Eyal Benvenisti Research Articles

Is IHL a Sham? A Reply to Eyal Benvenisti and Doreen Lustig

Abstract This contribution is inspired by the thought-provoking article ‘Monopolizing War’ by Eyal Benvenisti and Doreen Lustig. My Reply argues that early 19th-century IHL codification projects in the eyes of European governments did not primarily serve domestic anti-revolutionary purposes. It also takes a somewhat sceptical stance as to the recent scholarly trend, which reduces historical explanations for the development of international law to domestic contexts in one or more powerful states involved in the respective law- and policy-making process. Building on the intriguing historical critique of early IHL’s ‘humanizing substance’ developed in ‘Monopolizing War’ and by referring to more recent IHL codification projects (small arms, nuclear weapons, aerial bombing, autonomous weapons), the second part of the contribution sketches four ‘de-humanizing’ discursive strategies, which arguably haunt international humanitarian law-making until today: (i) cynical window dressing; (ii) constructing an ontological wall; (iii) utilitarian reasoning; and (iv) excluding the periphery.

The Soldier As an Autonomous Weapon

From a legal perspective, what is the difference between human soldiers and autonomous weapon systems? Eliav Lieblich and Eyal Benvenisti answer that in combat, soldiers are under the legal duty to exercise constant administrative discretion while autonomous weapons cannot exercise such discretion. I argue that in making this argument, Lieblich and Benvenisti fail to understand the concept of an order. Following Joseph Raz’s discussion of orders as exclusionary reasons, I argue that the entire point of an order is to negate the need of soldiers receiving orders to exercise administrative discretion. For this reason, a soldier who commits a crime while obeying an order may avoid criminal liability based on the criminal defense of obedience to superior orders, even if at the time the order was given, it could not withstand the scrutiny of administrative law. Soldiers need to disobey orders only in cases of manifestly unlawful orders. In order to detect manifestly unlawful orders, soldiers are not required to exercise discretion according to administrative law tests. A sound reading of the manifestly unlawful order doctrine shows that the difference between soldiers and autonomous weapons is not to be found in the realm of reason, but in the realm of emotions. The rise of military lawyers’ involvement in scrutinizing orders demonstrates this point. With lawyers’ scrutiny, soldiers are required to obey orders that were legally cleared in terms of administrative law. Hence, according to Lieblich and Benvenisti, in a world in which all orders are cleared by lawyers, the difference between soldiers and autonomous weapons would not exist. Yet it does exist, and it is based on rejection of orders that have been cleared in terms of administrative law yet still pierce the human eye.

Googling Democracy? New Technologies and the Law of Global Governance: Afterword to Eyal Benvenisti’s Foreword

This afterword to Eyal Benvenisti 2018 EJIL Foreword on «Upholding Democracy Amid the Challenges of New Technology: What Role for the Law of Global Governance?» focuses on two sets of issues that such Foreword analysed. These issues are the multi-fold dimensions of global administrative law (GAL) and the role of the law of global governance before new technologies, with particular reference to fake news and disinformation, which is probably one of the most harmful contemporary threats against democracy in our time.

Accountability for Governance Choices in Artificial Intelligence: Afterword to Eyal Benvenisti’s Foreword

Abstract A growing body of literature examines how to make the use of new and emerging technologies more transparent and explainable as a means to ensure accountability for harm to human rights. While a critical part of accountability, a predominant focus on the technology can result in the design and adaptation of accountability principles to ‘manage’ the technology instead of starting from an assessment of the governance choices actors make when integrating new and emerging technologies into their mandates. Recognition of the governance choices underpinning the introduction of new and emerging technologies is often overlooked in scholarship and practice. Yet, without explicit recognition of the role played by technology in governance, the disruptive effects of technology on (global) governance may be underplayed or even ignored. In this response, I argue that if the ‘culture of accountability’ is to adapt to the challenges posed by new and emerging technologies, the focus cannot only be technology-led. It must also be interrogative of the governance choices that are made within organizations, particularly those vested with public functions at the international and national level.

