Second-Class Citizens? Israel’s Legal Realities and Responsibilities in Judea–Samaria

August 4, 2016

by: Terry Mason, BFP Staff Writer

What to do when nearly 400,000 of your people are legally disenfranchised from other citizens? That is the question that faces Israel regarding those living in Judea and Samaria (commonly referred to as the West Bank). Currently Judea and Samaria are not considered part of Israeli territory to which Israeli civil law applies. At the moment Israelis living there have all of the responsibilities of citizenship (paying taxes, serving in the military, etc.) but do not receive many of the benefits.

Recently the Justice Minister, Ayelet Shaked, proposed a solution. Within one year she wants to pass a “Norms Bill” to extend Israeli civil law to Jewish communities in Judea and Samaria. Shaked says that the goal of the bill is to equalize conditions among all Israeli citizens. Others who oppose the move argue that it would effectively constitute annexation (incorporation of territory into a state’s sovereignty) and view it as a political maneuver by Shaked and the Jewish Home party.

Forty nine Years…

How did this legal problem come about? In the Six Day War of 1967 Israel gained control of the territory west of the Jordan River. As a result, most of the international community considers Judea and Samaria to be an occupied territory. However, from a legal standpoint a territory is only considered occupied when a rightful sovereign to the land was displaced by another. This was not the case in Judea and Samaria. In 1950 Jordan annexed the territory under the kingdom.

This political move was rejected by almost the entire international community and in 1988 King Hussein abolished the enactment. Ever since, Israel has administered the area according to international law; primarily the 1907 Hague Regulations, especially Article 43, and the 1949 Fourth Geneva Conventions. Accordingly, there are two fundamental regulations of an occupying power: restore and ensure public order and safety (all aspects of public or civil life, e.g. security, health, education, welfare, quality of life, transportation and proper management) and respect the laws in force in the country unless absolutely preventive. Article 43 grants the military commander authority to take all measures to fulfill the above obligations. Under this arrangement the Central Command of the Israel Defense Force serves as the de facto government.

It is a highly unique situation for a territory to be under military oversight for almost 50 years. The challenge is to maintain the status quo while protecting the interests of civilians in the area. It demands fitting laws to reality on the ground. In fact the Israeli military has been forced to enact laws for all residents within the territory, but the process to do so is complex and lengthy as five historic layers of law must be considered.

Every law passed in Israel must be reviewed and adapted via a complex process if it is to be implemented for Israeli citizens living within Judea and Samaria. Over time this has created an untenable and ever growing gap between Israeli law and the legal situation for Israelis living in Judea and Samaria.

The new bill would ensure that lawmakers consider Israeli citizens in Judea and Samaria when drafting new legislation thus making the time necessary to review and adapt the laws much shorter. One example given of the legal gap is that maternity leave for pregnant women in Israel proper is regulated by law while pregnant women in the territories have no legal protection. Another is that Israeli municipalities are mandated to provide libraries, but towns just a short distance away do not receive libraries.

Since the signing of the Oslo II Accord in 1995, the administration of this territory falls into three categories, Areas A, B and C. Area A denotes full civil and security oversight by the Palestinian Authority (PA). It tends to correspond to the major Arab population centers. Area B denotes civil oversight by the PA and joint Palestinian and Israeli security. It includes most of the rural Palestinian areas. Area C denotes full Jewish civil and security oversight. It tends to correspond to major Jewish population centers. Palestinian agencies retain responsibility for education and health care for their population.

An Ongoing Effort

 Minister Shaked is not the first to propose such a solution to this complex issue. Three years ago IDF Major General (res.) Danny Efroni wrote a formal proposal for this plan to the attorney general at the time, Yehuda Weinstein. Recently he spoke to the media for the first time after leaving active military service. Efroni was the IDF Chief Military Advocate General between 2011 and 2015.

In Efroni’s professional opinion, “This legislation does not imply or amount to annexation of the Israeli localities to Israel.” The proposed Norms Bill would only enact Israeli law for Israeli citizens living in Area C enclaves. Of necessity laws are already being made and enacted within the area. Efroni explains, “If we didn’t adapt the law to everyday realities, we would have broken international law by not taking care of the existing population.” Implementing the Norms Bill that Minister Shaked is proposing would not contradict any local or international law. The proposed legislation will simply make the process more effective and efficient while providing legal rights to the citizens living there.

Efroni believes that the plan would not have negative implications for the Palestinians. On the contrary, Palestinians would stand to benefit. One example he gave is the thousands of Palestinians who work in Jewish areas who would come under the protection of Israeli labor laws.

Some believe that implementation of the “Norms Bill” would be a bad idea at this time with the peace process locked in a stalemate. Others believe that it is a necessary step to ensure the rights of all Israeli citizens.