This article seeks to evaluate Israel's implementation of the international law of occupation in the territories which it came to control after the Six-Day War, from a new perspective. Many scholars have criticized or justified specific Israeli policies by comparing them to specific norms of international law. Contrary to this scholarship, this article addresses the questions at the core of current debates over the implementation of international law: Why has Israel chosen to implement some specific rules of international law and to ignore others? And what caused the changes in Israel's implementation of international law?

Some of the answers to these questions can be found by examining the interests of various institutions involved in the implementation of International law, and the interplay between them. I suggest that in order to understand Israel's initial behavior one must look at the interests, goals and culture of the Israeli army, the IDF, the institution initially responsible for administering the territories. I shall further argue that subsequent changes in policies are a result of the struggle between the IDF and other Israeli institutions attempting to gain influence over the way the territories were controlled.

Debate about the impact of modern technology on copyright law has become polarized—even harsh. Owners, with some justification, contend that copying has become too easy and that strong protections for their assets must be implemented in order to insure the continued production of creative work. Users respond, with some justification, that such strong protections place intolerable constraints on their rights to browse in digital space, of contemporary culture and fairly use copyright works. The form of the debate—with both sides raising valid problems and neither finding an easy solution inside the existing structure of copyright law—suggests a need to rewrite copyright to insure remuneration to copyright owners while still providing easy, cheap access for users.

The most viable method for achieving such a goal is to institute a wide ranging system of levies on all devices and media that make it possible to quickly and easily copy protected copyright subject matter. In return for the payment of levies, owners would be required to allow users undisturbed access to their copyrighted works. This paper uses the sometimes checkered history of American copyright law as a vehicle for discussion of the problems technology presents to contemporary intellectual property law, the need for a levy system, the most significant requirements of a levy system and the nature of objections likely to arise to use of such a system.

Resort to the Court presupposes a disposition to depoliticize the issues;when this precondition is not attained on both sides of the fence, theCourt's Advisory Opinions are bound to be ineffective. The Opinions willbecome part and parcel of the political contest and share in itsoutcome.

[Leo Gross]

It would make a mockery of the independence of the Court if it could never“reach conclusions at variance with the conclusions stated by the GeneralAssembly”. … It would also render the Court largely useless as an organ forgiving legal advice to the Assembly.

[D.H.N. Johnson]

There are some worrying signs that, far from developing traditional legaltechniques in a way acceptable to old and new States, the Court may departradically from legal patterns accepted in the West in favour of outrightpoliticization of the Court.

[Lyndel V. Prott]

In the present case, worrisome trends that have been infecting theICJ-General Assembly nexus peaked more overtly and ominously than everbefore, recalling earlier fears that the Court's advisory pronouncementswould be either ineffective political utterances or ex partequasi-compulsory judgments rendered without the consent of a stateprincipally concerned. The manner in which the JCJ's advisory function wasexercised raises grave doubts regarding the “judicial” nature of thatfunction, and more generally, the future role of the Court in clarifying thelaw and strengthening world order in the age of the global terroristscourge.

Employing inapt analogies and formalistic, formulaic, and occasionallyinconsistent reasoning, the Court evinced an unjudicial eagerness to furnishthe General Assembly with the imprimatur it sought for its pre-setconclusions. The Court adopted a consistently unevenhanded posture thatmanifested itself, inter alia, in its embracing the assumptions andnomenclature of the Assembly resolution; ignoring the context of ongoingterrorism; minimizing the status of Israel as an objecting quasi-litigantwhile magnifying the role and rights of the Assembly; upholding questionableAssembly practices; presenting a sanitized and skewed version of the crucialfactual and legal contexts; embracing a simplistic and Manichean view of therights and obligations of the protagonists in conflicts bearing onself-determination; and unjustifiably restricting the Charter-affirmedinherent right of self-defense. In all this, it faithfully mirrored theperspective of the Assembly and proved itself, more patently than everbefore, to be a Court of “UN Law” rather than of consensual internationallaw. And to the extent that its “UN Law” perspective continues to spill overfrom the advisory to the contentious sphere, the process of “undeifying” theCourt may gather strength.

In a democratic country an independent justice system plays a major role in protecting human rights and the rule of law. However, an independent judicial system is at risk from a number of factors that derive from outside the sytsem as well as from within. The external dangers facing judicial independence are often discussed; whereas the internal perils that weaken the system as well as judicial independence, are far less known. This article will focus on the danger from within and will discuss the judicial administration's influence on human rights, specifically the right to due process under the law.

This note deals with some of the procedural and substantive issues raised bythe Legal Opinion rendered by International Court of Justice on the legalityof the separation barrier. In the note it is argued that the motivationsbehind the General Assembly's request where political and not legal. It iscontended that he partiality of the choice of the dossiers' material assubmitted, issues relevant to propriety and the judicial character of theCourt, should have led it to decline to give the requested opinion. The noteis critical on the participation of Judge Elaraby, which the note arguesaffects the fairness and impartiality of the proceedings and affect thevalue of the Advisory Opinion. Israel did not consent to the exercise ofjurisdiction by the Court. The problems inherent in the lack of relevantfactual basis and in the fact-finding function of the Court, its totaldisregard of Israel's needs to protect its citizens against Palestinianterrorism, and the categorical and unmotivated rejection of Israel'ssecurity claims, led to an unbalanced and unjust result. Basic humanitarianlaw principles relating to the protection of civilians and internationalhuman rights are disregarded by the Court when it comes to the right to lifeof Israeli civilians and to their right to be protected against terrorattacks. The note contends that the Court's denial of Israel's right toself-defense lacks legal and factual basis. The procedural and substantivedeficiencies of the Advisory Opinion affect its value andpersuasiveness.

