The Minerva Center for the Rule of Law under Extreme Conditions

List of Supported researchers, 2013-2020

In-house research 2019-2021

Towards an Israeli doctrine and legislative-regulative framework dealing with emergencies
PIs: Prof. Eli Salzberger and Prof. Shlomo Mizrahi (Public Policy, University of Haifa)
With Dr. Robert Neufeld (post-doc)and Mrs. Dana Krup (research assistant)

Funded by the National Emergency Knowledge and Research Center (Supported by the Israel Ministry of Science and Technology and The National Emergency Management Authority, Ministry of Defense)

During its short history Israel had gone through numerous emergencies, most of which were related to national security incidents. It is surprising, therefore, that Israel lacks a solid doctrine and comprehensive legislative and regulative framework dealing with preparation towards emergencies, handling and mitigating of such emergencies and recovering from them. Furthermore, the legislation that does exist on the law-books is far from reflecting reality, creating a dangerous gap between the law in the books and law in action.

The current research is meant to fill these lack and gap. Based on a comparative study of the emergencies doctrines and legislative frameworks in other countries, and on a careful study of the Israeli situation through policy analysis tools, reports and interviews as to the current Israeli formal and practiced frameworks, we will put forward a policy paper and legislation proposal to deal with the structure and management of the emergency field.

National Research and Knowledge Center for Emergency Preparedness
PI: Prof. Deborah Shmueli (Center Head); Dr. Michal Ben Gal (research coordinator) Law group led by Prof. Eli Saltzberger, team of 85 researchers, Prof. Gad Barzilai, Prof. Amnon Reichman members of Law group.

Funded by the Ministry of Science and Technology and the National Emergency Management Administration of the Ministry of Defense

THE NATIONAL KNOWLEDGE AND RESEARCH CENTER FOR EMERGENCY READINESS with eighty-five researchers was established in January 2018 by the Israel Ministry of Science and Technology and the National Emergency Management Authority (NEMA) of the Ministry of Defense. Core institutions involved are University of Haifa (the Center hub), the Technion and the Hebrew University, together with researchers from Rafael Advanced Defense Systems, Madatech, the Israel National Museum of Science, Technology & Space, Rambam Hospital, Tel Hai College, and the Israel School for Humanitarian Aid; with partners from the municipality of Haifa and NATAN International Humanitarian Aid. The Center's mission is to provide a state-of-the-art scientific research institute to serve as a think-tank for policy framers, decision-makers, the academic community and practitioners from all sectors. The two intertwined functions of the Center are 1) independently generated, cutting-edge and multi-disciplinary research, and 2) solicited real-time response to requests by NEMA, government ministries, elected officials, NGOs and other stakeholders.
The Center provides three levels of knowledge:
• Basic Science – both theoretical and empirical, regarding generic understandings of emergencies as such, the variables that differentiate between various types of emergencies, and the interplay between emergencies and 'normalcy'. Basic science is currently lacking, since it requires long-term commitment, of the kind that the Center can generate (and then reap the fruits of the investment). Attention will be paid to case studies (of single events from a comparative perspective using comparative data) and to theories that allow for comparing one event to another.
• Synergy – one of the outputs of the cross-disciplinary and cross-institutional Center structure is the development of a language embracing a more comprehensive perspective on emergency management. Since emergencies are often studied in an insulated manner by one discipline or another, developing a common language among disciplines will not only catalyze a richer, more robust understanding of the interaction among the many components necessary for better emergency management, but will also assist distinct state institutions, which also, on occasion, operate in an insular manner, to establish a more comprehensive approach.
• Comparative international studies and transferal of applicable transnational experience to the Israeli context. This level is crucial for policy recommendations, which the Center will generate in response to requests or pursuant to the internal research agenda.

Post-doctoral fellows research 2021-2022

Mediating Influence and Achieving Failure: NGOs in Israel/Palestine and the Paradoxical Itineraries of Human Rights

Omri Grinberg

This research project contends with a paradox that shapes the work of human rights non-governmental organizations (hereinafter, NGOs), and has significant bearings on contemporary struggles over liberalism and definitions of violence. The paradox is between the pervasive presence of human rights-talk in media and culture—general notions of “human rights” (hereinafter, HR) and related terms denoting legal protections and moral imperatives—and NGOs’ inability to achieve their stated goals of protecting and improving the lives of the populations they aim to assist.
This is an anthropological project based on a case study: The initial formations of Israeli NGOs, which occurred in two distinguishable historical time-frames – the first (1988-1991) and second Intifadas (2001-2005), Palestinians’ uprising against Israel’s occupation. Israel/Palestine is a paradigmatic geopolitical context in the histories of HR, where—as recent scholarship shows—HR projects fail to reach their objectives and NGOs (unwittingly) further perpetuate violence. Such studies of HR are useful, but problematically rely on philosophical critiques of liberalism, and overlook failure as a productive analytical category (and, for those failing, as important practice). In this project, Omri argues that the paradox of HR can be a rich source of critical insight if we analyze NGO failures as achieved: failure parallels the achievement of success, requiring production, adaption, and inter-systematic coordination.
Using interviews and archival research, he is collecting and analyzing discussions and communications within NGOs, and between them and outside actors (such as: state agencies, media, UN extensions, “parent” NGOs and donors). Through these materials, he traces HR terms - including abstract notions such as violence and rights, and more specific definitions (torture, administrative detention, and citizenship status). Mapping semiotic trajectories shows how HR language was shaped during NGOs’ formation phases: who introduced terms and based on what source, their adaptation and translation, circulation, and responses from significant outside actors. In turn, NGOs often form during, or in the wake-of, times of heightened violence and tension. Thus, this study contributes to our understanding of how state and non-state actors negotiate—within and between them--the legitimacy of violence in times of crises.

Currently, Omri is working on the first article based on this study, with Dr. Sarai Aharoni (Ben-Gurion University), focusing on a small, long-running Israeli NGO that deliberately counters the pervasive logic of other NGOs in two distinct manners: avoiding any public activity and recognition, and functioning without a central organizational archive.
Concurrently, in addition to this research, he also engaged in two other projects: adapting his doctoral dissertation (titled Writing Rights, Writing Violence: The Bureaucracy of Palestinian Testimonies in Israeli NGOs) as an ethnographic book, and a study carried with Dr. Yael Berda (Hebrew University and Harvard University) about the changes in Israel’s bureaucracy and practices regulating Palestinians’ permits to travel and work in Israel, due to COVID-19. Specifically, they are examining what these changes tell us about the history of Israel’s most persistent policy: disallowing West Bank and Gaza Palestinians from spending the night within Israel.

Away from the Mainstream: Democracy and The Rule of Law in Marginal Political Youth Periodicals during the State of Israel’s First Decade

Talia Diskin

This project aims to trace, from a legal-historical perspective, the roots of Israeli democracy from its primary origins to its marginal edges: the peripheral parties, who appealed to youths through their own periodicals. The project offers a study of how three different politically periodicals communicated, from their unique points of view, subjects of law and morality to their adolescent readers in the first decade following Israel’s establishment (1948-1958) – extrinsically: from “outside” of mainstream periodicals. It will focus on three allegedly marginal periodicals in particular, all published in the 1950s – as the country transitioned from a Jewish community (Yishuv) ruled by the British Mandate to a sovereign state. The project offers some new perspectives on alternative voices that countered (and sometimes expressed their loathing for) the dominant voice of Mapai (Israeli Labor Party), the ruling party at that time, led by Prime Minister David Ben-Gurion. In regard to the Israeli nation that, from its very own beginning, constantly fought for its democratic identity, this is a local project; from a global viewpoint, it raises questions regarding other countries, as well as the legitimacy of provocation, especially at times of state or nation building.

Post-doctoral fellows research 2020-2021

The Term "War" in Modern International Law

Shelly Aviv Yeini

The term “war” in the legal context is considered a term of the past that has no substance in modern international law. The desire to abandon the term has a clear rationale—historically, war was triggered by a formal declaration and fought between states, allowing parties with more power to manipulate the application of international humanitarian law, which would commence only upon a declaration of war. However, the post–Geneva Convention understanding of hostilities has largely changed, most notably in the adoption of the notion of “armed conflict”, which is based on factual assessment rather than on a declaration in both international and non-international contexts.

However, this research would suggest that the term “war” is still in use by many states, international courts, international institutions, and legal scholars. The term “war” has not ceased to exist in the context of international law; rather, it has evolved to indicate an escalation in the intensity of hostilities within the paradigm of “armed conflict”. This new use of the term “war” has significant explanatory value because the term “armed conflict”, especially in the international context, covers a wide spectrum of intensity. While the intensity of hostilities is not relevant to the application of international humanitarian law, once an armed conflict has started, any escalation of intensity and efforts to prevent such an escalation may still be important in various arenas, including the provision of humanitarian aid, humanitarian intervention, the planning of military objectives, and the perception of urgency by international tribunals.

The Persistent Objector Doctrine: Contradicting an Objection

Shelly Aviv Yeini

The Persistent Objector Doctrine (POD) in international law provides that the rule of Customary International Law (CIL) would not oblige a state if it had persistently objected to the development of such rule of CIL. While the requirement of 'persistency' has been discussed in the legal literature, the term 'contradiction' with reference to such consistency, which disqualifies a state from Persistent Objector (PO) status, has not. Therefore, it is not clear what type of behavior would represent a contradiction to the persistency of an objection and interfere with PO status.

