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Biennial report-2014-2015

Annual report- 2013 (Appdx-a) (Appdx-b)

List of Supported researchers, research and lectures 2013-2016

 

In-house research 2017:

Tools and mechanisms for public engagement in local authorities with regard to earthquake preparedness, response and recovery

Funded by the Ministry of Science and Technology –2017-2020

PIs: Prof. Deborah Shmueli, Prof. Amnon Reichman, Prof. Eli Salzberger, Prof. Gad Barzilai

This research aims to explore international experience with stakeholder engagement and participation mechanisms for earthquakes (and other large-scale disasters) for three stages: preparedness (before), response (during) and recovery processes (after), and then suggest a framework for Israel, focusing on the preparation stage within local authorities. The research distinguishes between two types of ‘publics’: a) the general populous, and b) stakeholders and planners. The research will address frameworks/models for both, and test it through action research in one locality as a test case.

 

Institutional structures for governance of the home front in times of emergencies

PIs: Prof. Eli Salzberger, Prof. Amnon Reichman, Prof. Gad Barzilai, Prof. Deborah Shmue

The research question focuses on positive (including comparative) and normative analyses of the institutional structures for governance of the home front in times of emergencies.  Should this grant be awarded it would allow us to conduct this comparative research in-house at the Center in a timely fashion, together with government legal practitioners who are at this moment grappling with new major legislative initiatives.The distinctions between emergency situations and routine events prevailing in legal regimes are no longer as clear as they used to be. Terrorist or rocket attacks on civilians which Israel has faced for years, regretfully have also become common in other countries. Ramifications of climate change and greater exploitation of natural resources, and greater density of populated areas has resulted in natural events such as tsunamis, earthquakes, hurricanes or flooding, turning into larger-scale disasters than they might have been in the past. Influxes of immigrants are perceived by some as a threat to national stability. Such new realities blur established distinctions and upset the legal order: The home front becomes a battlefield; civilians become terrorists, others become rescuers. Civilian uprising turns into a national threat; it is no longer clear what threats are internal and what are external; and the ’mighty state‘ alone proves inadequate at providing the population with necessary preparedness, protection and basic needs, and must rely on coordination with NGOs and the private sector for help.We are witnessing governments (i.e. France, Belgium and the US regarding terror, Austria, Hungary and other EU countries regarding the immigration crises, Japan regarding natural/nuclear disaster, in their efforts to address emergency situations, applying measures which may infringe on civil and human rights - e.g. the freedom of movement, property rights, equality, transparency and the right of the public to know. At the same time, definitions of legal yardsticks such as ‘proportionality’ or ‘necessity’ become unclear.  The justification of using extreme measures is the focus of much public, political and academic debate; governance of extreme situations in the face of maintaining democratic values is both unclear and challenging.In this context, one of the main questions relates to institutional design:

  •  Who is or should be the executive body authorized and responsible to lead and determine the measures to be taken in an emergency?
  •  What is the scope of this body’s discretion and the means at its disposal?
  •  Is it necessary to declare an emergency in order for such authorized body to take measures? Who declares, and which measures?
  •  Should it be one centralized body responsible for disaster preparation and mitigation of impacts, coordination of response and rehabilitation (pre-during-post disaster) or separate institutions design to tackle different types of emergencies?
  • Should the same body be responsible for all types of threats?
  • Should the same body be responsible for providing the population with all basic needs - i.e. shelter, food, energy and water as well as rescue and evacuation?
  • Or should the structure be a decentralized, or networked system?
  •  And more…

Countries have developed different emergency regimes and institutional structures, based on the prevailing type of emergency the country is likely to experience, internal politics, legal doctrine and other factors. Yet, todays changing and escalating situations upset and push the limits of emergency powers, bringing countries to question their current regimes. This is evident for example in the UK, France, USA, and even Japan, as well as Israel.

 The Israeli Ministry of Defense is in the midst of amending the legal tools with which emergency situations in Israel are handled. A new anti-terror law (The Counter Terrorism Law  5775-2016) has just been enacted by the Knesset and will take effect on November 1st. This bill replaces old British legislation that has been in force since the British Mandate and legislation of the Provisional Council from 1948. Furthermore, a new draft bill for the Preparation of the Home Front (3rd draft) was published in June 2016. This bill introduces significant changes to the structure of responsibilities for mitigation and preparedness for all types of emergencies in Israel. Other amendments in emergency legislation are also in the process. This creation of a new regime calls for a comparative and scientific examinations: what is the state of the law and institutional structure and decision-making procedures in other jurisdictions? How one might analyze the optimal/ideal legal framework?

The research will include a survey of existing institutional models, analyze their components, discuss the pros and cons and provide an institutional design database. The project will include background literature review, legal survey research and workshops which will bring together researchers and legal practitioners from targeted countries to analyze the models and designs and suggest concepts which will assist legal advisors in crafting desirable models suited to their countries.

The countries will be chosen together with the relevant Israeli government ministries who are very much interested in a comparative project of this sort and in input of the Minerva Center towards the final draft of the new Israeli legislation.

