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June 16, 2022 10:33 am

Media’s Latest Apartheid Smear: Israel’s ‘Two-Tiered’ Legal System in the West Bank

avatar by Akiva Van Koningsveld


The Jewish community of Beit El in Judea and Samaria. Photo: Yaakov via Wikimedia Commons.

Barely one year after its inauguration, Israel’s “change coalition” led by Prime Minister Naftali Bennett is at risk of collapse after failing to pass routine legislation regulating the legal status of Israeli citizens living in the West Bank, an area also known by its biblical name Judea and Samaria. The Emergency Regulations – Judea and Samaria, Jurisdiction and Legal Aid Law — first enacted by a Labor-led government in 1967 and renewed quietly every five years since — did not garner the needed 61 votes after several coalition rebels sided with the opposition led by Benjamin Netanyahu.

In explaining its “no” vote, the former PM’s Likud party said it seeks to topple a “bad and dangerous government.” For his part, Justice Minister Gideon Sa’ar accused the right-wing opposition of striving toward “anarchy” by blocking a bill that is “critical for maintaining public and legal order.”

The international media quickly jumped on the opportunity to vilify Israel by rehashing charges of “apartheid,” claiming that the Judea and Samaria Regulations uphold a legal order that discriminates against Palestinians.

For example, in its article “Netanyahu’s Plan to Regain Power in Israel: Vote Against His Views,” The New York Times described the law as “the basis of the two-tiered legal system in the occupied West Bank that distinguishes between Israeli settlers and Palestinians, and which is described by critics as a form of apartheid.”

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The Associated Press likewise blasted the 55-year-old statute, explicitly noting that “critics, including the Palestinians and three prominent human rights groups” have accused the Jewish state of practicing apartheid.

As HonestReporting has extensively detailed (see, for instance, herehere, and here), these assertions are without merit. Yet news organizations are seemingly intent on reducing a complicated matter to a simplistic, baseless narrative that portrays Jerusalem as guilty of perpetuating legal racism against Palestinians.

The current legal reality in Judea and Samaria — which is deeply intertwined with the West Bank’s colonial history — is highly complex. To this day, the contested territory is governed by a hodgepodge of Ottoman, British Mandate, and Jordanian laws, in addition to Israeli military orders.

Following the Six-Day War, a defensive conflict fought in response to Arab nations threatening the Jewish state’s very existence, the country found itself in control of large swaths of land previously held by, among others, Jordan and Syria. But while the government headed by Prime Minister Menachem Begin supported the application of Israeli law to eastern Jerusalem in 1980 and the Golan Heights in 1981, Jerusalem refrained from applying sovereignty to the West Bank, which Amman had occupied for 19 years.

Instead, the Knesset passed the Judea and Samaria Emergency Regulations, which extended Israeli extraterritorial jurisdiction to citizens in the area while keeping pre-1967 laws in place. Jerusalem has argued that, by respecting the status quo, it is acting in compliance with the international legal obligations it has undertaken to fulfill.

Accordingly, residents of Jewish communities in the West Bank are entitled to virtually all of the same rights that other Israeli citizens enjoy even though — legally speaking — they live outside the country’s sovereign territory. They can apply for national ID cards, are insured under the National Insurance Law, and receive healthcare through the publicly-funded Health Maintenance Organizations. Israel also imposes taxes on West Bank localities, and residents are called up for service in the Israel Defense Forces (IDF).

Meanwhile, Palestinians remain subject to Ottoman, British, and Jordanian legislation, as well as to the jurisdiction of Israeli military courts, in accordance with international humanitarian law. They moreover have access to the Supreme Court in Jerusalem, which has often ruled in favor of Palestinian claims. Additionally, the 1990s agreements between Israel and the Palestinians called for the establishment of independent Palestinian Authority (PA) courts, granting them authority over virtually all Palestinians in the West Bank.