The proposed research would offer that while substantive contradictions should disqualify a state's PO status, a minor contradiction should not affect its PO status. Given the modern political reality of the contestation and plurality of voices among a state's branches and institution, some amount of contradiction should be allowed otherwise POD would be practically nullified. Therefore, the proposed research suggests guidelines to differentiate minor contradictions from substantive ones, as only the latter would impair PO status. Such guidelines include the direct connection between the contradiction and the rule in question; the proximity of the statement or action to international relations; the position of the initiator of the contradiction within the inner hierarchy; the legitimacy of the contradictory act (whether the initiator of the contradiction acted with authority); the influence of the contradiction over a state's behavior; and the accumulation of minor contradictions.

From a state of exception to hyper-legality: Israeli counterterrorism law in the post-two-state era

Rottem Rosenberg Rubins

This research is based on the case study of Israel/Palestine and focuses on Israel’s comprehensive 2016 Counterterrorism Bill. This legislation was adopted to allow Israel to cope with security offences within the confines of its conventional criminal procedure, rather than by using emergency measures. The case study combines a critical analysis of the Bill with an empirical study of the decisions made on the ground in accordance with this legislation.
Using a methodology of Critical Analysis of Law, Rottem identifies the underlying logic of the Counterterrorism Bill and the type of relationship it envisions between Israel and Palestinians living under Israeli occupation. She demonstrates that such Palestinian residents are the main group targeted by the legislation, which views them not as an external enemy but rather as “homegrown terrorists”, who are neither “insiders” nor complete “outsiders” to the Israeli political community. However, the legislation is also likely to apply to two other groups that present a particular threat in the eyes of the state, namely, Palestinian citizens of Israel and Jewish settlers living in the occupied territories. The legislation is largely preventative by nature and focuses on averting anticipated violence incited by these three groups. While striking a new balance between emergency powers and conventional criminal measures, the legislation also constitutes a strategic combination between the two types of measures, allowing the state to apply them interchangeably. This model for preventing terrorism is consistent with what Hussein (2007) has termed “hyper-legality” – an inflation of laws and legal mechanisms that causes the subjects of power to be over-regulated rather than abandoned by the rule of law.
To test these hypotheses, Rottem is conducting an empirical study of the judicial and administrative decisions reached in cases involving the three identified groups of presumed enemies, examining both the concrete decisions and the judicial discourse characterizing each group.

Post-doctoral fellows research 2019-2020

City at War: Haifa in the Aftermath of the 1948 War

Ronnen Ben-Arie

Cities are known to be targets of war and violence and the urban space often functions as a vehicle of war and terror, as cities are becoming more and more the primary space in which war, terror and violence are taking place and war itself is becoming more and more urbanized. However, the transformation and management of cities and of urban life and the city’s resilience that enables its perseverance and sustainability through the conditions of war and its aftermath, still lack research and conceptualization. The research aims to address this lacuna by exploring the concrete and specific practices, regulations, procedures and policies that were implemented during and following the 1948 war in the city of Haifa, intended to restore order and sustain urban life. The 1948 war was a time of extreme conditions for the city of Haifa. After decades of rapid development and growth, within a short time the city transformed completely. Throughout the years of the war (1947-1949), the city has lost half of its population, as around 70,000 Arab-Palestinian residents, out of a total population of 145,000, have fled and were forced out of the city and only 3,500 remained. At the same time and during the few years following the war, tens of thousands of Jewish immigrants arrived at the city and by 1951 the city’s population reached again the total of 147,000. The city, its population and its management have radically transformed, while the city sustained through these transformations. The aim of the proposed research is to explore and analyse this ability of the city to sustain through radical transformation in a time of extreme conditions. The research will pay particular attention to the management of the city as a whole and the connections and relations between the different parts of the city and neighborhoods; to the continuity of operation of major urban infrastructures and industries; to the utilization, reconstruction and rehabilitation of the derelict parts of the city and abandoned property through the inhabitation of incoming migrants; and the interrelations between the different levels of governance, the municipal and the national, and the different authorities and organizations involved.

Babysitter Jutice

Tamar Megiddo

With the rise of populist politics around the world, progressive, activist courts have been a primary target of criticism by populist politicians and thinkers.Plausibly, one consequence of the threatened legitimacy of courts may be a renewed reluctance to rule on politically high-stakes issues. This project studies one course of action to which courts may resort in such situations: evading ruling on the merits of a case, preferring, rather, to “babysit” it, in the hope that the underlying conflict resolves itself without explicit judicial intervention. By “babysitting” a case, a court keeps a case pending, refraining from ruling on its merits for an extended period of time. During that time, the court might hold occasional hearings, urge the parties to negotiate, or require them to report on the underlying dispute.
The court’s choice to keep cases pending rather than rule on their merits raises concerns, as the court’s formal mandate is to decide the cases brought to it,2 and not preside over negotiations, and given that rights may continue to be gravely violated in the interim. Simultaneously, the value of the court’s function as an arena for inter-party engagement should not be easily dismissed.
The practice of judicial evasion from ruling on the merits has received little scholarly attention. There is a robust literature on the strategy of, and conditions under which courts have expanded their judicial review powers. Voluminous scholarship also exists with respect to the motives for instigating, and the benefits for parties who engage in public interest litigation. However, the research argue that there is an important qualitative
difference between cases where a final decision on the merits is realistically anticipated – and cases where it is not (e.g., babysitting), regardless of the favorability of such decision.
The paper explores an Israeli case study in order to illustrate and analyze the practice of judicial babysitting. In 2007, a petition was filed with the Supreme Court of Israel against the pushback policy exercised by the
IDF against migrants and asylum seekers crossing the Israeli-Egyptian border. This practice was alleged to violate the non-refoulement principle, which prohibits the deportation of person to a place where she faces
risk to her life or liberty. Although voicing its discomfort with the practice in hearings, the court kept the case pending for almost four years, declining to issue an interim injunction. In 2011 the government
decided to halt the practice. Shortly after, the court finally ruled that the petition has exhausted itself and should be denied.
By babysitting the case, the court achieved several things: (1) it avoided having to render a decision and commit to a specific normative position and thus exposing itself to political criticism; (2) it was able to convey to the government certain signals which triggered reconsideration of its position, even without issuing an explicit decision; (3) it was also able to provide litigants with certain benefits, including, primarily, a forum in which the government was bound to engage with them.
The government was able to avoid an adverse decision at the price of having to undertake certain steps which it might not otherwise wish to take. Following the court’s guidance, it promulgated and later amended a procedure regulating the pushback policy and occasionally reported on its implementation.
Nonetheless, the government was forced to operate under some legal uncertainty as the court refrained from legitimizing its practice.
As for the petitioners, even though they were not able to obtain the judicial decision they were hoping for, they were able to utilize the proceedings to generate support for their cause otherwise. Among others, the proceedings served as a measure to force the government’s attention and responsiveness to their arguments; as an axis around which to beckon the intervention of international bodies, including UN bodies and global NGOs, and to generate public awareness and media attention.
Nevertheless, babysitting continues to suggest certain foundational difficulties. First, the court clearly did not fulfill its role as a settler of disputes. Arguably, the petitioners’ right to access to justice also includes a right to have their case decided, not only heard. Second, babysitting did a disservice to the court’s role as a guide for behavior and as an institution entrusted with furthering the coherence of the law and its implementation on the ground. Further, when deciding to babysit, the court seems to operate on a certain tentative assessment of the facts and the law, but this remains preliminary, unspecified and unreasoned.
Third, the deterring factor of babysitting vis-à-vis the government that is attached to the threat of an adverse ruling may over time erode if the court often resorts to babysitting and rarely acts on the threat.
Finally, and most importantly, the court’s refusal to rule on the case and even to issue an interim injunction allowed for the pushback of over 600 individuals, some of which are known to have been held incommunicado in Egypt or deported back to their countries, tortured or killed. This, most starkly, was babysitter justice’s highest price.
The contribution of the paper is threefold. First, at the descriptive level, by calling attention to the phenomenon of judicial babysitting that is likely to expand in the present political climate. Second, by conceptualizing the practice of babysitting, mapping and categorizing the conditions under which a court may engage in babysitting, and evaluating the practice’s implications for litigants. Finally, from a theoretical and normative point of view, by evaluating the implications of this practice for democratic checks and balances and rights’ protection.

From Contested Sovereignty to Urban Politics:Palestinian Rights-Claiming and 'Accessing the State' in post-Oslo East Jerusalem

Oren Shlomo

This study empirically describes and theorizes new forms of Palestinian encounters with the state in Jerusalem hypothesizing their shifting in the post-Oslo era from non-recognition and rejection of Israeli rule, to the utilization of state governmental and legal apparatus to make claims on the state. The analyses facilitates an assessment of the implications of this development in relation to Palestinians’ partial inclusion in state apparatus and the restructuring of their political positioning, the development of civil sentiment between the Palestinians and state agencies, and the overall restructuring of urban politics, governance and modes of control under the extreme urban and political conditions in Arab Jerusalem.
Thus this research is situated within a growing body of knowledge which investigates new forms of governance, control and resistance that have emerged in the post-Oslo era of the Israeli-Palestinian conflict – an era which is characterized by a shift from peace resolution to 'conflict management' (Bar-Siman-Tov 2007). In the context of East Jerusalem (EJ), the so-called 'post-Oslo era' refers mainly to the events that have brought about the political, social, and economic 'fall' of the intended Palestinian capital, as it has gradually transformed from the urban center of the West Bank to a poor, isolated and neglected city with its urban functionalities and economy oppressed and weakened to near collapse (Cohen 2011; Klein 2005; Shlomo 2017).
This research innovates by applying the urban 'southern' approach to EJ which focuses on the politics of marginalized groups and informal settlements, such as slums, favelas, and refugee camps of the cities in the Global South, whose dwellers are largely excluded and disassociated from the state's formal governmental, legal and administrative orders (Bénit-Gbaffou and Oldfield 2011). Situated within this framework, the study examines how the transition from 'politics of favors' and encroachment to a formal discourse and political practice of rights claiming evolves. Further, It explores what political subjectivities have been produced in this right claiming process within a context of not only poverty, marginality, urban informality and alienation from the state as described in the literature on the politics of urban informalities (Bayat 1997; Roy and AlSayyad 2004), but one where the very legitimacy of the ruling power is rejected – as in the case of EJ.

