Prof. Yuval Shany

Amnesty International's report on the war in Gaza fails to prove acts of genocide by Israel, even when attempts are made to move the goalposts.

In the second installment of their two-part analysis of the ICC's decision to issue arrest warrants against Israeli leaders, Prof. Yuval Shany and Prof. Amichai Cohen examine the arguments behind the arrest warrants and steps Israel can take to prevent them from being realized. 

On November 21, 2024, the Pre-Trial Chamber of the International Criminal Court (ICC) issued four decisions. These deal with various legal matters arising out of the Prosecutor’s May 20 request to issue arrest warrants as part of his ongoing investigation of the Situation in Palestine, in the context of the War in Gaza.

IDI experts Prof. Amichai Cohen and Prof. Yuval Shany analyze the legality of the September explosions targeting Hezbollah pagers and walkie-talkies through three legal frameworks: the right to use force, principles of distinction and proportionality, and the legality of employing these devices under laws regulating choice of weapons. 

Prof. Cohen and Prof. Shany discuss three possible rationales for the ICJ's rejection of Israel’s security concerns and offer a few final observations on the appropriate balance that should hold between security considerations and continued presence in occupied territories.

A recent judgment of the Israeli Supreme Court held that conditions in a notorious detention center must comply with Israeli law.

The ICJ Advisory Opinion on Israel's policies in the territories of the West Bank (Judea and Samaria) are illegal but was more divided on other salient factual and legal findings.

If properly structured, both a commission of inquiry and a preliminary examination by the Israeli police could arguably meet existing complementarity standards.

Article 18 to the ICC Statute requires the Prosecutor to notify the relevant States regarding a decision to open an investigation, providing those States the opportunity to request deferral of the investigation, because of the existence of a domestic investigation. The Prosecutor’s approach of not issuing new notifications new charges emerged weakens the ability of the Pre-Trial Chamber to monitor the implementation of the complementarity principle.

In this article, we wish to identify and discuss here some potential problems we identify in the part of the request pertaining to Netanyahu and Gallant, at least as it was presented in the Prosecutor’s short announcement and by the expert report supporting it. 

The history of the ultra-Orthodox exemption from service in the Israeli Defense Force (IDF), from the 1948 until today. 

In its order on provisional measures, the Court appeared to engage in transactional justice. It used harsh rhetoric to describe the catastrophic situation in the Gaza Strip while minimizing the impact of the order by adopting ambiguous language on the contents and scope of the plausibility test.

While neither Israel nor South Africa achieved a complete win, one thing is clear: the story of Israel before the ICJ is only beginning

On Friday, January 26, the International Court of Justice issued its Opinion granting provisional measures in South Africa’s genocide case against Israel. Joining the Just Security Podcast to discuss the Court’s Opinion and its implications are law professors Adil Haque, Oona Hathaway, and IDI's Yuval Shany.

The International Court of Justice (ICJ) at the Hague held public hearings in the case against Israel for alleged violations of the Genocide Convention. In this essay we address three aspects of the case: the ways the parties framed the events, the request to suspend Israeli military operations, and the conditions for issuing provisional measures. 

Two judgments issued by the Supreme Court in the first week of 2024 deal a decisive blow to the Netanyahu government’s efforts to radically rebalance the branches of government.

The recent application by South Africa to the International Court of Justice brought against Israel under the Genocide Convention illuminates how international law and international institutions can be employed to address the Israel-Hamas war.

Tendentious interpretations of international law are not surprising considering the high emotions surrounding the long and bloody Israeli-Palestinian conflict. However, to serve its purpose guiding the conduct of States and retain a high degree of legitimacy, international law must serve as a common legal language. 

The Israeli war cabinet and the complex institutional structure related to war informs greatly on Israel’s decision-making.

The current round of violence between Hamas and Israel has already given rise to many expressions of legal opinion. In this essay, we map some key assumptions and unpack how they can significantly affect ongoing legal debates and deliberations. 