 

 

Local protocols for emergency preparedness

 

PIs: Prof. Deborah Shmueli, Prof. Amnon Reichman, Prof. Eli Salzberger, Prof. Gad Barzilai

Researchers: Dr. Ran Kutner, Dr. Michal Ben Gal

 

This is a law in action project around social political unrest and extreme conditions focused on Vadi A’ra . The project is catalyzed by recent events in Israel at large and northern Israel (the location of our Minerva Center) in particular. The project will try to develop protocols, in a collaborative fashion, for dealing with such extreme conditions for municipalities and citizens in Vadi Ar’a - a region populated with both Arab and Jewish villages.

 

The deep gaps and hostility between the Arab population and the Jewish State are distinctively apparent in this region, where the Muslims, who are the minority group in Israel, are the majority group in the region. The Arab towns and villages in the region have sub-par physical and social infrastructures in comparison with the Jewish settlements, villages and kibbutzim. When clashes between Arabs and Jews anywhere in Israel erupt, the situation in Vadi Ar’a becomes volatile. This area is likely to suffer from extreme conditions of social conflict escalation.

 

The project proposed is a collaborative effort between the Minerva Center and Givat Haviva - the Center for a Shared Society and will include:

 

1. A preliminary research on:

 

a. Existing protocols worldwide for emergency preparedness and management of extreme escalation of conflict in deeply-divided societies.

 

b. Rapid social conflict escalation processes in Israel in recent years, including narrative research of how these processes are perceived by the parties involved.

 

c. Procedures and protocols that exist – if at all – in Israel for the management of extreme escalation of social conflict and for inter-municipalities and regional collaboration under extreme conditions.

 

2. Map the stakeholders, agencies and organizations from all sectors that ought to take part in an inclusive, integrated action for emergency preparedness for extreme conditions in the Vadi A’ra area.

 

3. Conduct an assessment of the views, needs and interests of all stakeholders.

 

Seed money funding / supports for on-going researches

Researches supported in 2016- 2017:

The Evolving Nature of Forced Displacement and the Challenges to the International Humanitarian System

Dr. Benedetta Berti

Globally, the number of people who have been forced to leave their homes to escape war, violence and persecution is at an all-time high. If a decade ago there were 37.5 million refugees and internally displaced persons (IDPs) worldwide, today there are almost 60 million people who have been uprooted due to violent conflict. This means that 1 out of every 122 people on this planet is today either a refugee/asylum seeker or an internally displaced person. Relying on field-work, interviews, statistical evidence and existing policy and scholarly work, the research projects aims to study how the evolution of warfare is driving this trend and to examine the challenges to the existing templates of humanitarian assistance.

The project raises a number of important questions, including: what accounts for the rising numbers of refugees and IDPs? Are these trends bringing the international humanitarian system to the brink of collapse and, if so, what can be done to fix it? How should democratic states respond to ongoing wars against civilians? What are the main legal, ethical, strategic and political considerations in place? In doing so, the project contributes to a number of substantial policy debates, from how to reform the international humanitarian system to how to re-think military intervention.

Economic Crisis, Emergency Law and the Institutional Effect: Contemporary Lessons of Colonial Legacies of Economic Regulation during Crises In Israel, India, Ghana & Malaysia

Prof. Yael Berda

This research is a comparative historical study of colonial emergency laws used for economic regulation in four former British Colonies, and their trajectories in the post-colonial independent states: Israel, India, Ghana and Malaysia. It will be the first empirical study to engage the institutional theory of diffusion in the social sciences with literature on legal transplantation.

How does economic regulation in crisis affect state legitimacy to suspend civil and political rights? What are the differences between uses of emergency legislation for economic reasons, than for threats to security of the state? How do these emergency legal tools affect trajectories of democracy and civil rights in new states?

This project, aspires to fuse insights of scholarship on legal transplants in comparative law with exciting research on the global and transnational diffusion of institutional and policy practices. In the aftermath of this last decade of economic emergencies, such a project is critical to explicate the relationship between economic emergencies and erosion of democratic practices through historical and institutional perspectives that have not yet been explored

The core of the proposed study revolves around these questions: How much of the prior administrative practices regulating economic activity do states carry over from the colonial past, and how much do they break with these legacies? What role do colonial laws that regulated economic activity play in the governance of postcolonial states? How has economic intervention and regulation in the colonial epoch effected democratization and civil liberties in the independent states?

International Humanitarian Law and Armed Violence: Perspectives of Israeli Ground Level Commanders

Prof. Eyal Ben Ari

This project examines the key actors that construct the reality of soldiers in violent conflicts. These key actors – company, battalion and brigade commanders – are the key framers or sense-makers for combatants. Concretely, the study focuses on how restraints on organized military violence (IHL being only one limiting factor) are understood by these commanders, interpreted in terms of professional self-image and the principles of the military organization, transmitted to troops under their command and imposed (or not) so that their orders are carried out. Empirically, the project focuses on field-level commanders in the Israel Defence Forces (IDF). Methodologically the project will be based on forty in-depth interviews with commanders (who have served during the past ten years), reviews of newspaper articles from the country’s main news outlets, and a query about the training and schooling received in respect to limitations on military action.

