Last week, Israeli Justice Minister Ayelet Shaked promulgated a new regulation that could effectively close the country’s labor courts to Palestinian workers from the West Bank.
Some 60,000 Palestinians with West Bank residency work for Israeli businesses on both sides of the Green Line, often in construction, agriculture, and service jobs. Under the Israeli Supreme Court’s landmark 2007 Workers’ Hotline decision, Palestinians employed by Israeli businesses in West Bank settlements are entitled to the protection of Israeli labor law unless otherwise stated in their employment contracts.
Under the new regulation, however, they stand little chance of actually pursuing those rights: in order to bring an action against their employer in Israel’s Labor Courts, plaintiffs will be required to pay a deposit up front (in an amount to be determined by the judge) if they do not have residency in Israel. As pointed out in a letter of protest by Adalah Attorney Sawsan Zaher, the new rule essentially targets Palestinians with West Bank IDs rather than foreign workers from outside Israel/Palestine. This is because the regulation exempts citizens of countries that have signed the 1954 Hague Convention on Civil Procedure (such as Romania, a major supplier of labor to Israel) and also waives the surety requirement if plaintiffs have assets in Israel from which defendants could recover legal fees if they prevail — likely a reference to bank accounts in the country held by many foreign workers. This regulation in effect permits the further exploitation of Palestinian workers, as it makes the pursuit of any claims against Israeli employees too expensive to pursue in court.
Aside from raising serious human rights and labor rights concerns, the regulation needs to be understood as part of the larger politics around Israel’s “creeping annexation” of the West Bank. As things stand, employers can circumvent the 2007 Supreme Court ruling without great difficulty, as this paper explains. But this could change if Shaked’s Jewish Home party gets its wish and convinces the Knesset to apply more and more Israeli domestic law to “Area C,” the 61% of the West Bank that remains under direct Israeli occupation and where settlements for Israeli Jews are located.
The push for annexation raises the classic dilemma of how to balance a formal commitment to equality with a colonial regime: if one extends domestic Israeli law to parts of the territories, do Palestinians enjoy the benefits of those laws or not? The ideological desire to expand the Jewish homeland’s formal boundaries (even if only recognized by Israel and not by the international community, such as in East Jerusalem and the Golan Heights) is in tension with the economic interests of Israeli capital, which relies on exploiting cheap Palestinian labor. This issue goes all the way back to the early years of the Zionist movement and the debates over “Hebrew labor.”
The new regulation promises a way for Israel to have its cake and eat it too: if Israel ends up formally annexing Area C, Palestinians working in the settlements will likely be covered by Israeli labor law even more than they are at the moment. But thanks to Shaked’s regulation, those Palestinians’ access to justice will be severely impeded anyway by the requirement to pay a surety up front, which will come as a relief to Israeli businesses. In other words, there will be jurisdiction without justice: Palestinians will be discriminated against not for being Palestinian per se, but because they are legally considered “foreign residents” in their own homeland — even when they live next door to their places of employment in areas ruled by the Palestinian Authority.
The Bantustans in apartheid South Africa were based on this same logic of dispossession: natives were barred from living alongside settlers, so by definition any natives working for settlers were deemed “migrants” without any solid legal entitlements or rights. This logic is also integral to how the Nakba continues to operate: through combining different legal regimes and statuses to perpetuate a system of entrenching the Judaization of land at the expense of Palestinians.