On December 8 & 9, 2008, the Third Biennial Conference was held. The wide-ranging discussions were attended by over 150 people.

Opening, Konrad Adenauer Conference Center, Mishkenot Sha'ananim, Jerusalem

Dr. Lars Hänsel, Director of the Konrad Adenauer Stiftung in Israel, and Prof. Yuval Shany, Academic Director of the Minerva Center for Human Rights at the Hebrew University of Jerusalem, opened the conference and greeted the participants.

Panel 1: Judicial Review on Issues of Immigration

Prof. Guy Mundlak, Academic Director of the Minerva Center for Human Rights at Tel-Aviv University, chaired the opening panel, and noted that the issues of migration and refugees have drawn much attention at both branches of the Center during the last two years.

Adv. Anat Ben Dor, Director of the Refugee Rights Program at Tel-Aviv University's Clinical Legal Education Programs, discussed Israeli judicial quasi-judicial supervision of detention of refugees and asylum seekers when entering Israel illegally. She criticized the standard Israeli initial response to refugees entering its borders - arrest and almost always deportation – as a violation of the Refugee Convention. She also questioned the Supreme Court's preference for pragmatic solutions instead of principled decisions.

Prof. Yaffa Zilbershatz, past Dean of the Faculty of Law at Bar-Ilan University, discussed the judicial review of the Supreme Court on matters involving non-Jewish aliens, focusing on two landmark cases: The Adala and Stamka cases. She noted that a disturbing situation exists, whereby an Israeli Jew may marry a non-Jewish alien and live with this partner in Israel, while an Israeli Arab may not do so with a non-Jewish alien partner. She argued the questions at hand should be openly discussed and resolved only by the Knesset, and not by eclectic decisions of the Supreme Court.

Adv. Yochi Gnessin, Director of the Administrative Affairs Division at the Ministry of Justice, discussed three issues regarding Israeli immigration law – what comprises it, who shapes it, and what are the trends. In her view, Israeli immigration legislation exists, but in a minimal form. Beginning in the mid 1990's, the Court has shifted from making short, principled, coherent decisions, to making independent "case to case" decisions, very often discussing humanitarian issues, making its decisions hard to predict.

Dr. Na'ama Carmi, Faculty of Law at Haifa University, pointed out that immigration law is the heart of the state's sovereignty for it is at the nexus of three defining characters of sovereignty: territory, population, and jurisdiction. In most cases, there is a correlation between a state's jurisdiction and the extent of the judicial review applied. She noted that judicial review is always applied from the perspective of the rights of the citizen - however, aliens should have the right to judicial review regarding whatever claim they have about their status.

Panel 2: The Role of the Courts in Enforcing Human Rights

Adv. Anat Saragosti, of Agenda – the Israeli Center for Strategic Communications, chaired the discussion. She opened by noting that the day before the Association for Civil Rights in Israel had published its annual report, and the human rights situation seems to be deteriorating – not only in the occupied territories, but also in terms of discrimination between Jewish and non-Jewish Israelis, and between the center and the periphery. This serves as a background to our discussion of the tension regarding the role of the Israeli Supreme Court in enforcing human rights – is it doing too little, or is it doing too much?

Justice (ret.) Prof. Yitzhak Zamir, former Justice of the Israeli Supreme Court, opened the discussion. He argued that there is a gap between theory and practice in the sense that even if the court plays a larger role, there is unfortunately no guarantee that society, or even State authorities, will comply. Moreover, the court has a rather limited role in the field of social rights. Prof. Zamir briefly summarized the Supreme Court landmark cases in which it enforced human rights, how it views itself and its role regarding the issue, and the necessity to "create" rights in view of the fact that the Knesset did not continue the process of legislating rights after the initial 1992 Basic Law: Human Dignity and Liberty, and Basic Law: Freedom of Profession.

