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Shlomit Wallerstein

photo of Shlomit Wallerstein

Associate Professor of Law

D.Phil (Oxon, 2005) M.Stud (Oxon, 2001) LLB (magna cum laude) (Hebrew University, 1999), Solicitor (Israeli Bar).

Dr Shlomit Wallerstein is also a Fellow at St. Peter's College. She has varied interests in the areas of criminal law, international criminal law and jurisprudence and has published articles on legal and theoretical aspects of offences concerned with national security and the democratic regime, defences, theoretical aspects of the general part of criminal law, sexual offences and on theoretical questions concerning international criminal law. Her articles have been published in leading international law journals such as Criminal law Review, Criminal Law and Philosophy and the Virginia Law Review.

Shlomit advised the Justice Verma Committee (India) investigating the reform of India's sexual violence laws, urging for a law reform (The Justice Verma Committee was established on 21 December 2012 following the brutal gang rape of an Indian woman the previous week. Their final report was published on 23rd January 2013).

She has been recently interviewed on the BBC World Service programme: ‘The Forum’, discussing how to make good law.

Shlomit teaches Criminal law, Jurisprudence and International Criminal Law. In 2012 she was a Visiting Professor at the University of Virginia Law School and in 2011 she was a Visiting Professor at Buchmann Faculty of Law, Tel Aviv University. In 2008/09 She was the Director of Legal Studies at Regent’s Part College, Oxford. In 2003/04 she taught (part time) at St. Benet’s Hall, Oxford. From 1997 to 1999, she has taught as a teaching assistant at the Hebrew University.

Currently Shlomit is a member of the steering committee of the Oxford Institute for Ethics, Law and Armed Conflict (ELAC), The James Martin 21st Century Schools at Oxford University.

Formerly, Shlomit clerked in the Israeli Supreme Court, and was the Editor-In-Chief of Mishpatim the Hebrew University’s Law Review.



Publications

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Journal Articles

S Wallerstein, 'Delegation of Powers and Authority in International Criminal Law' (2013) Criminal Law and Philosophy (forthcoming) [...]

DOI: 10.1007/s11572-013-9203-3

By what right, or under whose authority, do you try me? This is a common challenge raised by defendants standing trial in front of international criminal courts or tribunals. The challenge comes from the fact that traditionally criminal law is justified as a response of the state to wrongdoing that has been identified by the state as a crime. Nevertheless, since the early 1990’s we have seen the development of international criminal tribunals that have the authority to judge certain crimes. This article examines the moral foundation for the authority of international tribunals, arguing that it can be grounded on delegation of powers from the states with primary jurisdiction. The first part of the article examines whether there is any problem, as a matter of principle, in founding the courts’ jurisdictional authority on delegation of powers. It will argue that contrary to David Luban’s view, there is no inherent problem with states delegating their power to punish to other states or to international tribunals. Nevertheless, in making such a decision the ability of the court to provide fair process—a necessary requirement for the court’s ability to issue authoritative decisions—should be taken into account. The second part of the article takes the ICC as a case study and examines whether its jurisdiction can be grounded on delegation of powers. It will be shown that the court’s jurisdiction can indeed be founded on both direct and indirect delegation of jurisdiction from states with primary jurisdiction. This conclusion suggests that other international tribunals created by either multilateral treaties or by Security Council decisions may also be founded on similar grounds


S Wallerstein, 'Oblique Intent in English and Jewish Law' (2013) (forthcoming)

S Wallerstein, 'Why English law should not incorporate a defence of superior orders' (2010) Crim LR 109 [...]

English law does not recognise the defence of obedience to superior orders. Recent years have seen voices calling for reconsideration of the law and for the adoption of a defence in some form. One of the reasons for this stance is the fact that the defence is recognised in the Rome Statute constituting the International Criminal Court (ICC). This article examines whether the law should be changed and the defence of superior orders introduced into English law. As the title suggests, the article concludes that such a change is not desirable and that the current position of the law is correct. Over the years very little has been written on the defence of superior orders in the domestic context but, not surprisingly, the subject has been widely discussed in international law in the context of the laws of war. Thus, the article starts (Section I) with the debate in international law, presenting the two main approaches regarding the recognition of a defence of obedience to superior orders: the absolute liability approach adopted by the Nuremberg Tribunal and other ad hoc tribunals over the years, and the conditional liability approach adopted by the ICC in the Rome Statute. Section II goes on to examine the possible rationales that underlie each position. It argues that the defence can be justified either as a recognition of the dilemma faced by the soldier who is required to obey the order as per national law, and to disobey it as per international law, or as a claim of mistake of law or of fact. The question then is whether these rationales can be transformed into domestic English law and support a claim for an adoption of a qualified defence of superior orders. Section III argues that two differences between the stance of English law and international law need to be accounted for: the first is that though the soldier’s dilemma is still applicable, it exists in a somewhat different structure which results in a limitation of the dilemma to borderline cases only, and the second is the fact that English law does not recognise the defence of mistake of law. As a consequence, it is submitted that the defence of superior orders should not be recognised in English law. Nevertheless, a claim of obedience to superior orders often obscures the real defence which should be advanced, and while superior orders should not be recognised as an independent defence the facts may constitute a basis for a defence of duress or of a mistaken case of private defence, both of which are recognised in English law.


