A staff writer on behalf of Adalah: The Legal Center for Arab Minority Rights in Israel and the Center for Palestine Studies, Columbia University spoke with Professor Michael Karayanni of Hebrew University’s Law Faculty about his recent book, Conflicts in a Conflict: A Conflict of Laws Case Study of Israel and the Palestinian Territories (Oxford University Press, 2014).
The book outlines the jurisdictional designs of the territories Israel occupied in the 1967 Six-Day War, with special emphasis on the West Bank and the Gaza Strip, both before and after the Oslo Peace Process. It offers an extensive analysis of the adjudicative jurisdictional capacity of Israeli courts to deal with civil disputes originating in the Palestinian Territories, as well as the status of the Palestinian Authority in Israeli courts. The book discusses how the current choice of law rules and their application have affected the residents of the Palestinian Territories in their daily lives. Finally, the book relates to the standing of judgments originating in the Palestinian Territories when interested parties seek to have the judgments enforced or recognized before Israeli courts.
What are the goals of this book?
The history of the relationship between Israel and the Palestinian territories occupied in 1967 has long been in the shadows. There has been much attention paid to issues of public international law, especially the law of occupation and human rights. We are usually talking about the state’s relationship with individuals, such as in criminal law or constitutional law or administrative law. But all this time, there has also been a whole sphere of interactions and litigation taking place solely between private parties: contract disputes, labor issues, divorce proceedings, and so on. This body of doctrine is broadly known as “private international law” or “conflict of laws” – when you have disputes between private parties that somehow cross national borders, which country’s body of law should apply? The scholarship on the occupation has tended to neglect private international law, and scholarship on private international law has often not treated situations of occupation or settings with territorial conflicts. This book investigates how Israeli courts regulate conflict of laws issues with regard to the territories and to see if they are aligned with the state of Israel’s institutional policy vis-à-vis those territories.
Israeli courts, like those in any country, have developed doctrines for dealing with conflict of laws in cases between private parties that have an international dimension. Those doctrines could have been applied to cases involving the 1967 territories, at least insofar as they have not been annexed by Israel. But if you subject this doctrine to a kind of stress test, put it on a treadmill if you will, to see how it acts or reacts in a situation of territorial conflict, you begin to see things in the law that you would normally not detect. Such an examination reveals that the courts treat conflict of laws issues from the territory in a way that is aligned with the institutional Israeli policy.
The institutional policy was that Israel wanted to dominate the territories but it did not want to take on the full burden of administering the daily lives of the Palestinian population. And indeed this explains much of the conflict of laws doctrine in relation to the territories. Israeli courts have tended to assert jurisdiction over litigation arising from disputes taking place in the 1967 territories between Israeli citizens and local Palestinian residents, as well as between Israeli settlers themselves. It could justify the exercise of jurisdiction on the basis of personal jurisdiction over Israelis or if the nature of the dispute involved land or another object that courts deemed to be of significant interest to Israel.
But after extending their jurisdiction to cases from the territories, Israeli courts needed to filter out cases arising solely between Palestinians. For those cases, Israeli courts maintained that they may have jurisdiction over a certain case but they can choose not to exercise it if another forum is more suitable – the so-called forum non conveniens doctrine. Perhaps the most striking example of this was the Abu Jahla case in the early 1990s, in which a Palestinian resident of the territories sued a Palestinian company in Jerusalem over compensation for an accident that took place in the West Bank. The defendant corporation, the Jerusalem District Electricity Company, was based in territory that Israel treats as under its sole sovereignty and was even forced to register as an Israeli corporation, so one would ordinarily expect the Israeli court to exercise its jurisdiction, especially to emphasize authority over “united Jerusalem.” Yet the court declined to take the case, arguing that a local Palestinian court in the territories would be more appropriate to handle it. We can see here how Israeli courts are able to take in the cases that they want while filtering out those that they don’t, in accordance with the deeper logic of the institutional policy.
This basic approach of ensuring Israeli courts would hear cases involving Israelis without taking on purely intra-Palestinian disputes, has remained largely remained intact since the Oslo Accords.
In your book, you discuss the very interesting special case of Muslim and Christian religious courts in Jerusalem, which are allowed to apply Jordanian law in some circumstances. Why is this the case?
Throughout Israel and the 1967 territories, as well as in Lebanon and Jordan, family law issues are handled by special courts for each religious community. This is part of the Ottoman legacy of the millet system, but each country has its own version of religious law; Shari’a in Israel differs from Shari’a in Jordan, and so on. Unusually, Israeli courts allow Palestinian (i.e. Muslim and Christian) religious courts in Jerusalem to apply Jordanian law if the parties involved are residents of the 1967 territories. This seems very unusual: how can Israel boast of having “united Jerusalem” under its sovereignty while allowing courts in the city to regularly apply foreign law? Israel is ordinarily keen to ensure its legal hold over Jerusalem. It shut down the Orient House in 2001 merely for acting as an informal diplomatic presence of the PLO, without trying to exercise any kind of legal powers.
I believe there are several reasons for this outcome. First, empowering religious courts arguably strengthens communal identities at the expense of Palestinian national identity. Second, allowing religious courts to operate autonomously helps Israel project an image to the outside world that it respects the rights and customs of Palestinians living under occupation. Third, Muslim and Christian religious courts work indirectly to strengthen Israel’s attempts to strengthen its own identity as a Jewish state as a matter of contrast. And finally, most Palestinians see the autonomy of religious courts from Israeli law as something that is in their interests as well.