Prof. Yoav Dotan, Dean of the Faculty of Law at the Hebrew University of Jerusalem, argued that generally speaking, the picture is a positive one – the Israeli Supreme Court has a very successful record in the field of human rights, especially in comparison with its American counterpart. He contended that the Court's effort to widen the range of rights which it protects actually harms its ability to protect the more consensual rights. Its use of balancing doctrines – reasonableness and proportionality – forces the Court to base its decisions on values as opposed to rules.

Prof. Daphne Barak-Erez of the Tel-Aviv University Faculty of Law, argued that the court should continue to protect "non-classical" rights such as social and economical rights, achieving this through the right of equality and not that of dignity. In addition, recognizing the rights is important but not enough, since the main goal is their enforcement. She noted that the struggle exists not only in the Supreme Court but in the lower courts as well, and therefore the discussion should also regard these courts, and awareness of other legal channels should be enhanced.

Dr. Dov Hanin, Member of the Knesset, argued that not only is the Supreme Court not over-active, but the exact opposite is true. The Court did not intervene in the government's massive and hasty privatization of key assets and industries, nor has it challenged policy in the occupied territories, and particularly the settlements enterprise, intervening only in specific cases.

Panel 3: Compulsory National Service and Linkage to Receipt of Benefits and Services

Prof. Yuval Shany chaired the discussion, and opened by presenting two questions: (1) Should there be a universal obligation to perform "national service" in Israel? (2) Should the fulfillment of that obligation be a condition for receiving different kinds of benefits and services?

Dr. Hillel Somer of the Radzyner School of Law at the Interdisciplinary Center Herzlia argued that due to the substantial decline in the number of Jews enlisting into the army (although the law demands it), the number of potential performers of national service continues to rise. He argued that the volunteering model just doesn't function in Israel and that as long as the army service is mandatory, equality demands that national service must also be offered as an alternative. Regarding orthodox Jews and Arabs – this alternative must be offered to them as an option to promote public projects in their own communities which otherwise don't receive sufficient resources. Dr. Somer argued that only if national service becomes an accessible option to all (mandatory and not voluntary), can the state set the service as a condition for receiving benefits.

Adv. Oded Feller, of the Association for Civil Rights in Israel, focused on the second question, to which he answered negatively. He argued that this arrangement widens the deep gaps already existing between Jews and Arabs. Indeed, risking one's life in the army is commendable and one should be rewarded for it, but what about those who can't serve? In his opinion, we can't discuss this issue while ignoring the Israeli-Palestinian conflict. To demand the Arabs to serve next to the Jews, and to accuse them of "not helping", is to completely deny their identity. Moreover, to argue that this service is the Arabs' chance to achieve equality is simply incorrect. The Jews' unequal treatment of Bedouins and Druse that serve in the IDF constitutes evidence enough.

Dr. Michael Karayanni, of the Hebrew University of Jerusalem's Faculty of Law, focused on the second question as well, also responding negatively. In his view, one who argues that equality of rights for the Arab population is dependent on the fulfillment of its obligations lacks good faith. In all its relevant statutes, the Israeli legislator states that the right of equality is inalienable. However, he argued, as it defines itself as a Jewish state, Israel cannot possibly provide complete equality of rights to Arabs. Therefore, academic researchers never argue that rights in Israel should be given only when obligations are met. If they did, would they also believe that Arabs should pay fewer taxes since they hold fewer rights (i.e.: no flag and national anthem that represent their culture)?

Dr. Gideon Sapir of the Faculty of Law at Bar-Ilan University argued that ultimately this is a political discussion. Answering the first question positively, he too focused on the second question. Approaching it from a different point of view, Sapir asked what can a state do in order to promote services it has an interest that its citizens will perform (army/national service)? Since he believes that these services should be mandatory, they obviously may, and should, be incentivized. He predicts that it will be argued that the right of equality is being infringed, so what is needed is simply an examination of the constitutionality of the infringement, using the regular tools the court uses. Sapir believes the arrangement will pass all the tests.

