Summer 2014 No.54 JTheUSTICE magazine of the International Association of Jewish Lawyers and Jurists In this issue The International Court of Justice Adjudicating the Arab-Israel Disputes? Boycotts, Divestment, Sanctions and the Law Israel and the Alien Tort Statute Corporations and Human Rights Zivotofsky v. Kerry - A Historical Constitutional Battle Preachers of Hate and Freedom of Expression UNRWA Panel at UN IAJLJ Activities The International Association of Jewish Lawyers and Jurists Honorary President: Hadassa Ben-Itto, Judge (Ret.) (Israel) Life time Member: Irwin Cotler, Prof. (Canada) Honorary Vice Presidents: Joseph Roubache (France) Oreste Bisazza Terracini, Dr. (Italy) Executive Committee: Board of Governors: President: Irit Kohn (Israel) Irit Kohn (Israel) Haim Klugman (Israel) Avraham (Avi) D. Doron (Israel) Deputy President: Meir Rosenne, Dr. (Israel) Haim Klugman (Israel) Mirella M. Bamberger (Israel) Alyza D. Lewin (USA) Vice President and Treasurer: Marcos Arnoldo Grabivker, Judge (Argentina) Avraham (Avi) D. Doron (Israel) Maurizio Ruben (Italy) Alex Hertman (Israel) Vice President and Coordinator with Amos Shapira, Prof. (Israel) International Organizations: Avishai Sapir (Israel) Meir Rosenne, Dr. (Israel) David Pardes (Belgium) Dov Shefi, Brig. (Ret.) (Israel) Vice President and Secretary General: Edna Bekenstein, Judge (Ret.) (Israel) Mirella M. Bamberger (Israel) Edna Kaplan-Hagler, Judge (Ret.) Dr. (Israel) Efraim (Efi) Chalamish, Dr. (USA) Vice Presidents: Ethia Simha (Israel) Alyza D. Lewin (USA) Jeremy D. Margolis (USA) Marcos Arnoldo Grabivker, Judge (Argentina) Jimena Bronfman (Chile) Maurizio Ruben (Italy) Jonathan Lux (UK) Lipa Meir, Dr. (Israel) Academic Adviser: Mala Tabory, Dr. (Israel) Yaffa Zilbershats, Prof. (Israel) Maria Canals De-Cediel, Dr. (Switzerland) Meir Linzen (Israel) Representatives to the U.N. in Geneva: Michael H. Traison (USA) Tom Gal (Switzerland) Michal Navoth (Israel) Calev Myers (Israel) Michla Pomerance, Prof. (Israel) Gavriel Mairone (Israel) Noemi Gal-Or, Dr. (Canada) Olaf S. Ossmann (Switzerland) Representatives to the U.N. in New York Pesach Kanir (Israel) Regina Tapoohi (USA) Peter Diedrich, Dr. (Germany) Calev Myers (Israel) Ruben Pescara (Italy) Elad Popovich (Israel/USA) Stephen R.Greenwald, Prof. (USA) Mark A. Speiser (USA) Suzanne Wolfe-Martin (Switzerland) Tamar Gidron, Prof. (Israel) Vera Rottenberg-Liatowitsch, Justice (Switzerland) Executive Director: Ronit Gidron–Zemach (Israel) * All members of the Executive Committee are members of the Board of Governors JUSTICE No. 54, Summer 2014 Contents Editorial Board Michal Navoth, Adv. President’s Message 2 Rahel Rimon, Dr. Special Adviser The International Court of Justice: Irit Kohn, Adv. Historical Perspectives, Current Realities Advisory Board Michla Pomerance 4 Alan Baker, Ambassador (ret.), Adv. Amos Shapira, Prof. Adjudicating the Arab-Israel Disputes? Daphne Richemond Barak, Dr. Robbie Sabel 10 Mala Tabory, Dr. Michla Pomerance, Prof. Robbie Sabel, Prof. Boycotts, Divestment, Sanctions and the Law Yaffa Zilbershats, Prof. Jonathan Turner & Anne Herzberg 15 Editor in-Chief Michal Navoth, Adv. Israel and the Alien Tort Statute: The Impact of the U.S. Supreme Court’s Coordinating Editor Mala Tabory, Dr. Decision in Kiobel v. Royal Dutch Petroleum Co. Michael M. Zmora 21 Research Assistant Alisa Gannel A Grotian Moment: Corporations are Graphic Design Required to Respect Human Rights Climax Design Studio Ltd. Gavriel Mairone 27 www.climax-design.co.il | 03-7516747 Cover photo Zivotofsky v. Kerry: A Historic Constitutional Battle Collage of memorial gathering in front of Nathan Lewin 34 the Jewish Museum, Brussels, following the terrorist attack on May 24, 2014 New Preachers of Hate: Copyright: Surya Jonckheere Where Does Freedom of Expression End? Photo p. 34 - credit: Rikki Gordon Lewin Maurizio Ruben 39 Publication of JUSTICE is NEVZLIN made possible through the FAMILY Expert Panel on UNRWA at the UN FOUNDATION generous assistance of the Nevzlin Family Foundation. Regina Tapoohi 42 JUSTICE is published by The International Association of IAJLJ Statements 44 Jewish Lawyers and Jurists 10 Daniel Frisch St. IAJLJ 15th Congress Program 46 Tel Aviv 6473111, Israel Tel: +972 3 691 0673 Fax: +972 3 695 3855 [email protected] www.intjewishlawyers.org © Copyright 2014 by IAJLJ ISSN 0793-176X JUSTICE is published for members and friends of the International Association of Jewish Lawyers and Jurists. Opinions expressed in JUSTICE are those of their authors and do not necessarily reflect the views of JUSTICE or the International Association of Jewish Lawyers and Jurists. The accuracy of articles appearing in JUSTICE is the sole responsibility of their authors. Articles in English are welcome but should be preceded by a query to the IAJLJ Advisory Board at [email protected]. Back issues of JUSTICE are available at www.intjewishlawyers.org. POSTMASTER: Send address corrections to Justice, 10 Daniel Frisch St., Tel Aviv 6473111, Israel. Summer 2014 1 JUSTICE President’s Message s I write the President’s Message, Israel