Israeli law in the West Bank settlements

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"Enclave law" redirects here. For the law of United States federal enclaves, see Federal enclave.

An Israeli settlement in the West Bank.

Israeli law is enforced in Israeli settlements and among Israeli civilians in Area C of the West Bank, a Palestinian territory under military occupation and therefore otherwise subject to military law. Some provisions are applied on a personal basis, such that it applies to Israeli residents rather than territory. Application of the laws has created "enclaves" of Israeli law in the Israeli-occupied West Bank,[1][2] and the terms "enclave law" and "enclave-based justice" describe the resulting legal system.[3]

In parallel, other portions of Israeli law, including Israeli criminal law, are applied to Israelis on a personal basis in the West Bank.[1] Since January 2018, all laws proposed in the Knesset are actively considered vis à vis their application to the Israeli settlements in the West Bank.[4][5][6]

The existence of a dual system of laws for Israelis and Palestinians in the West Bank has been used as evidence by those who claim that Israel practices apartheid in the region.[7][8][9][10][11][12]

Terminology

The term "enclave law" was coined in a 1987 article by Amnon Rubinstein,[13] an Israeli scholar of constitutional law.[14] Rubinstein noted regarding the legal system for the West Bank, that:

once perceived as an 'escrow' under the rules of international law – that is as a trust – they have become a 'legal mongrel' and have gradually been incorporated in practice into the realm of Israel's rule.[15]

In a 2009 report authored by Virginia Tilley, the South African Human Sciences Research Council wrote that "The outcome of the extraterritorial application of Israeli legislation on a personal basis, combined with the enclave law as described above, is that a settler lives within the framework of the West Bank law only in a very partial way".[16] The report then quoted Rubinstein's 1986 Hebrew work:

A resident of Ma’ale Adumim, for instance, is supposedly subject to the Military Government and to the local Jordanian law, but in fact he lives according to the laws of Israel both with respect to his personal law and with respect to the local municipality wherein he lives. The Military Government is nothing more than a symbol, through which Israeli law and governance operate.[16]

The concept in Israeli courts

The concept and application of Israeli law in the West Bank settlements has been described numerous times in Israeli courts.[17] Examples include a 2004 case, Yinon Food Manufacturing and Marketing Ltd v. Qaraan, with respect to a dispute between a Palestinian and their Israeli-settlement-based employer,[a] a 2006 Supreme Court case, Peace Now S.A.L. Educational Enterprises v. Supervisor of the Jewish Settlements in Judea and Samaria, summarized by Elyakim Rubinstein,[b] and a 2007 Supreme Court case, Kav LaOved v. Jerusalem Labor Court, summarized by Eliezer Rivlin.[c]

Implementation in practice

Territorial aspects of "enclave law" are implemented via a method called "pipelining".[1] Under this method, Israeli Military Orders, which constitute the primary laws in the West Bank, apply Israeli laws specifically to the jurisdictions of the Israeli settlement local councils.[1] This method is used to give Israeli ministries, such as the Israeli Ministry of Education and Israeli Health Ministry, jurisdiction over public facilities such as schools and hospitals in the territories.[1]

Through this system, Israeli settlers are subject to large portions of Israeli law whereas Palestinians are subject to a combination of Israeli military law and some local laws based on Jordanian law.[1][22] In 1989, Eyal Benvenisti described how "through extensive military legislation, exterritorial application of Israeli legislation and Israeli court rulings" the border between Israel and the West Bank was no longer relevant for "almost all legal purposes that reflect Israeli interests", but the same was not true for the Palestinian population, especially with respect to civil rights.[23][24]

Israeli laws that are applicable to Israeli citizens living in the West Bank are often administrative in nature, and include taxation, product supervision, national insurance,[2] education, welfare, health, work, personal status,[25] but exclude laws relating directly to the territory itself such as land and planning laws.[2] The Supreme Court of Israel has ruled that labour laws applied in this way also apply to those Palestinian workers in Israeli settlements due to the "significant linkages" test and the principle of equality within the settlements.[2]

Recent developments

In November 2014, a bill to require all new Israeli laws to consider their application to Israeli settlements was approved by the cabinet but opposed by Attorney General Yehuda Weinstein.[26] In May 2016, the initiative was relaunched by Ayelet Shaked.[27]

In December 2017, over 1,000 central committee members of Likud voted unanimously for "free construction and application of Israeli law and sovereignty in all liberated areas of settlement in Judea and Samaria".[28]

In January 2018, the Knesset House Committee agreed to instruct legal advisors to discuss every new Knesset bill's application to West Bank settlements during the legislative process.[4][5] This was followed, a few weeks later, by the first ever Knesset deliberation of the application of proposed laws to the West Bank settlements.[6]

