal peace by demonstrating how the implementation of power-sharing arrangements creates a political reality in which conflict patterns are further entrenched, thus hindering the prospects of conflict transformation. In order to address the limitations of liberal peace, the article draws on models of transformative justice to highlight the growing need for a new conceptualisation of reconciliation as a political and transformative concept, in which both justice and reconciliation are recognised as intrinsic goals for post-conflict societies. Thus, the re-establishment of political structures and institutional reforms is envisaged not only as a tool to promote political stability, but as a means of facilitating transformation in conflict patterns in the political and social spheres.","PeriodicalId":44911,"journal":{"name":"ISRAEL LAW REVIEW","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2021-09-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42445750","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-09-13DOI: 10.1017/S0021223721000157
Yoav Kapshuk, Lisa Strömbom
Pre-transitional justice activities that expose past injustices during entrenched conflicts can incite strong reactions among actors who feel threatened by or dislike such activities, and who thus attempt to silence controversial truths. This article illuminates how attempts to silence controversial truths, in parallel with shutting down debate, can also have the unintended outcome of enlarging public discourse on previously marginalised issues. Thus, paradoxically, efforts to curb freedom of expression sometimes result instead in an expanded public capacity to debate previously silenced truths about the conflict. We conduct a case study of reactions to pre-transitional justice in Israeli society focusing on the so-called Nakba Law, enacted in 2011. Through interviews with members of the non-governmental organisation Zochrot, politicians, teachers and media persons, we first show the relationship between pre-transitional justice and enacting the Nakba Law. We then demonstrate that while the Nakba Law indeed aimed to hamper freedom of expression, it also enabled increased public knowledge about the meaning of Nakba. Our theoretical proposition regarding this paradox, in this case activated by instigating new memory laws, is highly relevant to other conflicts-in-resolution that experience pre-transitional justice processes.
{"title":"Israeli Pre-Transitional Justice and the Nakba Law","authors":"Yoav Kapshuk, Lisa Strömbom","doi":"10.1017/S0021223721000157","DOIUrl":"https://doi.org/10.1017/S0021223721000157","url":null,"abstract":"Pre-transitional justice activities that expose past injustices during entrenched conflicts can incite strong reactions among actors who feel threatened by or dislike such activities, and who thus attempt to silence controversial truths. This article illuminates how attempts to silence controversial truths, in parallel with shutting down debate, can also have the unintended outcome of enlarging public discourse on previously marginalised issues. Thus, paradoxically, efforts to curb freedom of expression sometimes result instead in an expanded public capacity to debate previously silenced truths about the conflict. We conduct a case study of reactions to pre-transitional justice in Israeli society focusing on the so-called Nakba Law, enacted in 2011. Through interviews with members of the non-governmental organisation Zochrot, politicians, teachers and media persons, we first show the relationship between pre-transitional justice and enacting the Nakba Law. We then demonstrate that while the Nakba Law indeed aimed to hamper freedom of expression, it also enabled increased public knowledge about the meaning of Nakba. Our theoretical proposition regarding this paradox, in this case activated by instigating new memory laws, is highly relevant to other conflicts-in-resolution that experience pre-transitional justice processes.","PeriodicalId":44911,"journal":{"name":"ISRAEL LAW REVIEW","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2021-09-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47031981","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-09-09DOI: 10.1017/S0021223721000194
M. Shaw, Y. Shany, Y. Ronen
{"title":"Introduction","authors":"M. Shaw, Y. Shany, Y. Ronen","doi":"10.1017/S0021223721000194","DOIUrl":"https://doi.org/10.1017/S0021223721000194","url":null,"abstract":"","PeriodicalId":44911,"journal":{"name":"ISRAEL LAW REVIEW","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2021-09-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46483075","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-08-20DOI: 10.1017/S0021223721000066
Aikaterini Koula
Human rights defenders (HRDs) are subjected to serious human rights violations through legal and extralegal actions. Notably, most of the abuses against them remain unpunished, perpetuating a vicious cycle of violence against them. There is room for doubt that international human rights law has failed to provide efficient protection for HRDs, and this article considers the international refugee regime as an alternative system of protection. In this sense the article first discusses the intersection between the terms ‘refugee’ and ‘human rights defender’ to establish that defenders fall within the protection of the 1951 Refugee Convention. Following an inductive reasoning, the article considers the most well-trodden defects of the refugee regime and the reluctance of HRDs to adopt refugee status; it concludes that this alternative may not be suitable for defenders. Besides a doctrinal approach, the article employs a socio-legal approach, which is enhanced by interviews with HRDs.
