One Legal System, for Both Israelis and Palestinians

The temporary status of the occupation cannot be used to impede the resolution of the distorted legal situation in the West Bank.

Shuki Friedman
Shuki Friedman
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A Palestinian man argues with an Israeli border police officer during the demolition of a Palestinian house in the West Bank village of Biet Ula, January 21, 2016.
A Palestinian man argues with an Israeli border police officer during the demolition of a Palestinian house in the West Bank village of Biet Ula, January 21, 2016.Credit: Mussa Qawasma, Reuters
Shuki Friedman
Shuki Friedman

On Passover we celebrate the emergence of the Jewish people while remembering the experience of being a "foreigner." This term also applies to someone who does not enjoy equal rights in the place where he was born and lives. In a few weeks we’ll be entering the fiftieth year of the conquest of the West Bank in the Six-Day War. A clear-eyed view of the situation shows that the proposed solutions for the current interim status of Israeli control within the territories are not feasible: Annexation could spell a mortal blow to the state’s Jewishness, and is not legally or internationally practicable; and the two-state solution that has remained on the shelf for more than 20 years seems unrealistic for now. The temporary nature of the occupation has come to appear permanent, and the situation is not expected to change in the near future.

Over the 49 years of the occupation, an anomalous, distorted and undesirable legal situation has taken shape. Aside from the laws of occupation, which are derived from international law, several legal systems also apply in the territories: Israeli, Jordanian, Palestinian and military law. These legal systems are unequally applied to individuals living in the territories. Certain laws are used to unjustly discriminate against the Palestinians. Some argue that there is even a difference in the way the traffic laws are enforced for Israelis and Palestinians. This situation is an outgrowth of a patchwork legal system, and no attempt has ever been made to create an orderly and unified structure that would be more balanced and just.

Critics of Israeli policy in the West Bank assert that the state has instituted apartheid there, that is, deliberate discrimination against Palestinians and in favor of Israelis. Such claims often seize upon the legal discrimination created by the framework of laws in the territories. These claims are baseless. The different laws for residents with different citizenship do not derive from a desire to discriminate and create two normative systems in the area in question. The vast majority of politicians and jurists in Israel thoroughly reject such a possibility. The discrimination instead comes from the continuation of the interim status of the occupation, which gives rise to a feeling of temporariness and therefore dulls the desire to put right the distorted legal situation.

The situation is not suitable. Whether Israeli control of the territories endures for a long time still or ends shortly, this must be fundamentally altered. The Justice Ministry, in conjunction with the Civil Administration and, insofar as possible, with Palestinian organizations, should work toward a comprehensive overhaul of the legal system in order to grant the Palestinians living under military rule all possible rights to which they are legally entitled. As far as enforcement, actions of the authorities and all other aspects of life in the West Bank, Palestinians and Israelis should have equal rights and protections. Any difference that remains can only be justified by the strongest security considerations.

These legal revisions should lead to the creation of a clear and coherent book of laws that will give expression to the Supreme Court rulings and the various norms that already apply in the territories. But this book cannot only be a copy of the existing structure. Wherever the existing situation requires change and a single law can be forged, this must be done.

The legal aspect is just one — albeit significant — facet of maximal normalization of life for all the people living in the West Bank. Similar action should also be taken in other areas. Even if creating fair and equal living conditions for all people in the territories is not a solution to the conflict, it is necessary in order to offer a better life, for Palestinians too, during the interim period — whose end is nowhere in sight at the moment.

The moral call to remember our foreignness in Egypt is not just a commandment meant to preserve our historical memory. It is a supreme ethical imperative that calls upon the descendants of those who went out of Egypt, we who live in a sovereign Jewish state, to grant the fullest rights possible to the other who lives under our rule for the time being.

Dr. Friedman teaches international law at the Peres Academic Center.

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