Extrenal research supported in 2019-2021

Non-State Armed Groups & Public Health Emergencies

Jori Breslawski (2021 call)

The study examines the extent to which people living under the control of armed groups are willing to comply with public health advisories. The study will use the most-likely case of Hezbollah, and employ a survey experiment to compare reported willingness to comply with public health advisories between two randomly assigned groups of participants—one that received a hypothetical endorsement from Hezbollah and one that received a hypothetical endorsement from the Lebanese government. Survey participants (n=500) will be recruited using Facebook ads and then redirected to a qualtrics survey.

Towards Resilient Global Governance of Supply Chains: Performative Sites of Trade Disruptions Under COVID-19

Klaas H. Eller (2021 call)

The project sheds light on the micro-level of supply chain distortions during the COVID-19 pandemic by linking together in-depth socio-legal studies of the performative sites of global supply chains of essential goods like Personal Protective Equipment (PPE), including factories, ports, wholesale markets, and hospitals. It will illustrate the entanglements and global/local dynamics between actors, norms and processes that mark current global supply chains and serve as a basis for an empirically informed vision of a more resilient post-neoliberal trading regime. The project overcomes the patchworked legal regime between international economic law and private governance that currently animates supply chains and will break new ground for socio-legal research by retracing the legal regimes of global supply chains through the lens of a specific site. It aims at displaying how a global crisis (and other ‘extreme conditions’) oscillate between the micro- and the macro-level of their occurrence and what role law plays in this oscillation. The analysis cuts through and engages with transnational law, international economic law, legal anthropology and geography, and socio-legal studies broadly understood.

Regional Catastrophe Politics: Disasters, Diplomacy, and Regional Alliances in the Middle East

Carmela Lutmar & Leah Mandle (2021 call)

The beginning of 2020 has drawn worldwide attention to the difficulties of disaster management. As we learn globally and collectively how COVID-19 spreads, infects, and kills, we contend domestically and separately with levels of development and international relationships that can exacerbate or mitigate COVID-19’s effects. Although events like the development of new viruses may be exogenous in the short term, scholars consider resulting pandemics, and disasters themselves, to be endogenous, conditioned by the quality of government and management, and with direct influence on diplomacy, human rights, conflict, and peace (Diehl and Goertz, 2000).

There is perhaps no better time to examine these issues than right now. We are in a critical moment, when these processes can be examined as they unfold and to get a better understanding of how disasters affect all the areas mentioned above, and contribute to concrete policy decision-making through high-quality academic research. We therefore propose having a workshop that will explore some of these issues – but with a regional focus – that is, regional bilateral relations and alliances in the Middle East, as they unfold these days following the “Abraham Accords” (but not restricted to them).

Because disasters such as the COVID-19 pandemic require both inward-facing and outward-facing efforts, they offer opportunities to examine critical questions in International Studies. Disasters can change perceptions of rivals, allow for the manipulation of emotions by political elites, and increase domestic demand for changes in international governance. The research, the workshop we plan to have based on it, and the book and special issue that will come out of it, attempt to advance our understanding of the conditions under which disasters and hazards governance can drive changes in in-group/out-group perceptions, diplomatic communication, and public sentiment. Contributors to the workshop will examine the effect of disasters on bilateral relations, the human rights implications of disaster policy, the extent to which states’ choices are shaped by domestic institutions, variations in disaster diplomacy practices, and whether long-life disasters such as the pandemic can serve as catalysts for negotiation, mediation, and resolution of intractable conflicts.

How Internet Deprivation Upends Democratic Participation and the Rule of Law

Daphna Canetti (2021 call)

This research project aims to investigate the democratic implications of a mounting vulnerability to digital disconnection. Technological innovations have created unparalleled social opportunities, yet these technologies are not rolled out evenly to all segments of the population. Minorities, rural residents, the poor and the elderly have all struggled to maintain high levels of connectivity in an increasingly interconnected world. Pervasive cyber-attacks, ransomware and Internet shutdowns further threaten stable Internet connectivity. We posit that the effects of this technological deprivation are more insidious than the short-term technical and economic nuisances that are referred to most commonly. Rather, as modern democracies transition online (e-government, digital public fora, etc.), the deprivation of Internet access fundamentally harms the ability to engage in democratic participation. This dual reality of digital dependence and digital vulnerability raises troubling questions about whether access to the Internet should be a protected social right, or could even reach the level of a modern technological human right. As such, using a series of empirical controlled experiments, the research will develop a theory of Internet access as a gatekeeper for modern democratic participation, and examine how this theory meets current policy.

The Emergency Constitution of Israel - Lessons from the Covid19 Crisis

Guy Lurie and Amir Fuchs (2021 call)

This research asks if the emergency constitution of Israel, detailed in sections 38-39 of the Basic Law: The Government, is aligned with democratic principles. Does it supply effective tools to deal with emergencies, all the while keeping human rights and proper checks and balances?
In dealing with the Covid19 Pandemic, Israel relied basically on two major legal instruments. The first one was a wide-ranging usage, for the first time in many years, of the Government’s authority to promulgate emergency regulations. The second legal instrument was the passing of the so-called “Covid19 Law” and the promulgation of regulations according to this law. In this research we will focus on the promulgation of emergency regulations, made by the Government’s authority in section 39 of the Basic Law: the Government, with reference too to the promulgation of regulations according to the Covid19 Law and the Public Health Ordinance.
The wide-spread usage of emergency regulations offers a case study of the application of section 39 of the Basic Law: the Government, in order to ask if this arrangement is aligned with democratic principles. For this purpose, we will need to review what democratic principles should this emergency constitution include (representation, governability, protection of minorities, values and human rights). We will do so through using principles discussed in the literature in the past few years and through a comparative research of the application of these principles in practice in constitutions. We will also conduct an international comparison of constitutional and legislative emergency arrangements (among others, to jurisdictions dealing with lengthy emergencies), with particular reference to the ways in which other jurisdictions dealt with the Covid19 challenges from a legal standpoint.

Emergency Policies in Israel: Between Exception and Routine

Nir Kosti and Yoav Mehozay (2021 call)

The COVID-19 pandemic has rekindled the debate over the inherent link between exception and routine in Israel. The proposed book seeks to rethink and update the existing knowledge of Israel’s emergency regime and jurisprudence, following the coronavirus crisis and the enactment of the Counter-Terrorism Law in 2016. These recent developments require a major revision to the existing knowledge on Israel’s emergency regime and jurisprudence. We introduce a revised analytical analysis of Israel’s emergency powers for scholars and the general Israeli public alike. By presenting a unique dataset of legal emergency tools used in Israel between 1948 and 2020, the book seeks to become the most up-to-date source of Israel’s emergency regime. In light of the widespread use of emergency tools during the coronavirus crisis, we believe that making this knowledge accessible to the academic community and general public is a valuable contribution to our understanding of Israel’s political regime.

The Impacts of National Crisis on Contractual Obligations

Joel Slawotsky (2021 call)

Keep-well agreements (or comfort letters) are enigmatic “assurances” long used in a variety of business contexts. In recent years, these contentious letters have risen in popularity as evinced by numerous Chinese entities issuing debt with such provisions. Are these letters enforceable obligations or are they merely expressions of reassurance that “best efforts” will be undertaken for re-payment? In particular, comfort letters issued by sovereigns or state-linked businesses (and the Covid-19 crisis has also incentivized resort to such instruments see EU governments) present an overarching intriguing legal issue in international economic law. Skyrocketing sovereign debt and the moral hazards of bailing out state-backed businesses may occur in the context of a severe economic crisis (and the Covid-19 crisis). Can the sovereign or sate-linked entity issuing the letter invoke the essential security exception (or other contractual clause if it exists) to override the letter? To what extent does the issuance of such a letter (without reference to any exceptions) serve to act as a “written revision” strengthening the sovereign’s obligation? As our world faces transformative changes the conceptualization of security will need to be re-conceptualized. But what are the parameters and how does that (or should) effect contractual obligations such as comfort letters? Can an economic crisis constitute a threat to an essential interest that would nullify a comfort letter? Other emergencies can also potentially be included such as health and social stability. Yet the slope is slippery and contracts should be honored. Thus the focus is to what extent are governments (or state-linked entities) obligated to guarantee payment when the sovereign claims a crisis or emergency constitutes an essential security interest overriding the letter? Drawing from corporate law in the parent-subsidiary context (in various jurisdictions), this paper will examine the impact of comfort letters and the interplay with the essential security exception in international economic law in times of crisis.

Tort Liability in War

Haim Abraham (2021 call)

This research project examines whether it should be possible for civilians to hold states liable for losses states inflict on them during warfare. Answering this question requires turning into two bodies of laws that appear to be incompatible and unable to yield clear conclusions. First, the laws of war, which regulate states’ conduct in combat, but do not provide individuals with a private law claim-right against states or impose duties of compensation on states towards civilians. Second, tort law, which offers civilians a cause of action, yet its structure seems difficult to apply in the battlefield, and its availability is frustrated in many common law jurisdictions by a special immunity. Consequently, arguments relating to the liability of states tend to be polarized, advocating for either complete immunity or total liability, and are divorced, to various degrees, either from the laws of war or from tort law.