{"title":"International Refugee Regime: An Alternative Form of Protection for Human Rights Defenders?","authors":"Aikaterini Koula","doi":"10.1017/S0021223721000066","DOIUrl":"https://doi.org/10.1017/S0021223721000066","url":null,"abstract":"Human rights defenders (HRDs) are subjected to serious human rights violations through legal and extralegal actions. Notably, most of the abuses against them remain unpunished, perpetuating a vicious cycle of violence against them. There is room for doubt that international human rights law has failed to provide efficient protection for HRDs, and this article considers the international refugee regime as an alternative system of protection. In this sense the article first discusses the intersection between the terms ‘refugee’ and ‘human rights defender’ to establish that defenders fall within the protection of the 1951 Refugee Convention. Following an inductive reasoning, the article considers the most well-trodden defects of the refugee regime and the reluctance of HRDs to adopt refugee status; it concludes that this alternative may not be suitable for defenders. Besides a doctrinal approach, the article employs a socio-legal approach, which is enhanced by interviews with HRDs.","PeriodicalId":44911,"journal":{"name":"ISRAEL LAW REVIEW","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2021-08-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42747184","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-08-05DOI: 10.1017/s0021223721000145
P. Amarasinghe, Eshan Jayawardena
{"title":"Sri Lanka, Human Rights and the United Nations: A Scrutiny into the International Human Rights Engagement with a Third World State Thamil Venthan Ananthavinayagan Springer, 2019, xix + 266 pp, hb £99.99, ebk £79.50, ISBN 9789811373497 hb, 9789811373503 ebk","authors":"P. Amarasinghe, Eshan Jayawardena","doi":"10.1017/s0021223721000145","DOIUrl":"https://doi.org/10.1017/s0021223721000145","url":null,"abstract":"","PeriodicalId":44911,"journal":{"name":"ISRAEL LAW REVIEW","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2021-08-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/s0021223721000145","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47294450","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-07-01DOI: 10.1017/s0021223721000108
{"title":"ISR volume 54 issue 2 Cover and Back matter","authors":"","doi":"10.1017/s0021223721000108","DOIUrl":"https://doi.org/10.1017/s0021223721000108","url":null,"abstract":"","PeriodicalId":44911,"journal":{"name":"ISRAEL LAW REVIEW","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2021-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/s0021223721000108","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46602525","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-07-01DOI: 10.1017/S0021223721000078
M. Wattad
Article 4 of the Nation State Law (NSL), entitled ‘Languages’, stipulates that Hebrew is the language of the state (Article 4(a)); the Arabic language has a special status in the state and regulating the use of Arabic in or by state institutions will be set in law (Article 4(b)); and this clause does not harm the status given to the Arabic language before the law came into effect (Article 4(c), the ‘validity of laws’ clause). The question is whether, how, and to what extent these provisions hinder the present legal status of the Arabic language in Israel. The legal status of Arabic had never been determined decisively before enactment of the NSL. The High Court of Israel has always been divided on this matter, particularly between judges who perceived Arabic as an official language and judges who deemed it solely as having been granted its acknowledged ‘special legal status’. Furthermore, the judges who perceived Arabic as an official language of the state were also in dispute among themselves as to the meaning, the scope and the consequences of such recognition. Considering these circumstances, my view is that the NSL perpetuates the legal status of Arabic as prescribed in the laws and case law that already existed, and that the validity of laws clause, coupled with the special status granted to Arabic in a basic law, suggests that the door is still open for the Court to further endorse the legal status of Arabic in Israel.
{"title":"The Nation State Law and the Arabic Language in Israel: Downgrading, Replicating or Upgrading?","authors":"M. Wattad","doi":"10.1017/S0021223721000078","DOIUrl":"https://doi.org/10.1017/S0021223721000078","url":null,"abstract":"Article 4 of the Nation State Law (NSL), entitled ‘Languages’, stipulates that Hebrew is the language of the state (Article 4(a)); the Arabic language has a special status in the state and regulating the use of Arabic in or by state institutions will be set in law (Article 4(b)); and this clause does not harm the status given to the Arabic language before the law came into effect (Article 4(c), the ‘validity of laws’ clause). The question is whether, how, and to what extent these provisions hinder the present legal status of the Arabic language in Israel. The legal status of Arabic had never been determined decisively before enactment of the NSL. The High Court of Israel has always been divided on this matter, particularly between judges who perceived Arabic as an official language and judges who deemed it solely as having been granted its acknowledged ‘special legal status’. Furthermore, the judges who perceived Arabic as an official language of the state were also in dispute among themselves as to the meaning, the scope and the consequences of such recognition. Considering these circumstances, my view is that the NSL perpetuates the legal status of Arabic as prescribed in the laws and case law that already existed, and that the validity of laws clause, coupled with the special status granted to Arabic in a basic law, suggests that the door is still open for the Court to further endorse the legal status of Arabic in Israel.","PeriodicalId":44911,"journal":{"name":"ISRAEL LAW REVIEW","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2021-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/S0021223721000078","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47820054","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-07-01DOI: 10.1017/s002122372100011x
Gabrielle Agus, Tali Brecher, MS Diab, E. Finkelman, Tamar Hacohen, Eitan Hagege, Omer Lubin, Y. Nadler, O. Nir, Nir Propper, N. Rubin, Shai Shalgi, Rachelle Taragin
{"title":"ISR volume 54 issue 2 Cover and Front matter","authors":"Gabrielle Agus, Tali Brecher, MS Diab, E. Finkelman, Tamar Hacohen, Eitan Hagege, Omer Lubin, Y. Nadler, O. Nir, Nir Propper, N. Rubin, Shai Shalgi, Rachelle Taragin","doi":"10.1017/s002122372100011x","DOIUrl":"https://doi.org/10.1017/s002122372100011x","url":null,"abstract":"","PeriodicalId":44911,"journal":{"name":"ISRAEL LAW REVIEW","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2021-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/s002122372100011x","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44917032","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-07-01DOI: 10.1017/s0021223721000091
Thibault Moulin
{"title":"Doctors Playing Gods? The Legal Challenges in Regulating the Experimental Stage of Cybernetic Human Enhancement – Erratum","authors":"Thibault Moulin","doi":"10.1017/s0021223721000091","DOIUrl":"https://doi.org/10.1017/s0021223721000091","url":null,"abstract":"","PeriodicalId":44911,"journal":{"name":"ISRAEL LAW REVIEW","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2021-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/s0021223721000091","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42809826","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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