 

The Changing Definition of Torture: A Socio-Legal Inquiry

Dr. Natalie R. Davidson

This project exposes and examines how activists and international judges are promoting a new definition of torture in international human rights law. By framing sexual abuses by clergy as well as domestic violence as forms of torture, these actors challenge the traditional conception of the prohibition of torture as concerning the way public power is exercised, and promote profound changes in one of the key tenets of international human rights law. While attention has been drawn in recent years to expansions in the definition of torture in international criminal law, the more dramatic change occurring in the interpretation of the Convention Against Torture, the central international document on the subject, has gone largely unnoticed. In order to understand the causes of this change and begin assessing its desirability, this project adopts a socio-legal perspective at two levels. First, drawing on the work of constructivist international relations scholars who see norms of behavior as socially constructed artifacts, it explores the role of non-governmental organizations (NGOs) in promoting a new definition of torture, and the processes by which human rights bodies become receptive to and in turn promote this definition. Second, drawing on critical legal scholars’ understanding of law as a site which not only is the product of social forces but in turn contributes to the social construction of the world, the project considers how the new definition of torture shapes societal understandings of violence. By studying the broadening of the definition of torture and considering some of its potential benefits and costs, the project aims not only to identify little-noticed yet significant legal developments, but also to contribute to the sociology of human rights as well as to normative debates about the design of international human rights law.

When the state is ‘under attack’ by unwanted migratory flows: The disputed legality of Israeli asylum policy and the role of the courts

Adi Hercowitz-Amir

This study wishes to examine what role do the courts play in shaping asylum policy in Israel and towards which direction are they driving?

The state of affairs in which the courts are an active player in the asylum seeker policy arena raises several intriguing questions:

(1) What are the main issues the courts deliberate on in this field?

(2) What stance (restrictionist/expansionist) do they take on asylum seeker issues?

(3) Does the stance differ according to various factors such as: hierarchy of the court, number of asylum seekers in country, the nationality in question?

(4) Who are the main actors addressing the courts?

(5) How is the discourse between the various actors and the courts portrayed?

(6) To what level do international legal obligations and local directives have a part when debating protection of rights and executing official procedures regarding asylum seekers?

(7) What are the outcomes of the courts’ deliberations?

(8) And last, on what sets of values and norms are these decisions justified?

 It is the aim of this project to strive to answer these imperative questions and offer a unique examination of the courts’ role and position in determining asylum policy in Israel. Policy that has been manifested, thus far, as an urgent response of the state to an unforeseen migratory challenge; a policy that has led to the labeling of asylum seekers in Israel along lines of illegality and criminalization.

The Constitutional Structure of Europe’s Area of “Freedom, Security and Justice” and the Right to Justification

Dr. Ester Herlin-Karnell

This book project, which is still in its early stages, will investigate the implications

of a non-domination oriented view for understanding EU security regulation and its

constitutional implications. It will ask how the non-domination template  fits the EU legal model, and what it adds for the understanding of the establishment of an Area of

Freedom, Security and Justice (EU policy area for security regulation). Moreover, It will

tentatively look at the relationship between the question of coercion and domination as

well as the question regarding non-arbitrariness in constitutional context. The project

will try to link the question of security regulation to the longstanding debate in political

theory on the connection between freedom and non-domination and to the constitutional debate on the formation of security regulation in Europe. Examples will

be drawn from EU law as an expression of how practices matter, and dependent on the

use of proportionality , and arguably reflected in the constitutional theory debate on the right to justification.

 

Between the political borders and the socio-political conflicts in the Arab world

Dr. Moran Zaga

Since the creation and independence of the Arab states, the region has suffered from significant socio-political conflicts that challenged the very essence of the state’s notion. Two representing examples are the prominent and on-going venture of IS (the Islamic State organization – ISIS) and the Kurds ambitions for self-determination – both revoking the current status of the political division in the Arab world.

These conflicts and many more threaten the stability of the Middle East and cause mass killing, mass migration and socio-economic deterioration for a vast amount of population. They reveal inherent concepts of religion, social patterns and political structures.

The aim of this research is to investigate the link between the political borders and the socio-political conflicts in the Arab world.

In order to analyze this link effectively, the research is being conducted in 3 steps:

Step 1 - Examining and interpreting the historical background of the borders and the local concepts.

Step 2 - Examining prominent case-studies of conflicts and analyzing their link to the settings of the political borders.

Step 3 - Suggesting a new approach for conflict analyses, dedicated and adjusted to the Arab world.

The main research question is: what are the implications of the territorial division in the Arab Middle East on socio-political conflicts?

The main hypothesis of the study is that political borders that does not correlate with the local border concepts and the social patterns of their period lead to inner imbalance that can deteriorate to a violent conflict.

 

Mediterranean Emergencies and the Rule of Law

Itamar Mann 

So far, the main product of Itamar’s research under the umbrella of Mediterranean emergencies is his book, Humanity at Sea: Unauthorized Migration and the Foundations of International Law. The book is forthcoming as part of Cambridge University Press’s series in international law, Cambridge Studies in International and Comparative Law (2016).