The article explores the applicability of international human rights law (IHRL) to the atrocities committed by Hamas on October 7, 2023. Such an analysis is important to fill in gaps in IHL and to establish the jurisdiction of IHRL mechanisms over the violations committed. 

Three petitions before the Israeli Supreme Court are transforming the usually slow month of September into a pivotal one in Israel’s ongoing judicial crisis.

In the first part of this two-part episode, Jack Omer-Jackman speaks to renowned Israeli legal scholar and IDI expert Professor Yuval Shany to discuss the Supreme Court’s upcoming deliberations on the legislation annulling reasonability; the significance of basic laws; the impact of reservists’ protests on Israel’s military preparedness and the role of a citizen army in a democracy.

In the second part of this two-part episode, Jack Omer-Jackman speaks to renowned Israeli legal scholar and IDI expert Professor Yuval Shany to discuss the Supreme Court’s upcoming deliberations on the legislation annulling reasonability; the significance of basic laws; the impact of reservists’ protests on Israel’s military preparedness and the role of a citizen army in a democracy.

The first phase of Israel's judicial overhaul is now law. Huge numbers of people are in the streets, reservists are resigning, the stock market is tanking, and Lawfare Editor-in-Chief Benjamin Wittes assembled an all-star panel to talk about it, including IDI's Prof. Amichai Cohen and Prof. Yuval Shany. 

The Israeli governing coalition is now “only” trying to strip the Supreme Court of its power to conduct reasonableness review of cabinet decisions.

The protest against the government legislation is clearly covered by the protections granted by international law to the right to assembly. The position of the Attorney General of Israel strikes an appropriate balance between exercising the right to demonstrate and protecting competing rights and interests. 

Abolishment of the standard of unreasonableness would lead to a further concentration of power in the hands of the executive – a power that is already greater in Israel than in many other democracies.

The Israeli judicial system’s independence and professionalism protect IDF commanders from prosecution in international courts. A close look at the planned judicial overhaul leads to the conclusion that if implemented it would increase the risk to Israeli citizens and make it harder for the country to protect them in the future.

The proposed bill contravenes the basic values of the State of Israel, flouts international treaties Israel has signed and will limit its moral superiority over terrorists. The bill will expose Israel to harsh international condemnation, and it will hamper, rather than alleviate efforts in the war against terror.

In recent years, there have been attempts to enact the “override clause” in Israel, a legal provision that would enable the Knesset to override the Supreme Court’s rulings in cases in which it strikes down legislation. This week the Constitution, Law and Justice Committee is discussing a draft of such a law.

Downgrading the independence of government legal advisers is not among the highest-profile proposals to reform the Israeli legal system being advanced by Israel’s new right-wing government, but weakening the status of government legal advisers is actually an important and troubling part of the government’s package of proposed reforms.

Since 1953, judicial appointments in Israel have been made through a Judicial Selection Committee in which legal professionals—judges and lawyers—are in the majority and politicians in the minority. The new Israeli government’s plans for legal reform turn this system on its head and allow the coalition to fully control appointments to all parts of the judiciary, thus consolidating its dominant position in all three branches of government. 

The second article in this series describes in depth how the Supreme Court used its authority, why it encountered a backlash, and what current proposals to limit the power of the Court to exercise judicial review over Knesset legislation look like.

Political discontent with the power relationship between the judiciary and the political branches has been percolating since the 1990s, often in connection with criminal proceedings against senior politicians. Prof. Amichai Cohen and Dr. Yuval Shany provide context for the ongoing debate concerning recent legal developments in Israel, so that outside observers can follow them more closely.

Israel's Security Cabinet is set to vote on a maritime agreement with Lebanon, but with the elections coming up, can an outgoing government sign such a deal and does it have to be ratified by the Knesset or by referendum?

Disqualifying candidates and lists for the Knesset violates one of the most fundamental democratic rights, the right to vote and to be elected. Therefore, it must be done with the utmost care, judgment and objectivity. Who can reject candidates and lists for the Knesset, and on what is the criteria? IDI experts answer these questions.