See also

Further reading

  • ACRI (2014), One Rule, Two Legal Systems: Israel's Regime of Laws in the West Bank (PDF)
  • Benveniśtî, Eyāl (1990). Legal dualism: the absorption of the occupied territories into Israel. Westview Press. ISBN 978-0-8133-7983-8.
  • Rubinstein, Amnon (1988). "The Changing Status of the Territories (West Bank and Gaza): From Escrow to Legal Mongrel". Tel Aviv U. Stud. L. 8: 59.
  • Amnon Rubinstein, 1986, The Shifting of the 'Territories' — From Pawn Held in Trust to Legal Hybrid (in Hebrew, original title: "מעמדם המשתנה של "השטחים": מפיקדון מוחזק ליצור כלאיים משפטי"), Iyunei Mishpat 11 [עיוני משפט יא], pages 439-456

Notes

  1. ^ The court noted: "The legal character, from the point of view of internal Israeli law, of the Israeli settlement as an 'enclave' – which is not de facto subject to the law applying in that territory – is what renders the connection between the delict and the country whose law would normally have been the law of the place of its perpetration – to coincidental."[18]
  2. ^ Rubinstein noted that: "The 'enclaves' are a sort of 'islands' to which Israeli laws were applied by legal means, under the assumption that there is no real difference between the law applying in Israel and the one that should apply in these enclaves... The matter at hand concerns Israeli citizens, and the assumption is that the gist of their lives should be as close as possible to that of the rest of Israeli citizens."[19]
  3. ^ Rivlin noted that: “The Israeli residents living in the West Bank are subject to extensive parts of Israeli law, in addition to special legislation by the military commander that applies solely to the Israeli residents. The Palestinian residents living in the very same territories are subject to Jordanian law and to legislation by the military governor that applies to them [...] This outcome creates a regime in which different sets of laws apply in one territory.”[20] Rivlin went on to describe the "enclave law" as follows: “The law is different regarding Israeli residents in the occupied territories. For them, there is a separate legislative layer, known as the "Enclave Law", which includes internal Israeli legislation that has been applied personally to Israeli citizens or to persons entitled to be Israeli citizens and living in the territories only.”[21]