This project develops a novel account of the tortious liability of states for wrongs they inflict during combat that is informed by the laws of war, tort law theory and doctrine, and substantive rule of law principles. The central claim is, that by examining the laws of war, it is possible to articulate the rights and duties of states and civilians during war, including what amounts to an imposition of wrongful losses for which corrective justice duties arise. Only losses that are inflicted while violating the laws of war are wrongs for which liability can and should be imposed, as such actions are outside the scope of states’ authority. By exposing the nexus between the laws of war and tort law and defining which losses amount to belligerent wrongs, the framework offered illuminates how tort doctrines can apply in the battlefield and why tort liability should be available for civilians against states.

Genres of Emergency: Indian Literature and the Iteration of Crisis

Ayelet Ben-Yishai (2021 call, support book publication)

(forthcoming, Oxford University Press 2022)

Synopsis

The Coronavirus pandemic has brought a renewed consideration of states of emergency, employed variously world-wide to combat the global health crisis. In many countries, emergency measures have sat far too easily with ongoing erosions of democratic government and governance. The severe limitations to individual and collective rights imposed for the sake of public health seem oddly of a piece with those already in place in the name of "security" or "public safety." In India, the harsh and hastily-imposed lockdown, and the callousness with which millions have been left to their fate resonates with ongoing authoritarian measures instituted by what is increasingly called the "undeclared Emergency" led by the BJP. Emergency measures thus seem to form an amalgam of crisis and continuity. This nexus—the relationship of past to future in states of emergency—is the focus of this book.

Rather than insisting that the state of Emergency is mundane (although it is) or that it is rooted in colonial structure (although it is), Genres of Emergency brings together literary form with politics, sociology, and history to show how the Emergency functions simultaneously as exceptional and non-exceptional, unexpected and yet familiar; analyzing it as a discursive figure of authoritarianism, democracy, and corruption.

Genres of Emergency offers literary genre as a way to understand and negotiate the varied states of emergency and crisis that have become a fixture of our contemporary world. Building on a critical study of the literature written during and about the State of Emergency declared by Prime Minister Indira Gandhi in India (1975 – 1977), the book establishes emergency and its genres as an important interpretative site: an exceptionally violent episode marked as a one-off crisis, which also functions as a locus for an ongoing renegotiation of a modern polity and culture. The manuscript offers both a cultural history of Emergency discourse at the time and an analysis of the literary genres in which Emergency fiction was written after the fact. Reading a wide-ranging archive of English-language texts – from prison memoir to popular magazine, from high-brow literary fiction to boilerplate thriller, from the unrelentingly realistic to the mythically allegorical – Genres of Emergency traces the tension between crisis and continuity that these genres mediate. I argue that the discourse of the Emergency, like its events, straddles the tension between the singular and the generic, between the unprecedented and ongoing.

In addressing this tension, the authors of Emergency fiction take seriously the genres in which they write and use them to mobilize literary conventions as political interventions. More specifically, these novels use the conventions of realism, epic, allegory, and the thriller to reach back in time and across cultures and languages, invoking past iterations of these genres and histories and anticipating those to come. Arguing that the horizon of expectations generated by a genre carries political meaning, one that is explored and exploited by a novel’s engagement with its generic form, my case study of India’s Emergency fiction can serve as a paradigm for thinking about emergencies world-wide via the genres – literary and non-literary – in which they are written. Building on my formal literary analysis, I finally argue that the Emergency itself needs to be understood in terms of genre – a structure or template which each iteration modifies – offering a novel and productive way to analyze individual historic events as well as the more general political phenomenon of states of emergency and the cultures that they draw on and generate. Combining literary criticism with cultural history, Genres of Emergency thus has implications for the study of literary genre, for the historical events that these genres recount, and for understanding the politics of literary form.

The Law and Politics of Bystanders and Upstanders

Zachary Kaufman (2020 call)

Third parties play a significant—and underappreciated—role in the commission of crimes and the spread of non-criminal crises. The magnitude of these emergencies often increases when “bystanders” remain passive or, worse, actively facilitate. Conversely, calamities can sometimes be thwarted, or at least mitigated, by “upstanders” (people who intervene to help others in need).
This research concentrates on the law (and, to a lesser extent, politics) addressing bystanders and upstanders. The research features domestic and foreign case studies in which a person is aware of another person who is exposed to, or has suffered, grave physical harm. These situations involve, among other crises, genocide (Zachary's area of specialization).
After canvassing the analytical space, he proposes using a combination of positive incentives (“carrots”) and negative incentives (“sticks”) to prompt would-be bystanders amid emergencies to act instead as upstanders. His legal prescriptions include strengthening, spreading, and standardizing domestic “Bad Samaritan laws” as well as introducing the first international Bad Samaritan law. His social prescriptions include creating what he calls “upstander commissions” to identify and “upstander prizes” to honor and reward upstanders. The research also introduces original typologies of bystanders and upstanders that promote greater nuance in their classifications and a corresponding range of legal (and moral) responsibilities. These typologies are designed to maximize generalizability to a variety of crimes and non-criminal crises. (For additional information on these typologies, please see Zachari's article, Protectors of Predators or Prey: Bystanders and Upstanders amid Sexual Crimes).
The research will culminate in a book tentatively titled THE LAW AND POLITICS OF BYSTANDERS AND UPSTANDERS with Cambridge University Press. A series of law review articles and op-ed pieces that are building to this book were already published so far by Foreign Policy, the San Francisco Chronicle, the Boston Globe, the Stanford Law & Policy Review, and the Southern California Law Review.

Climate Change, Sinking Islands, and Disappearing Sovereignties: the Rule of International Law Under Extreme Conditions of Our Ecological Crisis

Ori Sharon (2020 call)

In August 2016, the International Geological Congress formally recognized that the world has entered a new geological era, the Anthropocene. The new designation signifies a shift in human-nature relationships. Once governed by nature, humankind has now risen to the position of itself being a force of nature. Unfortunately, this new status has been achieved at great cost. Like other forces of nature, man’s power is unchecked and chaotic, decimating ecosystems at an unprecedented rate. According to scientific estimates, if not stopped, the procession of human-induced ecological disturbances will render many regions of the Earth uninhabitable by the end of the century.
To address these global catastrophes, states need to work together. Unfortunately, our system of international law, that collection of norms that determines the “rules of the game” for interstate cooperation, has been developed during periods of relative ecological balance. It is therefore not surprising that the instruments and doctrines of international law are ill- equipped to address the political realities of a world in constant ecological flux.
This research is the second of three articles aimed at developing innovative theoretical legal frameworks for the stresses and extreme conditions that result from global
climatic challenges. In particular, this research addresses one of the most pressing climate- related challenges in international law: the potential disappearance of Small Islands Developing States (SIDS).
Sea levels are rising. In the last century alone, the sea has risen fifteen centimeters. As greenhouse gas emissions escalate and global temperatures rise, sea level is expected to rise at an accelerating rate. By the end of this century, according to some estimates, sea level will rise an additional two meters. At that level, one billion people will be exposed to environmental and climatic risks like floods, king tides, and superstorms. For SIDS, climate change poses an existential threat. As low-lying island territories, SIDS are extremely vulnerable to changes in sea level. If sea levels continue to rise, many SIDS may become uninhabitable or even submerged. As the oceans cover their territories, according to conventional legal thinking, the statehood of SIDS will cease. Under the Montevideo Convention on the Rights and Duties of States (Montevideo Convention), territory is a criterion for statehood. No territory, scholars argue, means no state.
This legal outcome is extremely unjust. In effect, it means that the most disadvantaged countries of the world will pay the price for actions taken by the richest and most powerful nations on Earth. With a combined population of 65 million and nonindustrial economies, SIDS have contributed less than 0.03 percent of total CO2 emissions worldwide, but few other nations will suffer from the harsh consequences of climate change as much as SIDS will. If SIDS are to lose their territory and their sovereignty, they will be victimized for acts they did not commit. Not only will their people become landless refugees, their only means for maintaining self-determination and exercising political rights will be taken away as well. To mitigate the injury to SIDS, this study develops a novel, equity- based doctrine for recognizing a new legal subject in international law – the non-territorial state.

See here for Ori Sharon's talk about his research at the Center's seminar (in Hebrew)

The Role of Corruption and Human Rights Violations in Migratory Flows: Impact and Perceptions

Ina Kubbe and Rosa da Costa (2020 call)

This research aim to identify and explore the ways in which migration, and particularly irregular and mixed migration flows, are affected by corruption and human rights violations. Through the use of a variety of methodologies, it seek to illustrate these effects and demonstrate how the link between migration, corruption and human rights violations is manifested in specific settings. Through critical analysis and the data gathered, the project will contribute towards better legal and policy responses. Conceived as a pilot project, it will initially focus on four European countries - Germany, Sweden, Denmark and the United Kingdom.

The Role of International Courts and Tribunals in Adjudicating Wartime Environmental Damage

Stavros-Evdokimos Pantazopoulos (2020 call)

Parts of the natural environment have been used as a weapon or suffered reverberating effects during wars since ancient times. More recently, resembling the practices of Iraqi troops when they were retreating from Kuwait during the early 1990’s Gulf War, ISIS fighters blew up eighteen oil wells in June 2016, creating a vast black cloud stretching over tens of kilometres. The toxic black smoke was so thick that was referred to by locals as the ‘Daesh winter’. Notwithstanding the fact that environment, the ‘silent’ victim of warfare, has suffered great damages in times of war, remedies for wartime environmental damage are not readily available for various reasons. To begin with, the enforcement of the laws of war is inherently fraught with difficulties and in many past wars violations either went unnoticed or were not dealt with for political reasons. In addition, wartime environmental damage is usually difficult to assess in the aftermath of the armed conflict, despite -and because of- its lasting impact. In the same vein, issues of causation and proof only serve to further complicate matters. Last but not least, remedying environmental damage ranks lower than other priorities at the post-conflict phase, such as addressing humanitarian needs, notwithstanding the fact that recent conflicts have showcased that the protection of the environment can act as a catalyst for a sustainable peace, since a competition over natural resources was the primary reason that led to the outbreak of the armed conflict in the first place.
In the light of the above, this research project examines how international courts and tribunals (ICTs) have dealt with the issue of environmental damage caused during an armed
conflict, either of an international or of a non-international character, the main objective being to identify their strengths and weaknesses in their effort to uphold the rule of law. As mentioned above, environmental protection does not usually rank high at the post-conflict phase and this partly serves as an explanation of why it remains at the backstage. As a In addition, the research will survey the factors that enable and empower ICTs to bring within the remit of their competence wartime environmental damage issues, as well as to inquire how their engagement with those issues has influenced their legitimacy in the eyes of their respective audiences.