Israel should adopt a more hospitable policy towards Ukrainian asylum seekers and afford them with short-term stay permits

The clash between Putin’s Russia and international institutions is a shock to the existing world order.

The temptation to make excessive use of spyware and the apparent failure of the current oversight mechanisms compel a significant reinforcement of existing mechanisms. The creation of a new independent commission to monitor online surveillance is necessary.

Granting the executive broad authority to target entities and individuals on the basis of secret evidence is problematic and the process must be reformed

Israel Democracy Institute researchers welcome the move to anchor the right to equality in a Basic Law, and note the urgent need for this step, particularly in light of the Nation-State Law. At the same time, the researchers also recommend a series of amendments to the bill.

Even if we accept the argument that lowering the exemption age exacerbates existing discrimination, we should still assess the proportionality of this harm. Basic rights such as equality are not absolute, and are sometimes subject to restrictions in the face of a pressing public interest.

IDI experts answer questions on the balance of powers at the Security Council, whether any dramatic resolutions can be expected, and the extent to which the debate and international pressure effect the IDF.

Can one regulator rule Israel’s cyber ecosystem?

The decision not to convene the Arrangements Committee prevents the Knesset from conducting itself as a legislative body and performing its oversight duties

Four elections in two years failed to produce decisive results - what's wrong with Israel's political system and is there is any way out of its current political stalemate?

The latest judgement in a series of legal challenges to controversial measures adopted by the Israeli government in response to COVID, shows that the Supreme Court still plays an important role in checking government excess and reaffirming basic democratic and human rights values

There is no doubt that the Government has an obligation to employ meaningful measures against the pandemic, but the ease with which it was willing to infringe basic rights—is most disturbing

Setting sweeping restrictions on Israeli citizens’ ability to return to the country from overseas is extremely problematic from a constitutional perspective and is without parallel in the democratic world

Banning users from social media platforms raises concerns about free speech protections online

As the contentious debates about protests and prayers continues in Israel, we must recognize that there is no room for imposing unjustified restrictions on the basic rights of one group of citizens, simply because this will make it easier to impose justified restrictions on the basic rights of another

Senior governmental positions remain unfilled as political bickering has delayed appointments. Israeli law lays out a clear process for how such appointments must be made and the government should do so without further delay.

What are the possible human rights implications of annexing parts of the West Bank? In these experts from a more detailed analysis in Hebrew, IDI  detail the rights that might be violated if the plan moves forward.

The fast-moving escalation in the conflict between President Trump and Twitter in the last week of May may prove in hindsight to be a watershed development for the legal architecture of online social media.

IDI's management convened an online 'town hall' with Yohanan Plesner, Yuval Shany, Karnit Flug and Jesse Ferris to discuss the political, constitutional and economic fallout from the corona crisis, and IDI’s unique role in addressing it. 

The UN Human Rights Council published a database of Israeli and international companies operating in the West Bank - what are the ramifications and possible outcomes?

IDI experts explain Israel’s immunity law, what happens when it’s requested and what the implications may be for the political system.

Everything you wanted to know about the International Criminal Court in The Hague and its decision to open an investigation against Israel for war crimes

There's an unacceptable, extreme conflict of interest between Netanyahu the accused and Netanyahu, head of the executive branch

Actual policy making in a liberal democracy is based on sophisticated nuances.

The recent wave of populism forces us to sharpen our understanding of the literal meaning of 'democracy' and 'the rule of the people' as well as the accepted definition of liberal democracy

It turns out that voters actually want robust judicial oversight - which explains why the Override Clause and placing limitations on judicial review have not been prominant in the election campaign

One of the main explanations for the dramatic decline in voter turnout in the Arab Israeli sector in the last elections (49%, versus 63% in the 2015 elections) is the sense that the voice of Israeli Arabs — is a voice that doesn’t count.

The proposal promotes personal and political interests, strikes a severe blow to the public’s trust in democracy and to elected officials’ obligation to act with integrity

An opinion submitted today (June 26th) to MKs, the Attorney General, and the Knesset Legal Advisor on behalf of the Israel Democracy Institute, opposes the proposal to repeal the law to dissolve the Knesset and seeks to take the proposal off the agenda.

