Prof. Amichai Cohen

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. 

The ICC's unprecedented arrest warrants against leaders of a democratic state carry severe and far-reaching consequences, yet Israel still has far-reaching options to mitigate the damage. 

Israel will likely not succeed in forcing the Court to annul its orders, and attempting to do so will make it even harder for its allies to support it. Instead, it can conduct an independent and effective investigation, avoiding problematic statements, and adhere to the laws of armed conflict.

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 Prime Minister’s decision to retain the power to determine the parameters and scope of the hostage deal as a “policy issue” disregards the implications such a deal has on security issues. Israeli history underscores the importance of convening the security cabinet and upholding the appropriate democratic channels in times of war.

Investigating allegations of abuse at the Sde Teiman detention facility is Israel's moral and legal duty as a rule-based democracy and protects the country on the international legal and diplomatic front. 

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.

The model that has supported the IDF and Israeli society since the state's founding and has been eroded over the years received renewed reinforcement in the current war. The avoidance of participation by Haredim places it at renewed risk.

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. 

Demands to lower the flames of criticism cannot legitimately be made by a government taking actions driven by narrow political interests. If the government does not act in a nonpartisan manner, they cannot demand those who hold different views refrain from opposing political action. 

From damage to scientific collaboration to cancellation of arms deals, arrest warrants for senior Israeli officials from the International Criminal Court in the Hague would pose a serious challenge to Israel

The government wishes to amend the Military Service Law and Reserve Service Law due to the new security circumstances arising from the outbreak of the war in Gaza. While recognizing the immediate imperative to respond to IDF's personnel needs, we oppose these legislative proposals. 

The US, the UK, France and other states have announced the imposition of economic sanctions on Israeli residents who are believed to be complicit in 'settler violence.' This document aims to outline the framework of international economic sanctions and contextualize the sanctions imposed on Israelis. 

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.

Prof. Amichai Cohen, a senior fellow at the Israel Democracy Institute and an expert in international law, made the following comments on the International Court of Justice (ICJ) decision today regarding provisional measures in the case of South Africa v. Israel on the Application of the Genocide Convention.

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 ICJ is hearing allegations that Israel has violated the Convention on the Prevention and Punishment of the Crime of Genocide. What is the ICJ? How is the government responding? What are the implications for the war against Hamas and Israel’s international standing?
All the answers in a special IDI explainer.

IDI's Prof. Amichai Cohen answers a series of questions on international law and its dealings with the laws of war.

The Supreme Court's ruling to strike down the amendment made to the Basic Law: The Judiciary and reinstate the Standard of Reasonableness is a landmark decision on an issue that has been exceptionally divisive within Israeli society. Will this lead to a constitutional crisis? 8 Key points from IDI's experts examining the court's decision.

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.

The coalition has voted to amend Basic Law: The Judiciary and repeal the Standard of Reasonableness used to review government decisions that are deemed to be extremely unreasonable. On September 12^th, the Supreme Court will hear petitions against the constitutionality of this move.

The need for expanded IDF service is clear—but the options for achieving this are rife with political contention and economic consequences. The time to rethink long-term security arrangements is after the fog of war lifts, under newly elected leaders with broad public legitimacy. 

International law is a normative system that regulates the conduct between states, organizations recognized by international law and at times, individuals. This explainer presents an overview of international law in conflict and its application in Israel's war against Hamas.   

Is the IDF acting legally and ethically in Gaza? The Times of Israel recently held an hour-long webinar on this topic with IDI's Prof. Amichai Cohen.

This article discusses the responsibilities of the international community with respect to the ongoing war in Gaza, and particularly focusing on responsibilities with regard to the hostage situation. 

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. 

International law does not forbid the evacuation of residents to the southern Gaza Strip; on the contrary, it would appear to demand of Israel that it warns residents and encourages them to leave.

Details and clarifications on the international crimes committed by the Hamas in their abduction of Israeli civilians, and the responsibilities attached to these crimes.

Hamas’s horrendous October 7 attack on Israeli civilians and Israel’s anticipated response pose a unique challenge to scholars and practitioners of the Law of Armed Conflict or International Humanitarian Law (IHL), possibly a challenge they have never faced before.