Referring to case studies starting from the mid-20th century and concluding at the present, the book explores instances in which state authorities have intercepted migrants on the high seas. Through these examples, the book offers a theory of human rights revolving around the notion of what he calls “the human rights encounter.” According to this account, human rights are not grounded in positive legal instruments. Rather, they are grounded in an experience of obligation that individual members of humanity in extreme risk can trigger; and on an existential commitment that all humans deserve some modicum of protection.

Two important implications follow from his argument. The first is that individuals, not only states, are bound to a particular subset of fundamental human rights norms. The second is that states that are committed to human rights cannot maintain a closed social contract. A significant aspect of this research is conceptualizing the global maritime legal order where a duty of recue is recognized (Article 98 of the United Nations Convention on the Law of the Sea, UNCLOS).

Alongside the book, he established a solid record of publications on the intersections of international law, political theory, refugee law, and migration studies.

In the next two years he plans to develop this research in new directions, further emphasizing two aspects. First, to deepen his focus on the sea as a separate legal order that can shed new light on classical questions of legal and political theory. As the book argues, the migration crisis is unfolding in a maritime environment not only due to the fact the sea offers a relatively easy way to cross borders. It is also because the duty of rescue and the freedom of movement render the maritime space fundamentally different from that constituted by sovereignty. These theoretical aspects of the law of the sea are seldom addressed or understood.

Second, he seeks to expand his regional focus on the Mediterranean area, which has become central to many discussions on global crises. Alongside the migration crisis, these include revolutions, civil wars, and the rise of terrorist-controlled areas in North Africa; and a debt crisis in Greece (alongside ongoing economic instability in Italy, Spain, and Portugal). While his main focus will be on migration, several of these different aspects of the Mediterranean crises will play out in three articles:

1. The Social Contract and the Law of the Sea 

2. International Law and Population Control 

3. Counter-Regionalism in the Mediterranean Space

The proposed project addresses some of the most urgent policy issues worldwide. While legal scholars are now starting to understand the major role migration and refugee issues will play in the foreseeable future, legal studies in this field are often conducted within existing doctrinal frameworks. The proposed project, on the other hand, aims to engage a variety of disciplines from the humanities and social sciences. It marshals philosophical insights (particularly article 1), history (article 2), and ethnography (article 3). This interdisciplinary approach will be advanced by the help of co-authors who have the necessary disciplinary and linguistic proficiencies.  

 

Counter Terrorism Laws and Human Rights: Interrogating State-Civil Society Relations in Nigeria and Kenya

 

Peter Inalegwu Awodi

 

The upsurge in the spate of terrorism in Nigeria and Kenya and these countries’ responses by formulating and establishing various counter terrorism laws and institutions to mitigate the trend have become a fundamental topic of concern to scholars and observers as it concerns the effects of these legal emergency regulative measures in the suffocation of human rights. However, there is a dearth of research on the implications of these legal counter terrorism security frameworks on civil society organizations in Nigeria and Kenya. In this light, this study therefore comparatively interrogates the various elements associated with or implicated in the interface between the counter terrorism legislations of the Nigerian and Kenyan governments and the capacity of civil society organizations to carry out their mandate in both countries. Primarily, this study examines and juxtaposes how the operations of civil society organizations were violated in the implementation of counter terrorism laws; the perception of civil society organizations by these states and their security agencies in the context of counter terrorism; responses of the civil society organizations to these counter terrorism measures and implications of their deployment on state-civil society relations in Nigeria and Kenya. To achieve this, the survey research of the ex-post-facto type is adopted using the Multi-stage Sampling technique. Also, secondary data is being used and is complemented with In-Depth Interview (IDI) sessions. Content analysis is used for analyzing the In-Depth interview and secondary data.

 

                                                                                                             

 

Temporary Legislation as a Tool for Legal Regulation of Emergencies

Ittai Bar-Siman-Tov

 

Temporary (or “sunset”) legislation statutes that are enacted for a limited time

 

and are set to expire unless their validity is actively extended is recently gaining increasing attention in the legisprudence field and in legal scholarship more generally. One of the main reasons for this recent interest is that temporary legislation is seen as a central tool for legal regulation of emergencies. And indeed, temporary legislation has become a prevalent tool in the antiterrorism legislation enacted in the U.S. and in many other countries in the post 9/11 era, as well as in legislation responding to other types of crises, such as economic emergencies.

This study – the first empirical study of temporary legislation in Israel – will explore the relationship between temporary legislation and emergencies in Israel. Initial findings suggest that temporary legislation is becoming increasingly popular in the Knesset (the Israeli Parliament). To give but a brief example: from 2010 to October 2015 alone, the Knesset enacted 105 temporary laws, with the last (19th) Knesset enacting 15.41% of its laws as temporary legislation. The Knesset has employed temporary legislation as a means to deal with regulatory challenges in a wide range of regulatory areas: from counterterrorism measures, to the economic crisis of the 1980s, to the recent housing crisis. This study will explore, empirically, to what extent the use of temporary legislation can be tied to emergencies in Israel. It will also explore empirically how the Knesset is employing temporary legislation as a tool for legal regulation of emergencies. Finally, it will explore, normatively, if, when and how, temporary legislation should be used as a means for legal regulation of emergencies.