The story of liberal democracies in the late 20th and early 21st centuries has been, to a large extent, the story of protecting personal liberties by independent democratic institutions.

Populism means different things to different people – and political populism has an even more sinister meaning

The Override Clause would not alter the balance between the branches of government – it would shift the balance of power between the government and the governed

Annexation would result in a continuous state of affairs in which two sets of laws apply to two adjacent populations and would undermine Israel’s democracy

Laws define the legal rules of our democracy and ensure the stability of the political system while guaranteeing individual rights and general public interest - enactment of the Override Clause would seriously undermine this balance.

The report and its conclusions, regardless of whether or not they will be acceptable to the State of Israel, once again highlight the importance of the rule of law, and bring to the fore the need for in-depth investigations of events which might be construed as in violation of international law

Yohanan Plesner, President of the Israel Democracy Institute, and Prof. Yuval Shany, Vice President of Research "No democracy can tolerate public corruption or any exception to the principle of equality before the law."

In its fight against terrorism, Israel has often been proud of its ability to effectively fight terrorism, while remaining faithful to democratic principles. House demolitions were always considered a necessary evil, which could be resorted to in very exceptional circumstances - are we now facing populist trends that runs contrary to the traditional ethos of subjecting counterterrorism policies to rule-of-law constraints.

A modern nation of laws isn’t supposed to act based on revenge. Its legal system is founded on decency, justice and equality, not primitive concepts like hatred.

The United Nations, with all its many flaws, has an essential role to play in promoting the basic idea that any and all individuals must enjoy human rights.

Initial observations on Israeli's Military Advocate General's decision to conclude investigation into 'Black Friday'.

The Israel Democracy Institute issued a letter to the Prime Minister regarding the Nation State Billl, asserting that if the value of equality is not anchored in the legislation alongside the other enumerated national characteristics of the state, the law may eventually erode Israel's democratic character

The Lod district court decision illustrates the possible dangers to criminal defendant’s human rights though the expanding defense of necessity and the lack of separation between the preventive and criminal phases of the investigation.

Professor Yuval Shany and Professor Amichai Cohen discuss the pivotal role of the IDF in Israeli life - past and present. 

The Israel Democracy Institute ahead of the Knesset Constitution Committee debate on political appointments of legal advisers in government ministries: "A blow to the civil service ethos; an opening for potential corruption, forsakes public interest".

Professor Yuval Shany discusses the seeming dissonance between Israel's advanced surveillance technology, the minimal restrictions on using it, and a citizenry that hardly cares– and why all this might have to change

The Supreme Court of Israel recently dismissed a petition against the rules of engagement governing use of force by the Israeli security forces in the violent clashes in Gaza

Beyond the important political, humanitarian and moral issues raised by the “Great Return March” and the IDF’s response, complicated legal issues also present themselves. 

Despite the transformation of Israeli society, the IDF’s model of service has not changed. Military service continues to be a rite of passage for young Israelis and the IDF retains its status as the most trusted institution in Israel. Prof. Yuval Shany, Maj.-Gen. (ret.) Orna Barbivai and Prof. Amichai Cohen sit down to discuss the challenges facing the IDF and Israeli society in a changing security environment.

In a letter to the Members of Knesset, IDI's management clarifies that the ultra-Orthodox proposed legislation will influence budgetary matters such as allocations to Yeshiva students and housing grants, and will  place Israel’s national security in jeopardy

Letter to Members of the Knesset on the proposed Basic Law: Torah Study - "This is an extremist proposal to enshrine the principle of inequality in our law books.Its adoption could undermine the IDF’s model of service and place Israel’s national security in jeopardy"

Deporting people against their will to the countries they escaped from evokes strong and disturbing recollections of dark episodes in Jewish history.

The Israeli High Court of Justice’s Dec. 12 decision in Abu Ghosh v. Attorney-General provides a good opportunity to reexamine the implementation of the prohibition against torture in Israeli law almost twenty years after the court’s landmark 1999 judgment in Public Committee Against Torture in Israel, which outlawed torture.

