by Hiba Husseini
To appreciate the constraints of the operation of law and the legal system in the Occupied Palestinian Territories (OPT) in general and the West Bank in particular, it is important to understand the jurisdictional and sovereign limitations and duality of laws that exist, given the present and past political contexts and the historic legal heritage that have prevailed for centuries. In this article, the discussion is confined to the West Bank, while Occupied East Jerusalem is the subject of another article in this issue. The Occupied Gaza Strip is not part of this discussion.
Within the context of the analysis of the laws and legal systems that operate in the West Bank, it is essential to remember that the West Bank is similar to many other territories in the area, in that its legal system and laws have evolved over long periods of time, emanating and developing with inputs from various sources of old and modern law passed or adopted by lawmakers based on a set of laws or influences inherited or borrowed from a range of systems. The influences could be minimalist or maximalist, positive or negative. There is no better case in point for the maximalist and negative influences than those imposed under the Israeli occupation.
The Israeli military occupation spread its hegemony and ruled the West Bank by issuing a large number of military orders designed to oppress, discriminate, carve out land and detract from the rights of the local population to realize its own interests and exercise full and sovereign control. This, Israel has exercised even though, as an occupying power, it is bound by and is obligated to adhere to a number of international conventions,1 which require it to refrain from taking measures to change the physical character, demographic composition, institutional structure or status of the OPT, including Jerusalem.
The Israeli Military Civil Administration of the Occupied Territories
When Israel occupied the Palestinian Territories in 1967, it took responsibility for the legal system and set of laws that prevailed in the West Bank, namely, the Jordanian laws and the entire legacy of prior rulers. However, it immediately started issuing military orders to govern both the West Bank and the Gaza Strip to maintain its hegemony over the lands and people of the territories. Furthermore, Israel established military and civil administrations to rule the OPT, which acted to impair the judicial autonomy of the court system and prevailing laws.
1. Military Orders
The military orders have been applied to every facet and function of life in both civil and criminal matters. They were also the legal instruments through which Israel amended the existing set of laws. These military orders, applied by military courts established after the beginning of the occupation, implicated all rights including, but not limited to, land tenure, residency, family reunification, work and labor, and regulated all municipal matter, traffic, water/environment, health, trade business, education, infrastructure, construction and building, public assembly, taxation, travel abroad.
2. The Judiciary and Court System
Israel considerably altered the composition and structure of the civil and criminal court systems in the West Bank. All final appeals were to be taken up before the Israeli High Court, which meant Palestinian judges had no power to review administration orders issued by the Israeli Civil Administration. All civil and criminal court judges were appointed by Israel, and existed hand in hand with military courts.
Palestinian Rule in Parallel with the Continued Israeli Military and Civil Administration of the West Bank under the Framework of Signed Interim Agreements
The Palestine Liberation Organization (PLO) entered the OPT (Gaza Strip and Jericho) in 1994 as a consequence of the Declaration of Principles agreed to with the state of Israel in 1993. A series of agreements and protocols followed, whose scope was interim and based on transferring limited non-sovereign power to the Palestinian Authority was created to serve as an interim self-government.
1. The Scope of the Agreements
The end of conflict and the occupation was attempted through peace agreements under the rubric of a territorial compromise or an exchange of land for peace. The first of these agreements was the Declaration of Principles (DOP) signed in 1993. It was followed by a series of arrangements and understandings, including the Protocol Concerning the Redeployment in Hebron, January 1997; the Wye River Memorandum, October 1998; and the Sharm-el-Sheikh Memorandum, September 1999. A series of talks and negotiations continued from Camp David in 2000 to the Annapolis Peace Conference in 2007, followed by the talks in 2010 and 2013.
From the Palestinian perspective, Security Council Resolutions 194, 242, and 338, are the point of departure for these agreements, so the Palestinians deemed the territorial exchange of land for peace as a historic compromise. The DOP recognized that an interim period of self-government will be established, but one that will neither prejudice permanent statehood, nor preempt it.
In order to appreciate the explicit and implicit limitations imposed by the agreements, it is important to remember that the Palestinian-Israeli negotiations were conducted in the framework of the OPT, where Israel exercised jurisdiction and administrative functions. Israel was the source of the PA authority and, in this capacity it conferred powers on the PA.
In analyzing the agreements, it is important to note how much effective control was retained by Israel. Article I of the Interim Agreement states: “Israel shall transfer powers and responsibilities to the Council [PA]” The Interim Agreement further added that once the PA is inaugurated, the Israeli Civil Administration will be dissolved, but it never happened.
a. Territorial Jurisdiction: Areas A, B and C
A look at the DOP and the Interim Agreement illustrates the limitations on the PA’s territorial jurisdiction. In the Interim Agreement, Israel successfully limited the scope of the PA’s territorial jurisdiction, narrowing it even more than the DOP, dividing the West Bank into three territorial jurisdictional areas: A, B and C. Under this arrangement, the territorial jurisdiction of the PA consisted of Area A under Palestinian civil and security control, Area B under Palestinian civil jurisdiction and Israeli security, while Area C, including Israeli settlements, is under Israeli civil and security control.
b. Functional Jurisdiction
The Interim Agreement transferred functional jurisdiction and authority to the PA. Although the powers and the responsibilities were clearly enumerated in this agreement, there were two exceptions. The first exception outlined the areas where the Israeli military retained authority. The powers and responsibilities were not transferred to the PA and Palestinian personal jurisdiction over Israelis residing in the Palestinian areas was limited. The second exception involved the powers and the authorities, which were transferred to the PA but were not comprehensive.
c. Personal Jurisdiction
The third type of limitation embodied in the Interim Agreement related to the nature of the transferred personal jurisdiction. Israelis living in areas under PA’s jurisdiction are excluded from its jurisdiction in both civil and criminal matters.