The Status of Judea and Samaria Revisited: A Response to Eyal Benvenisti

The July 2017 issue of the Israel Law Review celebrated the fiftieth anniversary of its publication, and for that occasion selected five articles (one for each decade) which, in the Editors’ view, ‘had a lasting impact on scholarly debate and beyond’. For the first decade the Editors chose my article ‘The Missing Reversioner: Reflections on the Status of Judea and Samaria’, which appeared in the July 1968 issue, and asked Professor Eyal Benvenisti to comment on my piece, which he did under the title ‘An Article that Changed the Course of History?’ Not unexpectedly, Benvenisti has made a frontal attack on the central thesis of my article, which he reproduced in virtually identical language in the April 2017 issue of the American Journal of International Law.

Dictatorship as occupation in Thailand

ABSTRACTOn 22 May 2014, a junta calling itself the National Council for Peace and Order (NCPO) launched the 12th coup in Thailand since the end of the absolute monarchy in 1932. The NCPO's rule consolidated into a dictatorship marked by sweeping arrests, arbitrary detention, the criminalization of political participation, and use of military courts to prosecute dissidents. During the three years of rule by the NCPO, the repression of dictatorship has intensified during the royal transition from Rama IX to Rama X. Concerned with the ongoing crisis of rights violations and lack of clear signs of a transition from dictatorship to democracy, this article proposes analyzing the current Thai regime as a form of occupation. The occupation is characterized by the arbitrary exercise of law, citizen complicity, and persistent fear, particularly around Article 112, the law criminalizing lèse majesté. Drawing on the work of Eyal Benvenisti, the article first outlines the broad contours of occupation, then turns to a specific instance of injustice in the exercise of Article 112, next examines the foundational inequality behind citizen complicity in the regime, and finally, reflects on the urgency of analysis given the ongoing expansion of fear and uncertainty.

The Law of Global Governance. By Eyal Benvenisti. The Hague: Hague Academy of International Law, 2014. Pp. 331. $21, €15.

The Law of Global Governance. By Eyal Benvenisti. The Hague: Hague Academy of International Law, 2014. Pp. 331. $21, €15.

Understanding the EU Missionary Principle

The Lisbon Treaty amended the EU’s foundational documents to include several commitments regarding the global promotion of human rights, democracy, the rule of law, and other values, in all the EU’s “relations with the wider world”. These provisions, which have been described as giving rise to an emerging ‘missionary principle’, are not merely hortatory, but have been recognised by the judicial and political branches of the EU as having normative content. Specifically, they appear to be productive of legal obligations with respect to persons in third countries whose economic, social, and cultural rights may be threatened by the EU’s economic policies. This note understands the provisions and their interpretation in the Case C-366/10 Air Transport Association of America (ATAA) judgement as meaning that the content of the missionary principle is not, as has been argued, a straightforward obligation of compliance by the EU with obligations under treaty and customary international law. Instead, it requires the pursuit of ‘values’, only one of which is the creation of an international legal order committed to compliance with international law, which has to be pursued alongside an imperative to spread human rights, democracy, and the rule of law. Importantly, though they are universal in nature and inspired by human rights norms, they are the EU’s own values. It then follows that the scope of the missionary principle falls to be measured not under principles of international human rights jurisdiction, which demarcate the space within which States and International Organisations (IOs) have international obligations, but under the rules of jurisdiction under general international law, which demarcate the space within which States and IOs may pursue domestic competences. The picture is made even more interesting as a result of the peculiar notion of jurisdiction displayed by the Court of Justice (CJEU) in ATAA, and complicated further still by the fact that this permission is transformed into a requirement by the EU internal legal principle of consistency. Finally, in an attempt to explore the theoretical underpinnings of the missionary principle in political theory, I will compare and contrast Kantian theories and the concept of “sovereign trusteeship” recently advanced by Eyal Benvenisti.

Interdisciplinary Perspectives on International Law and International Relations: The State of the Art. Edited by Jeffrey L. Dunoff and Mark A. Pollack. Cambridge, New York: Cambridge University Press, 2013. Pp. xv, 680. Index. $125, cloth; $44.99, paper.

Interdisciplinary Perspectives on International Law and International Relations: The State of the Art. Edited by Jeffrey L. Dunoff and Mark A. Pollack. Cambridge, New York: Cambridge University Press, 2013. Pp. xv, 680. Index. $125, cloth; $44.99, paper.