Israel's security agencies have sweeping surveillance powers, but are subjected to few checks and balances.

Israel has been in a state of emergency since 1948. But the nature of the threat has changed over-time—from full-scale military invasions to isolated airplane hijackings, from suicide bombings to missile attacks, and most recently, cyber and lone wolf terrorism.
These ever-evolving threats necessitate new responses and strategies.

The primary significance of Resolution 2334 is that it strengthens other initiatives whose purpose is to punish Israel, its leaders and businesses for their involvement in the settlement enterprise. 

Three IDI experts on terrorism and democracy discuss the key points of the UN Security Council resolution that condemns the abuse of human rights by the Islamic State, and note two points that they believe are missing from the resolution. 

What criteria must the caliphate of the Islamic State meet in order to be considered a State under international law? This article presents an analysis of this question by IDI experts on terrorism and democracy.

How should suspected violations of the international laws of war be investigated? As Operation Protective Edge winds down, Prof. Yuval Shany and Prof. Amichai Cohen discuss the options of an internal investigation by the IDF, an international investigation, and an Israeli commission of inquiry.

How should suspected violations of the international laws of war be investigated? As Operation Protective Edge winds down, Prof. Yuval Shany and Prof. Amichai Cohen discuss the options of an internal investigation by the IDF, an international investigation, and an Israeli commission of inquiry.

In an op-ed originally published in Haaretz, IDI Senior Fellow Yuval Shany and IDI Researcher Attorney Ido Rosensweig critique an amendment that would allow interrogations of security defenders to go unrecorded, and warn that it is against public interest.

In an op-ed in The Jerusalem Post, Prof. Mordechai Kremnitzer and Prof. Yuval Shany discuss the need for measures, laws, and institutions designed to combat the war on terror in order to strike a balance between concern for national security and the need to safeguard democratic values such as human rights and the rule of law.

Does Israel have an obligation to defend the rights of human rights NGOs under international law? IDI Senior Fellow Prof. Yuval Shany discusses the international legal framework relevant to this issue, the duties to respect and ensure human rights, the obligation to offer effective remedies to victims, and the specific obligation to defend human rights defenders.

United Nations recognition of Palestine as a state would confront Israel with complex challenges, but would also have some hidden benefits. IDI Senior Fellow Prof. Yuval Shany describes the risks and potential opportunities contained in such international recognition.

The violent incidents that took place on the Israeli-Syrian border in June 2011 raise the question of how the Israel Defense Forces should deal with violent events that resemble disturbances while at the same time affecting important Israeli security interests. IDI Senior Fellow Prof. Yuval Shany offers his analysis of the Israeli response to these events.

Judge Richard Goldstone’s retraction of his commission's finding that Israeli actions in Gaza during Operation Cast Lead deliberately targeted civilians righted a historical injustice. But did the actions of the State of Israel contribute to the false impression received by the Goldstone Commission? In this op-ed, IDI Senior Fellow Prof. Yuval Shany explores the question of whether the Israeli government should also search its soul and consider participation in future international commissions of inquiry.

An analysis of the proposed comprehensive counter-terrorism bill that was prepared by IDI's Terrorism and Democracy research team and submitted to the Ministry of Justice.

In this article, we discuss a new, comprehensive counter-terrorism memorandum bill recently published by the Israeli Ministry of Justice. This memorandum bill aims to consolidate the existing legislation, as well as to provide the authorities with new counter-terrorism tools (including a broad definition of an "act or terrorism").

IDI Senior Fellow Professor Yuval Shany explains the increasingly critical relationship between international law and the Israeli legal system, in an article that was published at the end of the third millennium as part of a collaboration between IDI and Walla!, a popular Israeli website.

This op-ed by IDI Prof. Yuval Shany argues that despite the Goldstone Report’s shortcomings, it strengthens the demand to investigate claims raised against the IDF through an extra-military entity. As he sees it, the main question to address is whether the army's internal investigation of "Operation Cast Lead" meets the requirements of international law.