My research explores the complex relations between law and violence: how law addresses past and ongoing violence; how to resolve conflicts between legal justice and political processes such as peacemaking or transitions to democracy; how non-democratic regimes use law to justify violence; how law regulates, constrains and enables the international trade in weapons and advanced surveillance technologies; and the dilemmas created for members of the legal profession - judges, government lawyers and legal academia - by the contradictory roles of law in relation to violence.

The Arms Trade, Human Rights and the Law

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I am currently working on a book-length project, supported by an Israel Science Foundation grant, on the roles of law in Israeli security exports. Drawing on studies of legal consciousness and of the roles of law in both legitimating and constraining violence, I explore how individuals operating in the Israeli security industry perceive the meaning of law in their activities. Through ethnographic methods and analysis of publicly-available speeches and texts, the project seeks to unearth the ways in which lay and legal staff of Israeli defense and cyber companies as well as government officials involved in export controls, and activists endeavoring to expose and halt Israeli exports of arms and advanced surveillance technologies, invoke the law and understand the relation of law to the human rights implications of their work. 

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In another work-in-progress I explore the legal and other activities of Big Tech (Microsoft, Meta, Google, and Apple) in what I conceptualize as regulation of the spyware market. The global trade in spyware constitutes a particularly sharp instance of the inadequacies of state-centered, top-down regulation, and self-regulation by spyware producers is not a promising avenue either. Against the background of this regulatory conundrum, my paper reveals the regulatory role that Big Tech has taken upon itself with respect to the human rights implications of spyware. Other works-in-progress include a chapter on corporations as subjects and agents of international legal norms relating to the arms trade, and a description of the Israeli regulation of security exports. 

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Authoritarianism and the Dilemmas of the Legal Community

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My article Toward a Self-Reflexive Law? Narrating Torture’s Legality in Human Rights Litigation describes the ways the authoritarian regime of Ferdinand Marcos in the Philippines employed legal discourse and institutions to justify terrible violence, including torture. In a joint project with Leora Bilsky, we explore the normative implications of the law/violence nexus for legal professionals. In Legal Ethics in Authoritarian Legality, we consider the dilemma of the lawyer working in an authoritarian regime, taking as a starting point our reaction to David Luban’s “Complicity and Lesser Evils: A Tale of Two Lawyers.” Drawing on historical scholarship on the Third Reich, and comparative political science scholarship on authoritarian uses of law, we argue that lawyers face a particularly sharp dilemma in authoritarian regimes, as both their possibilities of doing good and of strengthening the regime are strong.  While our argument—namely that the lawyer’s dilemma is especially acute—is ambiguous in terms of providing practical guidance, we conclude that one implication is clear: legal education should impart to future lawyers tools with which to address the dilemma of remaining on the job, and in particular the ability to recognize when legality is used for repressive ends.

 

We hope to ourselves contribute to exposing how law can be used for repressive ends and how courts should react in The Judicial Review of Legality. We propose a new model of judicial review of ordinary and constitutional legislation based on Fuller’s theory of legality. Drawing on recent writing on the jurisprudence of Fuller, we argue that Fuller’s linking of the forms of law to a relationship of reciprocity between government and governed can ground judicial review. Furthermore, while this type of review is normatively compelling with respect to legislation generally, we demonstrate, through an analysis of recent developments in Israel, that our proposal targets some of the key legal techniques of contemporary processes of democratic erosion which other models of judicial review struggle to address, all the while recentering judicial review on the lawyer’s craftsmanship and thus granting courts stronger normative legitimacy. In this way our proposal seeks to find a role for courts that neither collaborates with contemporary legal techniques of democratic erosion nor illegitimately interferes in political processes.

 

In a work-in-progress with Ofra Bloch, we consider the challenges of countering populists' conception of legality through an analysis of the activities of the Israeli Law Professors' Forum for Democracy, of which we are members. 

