Israel Academia Monitor has initiated a new program aimed at tracking the contribution of Israeli professors to lawfare (legal warfare), defined as the use of international law and human rights conventions to delegitimize the state of Israel in the international arena.
IAM believes that too little attention has been paid to this highly effective strategy.
The following article is a detailed rebuttal to a lecture which Dr. Amir Paz-Fuchs (Ono Academic Center and Tel Aviv University's Human Rights Clinic) delivered at a conference co-sponsored by the Ono Academic Center and the Law Faculty at Columbia University. The lecture was posted on Youtube and widely disseminated.
"The Inner Morality of law under Israel's occupations"
Rebuttal by IAM
Paz-Fuchs challenges the morality and legitimacy of the system of law Israel has imposed on the Palestinian territories conquered in 1967 by invoking Lon Fuller’s procedural natural law theory (“the eight rules”). He contends that if Israeli law in the territories does not comport with these rules, it does not qualify as law and thus does not warrant compliance. Paz-Fuchs then examines Israeli legislation in the territories from the perspective of each of the eight rules.
Before analyzing Paz-Fuchs’ examination, it is pertinent to clarify what Fuller sought to achieve in positing his procedural rules. Fuller’s objective was to explain the moral content in the idea of “the rule of law,” i.e. governance by rules and judicial institutions as distinct from other kinds of political decision-making or orders, such as military command or bureaucratic administration. The morality he describes is morality as “legality,” meaning morally sound aspects of governing by rules. Fuller is credited with devising a “procedural” natural law theory, in that he does not focus on the substantive content of legal rules with a goal of assessing whether they are moral or not, but rather concerns himself with the requirements of just lawmaking and administration. In Fuller’s words:
What I have called the internal morality of law is … a procedural version of natural law … [in the sense that it is] concerned, not with the substantive aims of legal rules, but with the ways in which a system of rules for governing human conduct must be constructed and administered if it is to be efficacious and at the same time remain what it purports to be.
Fuller never intended his procedural rules to apply to a situation of military rule. Nor have commentators on Fuller’s procedural rules discussed them in a military-rule context. To look at it from a different perspective: Fuller’s procedural rules are compatible with any group of individuals – regular society, corporations, sport clubs – in which efficient operation and attainment of generally shared goals is sought. Indeed, many of Fuller’s examples are drawn from the commercial world; none comes from the world of military fiat.
Paz-Fuchs’ postulate that meeting Fuller’s procedural rules is necessary for the legal system to be deemed moral, and thus deserving of compliance, is highly questionable. Leading legal theorists have cogently argued that Fuller’s rules are equally consistent with morally virtuous and morally vicious sets of legal rules.
In considering Paz-Fuchs’ comments and the value to be given them as a source for understanding the legal system in the territories and its morality – or, as he views it, lack of morality – a critical perspective is needed not only with regard to his analysis but also his commitment to fairness and integrity. In other words, a question arises whether his paper is a scholarly investigation or a political polemic.
Paz-Fuchs’ introductory comments provide a clue. For example, he admits to being “quite active in several human rights organizations that at the moment exist but may well be outlawed very soon.” As he well knows, the likelihood of human rights organizations being outlawed in Israel is non-existent. Another example hinting at a political polemic is Paz-Fuchs’ irrelevant and immaterial mention of Nazi Germany and apartheid.
Another example: Paz-Fuchs says, regarding Fuller’s procedural rules, that “a system that strays from this idea loses its moral ability to compel compliance.” Neither Fuller nor his advocates ever claimed that merely “straying” from the procedural rules resulted in loss of a moral basis for compelling compliance; rather, the deviation from the rules had to be egregious. If straying were the criterion, few laws, in the best legal systems, would pass muster.
Another example: Paz-Fuchs posits that “one may argue that any lasting occupation with no time limit is wrong, and perhaps illegal in itself.” He provides no basis for his claim. Indeed, there is no provision in international humanitarian law, or in international law, which stipulates a time limit on occupation. Occupation remains until the parties come to an agreement, or the occupant is forced out. The allied occupation of Germany and Japan following World War Two continued for many years: full and unrestricted sovereignty under international law was not enjoyed by any German government until after the reunification of Germany in October 1990; in Japan, the occupation lasted almost seven years, until April 1952. Of course, this is not to say that lengthy occupations are desirable. But then again, neither are wars, certainly lengthy wars. And no doubt, some wars and occupations are more humane than others.
Interestingly, the one rule that Paz-Fuchs claims Israel has met in the territories is Rule 3, requiring that the rules must be prospective. It is interesting because Fuller himself believed there are instances in which retroactive legislation would be the best solution. Fuller, it seems, and to his credit, realized that there are hard cases, and exceptions are called for.
Despite the non-applicability of Fuller’s eight procedural rules to military orders, and notwithstanding the political-polemic nature of Paz-Fuchs’ paper, we shall analyze the assertions and examples that he raises regarding each of the rules in the context of Israel’s military rule in the territories.