Papers by Hilly Moodrick-Even Khen
National Identities and the Right to Self-Determination of Peoples, 2016
In National Identities and the Right to Self-Determination of Peoples, Hilly Moodrick-Even Khen r... more In National Identities and the Right to Self-Determination of Peoples, Hilly Moodrick-Even Khen revisits the legal right to self-determination of peoples and suggests an integrative model for securing the cohesion of the various nationalities within multinational states.
The International Journal of Children's Rights , 2024
This is an open access article distributed under the terms of the CC BY 4.0 license.
The Monist, 2016
Violence arms itself with the inventions of Art and Science in order to contend against violence.... more Violence arms itself with the inventions of Art and Science in order to contend against violence. Self-imposed restrictions, almost imperceptible and hardly worth mentioning, termed usages of International Law, accompany it without essentially impairing its power.-Clausewitz, 1832The rules of international law must be followed even if it results in the loss of a battle or even a war.-Nuremberg tribunal, Hostages Case1. INTRODUCTIONThe above quotations present two contradicting but prevailing concepts of the binding force and importance of international humanitarian law (abbreviated as IHL and also known as 'the laws of war' or 'the laws of armed conflicts').1 As these concepts are rooted in polar moral viewpoints regarding the conduct of war, the controversy they demonstrate suggests that even though IHL is, strictly speaking, a branch of international law serving as the body of laws governing the conduct of armed conflicts, it functions also, and perhaps to a greater extent, as a moral system (either followed or rejected) for the armies involved in armed conflicts. This is, in a nutshell, the argument I pursue in this article.Before delving into the argument, I will clarify four general points regarding the scope of the article and its core concepts. First, the article analyzes the moral (ethical) and the legal characteristics of the IHL system. Ethics, in general, is known to refer to the reflective general and core Socratic question, "How should one live?" However, it also has some narrower expressions that are perhaps better grasped by the term ?morality', whose Latin roots emphasize more the aspect of social expectation. In this article I will refer to this narrower sense of morality and will discuss the characteristics of a specific moral system, that is, IHL, and how it should guide the combatant's behavior.I discuss specifically IHL and not public international law in general. As a consequence, I avoid the question (which is beyond the scope of this article) of whether public international law is considered a legal system3 and ask whether IHL's essence suggests it should be regarded as a legal system.The term a legal system' will also be defined narrowly, concentrating only on the criminal legal system. This is because the nature of IHL in the legal sense has a stronger resemblance to criminal law than to any other legal system. Like criminal law, IHL provides for rules directing human behavior and does not (like contract law, for example) "provide facilities for the realization of wishes and choices" for the making of claims or asserting rights.4 In addition, some of the provisions in IHL instruments, like criminal law, are subject to criminal sanctions. For example, the violations of some of the articles of the Geneva Conventions for the Protection of Victims of War (1949) (GC), referred to as "grave breaches," require criminal prosecution, and the Rome Statute of the International Criminal Court (ICC) also criminalizes certain violations of IHL.The last preliminary clarification regards my choice of the name ?IHL' to refer to the branch of law in international law that regulates the conduct of belligerents in armed conflicts, rather than using its other definitions, such as ?the laws of war' or ?the laws of armed conflicts.' Describing this law as ?humanitarian' reveals something about its nature, its major concerns, and even its moral position. The discussion in the article of the historical development of this branch of law and of the circumstances under which it received its name will serve to support my conclusion that IHL more closely resembles a moral system-in which ?is' is not severed completely from ?ought'-than it does a legal system.I open my argument, in the second section below, by discussing the similarities and the differences between legal systems and moral systems. In the third section, I apply my conclusions from this discussion to IHL in order to decide whether it is a legal system, a moral system, or both. …
Genocide studies international, May 31, 2023
The Rohingya Muslim minority in Myanmar was subjected to discrimination and gross violations of h... more The Rohingya Muslim minority in Myanmar was subjected to discrimination and gross violations of human rights for many decades. During the last two waves of military crackdowns in Rakhine State (October 2016 to January 2017; August to September 2017), the Tatmadaw army and civilians committed atrocities against the Rohingya that amounted to crimes against humanity and genocide. Advocates for the Rohingya’s suffering took action to leverage the findings of the investigations of international mechanisms. They endeavored for an international condemnation of Myanmar at the ICJ, and they filed a complaint in an Argentinian court for the application of universal jurisdiction to prosecute the military and the political leadership responsible for ordering and committing the atrocities. They also encouraged an investigation of the atrocities in the ICC. The litigators’ main focus was set on genocide. However, while genocide carries the stigma of being the most heinous of crimes, it is also the hardest to prove, particularly the special intent to commit it. This article assesses the chances of the triple strategy applied by the Rohingya advocates. It argues that litigating the case in three different fora, assures that the forums back each other up, so that the flaws of one are compensated by the others. Thus, the chances for accountability for the crime of genocide are increased. The fora work interoperably to achieve the goal of proving the occurrence of genocide in Myanmar so as to impose state responsibility and individual criminal responsibility.
