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Tel Aviv University
[TAU & Ono] Part 3 - Rebuttal by IAM to Dr. Amir Paz Fuchs "The Inner Morality of law under Israel's occupations"
 

Rule 3: The law must be expressed in understandable terms.

The requirement of Rule 3 is clarity. Paz-Fuchs’ declarations and theorizing on Israeli legislation in the territories is anything but clear, and his political polemic is superficial, faulty and irrelevant to Rule 3.

He speaks of the “introduction of vague formulas into legislation and jurisdiction” and a “vague system of relations, loyalties and alliances,” but gives no applicable example.  He claims Israel is vague regarding the status of the territories, which vagueness, he contends, enables Israel to sanction acts that, absent the vagueness, would be clearly unlawful.   His own argument is undermined by such vagueness.

In any event, he chooses the failure of the legal system to recognize the West Bank and Gaza as occupied territories as a case study.  Specifically, he speaks of the Supreme Court, which applies the principles of the Fourth Geneva Convention (dealing  with occupied territory) but refrains from holding that the territories are indeed occupied, notably in cases when the Court denies a substantial percentage of Palestinian petitions dealing with deportation and house demolition, actions that are explicitly covered by the Fourth Geneva Convention –.

Paz-Fuchs’s analysis seems to include Gaza, although Israel had withdrawn from Gaza five years earlier and no military legislation has been applied to Gaza since then.  In any case, the vagueness he claims disappears once it is understood that Israel, from the start, has consistently contended that the territories are disputed/administered territory. It would, the state has repeatedly said, deal with them (except for areas annexed to Jerusalem and, later, the Golan Heights) and the local residents in accordance with the humanitarian provisions of the Fourth Geneva Convention. Similarly, the Supreme Court has relied on interpretation of relevant provisions of the Convention in making its rulings in matters such as deportation and house demolition. The handling of the status of the territories has been utterly clear. Indeed, Palestinian petitioners and human rights organizations arguing on their behalf inevitably raise the Fourth Geneva Convention as a source of their rights, contending that its provisions are clear and applicable. 

In the best of legal systems, almost every law is subject to interpretation. This fact does not make almost every law vague. In any case, Paz-Fuchs has lost his direction – the Fourth Geneva Convention is not applicable to the 2500 military orders that comprise the military legislation.  He does not clarify which are the rules/laws he is investigating in terms of Fuller’s eight principles.  Besides, as Paz-Fuchs would surely agree, the provisions of the Convention also require interpretation.  For example, the destruction of houses is permitted in cases of military necessity, but wanton destruction constitutes a grave breach of the Convention.   Paz-Fuchs would not claim that, inasmuch as “military necessity” and “wanton” have to be interpreted, the provisions are vague.

Also incomprehensible is Paz-Fuchs’ statement that, in a proper democratic regime, the transfer from one type of violence to another is well regulated by clear rules, so persons can plan their actions accordingly.  He makes the peculiar statement that, when a power loses legitimacy and stability, it tends to apply violence in an irregular and ad hoc fashion. A “clear example” of this, he says, is the increased use of undercover IDF soldiers who move rapidly from blending into the community to committing serious acts of violence.  Paz-Fuchs confuses issues: there is no evident relationship between a “power losing legitimacy and stability” and  clarity of a rule/law.   Also, a rule/law that is irregular or ad hoc is not necessarily unclear. Presumably, the rule/law will be especially clear, so as to shore up the tottering regime. And what does use of undercover soldiers have to do with clarity in establishing rules and laws?  Is anything inherently wrong in the use of undercover police?  In furthering his political polemic, Paz-Fuchs seems intent on questioning the illegitimacy of the State of Israel.

Regarding the example of the amendment to the infiltration law, the amendment is clear: an infiltrator is a person who is staying in the area and does not have a lawful permit to do so. Paz-Fuchs’s objection touches, obviously, on unequal enforcement of the order – it is applied against Palestinians from Gaza and not against Israelis, for example. That is another question, not to be confused with the clarity of the order. Beyond the technical clarity of the order, both Israelis and Gazans knew to whom the order was directed. It would indeed be absurd to think that the military commander would define Israelis, and Israelis living in communities in the West Bank, as infiltrators, or that Gazans who sneak into the West Bank would not be considered infiltrators.