In-house research 2013-2016

Law, Cyber and Extreme Conditions 

Funded by the Ministry of Science and Technology, 2014- 2017 

PIs: Prof. Amnon Reichman, Prof. Eli Salzberger, Prof. Gad Barzilai, Prof. Deborah Shmueli 

Cyberspace has become an integral part of the nerves system of functioning modern states; as more and more infrastructure systems are digitized and connected via electronic communication systems. Therefore, severe cyber attack or malfunction may arrest the operation of critical systems that control key elements of modern democracies, and equally important, may destroy or corrupt essential databases. Such an event may result in catastrophe, with the potential to undermine not only public order, but also the very existence of the rule of law. Questions such as the liability of state agencies and other stakeholders (including those outside the boundaries of the state) to damages resulting from cyber attacks, the legal authority of the various state agencies to manage and coordinate their acts during cyber attack, and the legal powers of state agencies to regulate cyber space attack are all critical questions that must be thoroughly and critically examined, and where the law as it stands is lacking, solutions should be proposed. Moreover, cyber attacks threaten the law itself, because the legal system is now enmeshed in cyberspace: court cases, laws and regulations, decisions of administrative agencies and databases with paramount legal significance, such as the land registry, lists of those eligible to vote, lists of those who may or may not enter or exit the state, lists of those targeted for investigation by various authorities and of course the management of fees, taxes and accounts – are all digitized and therefore susceptible to cyber attack.

Cyber attacks on infrastructure and the collapse and corruption of legally significant databases should be considered an extreme condition – an emergency posing grave challenges to the legal system. A systemic cyber failure inducing a disaster is a major concern for every state. The understanding of legal and institutional structures and regulations governing who is responsible and able to do what, is crucial. In emergency situations, some regular rules do not apply and the balance between public and individual legal rights may shift. Therefore, the study of the rule of law under cyber attack is essential. Such research will focus not only on the state and its agencies. Cyberspace is a complex system of computers, servers and communication networks governed by private people as well as by public, local, national and international organizations. In cyberspace, the boundaries of liability and responsibility are vague. Control of public space and networks requires cooperation, coordination and consent between power holders and other stakeholders. Therefore, research into the lines of responsibility and accountability, as well as into possible modes of public-private cooperation, is vital.

Systemic and meticulous research of legal aspects of cyber emergencies is a crucial element in achieving resilient and safe cyber networks and in preparing for contingencies that may occur. The research aims to explore both theoretical and practical issues regarding control, regulation and legal aspects of cyber disasters. It will map existing rules and regulations, explore the differences and similarities between nations and the possible similarities to other disasters and suggest amendments and improvements to the existing legal regime.

The research will look into both defensive and offensive actions, before, during and after a cyber disaster. It will include a comprehensive empirical mapping of existing legal tools as well as the institutional aspects of regulation, control, responsibilities and liabilities of cyber emergencies outcomes.

The research will employ qualitative analysis tools over primary and secondary data resources, legal databases as well as interviews and simulations with stakeholders. It will include a comparative study between countries as well as between cyber and other disasters and will explore case studies of cyber disasters as well as database corruption cases. On the theoretical level, the research will suggest models and analytical tools for the study of the legal aspects of cyber disasters.

The unique characteristic of cyberspace, together with the uniqueness of extreme conditions renders a special expertise in legal research. The Minerva Center for the Rule of Law under Extreme Conditions was created specifically to address the unique challenges to the rule of law posed by emergency situations. Research in the Center has already begun, using a methodology designed for the study of the law and natural disasters, wars/terrorist attacks and social-economical meltdowns. 

Additional Cyber regulations research - see here

Evaluating Israel’s Regulatory Framework for Earthquake Preparedness, Response and Recovery within the Regulatory Impact Assessment Framework including Public Engagement Mechanisms

Funded by the Ministry of Science and Technology –2014-2017

PIs:   Prof. Deborah Shmueli, Prof. Amnon Reichman, Prof. Eli Salzberger, Prof. Gad Barzilai (University of Haifa); Prof. Eran Feitelson (Hebrew University)

Researchers: Ehud Segal, Dr. Michal Ben Gal

An important role of the modern, regulatory state is to mitigate the risks involved in large scale disasters, such as earthquakes, through legislation, regulation, and their enforcement. Such regulatory landscape is myriad and complex – institutional layers and legal norms may overlap, conflict, or leave gaps. Moreover, the regulatory power itself in modern democracies is dispersed, resulting in “innovative third-way approaches to regulation, collectively referred to as the new governance model”(Lobel,Orly. 2012. “New Governance as Regulatory Governance”, in The Oxford Handbook on Governance. David Levi-Faur (Editor). Oxford University Press, 65-82).The reality of “networked governance” and its importance for resilience-building has also been highlighted in the disaster literature.