See here for Stavros's talk at the Center's seminarat the Center's seminar

The 'Reasonable Suspicion' Test of Turkey's Post-coup Emergency Rule Under the ECHR

Emre Turkut and Sabina Garahan (2020 call)

(Support for publication of: Turkut, Emre and Garahan, Sabina (2020). “The ‘Reasonable Suspicion’ test of Turkey’s Post-coup Emergency Rule under the ECHR”. Netherlands Quarterly of Human Rights 38(4), 264-282. https://journals.sagepub.com/doi/10.1177/0924051920967182)
Since the 15 July 2016 failed coup, Turkey has seen the mass arrests and detention of hundreds of thousands of people; among them are judges and prosecutors, military personnel, police officers, journalists, lawyers, human rights defenders and opposition politicians that have been deprived of their liberty on an array of terrorism-related charges. While this has raised numerous human rights issues, this article focuses on those pertaining to pre-trial restrictions imposed on the right to liberty and security of individuals during the post-coup state of emergency. Building on the theory and use of the reasonableness concept in the field of pre-trial detention through a particular focus on the ‘reasonable suspicion’ test under Article 5 § 1 (c) of the European Convention on Human Rights (‘ECHR’ or ‘the Convention’), the article analyses the role of the European Court of Human Rights (‘the Court’ or ‘the ECtHR’) in enforcing the guarantees of the right to liberty in the Turkish post-coup cases of Mehmet Hasan Altan, Şahin Alpay, Alparslan Altan and Kavala. Against the background of pre-existing Convention standards on pre-trial reasonable suspicion in emergency settings, it finds that the ECtHR has adopted a stronger supervisory stance regarding the compatibility of Turkish post-coup detention practices than the more hesitant approach shown in the prior emergency context of Northern Ireland. While these decisions give some cause for optimism in the hope for a judicial boldness on the part of the ECtHR in condemning Turkey’s detention practices during the state of emergency, the article argues that there is further scope for the Court to strengthen its protection in this respect. Notably, despite the positive aspects in the Court’s approach, by continuing to support the notion that the Turkish legal landscape is capable of addressing Article 5 violations and not tackling the underlying structural issues so clearly at play, the Court leaves a glaring gap in rights protection for those seeking justice.

Media Coverage of COVID-19: A collection of academic and professional sources on the culture and behavior of printed, broadcast, digital and social media in reporting the COVID-19 crisis

Dov Shinar (2020 call)

This project contributes a basic collection of sources on the culture and behavior of printed, broadcast, digital, and social media with relation to COVID-19. It is intended to help explore social and cultural implications of crises ranging from sporadic experiments to more focused and systematic projects, and to assist researchers, teachers, students, media professionals and general audiences interested in COVID-19.

See report here

2018-2019 In-house research

Tools and mechanisms for stakeholders 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 1^st. 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 (3^rd 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.

Disasters in India – a welcome pretext for the federal government to get rid of state governments?

PI Prof. Stefan Voigt.

This is a continuation of a project which began in 2017. The Indian constitution allows the federal government to dismiss a functioning state government, and dissolve the elected state legislature, if the federally appointed governor of a state recommends such a dismissal due to a breakdown of constitutional machinery. Such breakdown could be caused by natural disasters, but also by domestic strife, and communal riots. These constitutional emergency provisions are also known as “President’s rule.” They have been invoked by successive federal governments in over 120 instances since 1950 to impose direct federal rule in the states. The constitutional provision (Article 356) has been criticized for both undermining the federal structure of India, as well as for its rampant abuse by federal governments. We examine the factors that affect the invocation of emergency under Article 356. By studying every single state government ever formed, and those dismissed under Article 356, we analyze if President’s rule is used by federal governments to punish political opponents who have formed state governments. In 2018, the research focused on coding newspaper articles on local riots, and the project continues in 2019.

Strategic Litigation Networks and Accountability for Gross Violations of Human Rights
PI Prof. Dr. F. Jeßberger; team: Dr. Leonie Steinl, LL.M. (Columbia); Luca Hauffe

The project is funded by the German Research Foundation (Deutsche Forschungsgemeinschaft) until 2021.
The project which started in 2018 aims to examine a novel actor in the area of international criminal justice: strategic litigation networks (SLNs). SLNs are networks composed of NGOs and other non-state actors active in the litigation of human rights and international crimes cases. The project is based on the assumption that SLNs proactively employ international and domestic criminal law and similar norms (such as punitive damages law) to target perpetrators of international crimes in a transnationally coordinated effort and as part of a larger juridical-political strategy transcending the individual case. Arguably, through the 'creative use of law' in international and domestic fora (such as criminal complaints, amicus curiae briefs), SLNs contribute to the 'fight against impunity' of most serious crimes, e.g. genocide, crimes against humanity, and war crimes.
Specifically, the project aims to inquire into the SNLs’ operation methods, their role within the international system of criminal justice and their impact on the broader perception and development of international criminal justice. Drawing on a mix of research methods, including desk studies and field work (qualitative interviews), the research team seek to formulate an overall theoretical framework for classifying and thus gathering a better understanding of what currently stands as a diverse and unsystematic muddle of initiatives, objectives, and (legal) techniques. Research questions include: What are the aims of SLNs and what impact do they have? What procedural mechanisms or 'gateways' do SLNs use? Which legal arguments do SLNs apply and how can they be systematized? In particular, what weight is assigned to international and comparative law in their legal arguments (systematic pattern of cross-referencing)? Specific areas for in-depth-analysis will be selected where, arguably, SLNs offer competing narratives to the state-centered and state-driven international system of criminal justice. These areas will include (a) accountability of (transnational) corporations and their employees for their involvement in human rights violations and international crimes; (b) accountability for international crimes, in particular torture, in the so-called ‘war on terror’; and (c) accountability for sexual- and gender-based crimes under international law.

2018-19 Post-doctoral research

Emergency, Power and Proper Authorisation

Nadav Dagan

This normative research explores two main fields of the law that regulate governmental powers and the exercise thereof in national emergencies: vires and discretion. The requirements of due authorisation as well as discretion law are of special importance during large-scale emergencies, since situations of this sort dramatically increase the tendency to centralise powers and control.
During emergencies the general public and political institutions may show an increased propensity to grant the executive all tools deemed necessary to deal with the evolving emergency, including extraordinary measures, or acquiesce to governments' demands. Hence, new powers may be granted to the authorities by the legislature, and the government usually pushes to deepen and widen its discretion as per existing powers as far as it possibly can.
Exploring the complementary and closely connected fields of vires and discretion, this research aims to construct a normative framework for legal examination which powers are (and should be) conferred on government officials and how these powers ought to be exercised in times of emergency. The research presently focuses on the legal requirement of authorisation in public law.
This stage of the research concentrates on the nature of governmental powers during national emergencies and the justifications for the legal requirement of authorisation, with special emphasis on statutory authorisation. In particular, it investigates various theoretical and doctrinal approaches that can be classified into one of two broad categories: legality and non-legality, inclusive of prerogative powers and contra-legal acts.

Informal Jus ad Bellum Lawmaking

Yahli Shereshevsky

The project focuses on the continuous debate over the right to self-defense against an imminent armed attack by non-state actors. The law on the use of force against non-state actors is vague and the path of traditional lawmaking and soft law initiatives have proven futile since the relevant actors cannot reach an agreement on the substance of such outputs. Under these circumstances any significant gap filling initiative has a potential to be influential and relevant states have strong incentive to use informal lawmaking technics to influence the law.
The project will mainly explore the involvement of former state officials as significant actors in these new lawmaking initiatives. While state unilateral lawmaking initiatives are expected to be influential, their perceived partiality might decrease their persuasive force. Academic works by former state officials, while still associated with state interests, might receive greater legitimacy in the international legal community. The proposed project focuses on the role Sir Daniel Bethlehem’s article in the American Journal of International Law as a focal point of reference in the legal battle over the use of force in such situations. The project offers a unique account on the way in which academic work is used by states to justify they legal positions. It will use this concrete example to explore the importance of allegedly neutral sources that are not directly produced by states as legitimizing tools of state positions in contemporary international law making.