National Identities and the Right to Self-Determination of Peoples, 2016
In National Identities and the Right to Self-Determination of Peoples, Hilly Moodrick-Even Khen r... more In National Identities and the Right to Self-Determination of Peoples, Hilly Moodrick-Even Khen revisits the legal right to self-determination of peoples and suggests an integrative model for securing the cohesion of the various nationalities within multinational states.
Genocide Studies International, 2023
The Rohingya Muslim minority in Myanmar was subjected to discrimination and gross violations of h... more The Rohingya Muslim minority in Myanmar was subjected to discrimination and gross violations of human rights for many decades. During the last two waves of military crackdowns in Rakhine State (October 2016 to January 2017; August to September 2017), the Tatmadaw army and civilians committed atrocities against the Rohingya that amounted to crimes against humanity and genocide. Advocates for the Rohingya’s suffering took action to leverage the findings of the investigations of international mechanisms. They endeavored for an international condemnation of Myanmar at the ICJ, and they filed a complaint in an Argentinian court for the application of universal jurisdiction to prosecute the military and the political leadership responsible for ordering and committing the atrocities. They also encouraged an investigation of the atrocities in the ICC. The litigators’ main focus was set on genocide. However, while genocide carries the stigma of being the most heinous of crimes, it is also the hardest to prove, particularly the special intent to commit it. This article assesses the chances of the triple strategy applied by the Rohingya advocates. It argues that litigating the case in three different fora, assures that the forums back each other up, so that the flaws of one are compensated by the others. Thus, the chances for accountability for the crime of genocide are increased. The fora work interoperably to achieve the goal of proving the occurrence of genocide in Myanmar so as to impose state responsibility and individual criminal responsibility.
The International Journal of Children’s Rights
The need to protect children in armed conflicts has become urgent, especially since the 1990s, an... more The need to protect children in armed conflicts has become urgent, especially since the 1990s, and is now outstanding in the war in Ukraine. Among the violations against children in Ukraine that were identified by the UN Secretary General in 2005, were attacks on schools and hospitals. This article discusses the question of how the violation of the right to education during armed conflict can be redressed and suggests a mechanism for doing so. It uses the Russia-Ukraine war (2022) as a case study. The legal protection of children’s rights in armed conflict is facilitated by three branches of international law: international humanitarian law (or the laws of armed conflict); international human rights law; and international criminal law. This article will address the first two as well as, in a more limited way, the law of refugees. The article discusses the significance of the child’s right to education. It provides empirical data on how this right is jeopardised during armed conflict...
Social Science Research Network, Apr 22, 2020
Arizona Journal of International and Comparative Law, 2016
International Journal on Minority and Group Rights
The concept of cultural genocide has been abrogated from the Convention on the Prevention and Pun... more The concept of cultural genocide has been abrogated from the Convention on the Prevention and Punishment of the Crime of Genocide (1948). The article elaborates on the concept of cultural genocide, its development, and its exclusion from the Genocide Convention and claims for its reconsideration in the discourse on genocide. It uses the Uyghurs’ case study to exemplify how the prohibition on cultural genocide against ethnic groups can become a soft law norm through states’ practice and legal instruments of international law that support the concept of cultural genocide. The article concludes with the legal and political merits of the prohibition on cultural genocide as a soft law norm. It focuses on how this process can promote the fight against genocide—particularly in the case of powerful states in the international arena, such as China.
International Law and Armed Conflict, 2010
Journal of International Humanitarian Legal Studies
This article argues that certain legal duties of states involved in armed conflicts confer legal ... more This article argues that certain legal duties of states involved in armed conflicts confer legal and moral rights on both the combatants and their families. The combatant is entitled to the right to be identified and buried, and the families are entitled, not only to receive information about the treatment of their dead relatives, but also to make decisions in this regard. These decisions relate to the rituals of burial and cremation and even the place of burial, which in some cases implies a right to demand repatriation of remains. The arguments are based on both ethical and legal grounds. Yet, apart from the right to be buried in a dignified way, rights regarding the nature and place of burial are not absolute. They can be limited according to a variety of considerations, including State policies and interests. The article also refers to the special case of dead combatants’ remains held by non-state actors that do not respect international law prescriptions regarding the dead. Und...
