The dual system of laws governing the West Bank

Israel’s new Defence Minister Avigdor Lieberman is a controversial figure. He recently attended a court case in support of a soldier caught on camera executing a wounded Palestinian and has called for the toppling of the Palestinian Authority and the bombing of Egypt’s Aswan dam. Lieberman has also tried to make the restoration of the death penalty for “terror attacks” a condition for his far-right Yisrael Beiteinu party to join the Israeli government. He has sought the actualisation of an existing but hitherto dormant legal provision allowing military courts in the occupied Palestinian territories to impose the death penalty. Alarmingly, as military courts only prosecute Palestinians, the death penalty would only apply to Palestinians.

Israel established its first military courts in Hebron, Nablus, Jenin, Jericho and Ramallah to punish Palestinians breaking the many orders and laws that came into force after Israel gained control of the West Bank in 1967 and established military rule in the area. Decades on and they are still governed by same rules. While these rules were meant to apply to all persons found in the area, Israeli lawmakers have applied extensive sections of Israeli law to those living in the West Bank’s many settlements. This separation has been enshrined by judicial bodies, leading to the creation of a “dual system of law” in which Palestinians are subject to harsh military laws and sentenced in military courts, while settlers, who reside in the same area, are subject to Israeli civil law.

To put it simply – if, for example, a 12-year-old child from Nablus and a 12-year-old child from the nearby settlement of Yitzhar were to have a fight, both would be arrested by the Israeli police. The Palestinian child could be detained for four days before seeing a military judge, whereas the Israeli child would only have to wait for 12 hours before seeing a civilian judge. The Palestinian child could be held for up to 90 days before seeing a lawyer and would have only a 13 per cent chance of being freed on bail, whereas the Israeli child would be able to see legal counsel within just two days and would have an 80 per cent likelihood of being released on bail.

Tamar Feldman, director of the Human Rights in the OPT Department at the Association for Civil Rights in Israel (ACRI), spoke with MEMO about these two systems of law. “The dual system of law has a very long history, basically from the early days of occupation different systems, through different mechanisms, created this web of legislation, administrative acts, court rulings, prosecution policy and legislation, through both the Israeli Knesset and through the military commander orders.”

“All these together created not necessarily a pre-mediated intentional dual system but layer upon layer, patch after patch, they have created this whole blanket of normative dual systems.”

While Israel uses security concerns to justify the military system governing Palestinians in the West Bank, Feldman says the two systems prevail in civilian matters where the issue of Israeli citizenship should not be of any relevance. She points to traffic laws as an example, a completely civilian area of law. While Palestinians are required to post a cash bond if they are caught committing a traffic violation and face the confiscation of a vehicle if a traffic ticket is issued when the driver has not paid a previous fine, there are also many barriers they face in finding information leading to the accumulation of fines. The West Bank’s Israeli Jewish population does not face the same set of rules. It is this discrimination that has allowed the settlements to flourish – two separate planning systems exists which give the settlement communities significant control and restricts Palestinian construction.

The dual system of law and the inequality it breeds has seeped into every aspect of Palestinian life. While Palestinians struggle to get to work or school because their journey is slowed by checkpoints and soldiers, Israeli settlers have a system of separate roads free of restrictions. While Palestinians struggle to obtain permission to build a single house, Israeli settlement units are approved en masse.

ACRI sums this up succinctly in its report: “In one territorial unit and under the same regime, two populations live side by side and are subject to two separate legal systems. Those who belong to one population enjoy human rights and civil liberties, while those who belong to the other population are not entitled to them, or entitled to them to a much lesser extent.”

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.