Political theories of the rule of law under extreme conditions

Idit Shafran Gittleman

The famous Latin phrase inter arma enim silent leges ("in times of war, the laws fall silent") demonstrates an approach by which war is not part of civilized human life, subject to laws of decency and morality, but rather an outburst of primeval instincts of aggression or survival, therefore not subject to any set of rules. War strips man of all dress of human civilization, and takes him back to his primal, primitive, pre-civilized form.
At least prima facie, the existences of just war theories, as well as laws of war, stand in some contradiction to this approach. They reflect the view according to which even at times of war there are basic human rules that should be maintained and observed, and that some actions should never be performed, whatever the circumstances. Indeed, putting moral realism supporters aside, it is widely agreed that both the law, as well as morality, speak, and should be speaking, inter arma as well.
However, we do tend to accommodate some flexibility to the rules under extreme circumstances or severe conditions, sometimes allowing violation of human rights for example, under such conditions, when unavoidable in order to prevent greater harm, or when characterized as security measures.
This tension between the approach according to which at times of such conditions the law should be silent, and the insistence that even when facing extreme conditions, we should nevertheless maintain the rule of law, at least to a certain degree, is present not only with regard to war-time, but also to other sorts of extreme conditions times such as natural disasters, etc.
During such times, it is often the case that states announce a "state of emergency" which allows them to either apply a whole different set of laws, or to amend the existing laws. For example, article 16 of the French constitution provides for "exceptional powers" (Pouvoirs exceptionnels) to the president in times of acute crisis. In Israel too, the continuation of the emergency regulations is approved every six months since the country’s establishment in 1948, since, according to the state: “There’s a fundamental need for the laws due to the war on terror".
The research reviews the different political theories facing this question. It first maps the theories, locating them on an imaginary graph at the one end of which stands the view that there should be no changes in the rule of law even under extreme conditions, while at the other end stands the view reflected by the above mentioned Latin phrase. The aim is to conclude with a normative theory of the role which law should play under extreme conditions

Between The Rule of Law and the Law of the Ruler: A political Biography of the Prevention of Terrorism Ordinance

Maya Mark

The first act of terrorism in the history of Israel - the terrorism ordinance , and the way in which the government reacted to it - makes the ordinance, and the legal and political process in which it was created and shaped, an important and interesting case study for the study of the rule of law under extreme conditions. The first stage of the proposed study analyzes the legal, political and historical context in which the terrorism ordinance was legislated. The second stage of the proposed study will reflect on theoretical questions regarding the Rule of Law under terrorism. More specifically, the research discusses the three main issues delineated below: Firstly, the balance between maintaining the rule of law and presenting the government with the necessary tools to deal with terrorism. In the case of the Prevention of Terrorism Ordinance, the state was called upon for the first time to determine how it would cope with acts of terrorism. The dispute over the content of the order raised the fundamental question of the proper balance between the government's need to obtain all necessary authorities to deal with terror and the democratic principle of the rule of law.

Secondly, The Terrorism Ordinance, as a case study, offers important insight on the boundaries of the rule of law as a legal term. The dispute over the Terrorism Ordinance broke out several months before the first elections for parliament and became a key issue in the elections while generating a public battle between political forces that threw all their weight into the debate. The rule of law represents the crux of the argument over the terrorism ordinance, when both sides of the debate use, and in some cases exploit, the rule of law as an argument and a justification for their viewpoint. In this sense, the rule of law emerges as an elusive concept charged with different meanings and as an ideological standpoint that is subject to interpretation. Thirdly, the research argues that anti-terrorism laws may - in certain cases - serve as a juridical instrument toward a political end, which weakens the rule of law in the pursuit of a political agenda. This political agenda delineates the boundaries of a camp and of a discourse and also, in particular, defines and marks those who are located beyond the borders of the camp and the discourse.

Public Resource Allocation in Socio-Economic Crises: A Trust-Based Perspective on Judicial Review

David Vitale

This research uses the concepts of trust and trustworthiness to develop a novel and valuable perspective on the judicial review by constitutional courts of public resource allocation decisions. It is especially interested in the relevance of such a perspective during/following socio-economic crises like the 2008 Global Financial Crisis.

Social scientists have long stressed the importance of public trust in government to well-functioning democracies. Research has shown that trust encourages public cooperation, affecting the public’s willingness to accept authority decisions, its feelings of obligation to obey laws and its performance evaluations of authority figures. Given the link between trust and public cooperation, many scholars have called for greater attention to be paid by lawyers and lawmakers to the concept of trust. Thus, this research addresses two principal questions: (i) can (and if so, how can) trust be used to analyze public resource allocation disputes?; and (ii) can (and if so, how can) trust be used to define an appropriate role for constitutional courts in such disputes (both in normal financial circumstances as well as during/following socio-economic crises)?

From drones to cyberspace: the evolving concept of warfare and the legal challenges

Anna Evangelidi

This project is motivated by the constant development towards weapon technologies that seek to achieve more and have greater consequences with less and less risk, as manifested in the use of unmanned aerial vehicles (UAVs) or drones and promised by the advancement of increasingly autonomous weapon technology, which represent models of violence that challenge the fundamental legal and ethical premises of the existing law of armed conflict (LOAC). Against this background, this research considers the rise of cyberspace as a more and more prominent means and method of warfare, and the range of cyber activities that pave the way for the increasing militarisation of cyberspace. Concerned about the legal argumentation which tends to concede too much to the dubious promises of advanced and sophisticated weapon technology, and which claims to speak to humanitarian sensitivities, this research suggests that there are still important questions to be asked and answered. With that in mind, it explores the multi-layered structure of the cyber domain and unpacks the essential and unique features of a realm that is at once virtual and real, intangible and physical, and examines what this means for the law conceptually and normatively. In this context, it considers whether the ways of conceptualising and understanding more traditional forms warfare and kinetic hostilities are well-suited to the peculiarities and particularities of cyberspace, and looks at the contribution of the work of expert groups like the Tallinn Manual on International Law applicable to Cyber Warfare in that respect. In the rapidly evolving world of conflict, the research also examines how the adversarial relationship of those found on the opposite ends of cyber activities is shaped both at the collective and the individual level, and how the lines between the military sphere and the civilian lifeworld in cyberspace are re-drawn.

Extrenal research supported in 2018- 2019:

Weather-related disasters and violent conflict

Michael Brzoska

One of the consequences of climate change is an increase in extreme weather events, such as storms, droughts, floods and heatwaves. A good number of such events lead to destruction and death. The study of weather-related disasters has recently become more prominent as a way to analyze potential links between climate change and violent conflict with important new studies published. The study of the social consequences of disasters seems particularly promising to further our knowledge about structural conditions, conflict dynamics and particular mechanisms linking weather-related disasters and violent conflict. While in principle not different in terms of their environmental consequences, weather-related disasters are already stressing social and political fabrics of affected societies in more immediate ways than slow-onset consequences of climate change.
Important studies on the link between weather-related disasters and violent conflict were published in recent years, However, evidence of the link between climate change and violent conflict remains contested. Much seems to depend on the case, technicalities of the chosen method and interpretations of the relative weight of climate change-related factors to other factors. A good example of this complexity are the strongly diverging views of the role of a drought in Northeastern Syria between 2007 and 2011 for the onset of the civil war in Syria, which began in the spring of 2011. While some see the drought and the ensuing income losses and migration from Northeastern Syria to other parts of the country as crucial factors leading up to the protests against the government, others dismiss this narrative as unconvincing. They argue that for the population who rose in opposition to the government, the economic effects of the drought had few consequences and, furthermore, that the opposition’s main concerns were political repression as well as the regime’s violent reaction to its demands for more rights and freedom.
This project contributes to the growing body of literature which argues that both structural conditions of societies, such as poverty and the fragility of institutions, and the dynamics of conflicts need to be at the center of the analysis of the links between climate change and violent conflict. On the basis of a differing approach to the study of the consequences of climate change, conflicts are shaped by people, their agency based on their material capabilities as well as their perceptions about differences with other people in terms of interests, goals and values. Major changes in natural environments through climate change are likely to alter such perceptions. However, the outcome of the complex social and political processes which are set in motion by environmental change are not determined.
Seen from this perspective of conflict analysis, the prime challenge of research on the effects of climate change on violent conflict is to identify the circumstances under which environmental change is likely to lead to violent conflict and where it is likely to be managed peacefully. An important tool for such analysis is the search for mechanisms that drive the dynamics of conflict beyond single cases. In order to contribute to this effort, this project focuses on a review of the ten most deadly weather-related disasters between 2000 and 2016 and their relation to violent conflict with the goal to identify important mechanisms.

Countering terrorism via criminal law in autocracies and democracies

Barbara Korte

This project analyses the different approaches to countering terrorism through criminal law in two democracies and two autocracies. It tests the hypothesis that based on freedom from democratic election, authoritarian legislators adopt legislation criminalizing terrorism and related offences that are capable of or even intended to forestall a broader range of otherwise non-criminal activities of political opposition, dissidents or religious groups, far beyond the scope of actual terrorism-related activity. The hypothesis is tested by a comparison of terrorism and related offences in the criminal codes of authoritarian Russia and China and democratic Germany and the USA. Benchmarks for evaluating that alleged overbreadth of terrorism legislation are the test of reasonable notice of the prohibited conduct and the existence of a clear delineation of the intended limitations of the offences’ scope of application.
The research is split into two parts. The first paper deals with the legal definitions of terrorism over time in the four countries (“Legal definitions of terrorism: criminalizing a contested concept or criminalizing contestation itself?”), primarily focussing on the criminalization of actual terrorist activity. Its most important finding is that by virtue of basing terrorism-offence definitions on existing offences for the actus reus and adding various elements mostly referring to the terrorist purpose and consequences Germany and the USA forestall applicability of the terms of the offence to otherwise non-criminal behaviour. Russia and China, on the other hand, in their definitions do not require the actus reus to constitute a self-standing offence. Hence, by referring to purpose, consequences and methods of terrorism rather than to an independently criminal actus reus their offence definitions allow for application to otherwise non-criminal behaviour such as dissident, opposition or religious activities. In the first paper, the starting hypothesis is therefore confirmed.
The second phase of the research (also resulting in a paper) focuses on prevention of terrorism through criminal law, analysing the different national approaches to extending the range of adjudicable preparatory activities and to predating criminal liability. Unlike with definitions of “terrorism”, here the differences between the jurisdictions do not correlate with regime type. Rather, each legislator has chosen a different approach to establishing criminal liability before an actual act of terrorism occurs. Similarities between all jurisdictions are the establishment of individual criminal liability based on either individual activities or self-alignment with certain types of organizations. Differences regard the types of organizations listed and the threshold between actum internum and externum with regard to individual activity. The national approaches differ to a great extent, as does the direction of the fallout of over-inclusiveness towards dissidents, religious observers or other - ordinary - criminals.
These findings contribute not only to our understanding of the differing political instrumentalization of terrorism and related offences across regime types. They also illustrate that terrorist and preparatory activity pose substantial challenges for legislators across the board per se, regardless of the otherwise outstanding credentials in terms of the rule of law. Most importantly, the findings challenge us to reconsider whether criminalizing preparatory activities can be seen as a struggle between protecting national security and individual constitutional rights that is resolvable. They suggest that, instead, we might have to accept that there will always be fallout of offence over-inclusiveness and the real question to be decided by legislators is which direction is most acceptable for that fallout.

