Rotem Giladi

A Different Sense of Humanity: Occupation in Francis Lieber’s Code

Accounts narrating the history of the modern law of occupation display ambivalence to the 1863 Lieber Code. At times, they mark the humanity of its provisions on occupied territories; at others, they find its concept of humanity in occupation limited compared to subsequent developments. A broader reading of the Code against Lieber’s published works, teaching and correspondence reveals a unique — and disconcerting — sense of humanity pervading through its provisions. Lieber’s different sense of humanity, not directed at individuals, throws light on the history of the law governing occupied territories today and paves the way for critical reflections on its conceptual bases.

A ‘Historical Commitment’? Identity and Ideology in Israel's Attitude to the Refugee Convention 1951–4

The paper examines and debunks the conventional wisdom that Israeli foreign policy incorporates a ‘historical commitment’ to the 1951 UN Refugee Convention. Particular Jewish interests and universal values, it is argued, led the newfound Jewish state to initiate the Convention, participate in its formulation, and promote its acceptance; Israel was, additionally, among the first states to sign and ratify the Convention. Against the backdrop of present-day discourse and competing perspectives on the Jewish motif in Israels foreign policy, the paper traces the process of Israels ratification of the Refugee Convention. Israels attitude to the Convention, it finds, was characterised by delay, disinterest, indifference, even hostility. Moreover, neither particular interests nor universal values satisfactorily explain Israels attitude. Rather, this attitude was the outcome of competing visions of Israels identity and ideological interpretations of Jewish nationalism. Ideologically, the Convention validated yet at the same time also undermined Israels particular identity as the state of refuge of the Jewish people and its ideological raison d’être in the world system. This ambivalence allowed Israeli diplomats to construct a logic of exemption under which the particularity of Israels very existence as the state of refuge of the Jewish people represented complete performance of its universal obligations under the Convention.

Reflections on Proportionality, Military Necessity, and the Clausewitzian War

This article explores the significance of the reference, in proportionality analyses, to proper purpose and legitimate ends, given the traditional aversion of international humanitarian law (IHL) to questions of (political) legitimacy. It demonstrates the centrality of that aversion in doctrinal assertions concerning the goals, characteristics and operational strategy of IHL yet argues that, at its historical and conceptual foundations, the law draws on a construction of war that presupposes legitimacy of the political type. That construction remains embedded, though implicit, in contemporary proportionality analyses. Thus, the instrumental understanding of war by Carl von Clausewitz poses several challenges to entrenched contemporary doctrinal claims about the law, how it operates and the effects it produces. This provides an impetus for critical reassessment of the aversion to politics and the interaction between the humanitarian, military and political spheres in the operation of IHL norms. Such critique helps to identify novel strategies of humanitarian protection in war outside the confines demarcated by orthodox doctrine.