Eyal Benvenisti. The International Law of Occupation

The first edition of Eyal Benvenisti's The International Law of Occupation, published in 1993, was the first thorough treatment of occupation law to appear in English in 30 years. Not since Gerhard van Glahn's volume of 1957 had a scholar comprehensively surveyed this critical area of law. An update was long overdue. The seemingly clear rules of the 1907 Hague Regulations and 1949 Fourth Geneva Convention appeared to be receding in importance, as few states in the post-World War II period acknowledged their status as occupiers; Israel's prolonged occupation of the Palestinian territories challenged the assumption of occupation as a temporary phenomenon; few governments ousted in recent occupations went into exile to await a return to power, thus calling into question occupation law's focus on protecting the prerogatives of the de jure regime; and occupiers had seemingly honoured the conservationist principle - the limitation on an occupier's legislative authority most famously embodied in Article 43 of the Hague Regulations - mostly in the breach. States themselves provided little help in making sense of these and other developments. The discussions of occupation law in the US and UK military manuals, for example, had not been updated since the late 1950s. With the striking exception of Israel in the Palestinian territories, occupation law appeared to be receding from relevance. Now Benvenisti has published a second edition, adding almost 150 pages of text and several new chapters covering topics not addressed in the first edition. One is tempted to say that the second edition is even more overdue than the first. If the first edition sought to rescue occupation law from irrelevance, the second edition seeks to make sense of an explosion in state practice, judicial opinions, UN-sponsored activity, emerging cognate doctrines, and scholarly commentary, all of which have �

The Laws of Occupation and Commercial Law Reform in Occupied Territories: Clarifying a Widespread Misunderstanding

Since the publication of the widely quoted book by Eyal Benvenisti on The International Law of Occupation, there seems to be a generally accepted premise that Article 64 of the IV Geneva Convention is applicable to all types of laws (including commercial laws) and that, therefore, its legal regime replaced Article 43 of the 1907 Hague Regulations. With all due respect, this article argues that such approach is wrongfully grounded. Furthermore, almost no author seems to give any relevance to the formal obligation imposed by the IV Geneva Convention to publish (in the language of the inhabitants) the commercial law norms enacted by the occupying power.

The Laws of Occupation and Commercial Law Reform in Occupied Territories: A Rejoinder to Eyal Benvenisti

I thank Professor Benvenisti for his response to my article and hope that this discussion will be helpful and fruitful. Nevertheless, I concur with Pictet that Article 43 of the 1907 Hague Regulations1 �imposes obligations of a general nature on the Occupying Power�, while Article 64 of the IV Geneva Convention2 contains a specific exception for penal legislation.3 Therefore, Article 43 HR still remains the applicable norm regarding commercial law reform in occupied territories. Space constraints restrict my rejoinder to the following comments: 1. The interpretation given by the UK Attorney-General in his leaked Confidential Note of March 2003 was also confirmed by the then Legal Adviser to the Foreign and Commonwealth Office (FCO), Michael Wood.4 Wood�s statement (applying Article 43 HR to �commercial� reforms and Article 64 GCIV to �penal laws�) was in similar terms to (i) a Memorandum sent in April 2003 by the FCO to the Committee on Foreign Affairs of the House of Commons,5 and (ii) a note sent by Wood in February 2003 to the then Foreign Secretary, Jack Straw, who stated in January 2011 that �his understanding of the UK�s responsibilities, as an occupying power� was based on such a note.6 In fact, British Military Manual of 2004, section 11.57, almost literally transcribes paragraph (2) of Article 64 GCIV only in relation to �criminal law�, while it still keeps applying Article 43 HR to the modification of existing law or promulgation of new law (section 11.25, in particular, footnotes 51 and 53). Similarly, the Spanish Manual of the Law of Armed Conflicts,7 when commenting on the legislative powers of occupants, distinguishes between Section 2.7.b (1), regarding local laws in general (to which Article 43 HR applies), and 2.7.b(2), regarding criminal law in particular

Judicial Misgivings Regarding the Application of International Law: An Analysis of the Attitudes of National Courts. A Reply to Eyal Benvenisti