“Island of legality”: refugee processing in Chios

Itamar Man

In recent years, the EU has established refugee and migrant processing centers in a number of locations in the Mediterranean region, in the Aegean islands and in Southern Italy. During the summer of 2017, the researcher and his team conducted preliminary research on the island of Chios, revealing the potential of socio-legal studies around the hotspots for uncovering micro-level legal processes of region formation. They participated as legal consultants and Arabic translators and integrated into the work of the German organization Refugee Law Clinics Abroad (RLCA). They found that the hotspot has become a site for transnational encounters between refugees, volunteers, European administrators, and local Greek populations, from which unexpected results often emerge. These “assemblages” of persons and legal rules provide an excellent “laboratory” for “integration from below.”
For example, the translation of legal procedures has become a particularly interesting site to examine emerging regional dynamics. Refugee-translators often perform a form of solidarity, above and beyond the seemingly technical task they are assigned for. On the other hand, they may be asked to determine where a certain person comes from, and thus to engage in a form of perceived disloyalty to the refugees as a group.
Family rights also generate interesting regional dynamics. After the height of the migration crisis and the entry of refugees into Europe, the right to family unification is under constant political pressure. At the same time, extended families located on both sides of the Mediterranean and severed by differing citizenship and legal statuses have become networks for proto-political activities: information exchange, financial support, and cultural regeneration. The transnational legal terrain, in other words, has interestingly posed family and state against each other, with relationships constantly being renegotiated and reconstructed through formations of partially overlapping membership.
In this project the researchers plan to continue to examine both subjects through interviews as well as participant-observer tasks within legal aid organizations such as RLCA. To ensure the feasibility of this work, they have also established solid relations with a number of Greek lawyers doing cutting-edge legal work related to the hotspots, including, e.g., Giota Massouridou.

The interplay of sanctions and counter-terrorism measures with principled humanitarian action, the Israeli regulatory framework

Emanuela Gillard

This work explores and suggests ways of reducing the tensions between sanctions and counter-terrorism measures and humanitarian action. In recent years a number of UN sanctions and international counterterrorism measures have required states to ensure that funds and other assets do not directly or indirectly benefit groups designated under such instruments. Frequently, these same groups are the Non State Armed Groups (NSAG) parties to armed conflict that exercise control over civilian populations. The prohibitions on providing any support to designated groups are framed extremely broadly, and can potentially include relief supplies that are diverted to such groups or that otherwise benefit them; payments that humanitarian actors must make to such groups to be able to operate; and even the provision of medical assistance to wounded and sick members of the groups.
Violations of these prohibitions are criminalized. Restrictions with similar effects are also frequently included in states’ funding agreements with humanitarian actors. Private actors, including the banking sector, must comply with the same sanctions and counterterrorism restrictions. To minimize the risk of liability, they have imposed restrictions on the services they offer to humanitarian actors operating in ‘high-risk’ countries. Overlooked until fairly recently, these restrictions, as well as increased costs for financial services, are having a significant impact on the capacity of humanitarian actors to operate in certain contexts. All these measures are significantly affecting humanitarian actors’ capacity to carry out essential humanitarian activities in accordance with humanitarian principles.
This situation raises legal and policy questions. The challenge is not new. It has been addressed in academic literature and policy circles for a number of years now. However, there has been limited progress in going to the next step and finding ways of addressing the tension. There are numerous reasons for this: the Security Council’s close guarding of its role in designing and implementing sanctions; states’ sensitivities in relation to counter-terrorism measures; the difficulties for states to elaborate a coherent position on a topic that falls within the competence of numerous departments; but also humanitarian actors’ apparent incapacity to develop a common position and to provide information on the actual adverse impact of sanctions and counter-terrorism measures on their operations.
A further and overarching reason is the complexity of the applicable legal framework. At the international level, restrictions arise from sanctions and counter-terrorism measures and, although the end result is the same – a risk that humanitarian action may be considered criminal material support to a designated group – the restrictions are not co-terminous and the ways of addressing the problem are different. At the national level, states have adopted different approaches to implementing their international obligations. Some may have adopted autonomous sanctions; others may have inserted exemptions for humanitarian action.
There has been some research of the approaches adopted by different states, but it has focused principally on that of key donor states to humanitarian action. Surprisingly, considering it in a context directly related to a situation where a NSAG, designated as terrorist by a number of states, Israel’s national regulatory framework has not been considered – or at least not in English or French writings.
This research is about the Israeli regulatory framework. Key elements of the research include:
• Analysis of Israel’s framework for implementing UN sanctions;
• Analysis of any autonomous sanctions Israel may have imposed and of their potential adverse impact on humanitarian action;
• Analysis of Israel’s framework for implementing international counterterrorism obligations such as those under the 1999 Convention for the Suppression of the Financing of Terrorism and Security Council resolution 1373;
• Analysis of additional counter-terrorism measures adopted by Israel and their potential adverse impact on humanitarian action; and
• Analysis of any domestic court decisions addressing these issues.

In addition to the above projects, the Center supported these years two projects in cooperation with the Center for Cyber, Law and Policy (CCLP) at the University of Haifa:

Beyond cyberlaw

Gilad Yadin

Virtual reality is here. In just a few years, the technology moved from science fiction to the Internet, from specialized research facilities to living rooms. The new virtual reality environments are connected, collaborative and social, built to deliver a subjective psychological effect that believably simulates spatial physical reality. Cognitive research shows that this effect is powerful enough so that virtual reality users act and interact in ways that mirror real-world social and moral norms and behavior.
Contemporary cyberlaw theory is largely based on the notion that cyberspace is exceptional enough to warrant its own specific rules. This premise, a descendant of early cyberspace exceptionalism, may be dramatically undermined by the advent of virtual reality. The technology brings cyberspace conceptually and concretely close to the real world, blurring legally significant distinctions between cyberspace behavior and physical behavior, between “real”, “not real” and “virtually real”.
There is an opportunity here. Some of the cyberspace-specific legal regimes that developed over the last twenty years are seriously flawed, especially in criminal law contexts. Computer hacking legislation is overly broad and vague, effecting the criminalization of minor Internet infractions and chilling digital freedoms; cyberharassment and cyberstalking laws are poorly enforced and ineffective, turning cyberspace into a hostile environment for many people; government cybersurveillance norms have seriously upset the balance between public security and individual privacy, putting society on the path to an Orwellian surveillance state.
Virtual reality brings a new understanding of the human cyberspace behavior continuum that counteracts cyberspace exceptionalism, undermining contemporary cyberlaw theory and presenting an opportunity to move away from problematic cyberspace-specific legal regimes, back towards the well-established laws of the real world.

Cyber-security of water distribution systems: attacks, detection, algorithms, and policy Implications

Mashor Housh and Ofira Ayalon

Modern infrastructure systems are often controlled by Supervisory Control and Data Acquisition (SCADA) system and Programmable Logic Controllers (PLCs). As such, with the SCADA becoming a central component of WDSs, these systems can be subjected to cyber and cyber-physical attacks. For example, shutting/opening valves or pumps which might risk the water supply, damage equipment, or even inject chemicals (chlorine, fluoride, etc.) above desirable limits.
We develop a specially tailored algorithm for identifying cyber-attacks based on detailed hydraulic understanding of the WDS combined with a machine learning event detection system for identification of complex cyber-attacks that cannot be fully identified by the hydraulic based rules alone. As such, this algorithm will utilize the unique characteristics of the WDS (e.g. hydraulic laws) as opposed to a straightforward application of anomaly detection methodologies. This research is comprised of several stages. The first stage of the research focuses on conceptualizing surveillance in the 'always on' society and offers a theoretical framework to understand the trends that led to its potential existence. The second stage of the research focuses on the various legal aspects that always-on devices raise, while focusing mainly on the right to privacy. It will scrutinize the current American perception of informational privacy, and value various notions of privacy violations as reflected in legal proceedings and the American legal framework. The third stage will turn these theoretical arguments into mathematical formulations via what is termed as Differential Privacy. The expected outcome is a toolkit in the form of technological standards. In other words, this research will provide mathematical mechanisms to "measure" the protection of privacy and aid in determining what should constitute as sufficient security to address the concerns that always on devices raise while preserving the value of the obtained data.

Hostage-Taking and Counter-Terror Policies: Lessons Learnt from the Israeli Experience

Sofia Galani

This study examines the Israeli counter-terror policies, focusing on terrorist hostage-taking. It considers how Israel has responded to the taking of Jewish people hostage within and beyond its territory since the proclamation of the establishment of the state of Israel in 1948. The purpose of this assessment is to examine how hostage-taking has affected the human rights of hostages and how Israel has sought to protect hostages while also safeguarding national security interests. To explore this, the Israeli policies are considered at three different stages: before, during and in the aftermath of a hostage-taking situation. More specifically, is examines the use of intelligence for the prevention of terrorist hostage-taking; the negotiation, ransom policies, and conduct of rescue missions for the release of hostages; and the availability of reparation mechanisms for the victims of hostage-taking. This study contributes to greater understanding of the development of the Israeli counter-terror policies in light of the threats posed to hostages and national security and of how to balance these two for the purpose of protecting hostages without losing sight of national security interests.