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. 

The main demand made by Benny Gantz, chair of the National Unity party, for entering an emergency government is the establishment of a war cabinet. Why is this important and what would the powers of a war cabinet be? 

The government has once again declared a "special home front situation" as the war in the north intensifies. What does this mean?

Is the operation in Gaza a war, who is authorized declare war and what is the role of the cabinet and the government after war is declared?

The hurt felt by the broad section of the Israeli public that is moderately traditional may have serious consequences for the struggle against the government’s judicial overhaul.

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.

On September 12, 2023, an unprecedented panel of 15 Supreme Court Justices will convene to hear petitions requesting to strike down the recent amendment to the "Basic Law: The Judiciary."

A volunteer civilian army is possible only when a shared core of social values exists among citizens. But deepening social and political tensions has threatened this system.

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 coalition is currently seeking to advance a legislative amendment that will prevent the Supreme Court from annulling (or striking down) decisions of the government, individual ministers, and other elected officials (such as mayors) it finds to be "extremely unreasonable."

The research examined 42 countries included all the OECD member states along with other leading democratic countries.

The proposed government resolution fails to explain why a National Guard is needed, how to ensure that it does not target minority groups unjustifiably, and what the division of labor will be with the police. It is also liable to result in the increased militarization of law enforcement in Israel, which could lead to disproportionate infringement of human rights.

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.

The proposed legislation evicerates the only check on executive and legislative power in Israel.

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.

Negating the plans of the other camp is not enough. The public enthusiasm present a rare opportunity, to enlist public support for strengthening and entrenching Israel’s liberal democratic identity.

Jack Omer-Jackman, Research Associate at BICOM speaks to Professor Amichai Cohen on the proposed reforms, how Israel’s system compares internationally and what to expect next. Cohen also comments on the distinction between populist and conservative potential reforms, and on the relationship between the judiciary and security policy.

The appointment of conservative judges to the court, and even the enactment of a certain version of the override clause, will not bring about the destruction of the Supreme Court, and will certainly not turn Israel into a totalitarian state. However, the continued attacks on the Court, and the potential passage of the most extreme proposals pose a serious challenge to Israeli democracy.

The debate surrounding the Override Clause should really focus on the disproportionate power of the Knesset and not on the power of the Supreme Court. All other democracies have structural mechanisms that limit the concentration of power in the hands of one institutions - we must create such a mechanism in Israel as well.

The government's aim to apply sovereignty in the territories and soften the Supreme Court may harm Israel's global standing

The bill to amend the Police Ordinance has been compared to practices in other countries - however it ignores the fact that other countries have in place procedures that guarantee the operational independence of the police when it implements the policies laid down to guide its actions

Ahead of the annual 2022 National Security and Democracy IDI published a special survey to examine the views of Jewish Israeli on a series of issues relating to their relationship with the IDF and the country’s security challenges. The survey found that while there is wide support for opening the ranks to women in combat units and a large plurality would prefer that their children serve in the IDF’s technological units.

Operation Breaking Dawn was brief and successful, nevertheless the decision-making process for matters of national security must be reformed to deal also with worst-case scenarios

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.

With international institutions once again a cornerstone of US foreign policy, Israel will have to adjust accordingly

Prof. Amichai Cohen discusses his new book The Constitutional Revolution and Counter-Revolution, and explains the changing role of the High Court of Justice in maintaining the checks and balances of Israeli democracy.

The ICC's ruling to allow the possibility of an investigation into Israeli actions is only the start of a process that is likely to go on for many years. What are the next steps and what are the possible implications for Israel?

The decision to call in the IDF is dealing a double blow to the country - it is both ineffective and is damaging the public’s trust in the IDF

Elections are an attempt, not always successful, to translate the voters’ wishes into a well-functioning and representative government - however no democracy anywhere in the world makes do with elections to a single institution as the only means for implementing democracy

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.