Judicial Misgivings Regarding the Application of International Law: An Analysis of the Attitudes of National Courts. A Reply to Eyal Benvenisti

National Courts, Domestic Democracy, and the Evolution of International Law: A Reply to Eyal Benvenisti and George Downs

† Benvenisti and Downs, ‘National Courts, Domestic Democracy, and the Evolution of International Law’, 20 EJIL (2009) 59, http://ejil. oxfordjournals.org/cgi/reprint/20/1/59. * Professor, University of Chicago Law School. Email: tginsburg@uchicago.edu. The application of the tools of international relations, particularly those associated with rational choice analysis, to problems of international law has generated many important insights in the last two decades. In a recent issue of this Journal, Eyal Benvenisti and George Downs, two scholars who individually and jointly have contributed much to this research programme, provide a fascinating interpretation of a recent trend in democracies toward judicial constraint of executives in foreign affairs matters. Placing this development in the broader context of interjudicial cooperation and globalization, they argue that courts are increasingly coordinating across borders to constrain their national executives. This requires resolution of a transnational collective action problem among judges. The piece is creative, well-argued, and might even be correct. But, as I will argue, it might not be. The fact that courts cooperate and coordinate is observationally equivalent to other plausible theories of what courts are doing. These theories are simpler and also consistent with the basic story Benvenisti and Downs want to tell.

National Courts, Domestic Democracy, and the Evolution of International Law: A Reply to Eyal Benvenisti and George Downs

Benvenisti and Downs’ article addresses a very complex topic which raises a host of difficult problems for which no clear and easy answers are readily available. Accordingly, and in view of the limited space that has been allocated for this response, I had to be selective and restrict myself by adding some other colours and different perspectives to the picture that has been painted by the authors. My response will start by discussing first the analytical framework before moving towards a critique in substance. It should be noted from the outset that I generally agree with the analytical frame­ work and the diagnosis of the relation ­ ship between national and international courts, their governments, and contract­ ing parties (i.e. their ‘Masters’), their con­ straints and the various interests involved. As the authors correctly point out, two main interrelated developments have been shaping the position and room for manoeuvre of national and international courts. Essentially, it can be stated that the proliferation of international courts and tribunals has resulted in an institution­ alization or ‘thickening’ of international law, giving these judicial and (quasi) judicial bodies extra power to shape the development of international law. But this proliferation of international courts and tribunals is simultaneously accom­ panied by the increasing fragmentation of international law because of the lack of a formal hierarchy between all the vari­ ous international judicial bodies.1 At the

National Courts, Domestic Democracy, and the Evolution of International Law: A Reply to Eyal Benvenisti and George Downs

EJIL (2009), Vol. 20 No. 4, 1013–1020 doi: 10.1093/ejil/chp094 The proliferation of international law and institutions over the past two decades has produced both excitement and anxiety. Cooperation and coordination – formal and informal – have allowed states and other international actors to get at glo­ bal and regional problems and facilitate international exchange much more than in the past. The heightened activities of international organizations and national governments have pertained both to traditional areas, as well as those, such as environmental law, which had hith­ erto been almost exclusively within the domain of domestic politics and law. Such developments have worried those who believe that decisions taken at the inter­ national level are insufficiently reflective of and constrained by democratic poli­ tics and basic principles of due process,

The Trust in Indicators: Measuring Human Rights

August 27Teaching Session: Introductory Class (course instructors) September 3No class (legislative Monday) September 10Speaker: David Dyzenhaus, University of Toronto, NYU Global Law Professor Topic: The Concept of (Global) Administrative Law September 17Panel Discussion on the September 2008 ECJ Decision in Kadi. Professors Stewart, Kingsbury, and members of the international law faculty. September 24Speakers: Eyal Benvenisti (Tel Aviv/NYU) and George Downs (NYU) Topic: Toward Global Checks and Balances October 1Speakers: Nico Krisch (LSE); and Euan MacDonald and Eran Shamir-Borer (NYU) Topic: Global Constitutionalism and Global Administrative Law (two papers) Friday October 3 SPECIAL SESSION Furman Hall 310, 3pm-5pm Speaker: Neil Walker, Edinburgh Topic: Beyond boundary disputes and basic grids: Mapping the global disorder of normative orders Background reading: Constitutionalism Beyond the State

After the Storm? The Israeli Supreme Court and the Arab-Palestinian Minority in the Aftermath of October 2000Ilan Saban is an Assistant Professor of Law at Haifa University. The author would like to express thanks to Gordon Anthony, Robert Chapman, Moshe Cohen-Eilya, Tammy Harel-Ben-Shahar, Hassan Jabareen, Yousef T. Jabareen, Barak Medina, Liav Orgad and Revital Sella for valuable comments.