Human Rights at the Margin: an analysis of Turkey’s post-coup derogation measures

Emre Turkut

On 15 July 2016, Turkey suffered an attempted military coup, allegedly orchestrated by the so- called Gülen movement, leaving 246 persons dead and 2,194 wounded. Shortly after the attempted coup, on 21 July, the Turkish authorities announced a nationwide state of emergency pursuant to Articles 119- 121 of the Turkish constitution and the 1983 State of Emergency Law. On the same day, referring to the failed coup and ‘other terrorist attacks’, Turkey informed the Council of Europe of its intention to derogate from the European Convention on Human Rights (ECHR) pursuant to Article 15 ECHR and therefore to temporarily suspend a number of rights and freedoms. A similar notification pursuant to Article 4 of the International Covenant on Civil and Political Rights (ICCPR) was lodged with the United Nations shortly thereafter. In the wake of the 21 July declaration, the Turkish authorities adopted a wide range of emergency decrees, closing over 2,500 institutions, including schools and media outlets. More than 120,000 public servants were dismissed from their posts, including approximately 3,800 judges and prosecutors. More than 100,000 others, including military personnel, civil servants and teachers have been detained, with over 50,000 arrested. The state of emergency has been prolonged on a periodic basis, and continues at the time of writing.
The Turkish case is not an isolated example. Quite the contrary, even if few States have taken measures as drastic as Turkey, the number of State derogations from human rights instruments appears at an all-time high. Following the 9/11 attacks, the United Kingdom lodged a derogation notice from the ECHR (which was later defeated both by the House of Lords and by the European Court of Human Rights (ECHR)). France did the same in the wake of the November 2015 Paris terrorist attacks. Ukraine also derogated from the ECHR in relation to the ongoing conflict in the eastern part of the country. Last but not least, in October 2016, the British government announced its intention to derogate from the ECHR with respect to its involvement in military operations abroad.
The present research tackles two main research questions. (I) Are the Turkish emergency measures compatible (de lege lata) with international human rights law, and with international law more generally? (II) Drawing from the Turkish case, is the current derogation regime viable and sufficiently determinate?
Inasmuch as the latter question is answered in the negative, the project seeks to make suggestions (de lege ferenda) for addressing the fallacies of this regime and identifying alternatives to derogation.

Deep Sea mining, outer space commercialization, and their impact on Climate Change

Dr. Elena Cirkovic

This research addresses two concurrent stories, which are relevant to international law. First, is the continuation of the tension between international legal claims to universality, and the parochial interests of states. In this context it will focus on the RF due to the renewed debates over spheres of influence and its positioning in the international legal system. Namely, some legal scholars refer to the Russian Federation (RF) as a recent norm-maker and not only a norm-taker. I contest some of these approaches by arguing that Russian positioning in the international community has always been relational and strategic. In other words, Russia’s activities in the international realm have contributed to the norm-making process by the virtue of it being a global power, and it continues to engage with the international organizations in spheres of strategic interest. The Russian example demonstrates the relevance of State interests in the constitution of international law. With some examples of Russia’s historical positions and contemporary claims, interests, and legal policies in the Arctic and the Outer Space, my research comments on the universally recognized norms and principles of the international law of the sea and the international space law. In the contemporary international law, control over maritime spaces entitles the state to “ownership” of water and subsoil resources and, consequently, entails economic, territorial, strategic, political and military supremacy. The Outer Space Treaty (OST) and the Moon Treaty are legacies of the Cold War, with the corresponding ambiguities in their text as the two competing powers, the Soviet Union and the United States could not agree on many issues. These ambiguities, it is here argued, provide both lack of certainty and certain openness for the private and commercial space sector.
The second story, addresses two global and extraterrestrial challenges to the contemporary configurations of territory, space, time, and law, and especially individual State power. It focuses first, on the Earth System and the climate change in the Arctic; and second, on the commercial and military exploration of the Outer Space. Both will be addressed through the lens of the principle of the common heritage of mankind (CHM), or more appropriately, humankind or humanity principle.
However, there is a third local level, which is also the space that experiences the greatest impact of these exploratory ventures. In the case of the Russian Arctic, and specifically the local communities, including those which self-define as indigenous, both global and local trends are contributing to the limiting of local participation in decision making processes and adaptation to climate change. The local and indigenous communities have limited agency at the supranational level, in respect of issues that fall both within the mandate of the Arctic Council, as well as in response to the cumulative impact of intensive exploitation of its oil and gas resources in the Arctic. Locally, indigenous peoples have either moved to urban areas or contested oil and gas operations. At the national federal level, the Russian Ministry of Economic Development has identified eight Arctic Support Zones on which funds and projects will be focused, with the aim of fostering the economic potential of the Northern Sea Route ensuring both military presence as well as access to resources. From the comparative perspective, similarities can be observed in other countries
relying on natural resource extraction in the High North such as Canada.
These seemingly separate stories – of Russian political, economic, and strategic interests, the Arctic melting ice, and outer space exploration – are connected in the following ways. First, the public-private-international- transnational-state interconnectivity of political, military, economic, and other interests are shaping the international legal developments, regardless of their geographic, ideological, and/or sociocultural positioning. Second, there is a separation among the political, legal, and economic debates, and the science on these issues. In the case of the Arctic, the physical changes induced by climate change are directly affecting current state claims, as well as domestic policies and local communities.

Rule of law under pressure /the Rule of Law and messianism

Prof. Antoni Abat i Ninet

This research focuses on how the conceptualization and enforcement of the notion “Rule of Law” is adapted in times of emergency.
Constitutions and international treaties, domestic and international courts, have progressively applied and given meaning to the locution “rule of law”. Currently, the concept is a fundamental cornerstone of our political and legal systems. Its process of idealization has extended beyond the strictly legal sphere in that the rule of law is among the array of values that leads liberal political morality. The universal “triumph” of the principle of the rule of law means that it is becoming a liberal “God” and its entry into the liberal Valhalla, has enormous consequences. This paper focus on this process of “idealization” of the concept of rule of law and its messianic application to achieve undisputed legitimacy and the “expiation” of non-democratic regimes.
The research is divided into three sections:
The first analyses the two dimensions of the concept of rule of law; related to the notion of sovereignty and as a concept to control arbitrariness on the part of the ruler. The segment proceeds to give an historical account of the notion and the different stages of its epistemological configuration, from the ancient Greek notion of Eunomia and its incompatibility with popular rule, to the current notion where the rule of law has become fused with democracy and human rights. This first segment focuses also on the relation between the concept of the rule of law and other principles, such as proportionality, neutrality and effectiveness.
The second segment investigates the juridification of the rule of law in international treaties and domestic constitutions. It pays special attention to the role that constitutional accommodation plays in the process of rationalization of the rule of law as a prerequisite to its idealization and mystification. The segment goes on to analyse why and how the principle of the “rule of law”, and its different varieties (they vary in non-trivial respects) is explicitly (Portugal, Spain, South Africa) or implicitly (Germany, Canada, United States) incorporated in constitutions around the world. It analyses why this principle is: “clearly a basic and essential feature of the constitution”, despite the inner plurality of legal systems, which comprise local consuetudinary law and legal systems as well as other normative sources (Sharia, tribal normative systems). The research at the Minerva Centre will take special attention in the case of Israel and the cohabitation between the basic laws and Hebrew concepts of the rule of law, specially when both “empires” collide.
The next aspect, analysed in the third segment of this paper, is the messianic use of the concept of the rule of law. The paper performs a critical definition of messianic thought covering a theological perspective and the different theories and concepts that go hand in hand with the idea of the Messiah, such as the “coming”, prophetical and apocalyptical messianism, the phenomena of eschatology, expiation and redemption pictured in the texts and traditions of the three larger Abrahamic religions. The analysis of these spiritual concepts is linked with the conceptualization of the rule of law. A good example of this trend is Zolo´s statement: “the doctrine of the rule of law is, quite probably, the most important heritage that, at the beginning of the millennium, the European political tradition offers the world´s political culture”. The research will be then devoted to Hebrew theories of Messianism.
The last segment will focus on how the concept of rule of law is adapted in cases of emergency such as terrorism and extreme conditions. How the challenges to the rule of law are responded to in constitutional democracies.

Tort Liability for Belligerent Wrongs

Haim Abraham

If a person carelessly breaks your arm, she will have to compensate you for your medical expenses, lost wages, pain, and suffering. This notion is enshrined in tort law, the body of law that is applied by courts in civil cases to provide compensation for individuals wronged by others. Yet, if such injuries are inflicted by states on non-combatants during war, no compensation is awarded, leaving noncombatants with no mechanism of obtaining a remedy for their injuries. The reasons for this lack of liability are twofold. First, under international law states are not obligated to compensate private individuals for an infliction of losses during war. Second, civil proceedings that are ordinarily available for private individuals are frustrated in this context by one of two immunities states enjoy: the ‘state immunity doctrine’ in international law, and the ‘combatant activities exception’ that states have in their domestic legislation. Essentially, both provide states with blanket immunity from any liability for injuries inflicted during war. The purpose of this paper is to address the first-order issue noncombatants face, that is the lack of a right in international law to demand compensation for losses they suffer during war.
Therefore, I leave the second-order issue of the immunities states hold to be addressed at a different time. I argue that while such recourse is not available under international law, it is notionally available in domestic tort law. By relying on Just War Theory and international humanitarian law, I offer a normative framework to distinguish between harmful losses and wrongful losses. My claim is that when states inflict wrongful belligerent losses they are under a tort law obligation to compensate non-combatants who sustained them.

Research supported in 2016- 2018:

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.

Research 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.

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?

Research 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

Research 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

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