2. Retention of the Israeli Military Orders and Operation of both the Civil and Military Administrations
The Israeli Civil Administration has retained the power in Area C for all land related transactions and conveyances including construction/building permits, and permits related to the environment, water, telecommunications, and labor. All disputes related to these matters are adjudicated in Israeli courts, not Palestinian courts.
3. The Case of the Civil Record, Passports, Family Reunification, Choice of Residence and Visitor Visas
One area that demonstrates the blatant contravention of basic Palestinian rights involves maintenance of the civil record, the issuance of passports, family reunification matters, choice of residence and visitor visas for non-resident Palestinians or foreign visitors/workers to Palestine, a policy aimed at decreasing the Palestinian population on a systematic basis. Palestinians cannot relocate within the West Bank or between Gaza and the West Bank. A military permit is required for movement within the West Bank cities - requiring preapproval from Israeli authorities. In contrast, an Israeli settler can relocate at any time without restrictions, limitations or pre-approvals, even receiving additional benefits and incentives.
Israel’s control over movement within the OPT (West Bank, Gaza and East Jerusalem) and family reunification matters has led to issues concerning marriages, children living with both parents and receipt of health care and/or education. If a resident of the West Bank marries abroad, the spouse is denied entry and so are the children, resulting in divorce, separation or emigration abroad. These policies are carried out through the application of military decrees, amended over time to increase the restrictions and limitations.
These amendments have converted thousands of West Bank residents into “offenders” and “violators” of the military orders.
Palestinian identification numbers and travel documents (passports) are essentially issued by Israel because Israel pre-approves everything issued by the PA. The civil registry (birth and death records) is effectively controlled by Israel, not the PA. Those who do not meet the Israeli “requirements” fail to be registered or to have passports issued. There are many Palestinians barred from the receiving the Palestinian identification card if born abroad to Palestinian parents who hold West Bank residency and identification cards.
By the same token, Palestinians living abroad who hold third-country nationalities must obtain a visitor’s visa from Israel, while non-Palestinians who wish to enter the West Bank must receive a visa at the discretion of the Israeli authorities. Visas are denied on a regular policy basis to most Palestinians and a significant number of foreigners wishing to enter the PA areas.
Duality of the Operation of Law in the West Bank: Israeli Law for Israeli Settlers and Palestinian and Israeli Military Orders for Palestinian Inhabitants
Palestinians are subject to the jurisdiction of the Israeli legal system, while Israeli settlers in the West Bank have been excluded from both Palestinian jurisdiction and the application of the military laws that apply to their Palestinian neighbors, and are subject to the exclusive jurisdiction of Israel and its laws. The outcome is a duality of legal systems and laws and a double standard based on nationality.
1. Palestinian Inhabitants
Palestinians have to answer to the Israel administrations and the PA. Israelis and Palestinians who live in one territory are legally distinct from each other and the discrimination is official, institutionalized, and affects every facet of the West Bankers’ daily lives.
2. Israeli Settlers
Through a combination of military orders, court rulings and legislation issued by the Knesset, Israeli settlers who reside in West Bank settlements or throughout the areas of the West Bank are excluded from all types of Palestinian jurisdiction. Instead, they are subject to the Israeli civil and criminal court system, enjoying the benefits conferred upon Israeli citizens living in the state of Israel. The High Court of Justice in Israel issued the seminal precedent that settlers’ rights are enshrined in Israel’s Basic Laws and that they live in “sovereign” lands of Israel. Furthermore, Israel applies its own “Law of Return” to Israelis who live in the OPT.
3. Separate and Unequal in the Eyes of the Law
All local government units and municipal services are subject to Israeli law and receive financing from budgets allocated by the various Israeli laws supporting national health insurance, education and agricultural activities. They are subject to Israeli laws on taxation, trade and commerce; condominium law, which applies to the rights in apartments and housing units build in the settlements; as well as laws related to the right to participate in elections. All civil and criminal matters concerning Israeli settlers are reserved for Israel.
Another example of the blatant contravention of Palestinian human rights can be seen through the implantation of the Israeli “Law of Return.” Under the Law of Return, a Jew or part Jew, in terms of bloodline, has the right to immigrate to and settle anywhere in Israel, including the West Bank. In contrast, a Palestinian born to Palestinian parents abroad is not entitled to visit, let alone “return” and reside, in the West Bank.