Proportionality refers to the mitigation of punishment because of children's lack of development ... more Proportionality refers to the mitigation of punishment because of children's lack of development of social and cognitive capacities.. .. Room to reform indicates the importance of the kind of punishments that is meted out, considering what we want to achieve with punishment and what we would want to avoid." 8. Eur. Comm. of Ministers, Recommendation, 853rd Meeting, Rec(2003)20 (2003) (this recommendation is for "new ways of dealing with juvenile delinquency and the role of juvenile justice"), available at https://wed.coe.int/ViewDoc.jsp?id=70063.
International Journal on Minority and Group Rights, 2021
The concept of the nation state – and specifically the tension between affirming solidarity among... more The concept of the nation state – and specifically the tension between affirming solidarity among nation-state compatriots and respecting national minorities’ rights in order to preserve diversity and secure their autonomy – has been on the global agenda over the last two centuries, especially in Europe.
In recent years, two cases, in Catalonia and in Israel – different in many respects but similar in others – serve as inspiring test cases for analysing questions of national identities and state cohesion. Both of these cases portray the dilemmas surrounding national identity in an allegedly dichotomic fashion, thus requiring a choice between independence and secession or unionism and assimilation.
This article suggests that a dichotomic perspective is not compelling and that solidarity and autonomy are not necessarily contradictory.
It explores the connection between solidarity and autonomy and applies the analysis to the case studies of Catalonia and Israel separately, given the unique characteristics of each case.
Diversity, Autonomy and Solidarity in Multinational States: Current Developments in The Spanish-Catalans and the Jews- Arabs Political Disputes, 2021
The concept of the nation state – and specifically the tension between affirming solidarity among... more The concept of the nation state – and specifically the tension between affirming solidarity among nation-state compatriots and respecting national minorities’ rights in order to preserve diversity and secure their autonomy – has been on the global agenda over the last two centuries, especially in Europe.
In recent years, two cases, in Catalonia and in Israel – different in many respects but similar in others – serve as inspiring test cases for analysing questions of national identities and state cohesion. Both of these cases portray the dilemmas surrounding national identity in an allegedly dichotomic fashion, thus requiring a choice between independence and secession or unionism and assimilation.
This article suggests that a dichotomic perspective is not compelling and that solidarity and autonomy are not necessarily contradictory.
It explores the connection between solidarity and autonomy and applies the analysis to the case studies of Catalonia and Israel separately, given the unique characteristics of each case.
Social Science Research Network, 2013
Israel Studies, 2011
... HCJ 769/02 The Public Committee Against Torture in Israel v. the Government of Israel," ... more ... HCJ 769/02 The Public Committee Against Torture in Israel v. the Government of Israel," Israel Law Review 40 (2007). Notes. The author would like to thank Prof. Yuval Shany and Prof. Mordechai Kremnitzer for their comments on parts of this paper. ...
Journal of International Humanitarian Legal Studies, 2019
This article analyses the legal regulation of the use of force in international law in the contex... more This article analyses the legal regulation of the use of force in international law in the context of three emerging Palestinian forms of struggle against Israeli occupation: the Knife Intifada, the disturbances at the border, and the launching of incendiary kites. It discusses what legal paradigms or concepts should regulate the type and level of force used in each situation – a question that is complicated by various dilemmas – and finally, appraises the Israel Defence Forces policies tailored in response. The article evaluates the applicability of two legal paradigms regulating the use of force in military operations – (i) the conduct of hostilities and (ii) law enforcement – as well as the concept of personal self-defence in international law and the escalation of force procedure. While the Knife Intifada clearly falls under the law enforcement paradigm, the disturbances at the border and the launching of incendiary kites raise more difficult legal questions. Categorising them u...
