Israeli law
Israeli law is based mostly on a common law legal system, though it also reflects the diverse history of the territory of the State of Israel throughout the last hundred years (which was at various times prior to independence under Ottoman, the ...
is enforced in
Israeli settlements
Israeli settlements, or Israeli colonies, are civilian communities inhabited by Israeli citizens, overwhelmingly of Jewish ethnicity, built on lands occupied by Israel in the 1967 Six-Day War. The international community considers Israeli se ...
and among
Israeli
Israeli may refer to:
* Something of, from, or related to the State of Israel
* Israelis, citizens or permanent residents of the State of Israel
* Modern Hebrew, a language
* ''Israeli'' (newspaper), published from 2006 to 2008
* Guni Israeli ...
civilians in
Area C of the
West Bank
The West Bank ( ar, الضفة الغربية, translit=aḍ-Ḍiffah al-Ġarbiyyah; he, הגדה המערבית, translit=HaGadah HaMaʽaravit, also referred to by some Israelis as ) is a landlocked territory near the coast of the Mediter ...
, a
Palestinian territory
The Palestinian territories are the two regions of the former British Mandate for Palestine that have been militarily occupied by Israel since the Six-Day War of 1967, namely: the West Bank (including East Jerusalem) and the Gaza Strip. The ...
under
military occupation
Military occupation, also known as belligerent occupation or simply occupation, is the effective military control by a ruling power over a territory that is outside of that power's sovereign territory.Eyāl Benveniśtî. The international law ...
and therefore otherwise subject to
military law
Military justice (also military law) is the legal system (bodies of law and procedure) that governs the conduct of the active-duty personnel of the armed forces of a country. In some nation-states, civil law and military law are distinct bodie ...
. 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
The Israeli occupation of the West Bank began on 7 June 1967, when Israeli forces captured and occupied the territory (including East Jerusalem), then occupied by Jordan, during the Six-Day War, and continues to the present day. The status of ...
,
[Gilead Sher]
The Application of Israeli Law to the West Bank: De Facto Annexation?
INSS Insight No. 638, December 4, 2014 and the terms "enclave law" and "enclave-based justice" describe the resulting legal system.
In parallel, other portions of Israeli law, including Israeli
criminal law
Criminal law is the body of law that relates to crime. It prescribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and moral welfare of people inclusive of one's self. Most criminal law i ...
, are applied to Israelis on a personal basis in the West Bank.
Since January 2018, all laws proposed in the
Knesset
The Knesset ( he, הַכְּנֶסֶת ; "gathering" or "assembly") is the unicameral legislature of Israel. As the supreme state body, the Knesset is sovereign and thus has complete control of the entirety of the Israeli government (with ...
are actively considered vis à vis their application to the Israeli settlements in the West Bank.
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.
Implementation in practice
Territorial aspects of "enclave law" are implemented via a method called "pipelining".
Under this method,
Israeli Military Orders An Israeli military order is a general order issued by an Israeli military commander over territory under Israeli military occupation. It has the force of law. Enforcement of such orders is carried out by Israeli military police and military courts ...
, which constitute the primary laws in the West Bank, apply Israeli laws specifically to the jurisdictions of the
Israeli settlement local councils.
This method is used to give Israeli ministries, such as the
Israeli Ministry of Education
The Ministry of Education ( he, מִשְׂרָד הַחִנּוּךְ, translit. ''Misrad HaHinukh''; ar, وزارة التربية والتعليم) is the branch of the Israeli government charged with overseeing public education institutions ...
and
Israeli Health Ministry, jurisdiction over public facilities such as schools and hospitals in the territories.
Dual legal system
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.
In 1989,
Eyal Benvenisti
Eyal Benvenisti ( he, איל בנבנשתי; born 1959) is an attorney and legal academic, and Whewell Professor of International Law at the University of Cambridge. He was formerly Anny and Paul Yanowicz Professor of Human Rights at Tel Aviv Unive ...
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.
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,
[ education, welfare, health, work, personal status, but exclude laws relating directly to the territory itself such as land and planning laws.][ The ]Supreme Court of Israel
The Supreme Court (, ''Beit HaMishpat HaElyon''; ar, المحكمة العليا) is the Supreme court, highest court in Israel. It has ultimate appellate jurisdiction over all other courts, and in some cases original jurisdiction.
The Supreme C ...
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.[
]
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
Yehuda Weinstein ( he, יהודה וינשטיין; born 19 April 1944) is an Israeli lawyer and former Attorney General of Israel, having replaced the previous attorney general, Menachem Mazuz, on 1 February 2010.
Biography
Weinstein was bo ...
