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Tel Aviv University
[TAU & Ono] Part 4 - Rebuttal by IAM to Dr. Amir Paz Fuchs "The Inner Morality of law under Israel's occupations"


Part 4


Rule 6: The laws must be consistent with one another.

This rule calls for elimination, to the extent possible, of contradiction in the legal system.  Paz-Fuchs, noting that Fuller recognizes the difficulty involved in attaining this objective, asserts that the contradictions “are typically examined when they are discovered and settled by the relevant institutions, legislators, or court.”  This is certainly true. However, Paz-Fuchs ignores his own analysis when he offers “the massive investment in the settlements and the consistent claim that the occupation is temporary”  as an example of a contradiction.

Ignoring the fallaciousness of the claim that the occupation is temporary (Israel’s consistent position, at least since 1994, has been that the territories – not including the parts of Jerusalem that were annexed in 1967, as to which Israel has expressly claimed, time and again, are not temporary – are disputed territory whose future will be determined by negotiations, and, for almost as long a period of time, that the settlement blocs would remain Israeli in any peace agreement), the handling of the “contradictory nature” of the territories, they have indeed been left to, and dealt with, by the “relevant institutions, legislators, or court.”  The issues handled in this way include, in part, the status of Israelis who reside in the territories, the permissions given to Israelis to build there, the funding to enable the construction and maintenance of Jewish/Israeli communities, prohibitions on Israelis, restrictions on use of land, construction, and so forth.

Paz-Fuchs’s political-polemic analysis becomes ludicrous when he asserts that such contradictions had resulted in a Palestinian lack of trust in  Israel’s alleged desire to reach an agreement that includes a withdrawal from territory. Paz-Fuchs made this allegation despite Israel’s unilateral withdrawal from the entire Gaza Strip!

Paz-Fuchs goes back to the issue of contradictions and the problem of freedom of movement, complaining now about “conflicting structures" [the meaning of which  he does not explain]  that don’t allow the planning of daily life.” As a result, he contends, Palestinians cannot fix definite times for weddings, and must set alternate times, after which a quick message is sent when the curfew is lifted and roadblocks are cleared, enabling them to invite the guests.  Paz-Fuchs’s talk, given in August 2011, ignores the reality in the West Bank, where, in recent years, the IDF has reduced the number of roadblocks.   As he knows, already in mid-2009, freedom of movement in the West Bank was vastly improved.     In June 2000, Haaretz reported that, “There are only 10 manned roadblocks within the West Bank (excluding those linking the territories with Israel), and searches are not carried out at every one of them. A year and a half ago, there were 35 manned roadblocks in operation.” (More details are available at http://www.haaretz.com/print-edition/news/israel-removes-dozens-of-west-bank-roadblocks-1.278676.)  The situation has not deteriorated since then; if anything, freedom of movement of Palestinians has even increased. 

In any event, what does restriction on movement have to do with contradiction as required by the rule?


Rule 7:  The laws must be administered in a manner consistent with their wording.


This rule is commonly violated in all legal systems, as attested by Paz-Fuch’s mention of Fuller’s comment that the “requirements of law may remain unfulfilled as a result of misinterpretation, unavailability, corruption, and misdirection, disturbances, stupidity, and personal interest.” Indeed, rare is the law that is administered precisely according to its provisions.

The examples brought by Paz-Fuchs are inane and plainly wrong in some instances. The route of the Security Barrier has, in fact, been changed, and even dismantled, in places, as a result of Supreme Court decisions. As for his example of “violence applied against Palestinians, targeted killings,” violence by soldiers is not in and of itself a crime; in cases of unlawful conduct, soldiers have been prosecuted and jailed, though not as many as Paz-Fuchs apparently would like. As for targeted killings, the Supreme Court has ruled such killings to be legal.  They are a tool of warfare (increasingly used by the United States and less frequently used by Israel in recent years, and then only in the Gaza Strip, no a rule/law to which Fuller’s principles apply.

Clearly, Paz-Fuchs’s interest is not law and enforcement of law. His objective is political. For instance, he mentioned that some Israeli soldiers avoided being charged for murdering Palestinians but presents no example of such cases of murder.  As Paz-Fuchs surely knows, soldiers have been prosecuted and imprisoned for killing Palestinians.

His claim that “demands made by humanitarian organizations that the army investigates cases of [Palestinian] civilians [who are killed] are sweepingly denied” is patently wrong. The army investigates all such cases. The army also investigates complaints it receives from aggrieved parties and from the media. Moreover, individual persons or organizations who think their complaints have not been investigated or that the investigation was conducted improperly or that the decision to close the file was wrong are free to petition the courts.

The process in which the deaths of Palestinians in Operation Cast Lead have been investigated is instructive in this context. Decisions of the military advocate general (MAG) not to prosecute soldiers who allegedly breached the law in the course of the operation were forwarded to the attorney general for review.  In cases where the attorney general did not overrule the MAG’s decision, the complainant was, and is free, to petition the High Court of Justice. Allegedly, more than 1,300 Palestinians were killed in the operation (almost 800 of them civilians not taking part in the hostilities according to B'Tselem). Yet, human rights organizations have not gone to court to contest the lack of an investigation or to challenge the quality of the investigation, when one was conducted. This fact refutes Paz-Fuchs’ assertion that the army has failed to investigate.  

(A description of the IDF’s investigative process and details on investigations made regarding Operation Cast Lead are presented in the state’s report on Operation Cast Lead and the two updates on the investigations, which are available at http://www.mfa.gov.il/MFA/Terrorism-+Obstacle+to+Peace/Hamas+war+against+Israel/Gaza_Operation_Investigations_Second_Update_July_2010.htm.) 


Rule 8: The laws must be prospective in effect.

Paz-Fuchs admits that he has not yet been able to find examples of retroactive legislation in the territories, but that he is working on it. He does not discuss this rule. 


Paz-Fuchs errs fundamentally in applying Fuller’s eight procedural rules to the military legislation in the territories in that the rules were never intended to apply to military legislation. Moreover, several, indeed most, of Paz-Fuchs’s examples relate not to military legislation but to military practice (placement of roadblocks/checkpoints, targeted killings, the Security Barrier, and so forth), to which Fuller’s rules are irrelevant.

In numerous instances, Paz-Fuchs’s alleged statement of facts is inaccurate: the Security Barrier’s route has, in fact, been changed following Supreme Court decisions, targeted killings are not as such illegal, Israel has repeatedly claimed that the territories are disputed territory, and has, indeed, annexed sections of the West Bank to Jerusalem and has continuously claimed that the settlement blocs will be part of Israel in any agreement between the two sides.  In addition, contrary to Paz-Fuchs's allegations, Israel has shown its willingness to withdraw from territory.   

Rather than conduct a fair and honest review of military legislation, and military practice in the territories, Paz-Fuchs blatantly misrepresented and misused Fuller’s procedural rules to advance his political agenda.


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