In the area of criminal law and treatment of criminal violations, there are two distinct systems. Israeli Infringements implicate basic rights to liberty and dignity. The established standard, in systems where rule of law and respect of human rights prevail, is territorial in criminal matters, which means that the nationality of the suspect and/or defendant determines where he/she is tried. This applies along the entire chain from the procedural to the substantive including the detention and ending with the trial/verdict/ sentencing. Israeli treatment of Palestinians detracts from and infringes on this standard.
Other areas of discrimination and duality involve freedom of expression. Palestinians are subject to harsh measures including detention and arrest for voicing their protest against the occupation. The same applies to freedom of movement. Again, nationality is the test an individual needs to pass in order to secure movement. Palestinians have to move through a system of military checkpoints and roadblocks, the Separation Wall and other restrictions placed on their movement. Israel constructed a system of road and transportation network designed for Israelis in general and settlers in particular. Israel further subjects Palestinians to its traffic laws, they fine Palestinians the fines listed in the Israeli Traffic Law, and all violations are tried in Israeli military courts. The fines are too expensive for Palestinians whose income and standard of living are far below those of Israelis.
In matters involving building, planning and construction, the contravention has reached the highest levels of infringement on property rights as the expansion and construction of settlements trumps Palestinians rights, and in Area C, Palestinians must obtain the permits from the Israeli Civil Administration.
4. Military Courts and Detention, Body and Home Search and Seizure
The discrimination and violation of basic human rights of Palestinians is most apparent in the area of detention, search and seizure procedures, arrest and trial. The scope of the warrants is wide and all-inclusive, unlike those that apply to the settler population in the same jurisdiction. The searches of homes of bodies or Palestinians do not require a warrant.2 The searches and seizures are tantamount to an invasion of privacy and infringe on human dignity and liberty. By contrast, the test and threshold for an Israeli settler is much more stringent, in that a warrant is required and its scope is very limited.3
With respect to detention, Palestinians are subject to a much lower standard. Any suspicion of an offense constitutes a cause for detention while detention of an Israeli settler requires reasonable cause for suspicion that an offense has been committed, a stark contrast to the procedures for Palestinians, which a military and not a police officer.
Palestinian due process rights, a constitutional right aimed to safeguard basic dignity and liberty of suspects, are not protected. A Palestinian, unlike an Israeli settler, stands trial in Israel military courts, rather than civil courts, and due process rights are not part of the military legal system. Incarcerations of Palestinians take place in Israel, and family visits are very restricted as a result of the permit policy. Public defense is rarely available to Palestinian detainees, and defense attorneys who are Palestinians are often challenged when visiting detainees. The right to an attorney during detention goes unheeded, because military laws prevent detainees from meeting with an attorney during the first 96 hours of detention, but if the offense is security-related, the preclusion might be extended up to 21 days, and may even result a 90-day period without a meeting with an attorney.
Investigations are conducted in Hebrew with little, if any, translation into Arabic. Some Palestinians speak Hebrew, but even that command of the language does not equip them to manage in military and security investigations. Prosecutors and judges do not speak in Arabic, and court files, evidence and related materials are all in Hebrew, making it difficult for Palestinians to assist in their own defense.
Even Palestinian minors have not been spared. Under Israeli law, minors (children of Israeli settlers) are given significant protections for their physical and mental well-being. In contrast, Palestinian minors are not afforded such protection and are subject to greater infringements and detractions of their rights. Israel has a Youth Law, which affords minors (under the age of 18) substantial protection, while military laws, under which Palestinian youth are detained, arrested, tried and charged, detract from their rights. The military orders divide minors into three age categories, child (under 12), juvenile (12-14), and young adult (14-16), effectively lowering the age of adulthood to 16 years old, while an Israeli becomes a young adult at 18. The arrest, interrogation, detention and sentencing of minors are a blatant violation of their basic and human rights.
The Palestinian inhabitants of the West Bank have been subject to decades of military rule and remain occupied. In contrast to the Israeli settlers, their basic and human rights are contravened under both international and Israeli standards. The infringements violate the basic constructs of access to justice, human dignity and equality.
Today, the “State of Palestine” is an occupied territory with restricted and limited sovereign jurisdiction over its territory and inhabitants. The West Bank is part of the occupied “state” and remains the clearest illustration of this restricted and limited jurisdiction. The military policies and practices by which Israeli has ruled since 1967 have considerably affected the rights of the indigenous inhabitants and the lands. The prolonged occupation has come to create a dual legal system and set of laws that burden all Palestinians, but particularly the residents of the West Bank. The chains of settlements in the West Bank have also led to discrimination and loss of liberty and dignity. All Palestinians, including those in Gaza and East Jerusalem, suffer human rights violations because their rights are undermined and subject to a discriminatory legal regime based on a set of military rules, while the Israeli settlers enjoy benefits and privileges.
1The Hague Regulations, Geneva Convention of 1907, the Convention on the Elimination of All Forms of Racial Discrimination of 1965, the International Covenant on Civil and Political Rights of 1966, the Universal Declaration of Human rights of 1948, and the United Nations Convention relating to the Status of Refugees of 1951.
2Israeli Criminal Procedures Law, 1996, Article 67.
3Ibid. Articles, 23-25 and 29.