.['']Times of Israel
''The Times of Israel'' is an Israeli multi-language online newspaper that was launched in 2012. It was co-founded by Israeli journalist David Horovitz, who is also the founding editor, and American billionaire investor Seth Klarman. '', three articles on 9 November 2014:
Bill would require IDF to copy Israeli civil law for settlements
br>
Ministers back bill forcing army to extend civil law to settlements
br>
MKs charge ‘civil law’ bill will lead to settlement annexation
/ref> In May 2016, the initiative was relaunched by Ayelet Shaked
Ayelet Shaked (; he, אַיֶּילֶת שָׁקֵד; born 7 May 1976) is an Israeli politician, activist, and software engineer currently serving as Minister of Interior. She served as a member of the Knesset for The Jewish Home from 2013 to ...
.['']Times of Israel
''The Times of Israel'' is an Israeli multi-language online newspaper that was launched in 2012. It was co-founded by Israeli journalist David Horovitz, who is also the founding editor, and American billionaire investor Seth Klarman. ''
Plan to apply Israeli law in West Bank: Equal rights or ‘creeping annexation’?
/ref>
In December 2017, over 1,000 central committee members of Likud
Likud ( he, הַלִּיכּוּד, HaLikud, The Consolidation), officially known as Likud – National Liberal Movement, is a major centre-right to right-wing political party in Israel. It was founded in 1973 by Menachem Begin and Ariel Sharon ...
voted unanimously for "free construction and application of Israeli law and sovereignty in all liberated areas of settlement in Judea and Samaria".[Jerusalem Post, January 2018]
Likud vote for West Bank sovereignty 'does not obligate' Netanyahu
/ref>
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.[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."
/ref>Arutz Sheva
''Arutz Sheva'' ( he, ערוץ 7, lit=''Channel 7''), also known in English as ''Israel National News'', is an Israeli media network identifying with religious Zionism. It offers online news articles in Hebrew, English, and Russian as well as l ...
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." This was followed, a few weeks later, by the first ever Knesset deliberation of the application of proposed laws to the West Bank settlements.
Terminology
The term "enclave law" was coined in a 1987 article by Amnon Rubinstein
Amnon Rubinstein ( he, אמנון רובינשטיין, born 5 September 1931) is an Israeli legal scholar, politician, and columnist. A member of the Knesset between 1977 and 2002, he served in several ministerial positions. He is currently dean ...
, an Israeli scholar of constitutional law
Constitutional law is a body of law which defines the role, powers, and structure of different entities within a State (polity), state, namely, the executive (government), executive, the parliament or legislature, and the judiciary; as well as th ...
. 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.
In a 2009 report authored by Virginia Tilley
Virginia Tilley (born 1953) is an American political scientist specialising in the comparative study of ethnic and racial conflict. She is Professor of Political Science at Southern Illinois University-Carbondale in the US.
Background
Tilley's g ...
, the South African Human Sciences Research Council
The Human Sciences Research Council (HSRC) of South Africa is Africa's largest dedicated social science and humanities research agency and policy think tank. It primarily conducts large-scale, policy-relevant, social-scientific projects for publi ...
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".[Occupation, colonialism, apartheid?: a re-assessment of Israel's practices in the occupied Palestinian territories under international law]
2009, pages 108–109 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.
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. 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 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
Elyakim Rubinstein ( he, אליקים רובינשטיין, born June 13, 1947) is a former Vice President of the Supreme Court of Israel. Beforehand, he served as the Attorney General of Israel from 1997 to 2004. Rubinstein, a former Israeli dipl ...
, and a 2007 Supreme Court case, ''Kav LaOved v. Jerusalem Labor Court'', summarized by Eliezer Rivlin
Eliezer Rivlin ( he, אליעזר ריבלין; born May 28, 1942) is an Israeli jurist who served as a judge of the Supreme Court of Israel.
Since 2006 until his retirement Eliezer Rivlin was the deputy-president of the Supreme Court of Israel .
See also
* International law and Israeli settlements
The international community considers the establishment of Israeli settlements in the Israeli-occupied territories illegal on one of two bases: that they are in violation of Article 49 of the Fourth Geneva Convention, or that they are in breach ...
* Extraterritoriality
In international law, extraterritoriality is the state of being exempted from the jurisdiction of local law, usually as the result of diplomatic negotiations.
Historically, this primarily applied to individuals, as jurisdiction was usually cla ...
* Regulation Law
The Judea and Samaria Settlement Regulation Law ( he, חוק להסדרת ההתיישבות ביהודה והשומרון), commonly known as the Regulation Law ( he, חוק ההסדרה) or sometimes the Regularization Law, is an Israeli law ...
Further reading
*
*
*
* Amnon Rubinstein
Amnon Rubinstein ( he, אמנון רובינשטיין, born 5 September 1931) is an Israeli legal scholar, politician, and columnist. A member of the Knesset between 1977 and 2002, he served in several ministerial positions. He is currently dean ...
, 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 יוני משפט יא pages 439456
Notes
References
{{reflist
Law of Israel
Judea and Samaria Area
Israeli occupation of the West Bank
Israel and apartheid