Orna Ben-Naftali

Living in Denial: The Application of Human Rights in the Occupied Territories

Are human rights norms applicable to occupied territories in general, and to the West Bank and the Gaza Strip in particular? The article examines the controversy that had arisen between Israel and the UN treaty monitoring bodies in relation to this question and critically analyzes Israels three objections to such applicability: 1) the mutual exclusivity of humanitarian regime and human rights regime in occupied territories, the former being thus the only applicable law; 2) a restrictive interpretation of the jurisdictional provisions treaties; and 3) the lack of effective control in some of the territories. The article posits that the universal object and purpose of human rights treaties, which inform the proper interpretation of their jurisdictional clauses, require their applicability in all territories subject to the effective control of the state parties, as well as to other extra-territorial exercises of government power directly affecting individuals. Consequently, international human rights law and international humanitarian law apply in occupied territories in parallel and not to the exclusion of one another. This position is confirmed by extensive practice of the international human rights monitoring bodies, the International Court of Justice (ICJ), and by some decisions of the Israeli Supreme Court. In conclusion, the paper posits that Israels refusal to apply the six principal human rights treaties to which it is party to the Occupied Territories is incompatible with its international law obligations and proceeds to propose modalities for the co-application of both human rights and humanitarian law in occupied territories.

The Human Conditioning: International Law and Science-Fiction

This article introduces the subject-matter of a symposium on international law and science-fiction. The impact of new technologies on human rights, humanitarian issues and indeed on what it means to be human in a technological age, suffers from a paucity of international legal attention. The latter has been attributed to various factors ranging from technophobia and technological illiteracy, inclusive of an instrumentalist view of technology, to the sense that such attention is the domain of science-fiction, not of international law. The article extends an invitation to pay attention to the attention science-fiction has given to the man-machine interaction and its impact on the human condition. Placing this invitation in the context of the ‘‘law and literature’’ movement, the article exemplifies its value with respect to two technologies, one directed at creating life or saving it (cloning and organ donation) and the other at ending life (lethal autonomous robots).