IDI experts held today an online briefing focusing on potential plans by Israel's government to apply sovereignty in areas of the West Bank as part of the U.S’ ‘Deal of the Century’

A key component of US President Trump's 'Peace to Prosperity' plan is the clause allowing Israel to annex parts of the West Bank. What do Israelis and Palestinians say about this plan and what would it look like on the ground? Prof. Amichai Cohen has all the answers in this explainer

Israeli's Supreme Court ruling on the Regularization Law touches on the heart of the legal battle inherent in the power struggle between settlers and Palestinians.

After three contentious election campaigns Israel's new government has been sworn in. IDI's experts weigh-in with their recommendations on the most important issues on the agenda. Prof. Amichai Cohen writes about the matters that should be at the top of the agenda to improve Israel's security and resilience.

The “Deal of the Century” and Human Rights: An overview of territorial exchanges and the status of the Palestinians in the annexed Areas 

What are the legal barriers standing in the way of the current government implementing the U.S.'s “Deal of the Century” peace plan?

Another Election? It Has its Pluses for the Public and for Democracy. Voters got to see how parties behaved after elections, and parties now know the real risk of a hardline negotiation stance.

Israeli military officers are less tolerant of higher civilian casualties than their American counterparts.

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

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.

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

IDI puts forth analysis of why the proposed conscription plan for the ultra-Orthodox is problematic and offers an alternative approach

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

The case of Yesh Din vs. The Chief of the General Staff HCJ 3003/18

Following the approval of the “Cabinet Law,” allowing the government to delegate its authority to declare war to the National Security Cabinet, IDI Senior Professor Prof. Amichai Cohen, and expert on national security law, contends that the bill addresses a critical issue but has been passed too hastily

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 the US and more recently in Israel there is public discussion over the principled issues of the balance between the different branches of government in matters of national security and the proper mechanism to create accountability in these matters are universal. 

While there is no way to know whether the military picture of the recent Gaza war would have been different had members of the security cabinet been kept abreast of the tunnel threat, there can be no doubt that what occurred was a failure of Israel’s democracy.

Recent events surrounding the evacuation of the Israeli settlement of Amona have ignited a long-simmering debate within Israeli society regarding the construction of a small portion of settlements on privately-owned Palestinian land in Judea and Samaria.

As the IDF's military court handed down its verdict in the case of Elor Azaria, the soldier accused by the military prosecutor of shooting and killing a terrorist who no longer constituted a clear and present danger, it is an appropriate moment to recall the recent experience of another soldier in another army.

In the last decade, no member of the IDF has been convicted of an offense as serious as that with which Azaria is charged.

Prime Minister Benjamin Netanyahu announced recently that Israel and Turkey had reached an agreement leading to reconciliation between the two countries – and the Knesset approved the deal. Now the question becomes: will the deal have the impact Israeli soldiers are hoping for? Originally published by the Jerusalem Post.

IDI's Prof. Amichai Cohen explains why Israel had to launch a swift and effective investigation into the actions of the solider that shot a neutralized terrorist in Hebron. This article originally appeared on the Times of Israel

Prof. Amichai Cohen argues that there is only one good way to prevent prosecution of Israeli soldiers abroad: Israeli authorities must conduct effective, independent, and genuine investigations in cases where there are suspicions of war crimes or other violations. This article was first published by Times of Israel.

Submitted to the UN International Commission of Inquiry on February 11, 2015, this document details the role of lawyers within the Israeli Defense Forces in implementing and enforcing International Humanitarian Law within the IDF.

A discussion of the Palestinian Authority's declarations to the International Criminal Court (ICC), the changes that influenced the ICC prosecutor's decision to accept the PA's second declaration, and the conditions that must be fulfilled in order for the ICC to apply its jurisdiction to IDF actions or to 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.

As Operation Protective Edge enters its second week, IDI experts outline the legal basic concepts involved in asymmetrical warfare and the boundaries of permissible action according to standard interpretations of existing international law.

What is the significance of the UN decision to grant the Palestinian Authority the status of a non-member observer state? IDI Research Fellow Dr. Amichai Cohen explores this question from a legal standpoint.

The Palestinian Authority has announced its intention to declare the establishment of an independent Palestinian State in September 2011, and to ask the U.N. to recognize that state. What is the significance of U.N. recognition? Can the U.N. establish a state? Find out in this legal analysis by IDI Research Fellow Dr. Amichai Cohen.