is being particularly important: In March 2014, under the kind attacked by Hamas missiles throughout the auspices of the Herzog, Fox Ne’eman Law Firm, we held Acountry. They aim for civilian population centers in a seminar on the implications of corporate responsibility order to kill and spread panic. We want to express our to abide by human rights standards. The subject of human support to the IDF and the Israeli rights has been raised lately on the agenda of Government and wish them a speedy end the UN Human Rights Council and the UN to this unbearable situation without many General Assembly, and was regulated by the casualties. I cannot help but address the OECD and other organizations, as a condition tragic events in Israel at the end of June of proper business practices. In an era when and beginning of July 2014: the brutal human rights practices are examined in murder of the three boys whose bodies were corporations, banks, and other businesses, this uncovered by Israeli security forces and new sphere of responsibilities is gaining brought to rest, and the murder of the Arab prominence. During the seminar, we examined youth by Jewish radicals. The murderers how this new obligation on companies impacts of the three young Israeli Jews have yet to on many aspects of the global economy and how be apprehended. I addressed these issues it is developing in Israel. The article in this issue in my letters to IAJLJ members and I trust you all read by Gavriel Mairone, an IAJLJ member who represented them. I received positive feedback and I am gratified our Association at the Human Rights Council, addresses by the reaction of IAJLJ members. these issues. On May 19, 2014, for the first time, IAJLJ, together with In this Issue the AAJLJ, its member organization, held a “side event” You will read about the boycott against the State of at UN Headquarters in NY, on UNRWA. This event Israel, which unfortunately is gaining momentum in concluded a year of activities on the subject, which various places around the world. The boycott is of growing included meetings with Ambassadors of donor States concern to us and IAJLJ is trying to learn how to counter supporting UNRWA and the transmission of petitions to it. We also include in this issue an article dealing with governments on problematic aspects of this body. The historical aspects of the International Court of Justice, as event was broadcast live. The next issue of JUSTICE will presented at our last conference at The Hague. Robbie be devoted to problematic UNRWA practices raised during Sabel’s article on the Arab-Israel conflict analyzes the this event, with a view to influencing future policies and challenges from a legal perspective. An analysis of a U.S. practices. Supreme Court decision, as it impacts on Israel, is also On May 27, 2014, at the annual Conference of the Israel included in this issue. Bar Association in Eilat, IAJLJ was invited to organize two panels: “How to Beat BDS,” with the participation Eilat—November 2014 of British lawyers to address legal responses in the UK; The IAJLJ has been very active, and its future plans are and “Countering Cyber-Terror: An Integrated far-reaching. Our next Conference: “International Human Technological Legal Approach.” Both these subjects are Rights and Israel – Politicization or a Complex Reality?”, at the heart of contemporary legal investigation and which will include presidential and Board elections, will practice. take place this time in Israel’s southern-most city of Eilat. Lately, IAJLJ activities at the UN Human Rights Council Your attendance at this conference is especially important in Geneva have grown substantively – including due to these elections. Details regarding election procedures statements by our representative and letters by IAJLJ on for key posts will shortly be sent to you. In addition, please a wide range of relevant issues. These can be followed follow our web site for further updates in this regard. You on the IAJLJ web site www.intjewishlawyers.org. can also find in this issue the conference brochure and registration forms. We call upon you all to register before Recruiting New Members August 15, 2014 and enjoy a special rate. I attribute utmost importance to recruiting new members to the IAJLJ and strengthening contacts in various States. Recent Activities In this context, IAJLJ members invited me to Italy in March Among recent IAJLJ activities which I consider 2014 for meetings with Jewish lawyers. The large number 2 No. 54 of participants at the Rome event, mostly young lawyers, by extremist forces in Israel that may lead to an surprised even the organizers. Some of them joined the uncontrollable conflagration. IAJLJ condemned the “Tag IAJLJ at this interesting meeting, and some plan to attend Mechir” phenomenon in a symposium it held on our forthcoming Congress in Eilat. In Milan, my meeting September 16, 2013, as well as at a meeting with the Israel with Jewish lawyers was naturally smaller and thus more Attorney-General and in an amicus curiae opinion personal, and all participants joined IAJLJ.