The research will identify, map and conceptualize Israel’s current regulatory framework – norms and institutions – that directly governs earthquake preparedness, response and recovery, and then evaluate it using the Regulatory Impact Assessment (RIA) methodology, with an emphasis on evaluating processes for public engagement which are put forth within the regulatory scheme as well as using public engagement processes in the evaluation itself. The final recommendations will identify gaps between what exists and what is desired based on the literature review and the regulatory evaluation and offer ways for strengthening the regulatory framework, thus, contributing to Israel’s preparedness on the state, community and private levels and the interaction between the three. Through the development of a typology of regulations concerning earthquakes, a much needed gap in the literature of regulation will also be addressed. The research will also contribute to the assessment of the adequacy and feasibility of the RIA methodology and primarily the various approaches to public engagement in the disasters context in Israel. The research will be carried out under the Minerva Center for the Rule of Law under Extreme Conditions at the University of Haifa, in collaboration with researchers from the Department of Geography at the Hebrew University. The principal investigators form an interdisciplinary group with expertise in law, economics, planning, public policy and geography. 

 

Researches supported in 2015-2016:

The Dynamic Legal Politics of Emergency Powers: From Exception to Containment(support for book publication)

Dr. Karin Loevy

See book page in Cambridge University press.

See also discussion paper: Who Decides on the Emergency? Comparing Institutional Response Capacities in the US Executive and the UK Parliament Post 9/11

 

Creativity and Innovation in Managing Security-induced Tourism Crises: A Strategic Perspective of an Israeli Tourism Case

Osnat Broshi-Chen

This study aims at advancing aspects of strategic policy and regulation as to security-induced tourism crises, due to extreme conditions of terrorism or war. The resilience of the state of Israel and its' tourism sector being responsible to various adjacent economic and social activities, is at the heart of this study. It wishes to introduce a new strategic perspective based on creativity and innovation while encountering security-induced tourism crises. 

Such extreme conditions call for change in the systematic management and mitigation of crisis which includes prevention, preparation for, response and recovery from such crises, over conservative, reactive and "trial-and-error" based strategies that represent the Israeli case.

The sought of better and more elaborate ways, cooperation based and systematic while encountering crisis is at the heart of this study in accordance with the current circumstances of post September 11th vulnerable tourism arena. 

The research will pursue its goals by investigating the period of the Second Intifada (2000-2003) which was Israel's most devastating security-induced tourism crisis. At the core of the research are two aspects that stem from one another. The first focuses on the strategic level; whereas, the other focuses on the outcomes of that strategy. In consequence, both vision, conduct along with their outcomes are being presented. This is an elaborate analysis of the crisis' management and mitigation that would shed light on the efficacy and viability of the measures taken. Therefore, it will add to the existing body of knowledge as well as advance policy aspects.

 

 

Colonial Rule and Colonial Law in a Time of War: Palestine Emergency Legislation, 1939-1945

Hadas Fischer-Rosenberg

This research is concerned with surveying and analyzing the legal basis of a colonial state of emergency - that of British-ruled Palestine during the Second World War - while contextualizing it vis-à-vis its metropole counterpart, namely British wartime emergency regime.

The research will answer the following questions: what were the characteristic (scope, form, content and legal model) of Palestine's wartime emergency legislation? How and by whom (i.e. Mandate government officials, Colonial office policymakers, or others) was it devised? What were its sources of self-legitimation? How did it develop over time - what changes, adaptations and amendments were made throughout the period it was in force? What political and legal ideologies did it reflect, especially regarding the relevance of the notion of the rule of law to the colonial context? 

Beyond that, it will examine how Palestine's wartime emergency legislation compared to its British equivalent. 

The goals of this research are twofold. Empirically, it is aimed at expanding the existent knowledge base regarding legal regulation of emergencies. That is, by painting a comprehensive and detailed picture of a specific historical emergency regime, providing current discourse, dominated by discussions of contemporary issues and theoretical inquiries, with a historical resonance. Analytically, this research objective is to deepen the understanding of the nature of emergency law and its relation to the notion of the rule of law. That is, by presenting the relevant academic community - historians, social scientists and legal scholars interested in the subject of states of emergency - an integrative historical-theoretical analysis of a colonial regime of emergency, exposing and deconstructing its inner legal mechanisms and ideological undertones.

 

Extrajudicial Killings: Normative study to determine the impact on State and Democracy in changing World Order

Abhishek Mishra

The Torture Victims Protection Act, 1992 of the USA defines extrajudicial killings as “a deliberate killing without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” In the context of this research, extrajudicial killing would be understood either as a result of a war or as an act conducted by law enforcement officials.

The hypothesis of the research is that the state’s power to kill at will is inversely proportional to democracy in a changing world order.

 The research will look into the legal regime of four countries- India, the UK, the USA and Israel. These countries are shortlisted because they are the one mired in issues of extrajudicial killing the most. Their practices and legal regime would – so goes the intuition - throw a light on the existing normative scheme that purports to compromise with the right to life of individuals in emergence situations. The main question the research will try to answer is: Is it true that states adhering to the legal regime that is pro human rights have lesser extrajudicial killings, and lesser erosion in their civil and political liberties? Are human rights thus strengthening the democracies, or is this a dangerous assumption? In other words, a priori, the stronger the state’s freedom to kill is, the weaker will be the human rights and hence democracy that as a result take a back seat? 