References

  1. ^ a b c d e f Orna Ben-Naftali; Michael Sfard; Hedi Viterbo (10 May 2018). The ABC of the OPT: A Legal Lexicon of the Israeli Control over the Occupied Palestinian Territory. Cambridge University Press. pp. 52–. ISBN 978-1-107-15652-4.
  2. ^ a b c d Gilead Sher, The Application of Israeli Law to the West Bank: De Facto Annexation?, INSS Insight No. 638, December 4, 2014
  3. ^ ACRI 2014, p. 21.
  4. ^ a b Jerusalem Post, Knesset Committees to Discuss Applying New Laws to West Bank, 3 January 2018: "Legislative committees will be instructed to discuss each new bill’s application to the West Bank, the Knesset House Committee decided on Wednesday... House Committee chairman Yoav Kisch (Likud) originally proposed a change to the Knesset rules that would require committees to discuss how to apply each bill to the West Bank, whether in the text of the law or through a military order. Knesset Legal Adviser Eyal Yinon suggested that he instruct committee legal advisers to hold such discussions, instead of changing Knesset regulations, and the House Committee accepted the idea."
  5. ^ a b Arutz Sheva, Shaked: We'll remain in Judea & Samaria for another 5,000 years, 3 January 2018: "The Knesset House Committee today discussed the interaction between the Knesset and Israeli citizens in Judea and Samaria, against the background of Justice Minister Ayelet Shaked's directive that any new government legislation would require reference to Judea and Samaria."
  6. ^ a b "Israeli Ministers Deliberate on Applying 12 Bills to West Bank Settlements". Haaretz.
  7. ^ A Threshold Crossed, Human Rights Watch, April 27, 2021, "The application of dual bodies of laws has created a reality where two people live in the same territory, but only one enjoys robust rights protection.... Discrimination also pervades every aspect of the criminal law and detention system."
  8. ^ Ziad AbuZayyad, The Dual Legal System: Apartheid Regime or Two-State Solution, Palestine-Israel Journal, Vol. 21, No. 3, 2016
  9. ^ The Israeli Occupation of the West Bank and the Crime of Apartheid: Legal Opinion, Yesh Din, 2020: "2.6.3 Dual Legal System"
  10. ^ John Dugard, John Reynolds, Apartheid, International Law, and the Occupied Palestinian Territory, European Journal of International Law, Volume 24, Issue 3, August 2013, Pages 867–913, https://doi.org/10.1093/ejil/cht045
  11. ^ Israeli Practices towards the Palestinian People and the Question of Apartheid, Executive Summary, 19 June 2017; https://doi.org/10.1111/mepo.12265
  12. ^ Falk & Tilley (ECSWA), (2020), Israel Practices towards the Palestinian People and the Question of Apartheid, The Palestine Yearbook of International Law Online, 20(1), 201-263. doi: https://doi.org/10.1163/22116141_020010010
  13. ^ Michael Sfard (23 January 2018). The Wall and the Gate: Israel, Palestine, and the Legal Battle for Human Rights. Henry Holt and Company. p. 465. ISBN 978-1-250-12271-1.
  14. ^ Orna Ben-Naftali (13 January 2011). International Humanitarian Law and International Human Rights Law. OUP Oxford. pp. 148–. ISBN 978-0-19-100160-4.
  15. ^ Aeyal Gross (6 April 2017). The Writing on the Wall: Rethinking the International Law of Occupation. Cambridge University Press. pp. 176–. ISBN 978-1-107-14596-2.
  16. ^ a b Occupation, colonialism, apartheid?: a re-assessment of Israel's practices in the occupied Palestinian territories under international law Archived 2018-10-16 at the Wayback Machine, 2009, pages 108–109
  17. ^ ACRI 2014, p. 5-25.
  18. ^ ACRI 2014, p. 24: CA 1432/02 Yinon Food Manufacturing and Marketing Ltd v. Qaraan, PD 59(1) 345 (2004)
  19. ^ ACRI 2014, p. 22: HCJ 10104/04 Peace Now S.A.L. Educational Enterprises v. Supervisor of the Jewish Settlements in Judea and Samaria 61(2) 93 (2006)
  20. ^ ACRI 2014, p. 5: HCJ 5666/03 Kav LaOved v. Jerusalem Labor Court, 62(3)
  21. ^ HCJ 5666/03 Kav LaOved v. Jerusalem Labor Court, 62(3), quote in original Hebrew: " שונה הדין באשר לתושבים הישראלים בשטחים המוחזקים. לגביהם, מתקיים רובד חקיקתי נפרד, המוכר בכינוי "משפט המובלעות", ואשר כולל חקיקה ישראלית פנימית שהוחלה באופן אישי על אזרחים ישראלים או על מי שזכאים להיות אזרחים ישראלים ומתגוררים בשטחים בלבד."
  22. ^ John Ehrenberg; Yoav Peled (29 July 2016). Israel and Palestine: Alternative Perspectives on Statehood. Rowman & Littlefield Publishers. pp. 192–. ISBN 978-1-4422-4508-2.
  23. ^ ACRI 2014, p. 6: footnote to "enclave-based justice."
  24. ^ Benveniśtî, Eyāl (1990). Legal dualism: the absorption of the occupied territories into Israel. Westview Press. ISBN 978-0-8133-7983-8. As this paper will show, the pre-June 1967 borders have faded for almost all legal purposes that reflect Israeli interests. However, with regard to the interests of the local population, especially those concerning civil rights, those borders still exist.
  25. ^ אבירם, אמיתי, [1]שיערוך כספים המוחזרים על-ידי רשויות ציבוריות באזור יהודה והשומרון.: בכך הרחיב המחוקק בצורה עקיפה את תחולת האיסור הקבוע בחוק על האזורים. זאת ועוד, בעבר הוחלו הוראות חוק ישראליות שונות, דרכה של תחיקת הביטחון החלה באזורים, בשטחן של הרשויות המקומיות הישראליות באזורים )החלה זו יצרה את התופעה המכונה "משפט המובלעות"(. יודגש כי החוקים הישראליים שהוחלו בדרך זו הינם בעלי צביון פרסונלי מובהק )דוגמת נושאי חינוך, רווחה, בריאות, עבודה, מעמד אישי וכיו"ב עניינים( ולא בעלי צביון טריטוריאלי-קרקעי
  26. ^ Times of Israel, three articles on 9 November 2014:
    * Bill would require IDF to copy Israeli civil law for settlements
    * Ministers back bill forcing army to extend civil law to settlements
    * MKs charge ‘civil law’ bill will lead to settlement annexation
  27. ^ Times of Israel, Plan to apply Israeli law in West Bank: Equal rights or ‘creeping annexation’?
  28. ^ Jerusalem Post, January 2018, Likud vote for West Bank sovereignty 'does not obligate' Netanyahu
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