Israeli Attorney-general (and later Supreme Court Justice) Elyakim Rubinstein clarified the government’s position in a 1999 brief: “Israelis have a different law [than Palestinians] that applies to their legal person, [but] this does not affect territorial jurisdiction, as Israel has never annexed the territory and Israel has never applied law outside the official boundaries.”

Or, as international legal scholar Eugene Kontorovich once put it: “The extraterritorial application of law does not amount to annexation, otherwise the US would have annexed [the] whole world.”

As such, Israel did not create what critics and the media have described as an “unfair system” (The Washington Post). Rather, successive governments in Jerusalem across the political spectrum primarily preserved the state of affairs that had existed during Jordan’s occupation, while at the same time extending basic social and political rights to Israeli citizens living in a disputed territory.

The legal complexity is reflected in the reality of West Bank life for all its residents, which is a stark contrast to the black and white depictions regularly peddled by journalists. For example, Israeli residents of Judea and Samaria can technically still be tried in military tribunals, and PA residents — in some cases — are protected under Israeli law. Case in point: in 2007, the High Court of Justice ruled that contracts of Palestinians employed by Israelis can be governed by Israeli labor law, thus granting many workers better protections.

In 2016, the Jerusalem Regional Labor Court decided that a restaurant in the Samaria city of Ariel, run by then-Likud lawmaker Oren Hazan, failed to provide three Palestinian employees with the legally required Israeli benefits. Hazan’s restaurant was ordered to pay Ayman Othman, Fawaz Kanaan, and Jihad Kanaan 300,000 shekels ($87,000).

Another element conspicuously absent from the standard media coverage is that, since the Oslo Accords were signed, most West Bank Palestinians have lived under Palestinian Authority (PA) rule. In the agreements forged between Israel and the Palestine Liberation Organization, the newly created PA was given control over Areas A and B, home to 90% of the West Bank Arab population. Meanwhile, Israel was only to retain complete control over Area C, which contains all Jewish West Bank communities.

And while The New York Times, Washington Post, and Associated Press blithely allow their readers to conclude that Israel’s presence in the West Bank is tantamount to apartheid, it is the Palestinian Authority that is in fact perpetrating actual racism in territories under its control.

In 1997, the Israeli daily Yedioth Ahronoth quoted PA leader Yasser Arafat as saying, “our law is a Jordanian law that we inherited … and sets the death penalty for those who sell land to Israelis.” The Ramallah-based PA has also passed numerous laws of its own, including a law that incentivizes the murder of Israeli Jews.

Furthermore, in their reporting on the Judea and Samaria regulations, every single news outlet omitted that parts of the Western-backed Oslo Accords relating to mutual legal assistance between Jerusalem and Ramallah were in fact implemented in the very same emergency statute.

According to Colonel (Res.) Dr. Liron A. Libman, the former head of the IDF’s International Law Department, a failure to extend the bill will likely have far-reaching consequences for Israelis and Palestinians alike. For example, Israelis seeking to sue Palestinians for damages resulting from road accidents may find themselves in a serious legal quagmire.

Similarly, Arabs who want Israeli courts to recognize inheritance rulings issued by PA courts could be adversely affected by a failure to renew the emergency regulations.

Finally, the regulations provide a legal foundation for Israel to detain convicted Palestinian terrorists and security prisoners from the West Bank in prison, in accordance with the Oslo Accords. “When regulations expire at the end of the month, there will be a question as to what exactly is the legal basis for holding these prisoners in Israeli prisons,” legal expert Lt. Col. (res.) Maurice Hirsch said on June 8.

While the Judea and Samaria Regulations are expected to stay in place — the bill will be brought for another vote in the Knesset, and Interior Minister Ayelet Shaked has announced that the civilian government would continue to serve Israelis in the territory — the damage to Israel’s public image is already done.

Once again, Israel has been falsely tarred as an apartheid state on the world stage.

The author is a contributor to HonestReporting, a Jerusalem-based media watchdog with a focus on antisemitism and anti-Israel bias — where a version of this article first appeared.

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