S Wallerstein, '\\\\\\\'A drunken consent is still consent\\\\\\\'--Or Is It? A Critical Analysis of the Law on a Drunken Consent to Sex Following Bree ' (2009) 73 Journal of Criminal Law 582 [...]

Does a person who is voluntarily drunk remain capable of giving valid consent to sex? The Court of Appeal in Bree held that ‘a drunken consent is still (valid) consent’, though it further recognises that the capacity to consent may evaporate well before a complainant becomes unconscious. This decision is a move in the right direction, yet this article argues that it has not gone far enough, and that s. 74 of the Sexual Offences Act 2003 which governs these scenarios allows—and even requires—a more drastic interpretation: a drunken consent is not consent when the person is very drunk. Based on a distinction between factual and legal consent, the article starts by setting up the legal framework as set out in s. 74, and developed in Bree and H. It then goes on to criticise the current case law and its interpretation of s. 74 for not being restrictive enough, by examining two possible theoretical rationales, mentioned in the judgments. The first, which is based on an analogy with the law relating to intoxicated offenders, is criticised on the grounds of differences between consent and intent. The second, which is based on the general argument that this position recognises the positive aspect of sexual autonomy, is criticised for its failure to distinguish between claims of normative facts and claims of public policy and for giving too much weight to the latter considerations. From the discussion an alternative, more restrictive position, emerges in line with s. 74 of the 2003 Act, according to which a drunken consent is not consent. This position can be adopted by judges, through the provision of better guidance to juries, but failing that a reform of the law might be needed.


S Wallerstein, 'Criminalising Remote Harm and the case of Anti-democratic Activity' (2007) 28(6) Cardozo Law Review (volume of symposium in Honour of George Fletcher) 2697

S Wallerstein, 'Justifying Self-Defence: A Theory of Forced Consequences' (2005) 91 Virginia Law Review 999

S Wallerstein and others, 'Thou Shall Not Resspect the person of the poor, not honour the person of the Mighty: On the Dinitz Case' (2003) 33 Mishpatim 13 [...]

(in Hebrew)


Chapters

S Wallerstein, 'Safety Interviews, Adverse Inferences and the Relationship Between Terrorism and \'Ordinary\' Criminal Law' in Aniceto Masferrer & Crive Walker (eds), Counter-Terrorism, Human Rights and the Rule of Law: Crossing Legal Boundaries in Defence of the State (Edward Elgar Publishing 2013) (forthcoming) [...]

‘Safety’, or ‘urgent’, interview is one where the suspect is interviewed for information that might help the police protect life and prevent serious damage to property. A suspect’s right to legal advice and not to be held incommunicado could be delayed by a senior officer to enable a ‘safety interview’ to take place in order to secure public safety in situations of immediate urgency. English law permits the conduct of such interviews under strict conditions, both in investigations concerned with ‘ordinary’ criminal offences and those related to terrorism. In practice, however, it is mainly used in the context of terrorism. This paper highlights the legal arrangements and the two difficulties that are arise from possible use of the content of these interviews as evidence in a subsequent trial. The first is that the curtailment of immediate legal advice may affect the right to fair trial. The second concern deals more specifically with the possibility to draw adverse inference from silence during the interview, especially where no legal advice was given. It argues that the possibility of drawing adverse inferences from either silence or admissions made during such interviews should be rejected both as a matter of public policy, since the drawing of adverse inferences seem to be counter-productive to the aims of such interviews, and in terms of its opportunistic nature, since such interviews take advantage of the vulnerable and legally-ignorant suspect. Finally it examines the relationship between counter-terrorism and ordinary criminal law in this area and the effect that the use of such measures in the context of counter-terrorism has on other criminal investigations.


S Wallerstein, 'On the Legitimacy of Imposing Direct and Indirect Obligations to Disclose Information on Non-Suspects ' in G.R. Sullivan & I. Dennis (eds), Seeking Security: Pre-empting The Commission of Criminal Harms (Hart Publishing 2012)

S Wallerstein, 'The Third, Combined, Theory for Justifications' in P. Robinson, S. Gravey & K. Kessler-Ferzen (eds), Criminal Law Conversation ( 2009)

S Wallerstein, 'Victim – Beware! On The Dangers of Sharing Wrongs with Society' in P. Robinson, S. Garvey & K. Kessler- Ferzen (eds), Criminal Law Conversations (OUP 2009)

S Wallerstein, 'Why Causal Responsibility Matters' in P Robinson, S Gravey, K Kessler-Ferzen (eds), Criminal Law Conversations (OUP 2009)

S Wallerstein, 'The State’s Duty of Self-Defence: Justifying the Expansion of Criminal Law' in L. Lazaros & B. Goold (eds), Security and Human Rights (Hart Publishing 2007)

Internet Publications
Reviews

S Wallerstein, 'War Aggression and Self-Defence by Y. Dinstein - Book Review' (2012) European human Rights Law Review


Interests

Teaching: European Union Law; Philosophy of Law; Criminal Law

Research: Criminal law, International criminal law and jurisprudence

Other details

Correspondence address:

St Peter's College
New Inn Hall,
Oxford OX1 2DL





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