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Transnational Human Rights Litigation and Political Processes

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My dissertation, expanded into American Transitional Justice: Writing Cold War History in Human Rights Litigation (CUP 2020), offers one of the first socio-legal studies of transnational human rights litigation brought in US courts under the Alien Tort Statute (ATS). It revisited two landmark ATS cases, Filártiga and Marcos, concerning torture in Paraguay and the Philippines, respectively. Combining legal analysis, archival research and ethnographic methods, the book reveals how these cases operated as transitional justice mechanisms, performing the transition of the United States and its allies out of the Cold War order. It shows that US courts produced a whitewashed history of US involvement in repression in the Western bloc (on such historical distortions as a trade-off of breaking ground in relation to individual accountability, see here), while in Paraguay and the Philippines the distance from US courts allowed for a more critical narration of the lawsuits and their underlying violence as symptomatic of structural injustice. The book and related articles (such as this analysis of the lawsuit's interaction with transitional justice mechanisms in the Philippines) offer a nuanced view of transnational human rights litigation as having both deeply hegemonic and emancipatory implications.

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Building on the book’s analysis, I developed a normative position about transnational human rights litigation. My article Human Rights Realism draws on legal realist writing on the right-remedy relationship to offer a robust justification for accepting limitations to legal accountability across a wide range of transnational mechanisms and a principled framework for considering such limitations in light of evolving empirical evidence. 

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Domestic Violence, the Prohibition of Torture, and Profound Transformations in International Law's Conceptualization of Violence

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This project, supported by an Israel Science Foundation grant, examines the recent expansion in the definition of torture and cruel, inhuman and degrading treatment in International Human Rights Law to include domestic violence. A first article maps the doctrinal changes, and further analyses the discourse in international and regional bodies concerning domestic violence as torture to demonstrate the malleability of International Human Rights Law and its ability to offer structural remedies. A second article explores empirically the processes behind-the-scenes of the categorization of domestic violence as torture, as a case-study for how international human rights law is written and transformed outside of treaty negotiations - what I call "everyday lawmaking in International Human Rights Law". This piece builds on and challenges some of the leading social scientific account of international norm change in the area of human rights. A third article locates the recognition of domestic violence as torture within a broader trend in international law, whereby legal categories originally concerned with atrocity are reinterpreted to target everyday violence. The article identifies this trend for the first time, offers socio-legal explanations, and tentatively explores its practical and cultural implications.  

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Israeli Courts' Discursive Strategies to Represent and Address Violence and State Power   
 

My joint project with Tamar Hostovsky Brandes analyses Israeli courts' uses of International Human Rights Law. We created a database of all Israeli decisions since 1948 containing a reference to international human rights law instruments, institutions or rulings, and a combination of quantitative and qualitative analysis of each decision. A first article analysing parts of this database, Israeli Courts and the Paradox of International Human Rights Law, shows that Israeli courts mobilize International Human Rights Law predominantly with respect to issues least threatening to the political order, and that a significant portion of references serve to justify state action. We argue that these findings illustrate a set of paradoxes that make International Human Rights Law particularly amenable to conservative uses. In a subsequent piece focusing on Israeli courts' uses of the European Convention on Human Rights, we show that Israeli courts have favored the convention over other sources formally binding Israel, and argue that one of the reasons for this preference is that the convention and European Court of Human Rights rulings offer justifications for legal rulings favorable to the state, all the while providing the legitimacy of Western norms. The article thus locates contemporary ethno-populist invocations in Israel of constitutional law from Western democracies to strengthen executive power within a long-standing judicial practice.

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More optimistically, in a chapter to be published in the Eliezer Rivlin Book (in Hebrew), I draw on my book’s insights about the ways doctrinal and political constraints in groundbreaking human rights cases combine to produce distorted judicial narratives about violence, to analyse Justice Eliezer Rivlin's portrayal of Israeli society and narratives about violence suffered by Palestinian children in two groundbreaking tort rulings. The chapter argues that Rivlin developed a unique approach to the intersection of law and history that avoids historical distortions and can therefore serve as a model.

 

Other Research Activities

 

Since 2019 I direct the team of Israel reporters for the Oxford Reports on International Law in Domestic Courts. 

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I report on secondary liability in Israeli criminal and tort law for the project Rethinking Secondary Liability for International Crimes.

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I am a member of the Forum on the Arms Trade, a network of experts on the humanitarian, economic and other implications of the global trade in arms. 

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I am a member of the Israeli Law Professors' Forum for Democracy and in that capacity I have co-authored position papers (in Hebrew) on the regulation of gun licensing in Israel (including increased civilian access to guns since October 2023), the right to vote in Israel and increased threats thereto since January 2023, processes of constitutional amendment, and judicial appointments in France, among other topics.   

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