Panel 4: Social Responsibility of Corporations and the Protection of Human Rights in the Global Village

Prior to the discussion with the audience, the film "China Blue" was screened. The film tells the story of three teenage girls who left their villages in China to come work for a factory that makes blue jeans, and the harrowing conditions of their work.

Prof. Guy Mundlak focused his commentary on the question: Why should we in Israel be discussing China in the first place? He presented a number of reasons. First, the extremely low wages in China may ultimately cause Israeli workers to lose their jobs as businesses in different countries close and reopen in China. In other words, we need to care for Chinese workers' rights for our own sake. Second, if we care about human rights, we care about them world-wide. Third, we should care simply because the infringement of workers' rights shown in the movie also occurs in Israel - particularly violations of the freedom of association, sub minimum wages, and discriminatory issues.

Prof. Kevin Kolben of Rutgers Business School discussed the aspect of self regulation by corporations doing business with companies which violate workers' rights. He asked "what is the responsibility of corporations such as Wal-mart? And what are they doing to prevent this?" He replied that corporations such as Wal-mart simply don't care because they don't sell their own brands. On the other hand, brands such as Nike do care, and some even take action such as sending inspectors to manufacturing factories world-wide, and supervising workers' rights issues. He also commented that China is not completely different than the rest of the world, and that these issues exist even in America.

Panel 5: Young Researchers

Prof. Frances Raday, of the College of Management Academic Studies and the Hebrew University of Jerusalem, chaired the presentations by three Hebrew University doctoral students.

Ms. Keren Weinshall, a PhD Candidate at the Dept. of Political Science, The Hebrew University of Jerusalem, examined the role of the Israeli Supreme Court in the war against terror by reviewing 462 cases between the years 2000 and 2008. She reached the following conclusions: First, the Supreme Court has a central role in defending human rights irrespective of the fact that in most cases it does not intervene revealingly, for it has a hidden effect on decision making regarding the war against terror. Second, the hidden and the revealed aspects co-exist even though they are contradicting – one is rarely seen in final decisions, the other is camouflaged in many regular decisions and even "non-decisions". Third, although the Supreme Court prefers in its decided cases national security considerations over human rights, he creates "mobilization of bias" and in this way prevents more severe violations of human rights in the future.

Mr. Menachem Pasternak, a PhD Candidate at the Faculty of Law, examined several definitions given by researchers to the term "Employment Discrimination" and presented a new complementary definition. He concluded that the proposed definition complements existing definitions by replacing the concept of 'merit', 'prejudices' and 'treatment' with the economic concept of 'market failure' and 'correlation'.

Ms. Nirit Toshav-Eichner, a PhD Candidate at the Dept. of Sociology and Anthropology, examined the different trends on the issue of termination of employment during pregnancy throughout Israel's 60 years of independence and concluded that both the global and local events have an effect on the state's course of action regarding the issue. Therefore, the state's actions defending pregnant women's rights reflect the political, economical and social occurrences. In the light of this conclusion, it could be argued that it is important to establish a central, intergovernmental Ministry that will be in charge of handling all aspects of pregnant and post-birth women's rights, and which will act with coordination and with a single ideology.

Keynote Address – Prof. David Kennedy:

Dr. Yishai Blank, of the Faculty of Law at Tel-Aviv University, chaired the keynote session that closed the conference.

The address was delivered by Prof. David Kennedy, Professor of Law and International Relations at Brown University; Visiting Professor of Law at Harvard Law School; and Director of the European Law Research Center at Harvard Law School.

Prof. Kennedy's address celebrated the 60th Anniversary of the Universal Declaration of Human Rights. In a lecture that was extraordinary in both its rhetoric and substance, he illustrated the immense achievements during this time, but also questioned the continued relevance and importance of the human rights discourse. Prof. Kennedy warned against human rights ideology becoming idolatry "when it rules in the name of unambiguous virtue" – and concluded "that the best days (of human rights) may be behind us".

Not surprisingly, Prof. Kennedy's challenging arguments aroused powerful responses from the audience and his lecture was followed by lengthy and inspired discussion.< /p>