In late September 2000, the Oslo process collapsed and the second Intifada erupted. Soon after that (during the first two weeks of October) something momentous occurred in inter-communal relations ...

The Move from Institutions? Examining the Phenomenon in Africa

INTRODUCTION The recently issued National Security Strategy of the United States (March 2006), reaffirms the preference for informally created institutions or networks with selective membership increasingly favored in U.S. policy. It describes them as partnerships that emphasize international cooperation, not international bureaucracy; rely on voluntary adherence rather than binding treaties; and are oriented towards action and results rather than legislation and rulemaking. (1) Some commentators have concluded that these networks manifest a move away from institutions. One of my copanelists, Prof. Eyal Benvenisti, has described this trend in his presentation and in a forthcoming publication as thus: This new attitude toward international obligations reflects both the availability of novel ways for governments to interact across political borders, as well as new concerns about international legal tools, especially the formal international institutions. This preference for informal lawmaking suggests that international cooperation can be achieved without recourse to international legal tools and that the informality offers significant benefits to some governments. (2) The phenomenon of of the willing as an informal mechanism for circumventing the bureaucratic strictures and international rule-making or legislative processes of formal international institutions has become more pronounced lately with the proliferation of various coalitions of like-minded states led or inspired by the United States. Yet, the history of this phenomenon has a far longer and more complex life. (3) Most of these coalitions involve countries from the global North, but they are by no means limited to these states. Similar developments--albeit of a limited nature and scope, and of more recent pedigree--can be identified among states of the global South as well. My presentation focuses on the emergence of this phenomenon in the global South and is aimed at demonstrating that the move away from institutions may be occurring not only with respect to the universal or global institutions but also at the level of regional institutions, such as the African Union (AU). In my view, the New Partnership for Africa's Development (NEPAD) presents the closest example of this phenomenon in Africa. NEPAD: A MOVE FROM THE AU? NEPAD is nowadays commonly described as an integral program of the AU, the regional organization that superseded the Organization of African Unity (OAU) in July 2002. Yet, NEPAD originally was conceived as a separate framework for interaction and cooperation among a self-selected group of African states, operating as a parallel structure to the OAU. Although African political leaders subsequently decided to adopt it as a program of the OAU, I would argue that NEPAD was intended to be, and remains, an exclusive, voluntary coalition of like-minded states. From a structural and operational point of view, it remains a separate entity from the AU, notwithstanding the political rhetoric suggesting otherwise. The establishment of a separate small, core secretariat for NEPAD in Midrand, South Africa, away from the headquarters and international bureaucracy of the AU in Addis Ababa, Ethiopia, is itself a manifestation of this position. In addition, the different approaches taken by the AU and NEPAD leaders in presenting the two initiatives to African governments, civil society groups and Africa's external development partners, in particular the G8 countries, reinforces this view. Time constraints do not permit me to discuss in any meaningful detail the history, process and content of NEPAD or its relevance for solving Africa's developmental problems, etc. In any case, not all these issues are pertinent or relevant to the examination of the phenomenon of the move from institutions. …

The Occupied Territories and the Law: Palestinian Lawyers and Israeli Rule: Law and Disorder in the West Bank. . George E. Bisharat. ; Legal Dualism: The Absorption of the Occupied Territories into Israel. . Eyal Benvenisti.

The Occupied Territories and the Law: Palestinian Lawyers and Israeli Rule: Law and Disorder in the West Bank. . George E. Bisharat. ; Legal Dualism: The Absorption of the Occupied Territories into Israel. . Eyal Benvenisti.