In this Article, I revisit the concept of universal jurisdiction in making a case for the applica... more In this Article, I revisit the concept of universal jurisdiction in making a case for the application of mitigated universal jurisdiction in general and in the Syrian civil war case in particular, through the jurisdiction of sovereign states and their national courts. I argue that the international community will sooner or later demand that the perpetrators of the heinous war crimes and crimes against humanity be held accountable. However, since the jurisdiction of the International Criminal Court (ICC) will probably be impeded by the United Nations Security Council’s veto, the international community might use another trajectory for prosecuting the perpetrators of the alleged crimes. One possibility is to rely on the principle of universal jurisdiction, in its mitigated form, according to which Syrian leaders can be prosecuted under the jurisdictions of foreign states. I claim that mitigated universal jurisdiction, dependent mainly on its subordination to the principle of complemen...
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Papers by Hilly Moodrick-Even Khen
In recent years, two cases, in Catalonia and in Israel – different in many respects but similar in others – serve as inspiring test cases for analysing questions of national identities and state cohesion. Both of these cases portray the dilemmas surrounding national identity in an allegedly dichotomic fashion, thus requiring a choice between independence and secession or unionism and assimilation.
This article suggests that a dichotomic perspective is not compelling and that solidarity and autonomy are not necessarily contradictory.
It explores the connection between solidarity and autonomy and applies the analysis to the case studies of Catalonia and Israel separately, given the unique characteristics of each case.
In recent years, two cases, in Catalonia and in Israel – different in many respects but similar in others – serve as inspiring test cases for analysing questions of national identities and state cohesion. Both of these cases portray the dilemmas surrounding national identity in an allegedly dichotomic fashion, thus requiring a choice between independence and secession or unionism and assimilation.
This article suggests that a dichotomic perspective is not compelling and that solidarity and autonomy are not necessarily contradictory.
It explores the connection between solidarity and autonomy and applies the analysis to the case studies of Catalonia and Israel separately, given the unique characteristics of each case.
In recent years, two cases, in Catalonia and in Israel – different in many respects but similar in others – serve as inspiring test cases for analysing questions of national identities and state cohesion. Both of these cases portray the dilemmas surrounding national identity in an allegedly dichotomic fashion, thus requiring a choice between independence and secession or unionism and assimilation.
This article suggests that a dichotomic perspective is not compelling and that solidarity and autonomy are not necessarily contradictory.
It explores the connection between solidarity and autonomy and applies the analysis to the case studies of Catalonia and Israel separately, given the unique characteristics of each case.
In recent years, two cases, in Catalonia and in Israel – different in many respects but similar in others – serve as inspiring test cases for analysing questions of national identities and state cohesion. Both of these cases portray the dilemmas surrounding national identity in an allegedly dichotomic fashion, thus requiring a choice between independence and secession or unionism and assimilation.
This article suggests that a dichotomic perspective is not compelling and that solidarity and autonomy are not necessarily contradictory.
It explores the connection between solidarity and autonomy and applies the analysis to the case studies of Catalonia and Israel separately, given the unique characteristics of each case.
The article evaluates the applicability of two legal paradigms regulating the use of force in military operations—(i) the conduct of hostilities and (ii) law enforcement—as well as the concept of personal self-defence in international law and the escalation of force procedure. While the Knife Intifada clearly falls under the law enforcement paradigm, the disturbances at the border and the launching of incendiary kites raise more difficult legal questions. Categorising them under a paradigm of law enforcement is less straightforward, and may have undesirable ramifications for safeguarding humanitarian interests. The article argues that the use of force in the disturbances at the border and the incendiary kites cases should be regulated by the concept of self-defence and escalation of force procedure, and that the application of the self-defence concept should be adapted, mutatis mutandis, to situations of law enforcement and to situations of hostilities.
In this chapter, I will address two major challenges arising from the issue of child terrorists. The first is how contemporary humanitarian law deals with the incidents of children participating in terrorist activities. Included within the overarching problem of child terrorists are the issues of regulating the direct participation of children in hostilities and controlling the use of children as human shields. This chapter elucidates rules available within the scope of humanitarian law that (1.) provide maximum protection to children who do not participate directly in hostilities and (2.) regulate their use as human shields. Admittedly, though, in certain circumstances humanitarian law regards children who participate directly in terrorist activities as legitimate targets.
The second issue I will address is the criminalization of acts of terrorism carried out by children. My discussion will rely on the assumption that offences committed by child terrorists on the battlefield can in most cases be treated as acts committed without criminal mens rea (criminal intent). This second section will thus focus on the prosecution of recruiters of child terrorists and leaders of terrorist organizations to prove that these persons are, in fact, the actual perpetrators of the offences children have committed.
KEY WORDS: Religion, rights, Israel, multiculturalism, constitution.