In order to answer this question the following questions will be addressed:

a) Why are extrajudicial killings on a high and what are the factors that lead to states to resort to extrajudicial killings?

b)  Is the framework of law (constitutional law, international humanitarian law and human rights law) enough to regulate the tendency of extrajudicial executions?

The phenomenon of Foreign Fighters: a new challenge for the world between effective protection and legal safeguards

Federica Maiorana 

The issue of European foreign fighters and returnees is a highly complex and dynamic one. The phenomenon has grown exponentially in the last years and there are no signs that this will stop soon. The legal issues to do with (European) citizens moving to and from combat zones take place on multiple levels: local, national, European, and International law. It is the goal of this project to first attain a clearer understanding of the phenomenon and then systematically go through the main legal issues and for each of them propose an alternative solution.

 

The Effects of Armed Conflicts on Bilateral Investment Treaties 

Tobias Ackermann, the Institute for International Law of Peace and Armed Conflict (IFHV) at the Ruhr University Bochum, Germany 

The human catastrophe due to an extreme condition such as armed conflict is worsened by the economic situation in the aftermath of conflicts when the economy is in recession and the infrastructure has collapsed. 

On the one hand, foreign investors may have the potential to help rebuilding war-stricken societies and contribute to the improvement of living conditions. On the other hand, foreign investments may also have suffered during the conflict themselves when factories were abandoned or destroyed and employees injured or even killed. Foreign investments are oftentimes specially protected by so-called bilateral investment treaties or BITs, concluded between the home State of potential investors and the receiving State, promising protection and security of foreign investments. 

The effects of armed conflicts on the validity and content of such BITs are, however, not exactly clear: Does the treaty even remain valid or may it be suspended by the host State for the period of the conflict? Is the investor as protected in times of armed conflict as he is in times of peace? And does the State have, when it is deemed necessary, the right to destroy a factory owned by the investor?  

The same lack of clarity exists regarding the interplay between the investment protection regime and the regime which governs armed conflicts in general, namely international humanitarian law. Can a BIT forbid what the law of armed conflict allows? Is the investment treaty a closed regime not open to the influence of other rules? Or do the rules of armed conflict preclude reliance on the BIT? 

This research addresses exactly these two issues: the effects of armed conflicts on international treaties, in particular BITs, as well as the interaction between these two very different sets of rules.  

The research involves both structuring and analyzing the existing international legal framework of treaty law and its application in the context of armed conflicts, as well as the interaction between different legal regimes.

See discussion paper The ILC Draft Articles on the Effects of Armed Conflicts on Trearies:Room for Termination or Suspension of Bilateral Investment Treaties?

 

Researches supported in 2014-2015:

 

"Twentieth-Century Partitions: Legacies of British Rule", Research and Workshop.

Dr. Ayelet Ben-Yishai, Dr. Alexandre Kedar and Dr. Ornit Shani, University of Haifa  

Two territories were partitioned under British administration in 1947 and 1948: India and Palestine. In South Asia the partition ultimately resulted in the formation of three states: India, Pakistan, and Bangladesh. In the Middle East it led to one independent state, Israel, and the statelessness of another people, the Palestinians. The trajectories and circumstances of the two partitions differ in many respects. Nonetheless, they share commonalities that can be traced directly back to the unprecedented emergencies in their respective areas, stemming from sectarian violent conflict, and leading to deep socioeconomic crises and severe sociopolitical fragmentations.

Law played a crucial role in the partition process and the attempts to facilitate a peaceful transition and transfer of power in the time leading up to partition. Then, it replaced the British legal orders in the newly created partitioned states. During the violent transition period, law was often absent, suspended or simply ignored. At the same time, as the partition was unfolding, new emergency laws were devised to regulate – first temporarily, and then more permanently – its major effects, including borders, transfer of population, refugees and their properties, the challenges of ethnic violence, and the issue of citizenship, minority rights and their protection. While many of these issues still remain unresolved, emergency and emergency-like legislation which was enacted during the "long partition" era, and those British emergency acts which the new nations chose to retain, continue to linger and affect their legal, social, political and geographical landscape more than 65 years after partition.

The project is inherently interdisciplinary, bringing together legal scholars, political, cultural and literary historians, geographers, political scientists, and area. The goal of the working group is not to discuss the merits and problems of partition as a model for political state-building, nor to assess or determine when and whether partition is a valid political solution. Rather, we propose to write the histories of partition in the twentieth century as cultural, historical and legal phenomena that are intricately tied to colonial discourses and practices, and whose implications are ongoing and far-reaching

 

A Case Study of the Global Rule of Law’s Impact on Transitional Politics: The Marcos Class Action 

Dr. Natalie R. Davidson

The paper: "Alien Tort Statute Litigation and Transitional Justice: Bringing the Marcos Case back to the Philippines" was accepted for publication in the International Journal of Transitional Justice (2017)

See also discussion papers:

Judging the Marcos Regime in U.S. Courts: ATS Litigation as Postcolonial Law 

Shifting the Lenses on Alien Tort Statute Litigation: Narrating US Hegemony in Filártiga and Marcos (Accepted for publication in the European Journal of International Law)

 

Public Order and Emergency in Early Twentieth Century Britain 

Patrick Graham

See discussion paper:

Public Order in Britain’s Wartime Emergency, 1914–18: The Defence of the Realm Act

 

Researches supported in 2013-2014:

The Rule of Law and State of National and/or International Emergency Caused by Strikes of Essential Employees    

PI: Prof. Moti Meroni, Faculty of Law, University of Haifa

The current public debate over the government initiative and the continuing dissatisfaction and concern about the lack of systemic thinking and coherent policy for coping with strikes in essential services are the impetus for the research. It aims at getting deeper insight into and international perspective of the broad subject of strikes in essential services, analyzing the various aspects of legal regulation and assessing their efficacy.

The more specific objectives are as follows:

To highlight and analyze the normative and labor relations dilemmas that come into play when applying the rule of law in extreme conditions caused by strike or threat of strike in essential services. 

To examine the different approaches to the definition of extreme conditions caused by a strike which justify the suspension of basic rights, i.e. the right to collective bargaining and to strike, and the employment of emergency powers and measures.

To build a conceptual map for designing and analyzing models of regulating strikes in essential services and strikes that threaten or actually lead to emergency situations. 

To develop a set of criteria that might be used in order to assess the performance of the rule of law measures under extreme conditions caused by strikes in essential services.

To describe and analyze the history of legal regulation of strikes in essential services in Israel.

To provide an analytical account of International Law's treatment of state intervention in the right to strike of essential service employees.

To canvass, examine and conceptualize the different models that are employed around the world for coping with extreme conditions caused by strikes in essential services in the public and private sectors of the economy and to assess their efficacy, workability and success.

To build a rich worldwide database concerning the four components that are likely to be involved in regulating the right to strike of essential service employees through the rule of law i.e., (1) the unit (population of employees, type of service or situation); (2) the arsenal of restrictions imposed on the right to bargain collectively or to strike; (3) the benefits or privileges bestowed upon the essential service employees in lieu of the right to bargain collectively and to strike; and (4) the menu of dispute resolution processes that are provided by the law of different jurisdictions in order to enhance and facilitate negotiation, to act as strike substitutes and to assures finality.    

To suggest a new model for legal regulation of those strikes perceived to threaten to cause or actually cause national emergency.

 

The Price of Counterterrorism Information Gathering: Intelligence Informers in the Israeli Courts 

PI: Prof. Menachem Hofnung, the Hebrew University of Jerusalem

What are the social and economic prices of using cohorts of local collaborators to ensure military control of hostile occupied territory?

Creating a counterterrorism intelligence infrastructure which incorporates information collected by a vast number of collaborators involves recruiting, training, operating, maintaining and securing safe refuge for agents if and when they are exposed. This research focuses on exposed collaborators in the Israeli-Palestinian conflict, who are often secured safe refuge in Israel and granted Israeli residency permit or even citizenship. This resettling operation is long, painful and involves supporting infrastructure, financial grants, new work training and long term care. Due to the veil of secrecy applied to such operations, this research will draw primarily on available court cases and files, which will enable systematic analysis of legal information regarding this sensitive issue. These court files include hundreds of High Court petitions filed by Palestinians and former Lebanese citizens who seek to acquire the status of collaborator or, if already granted such status, to obtain various rights given to former accredited agents. In addition, the research will also collect and analyze data in lower courts criminal proceedings involving collaborators. This will be done through recently acquired permission to use Net-Hamishpat database.

The hypothesis of this research is that the entire operation which was initially justified under extreme conditions of national emergency has turned out to be a routine tool in a long, daily exercise of securing territorial expansion. The vast majority of information obtained from collaborators pertains more to the security of settlement activity in the West Bank rather than to matters of macro national security. As a result, while the information of this operation is not essential for the security of Israel in its fight against coordinated terror operations, the price to retain the operation is enormous. The unintended result of utilizing Palestinian collaborators to primarily secure Israelis in the West Bank leads to an effective relocation of certain segments of populations: while the Israeli settlement presence in the West Bank is strengthened, the weaker elements of the Palestinian society are relocated into Israel (primarily within the weaker municipalities) following their exposure as collaborators. The consequences to both Palestinian and Israeli societies of employing collaborators in terms of social fabric, internal trust and individual hardships cannot be exaggerated, and as such this research may add another perspective to the understanding of the complexity of the Israeli-Palestinian conflict and the fight against terror.

 

 

Database construction funded in 2013-2014

 

Documentation and Information Center: a database of natural disasters in Israel since 1948.

Prof. Moshe Inbar: Department of Geography and Environmental Studies

See: Hebrew and English

 

GIS Digital Spatial Data Project (Israel)

Dr. Anna Brook

 

An Empirical Database on Regulatory Preparedness for Cybersecurity Emergencies: A Comparative Approach

Adv. Deborah Housen-Couriel