Rule 1: The law must be stated in general terms.
Paz-Fuchs’ discussion of this rule indicates why, as explained in our introductory comments, Fuller’s procedural rules are not applicable in the case of a military government. The situation as he describes it – the administrative orders, ordinances, and ad hoc decisions, the estimated 2500 military orders he speaks of – is indeed not the result of a deliberative process (in the sense of a traditional lawmaking body), but a response to changing conditions, as Paz-Fuchs puts it. Such is the nature of rule by military fiat. In any case, neither “a deliberative process” nor “response to changing conditions” is relevant at all to an examination of whether the rule/law is stated in sufficiently general terms.
Paz Fuchs notes that one “relevant example” is the imposition of curfews in the territories is a “relevant example.” He is bothered by the change in procedure regarding curfews, whereby decisions regarding curfews were relegated bit by bit to the local level, subject to simple and routine procedures by the commander in the field. Paz-Fuchs explains that the change was triggered by the outbreak of the first intifada which, as can be imagined, warranted an alteration of procedure.
First, it is unclear why Paz Fuchs should consider the imposition of curfew as an issue of law/rule. Curfew is a tool both military and civilian authorities use to quell disturbances and ensure public order. We know of no law in any statute book - certainly not in any international convention - that dictates the procedure for imposing a curfew; which officials are empowered to impose a curfew, the length of the curfew, and so forth. Rather, the ad hock decision is made by the authorities charged with maintaining security and public order and safety. In the same, for example, civil authorities charged with maintaining traffic safety close roads when they determine the situation warrants it. It is easy to offer numerous other examples where handling of matters is delegated to certain state bodies, which are tasked with establishing (and changing) the procedures, ad hoc at times, for carrying out their function.
Second, the imposition of curfews is indeed carried out in accordance with general terms. Paz-Fuchs may not like the terms, but that does not negate their generality. His objection, it seems, is to the substantive content of the curfew, which, as noted above, Fuller’s procedural natural law theory does not apply.
Third, as noted, length of time, or indeed the reason for the curfew – as long as it is general- is irrelevant in this context. Even if a curfew is imposed on a whole village, as Paz-Fuchs argues, the consideration is security related and intended to prevent further breaches of security.
Paz-Fuchs brings another example, which arises as “the result of the serpentine route of the Security Barrier.” The route places some Palestinians (8,000 by his count) on the wrong side of the barrier. Therefore, Paz-Fuchs claims: “The physical barrier therefore required legal tools in the form of a permits regime” to enable Palestinians to live in their own homes and carry out their daily tasks (work, school, visit a doctor). The permits, he adds, are for a specific period of time and indicate through which gates in the barrier that the holder may pass. As a result, “all business, family and friend relations of the residents of these villages depend on decisions made by military commanders.”
Here, too, Paz-Fuchs is confused and confusing. Clearly, the decision to build a separation barrier is not in and of itself illegal. The same is true of a barrier that takes a serpentine route. Once the route is determined and the contested sections approved by the Supreme Court (which mandated changes in the route in certain sections to ensure that the route comports with international law), it is the obligation of the military commander operating within the Civil Administration (a military body) to enable persons disadvantaged the route to live their lives as normally as possible. At the same time, of course, the military commander is responsible for safeguarding the lives of everybody who lives in the area, which, as well known, was the original reason for the erection of the barrier and the ensuing permit regime. It is possible to disagree with the content of the permits (the period of validity and the number and location of the gates through which the holder can pass, for instance) but that is a substantive, not a procedural, question. As long as the institution of the permit regime itself is expressed in general terms, it comports with Fuller’s procedural natural law theory.
Paz-Fuchs’s final example refers to the High Court of Justice’s decision cancelling the travel prohibition of Palestinians on Route 443, from Tel Aviv to Jerusalem, which runs through the territories. Paz-Fuchs states that the prohibition arose in 2002 “on the basis of the general authority on the military commander to order a road to be closed on the basis of the general authority due to security issues” and that the official publication of the order was not made until five years later.
This example, too, is irrelevant to the question at hand, i.e., whether the rule/order is stated in general terms. The terms themselves are general. Paz-Fuchs’ concern for lack of legal authority (given the military commander’s failure to sign a formal order) has nothing to do with the terms of the order. Also, the clarity of the order is irrelevant here, even though the prohibition was indeed clear. This is not to deny that the High Court was right in stating, as Paz-Fuchs contends, that “the obligation to publish a specific order is both in interests of the harmed parties and of the respondent.” But that does not touch upon the question of the substantive content of, and the general terms in which, the prohibition was stated.
In sum, Paz-Fuchs confuses orders/procedures with rules/law that Fuller’s procedural natural law theory relates to. As noted, the examples that Paz-Fuchs has furnished have been expressed in sufficiently general terms to comport with Fuller’s rule of generality.
Rule 2: The law must be publicly promulgated.
Since the military commander’s concern, and obligation, is to maintain public order and security, it is incomprehensible that every order he makes must be published separately, or, indeed, in every instance. A military commander must have discretion to publish orders in the manner he deems appropriate, so long as he does not abuse his discretion.
In fact, orders and procedures that are especially relevant are posted at Civil Administration coordination and liaison [DCL] offices in the West Bank. Other orders – closing of military area, for example – are posted in the relevant area, though the army undoubtedly could do a better job of posting notices indicating the boundaries. In some cases, an order is given to close an area for emergency reasons immediately and the persons wanting to enter the area are informed when they approach the closed area. In general, this all seems consistent with the requirement that notice be given in a reasonable manner.
Paz-Fuchs chooses to portray the permit regime as a “blatant violation of the publication requirement.” The Association for Civil Rights (ACRI) offers on its Website detailed information on obtaining a permit – who is entitled, the application form, what proof is required to obtain the permit, the period of validity of the permit, and so forth. This is the very same information that is provided at the coordination and liaison office. As for criteria for identification, the applicant, reasonably, is asked to provide any information that can prove he is a resident of the seam zone – a letter from the local authority, a copy of his ID card on which his place of residence is listed, telephone, water, or electricity bills, and so forth. Such a requirement similarly applies in Israel when, for example, a person wants to register his child for school – it is necessary to prove residence, in one form or another.
It is interesting to note that, as pointed out by ACRI in its information sheet, the DCL can approve the application, but cannot reject it. If the DCL fails to approve the application, it must forward the application to a special committee, which is empowered to make a further examination of the case. If the committee intends to reject the application, it must give the applicant an opportunity to be heard personally, and may grant a temporary permit until the matter is finally heard. It is also worth mentioning that, to facilitate the issuance of the permits, officials from the Civil Administration visited communities in the seam zone and villages whose residents had land on the other side of the barrier .
It goes without saying that, given the purpose of the security fence and the obligation of the Israel Defense Force to ensure public order and safety and security of the area, the military should have a say in determining who is entitled to enter. Neither ACRI nor other human rights organizations claimed that the orders were not made public, or even that they were unclear; their claim was that the regime created problems and hardship for Palestinians who lived or had land in the seam zone.
END OF PART 2