 

Rule 4:  The law must not require conduct beyond the powers of the affected parties.

Here, too, Paz-Fuchs ignores the rule and discusses something else altogether.

Rule 4 requires that the law not demand the impossible.  He brings no example of any piece of military legislation that makes such a demand. Thus, his claim that the military legislation violates Rule 4 is summarily refuted.

Rather, Paz-Fuchs discusses a situation to which what he refers to as extortion – the granting of a favor in exchange for a favor, a quid pro quo.  He claims that Israel pressures Palestinians to cooperate, using an exit permit for medical treatment (the quid) to gain information on security matters provided by the Palestinian (the quo).  The patent irrelevance of Fuller’s rules to a situation of military rule is again evident.   The military commander is not required to allow a local resident to leave the territory. The military commander does have a legitimate interest (indeed an obligation) in ensuring that local residents who might pose a danger to the security of the area if allowed to leave the area are not allowed to leave. Alternatively, if the military authorities think a person has information that can enable them to thwart future threats to the security of the area, it goes without saying that they should make reasonable, lawful effort to obtain that information.

By way of analogy, when a suspect in a routine criminal investigation is offered the chance to walk free if he identifies the ringleaders of the plot, the legal system does not consider this arrangement extortion.   This common and accepted practice, which Paz-Fuchs is obviously aware of, is one that Fuller would not have objected to, certainly not in the context of Rule 4.

Ironically, and disingenuously, Paz-Fuchs chooses the example of permits for medical treatment not available in the area.  As he knows, tens of thousands of Palestinians from the West Bank and Gaza have been allowed into a foreign country (Israel) for medical treatment.   Given the nature of the relations between the sides, particularly with respect to the hostile entity Gaza, this fact is, if anything, impressive. 

On the question of the issuance of permits to leave for purposes of study abroad, the potential danger posed by the students is evident. It would be irresponsible for the military commander to allow these young people to freely exit and return to the territories, as Paz-Fuchs demands.  Israel’s policy seems a fair compromise: students who are interested in gaining an education (and not in serving as a conduit for militant organizations) are allowed to exit provided, in some cases, they remain abroad for the duration of their studies.  That way, students can complete their studies and the military commander can have some assurance that persons susceptible to mobilization by terror groups are not shuttling back and forth between the territories and abroad. The High Court of Justice has addressed this issue in a number of cases and resolved them. ad hominem   In any event, as Paz-Fuchs knows, students have been allowed to leave without restrictions placed on their return, including students from Gaza, also after the violent takeover by Hamas.

 

Rule 5: The laws must not be changed so frequently that the subject cannot rely on them.

This rule requires consistency. Paz-Fuchs claims that the legal system in the territories is characterized by rapidly changing rules and whimsy. He mentions curfews, closures, and surprise roadblocks that make it difficult for the local residents to plan their actions and perform their activities.  Again, to remind Paz-Fuchs, the territories are under a military government. The argument he makes and the examples he furnishes completely ignore the obligation of the military commander to ensure the security of the region (or deny the legitimacy of the military commander’s role altogether).   Paz-Fuchs disregards the obvious fact that restricting the movement of terrorists is crucial in meeting this obligation.  In this instance, too, Paz-Fuchs does not grasp the nature of Fuller’s rules: it is inconceivable that Fuller would have considered his procedural rules to apply in the case of curfews, closures, and surprise roadblocks.

Paz-Fuchs’s example of the change in the open-fire regulations is puzzling.  The difference between 1990 (the first intifada, in which the threat to life was not great) and post-2000 (the second intifada, an armed conflict, with great threat to life) is very substantial. The IDF would have been delinquent had it not altered the rules to confront the situation in the field.  It would have been doubly delinquent had it published the rules. It is important for soldiers (but not the enemy) to know when they may open fire, and it is the task of their commanders to ensure that their subordinates know the rules and obey them. The relevant question was, and continues to be, whether the firing was lawful.  As the second intifada was an armed conflict, the contention that a soldier may open fire only in a life-threatening situation is absurd.  That is not the way armed conflicts are, or should be, conducted.  Indeed, in this context, also from the perspective of local Palestinians who are not taking direct part in hostilities, consistency in the rules is irrelevant.

End of Part 3

Part 4

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