This comment relates to a more universal aspect of the Wall opinion, askingwhether the ICJ has promoted or undermined international law in its conduct,more particularly the legitimacy of the ICJ's advisory function. The commentargues that the Wall displays two conflicting tendencies in this respect. Ifone examines the opinion's procedural ‘inputs’ (even setting aside theissues of jurisdiction and propriety), the ICJ may have robbed the advisoryprocedure of some of its legitimacy by unfairly ignoring the case'scontentious aspects on the procedural level. However, if one focuses on theopinion's ‘outputs’, it may have marked a significant, if imperfect,legitimate stage in the ongoing modernization of the ICJ, towards asupra-national, compulsory judiciary that allows a degree of effectiveaccess to non-state interests. Which of these evaluations will ultimatelyhold sway (or how they will weld together), remains to be seen.

The comment focuses on the construction of time in the normative regime ofoccupation. Beginning (in section 2) with a critique of the ICJ's reading ofArticle 6 of the Fourth Geneva Convention concerning the scope ofapplicability ratione temporis of the Convention in cases where the durationof an occupation lasts longer than one year, the comment proceeds (insection 3) to argue (a) that the gap between the working assumptioninforming Article 6 (of relatively short-term occupations) and reality (ofprolonged occupations) defines a problem which the Court erroneouslyconstrued as a solution; (b) that the problem of prolonged occupation hasallowed for the substitution of an indefinite for a temporary duration of anoccupation, a move which defies the basic tenets of the normative regime ofoccupation; and (c) that a proper solution involves the construction of thenotion of “reasonable time” into the Fourth Geneva Convention. The commentincludes (in section 4) a proposal designed to minimize thetemporary/indefinite blurring of boundaries in situations where anoccupation has not ended within one year.

Comparison between the two decisions of the International Court of Justiceand the Israeli Supreme Court on the legality of Israel's West Bankcontroversial separation barrier illustrates some of the inherentdifferences between national and international legal proceedings. The notecritically assesses these differences and advocates a more comity basedframework of cooperation between national and international courts.Specifically, the note argues that the fact-gathering and fact-analysisprocess demonstrated in the Hague Advisory Opinion is problematic, as werethe Court's refusal to show any deference to the Israeli authorities andempathy towards the Israeli public. These deficiencies reduce thepersuasiveness of the Opinion and render its acceptance by Israel lesslikely. At the same time, the failure of the Israeli Supreme Court toaddress the link between the route of the barrier and the alleged illegalityof the settlement detracts from the normative value of the judgment andhighlight the political constrains in which domestic courts operate. As aresult, resort to a comity-based framework in which the national andinternational courts strive to draw upon each other's institutionaladvantages in the fields of fact-finding, compliance-pull and internationallaw expertise would have been beneficial.

This paper examines the authority of the Military Commander to requisitionprivately owned land for the construction of the Separation Barrier withinthe West Bank, which is held through a regime of belligerent occupation. Theexamination focuses on Article 52 of the Hague Regulations, which deals withthe issue of requisitions in kind. Moreover, the relationship betweenArticles 23(g) and 52 of the Hague Regulations is discussed, in light of theICJ's decision whereas Article 23(g) is irrelevant after the close of activehostilities. This paper argues that while Article 52 grants the MilitaryCommander the authority for such requisitions, Israel must demonstrate ineach specific case that there a specific duty of the army of occupationwhich gives rise to a specific need of the army of occupation, in accordancewith Article 52. The relevant decisions of the International Court ofJustice and the Israeli High Court of Justice (HCJ) are examined, especiallythe High Court of Justice's Beit Sourik judgments and the InternationalCourt of Justice's Legal Consequences case.

In Beit Sourik the Israeli High Court of Justice struck down most of theplanned route for the security fence to be established north of Jerusalem.The Court ruled that the military commander did not properly balance thecontribution of this route to the security of the State and the extent ofthe injury to the rights of the Palestinian inhabitants of the area. It wastherefore ruled that this route did not comply with the requirement ofproportionality in its strict sense. At the same time, the Court rejectedthe claim of the petitioners that the motive underlying the determination ofthe fence's route was a desire to establish a border (a politicalconsideration) and not a security consideration.

This article criticizes the Court's line of reasoning. I argue that theCourt erred in striking down the planned route of the security fence on theground of not fulfilling the requirement of proportionality in the strictsense. The vague nature of this requirement may cause judicial decisions toassume a subjective character, thus violating the democratic principleaccording to which fundamental decisions should be determined by thepeople's elected representatives. Given the suspicious circumstances thathad led to the determination of the fence's route, the Court should haveapplied a different kind of reasoning. Instead of balancing the State'ssecurity issues and the Palestinians rights, the Court should have carefullyscrutinized whether the security purpose was authentic. Judicial review,based on these premises, increases governmental transparency and thus bettercomplies with democratic principles.

This paper argues that the ICJ did not need to discuss the legality of thesettlements in order to examine the legality of the fence. Following thisargument, until the settlement issue is resolved, Israel has an obligationto protect the settlers. Thus, even those parts of the fence that areintended to protect settlements, legality does not depend on the legality ofthe settlements. Moreover, this article argues that the Court's analysis ofthe settlements' legality is unsatisfactory: its interpretation of Article49, paragraph 6, of the Fourth 1949 Geneva Convention, deviates to a certainextent, from the meaning of the same terms used in other paragraphs ofArticle 49, and as such a more in depth analysis by the Court wasrequired.