As discussed in the previous post, Israel has long been accused of partially or incrementally annexing territories seized through war and subject to settlement, especially in the West Bank and in the Golan Heights.

Below is a breakdown of the different instruments by which Israel has applied parts of its domestic legal system to the territories occupied in 1967, with the ultimate effect of entrenching the settlements and creating a segregated regime of unequal laws for Palestinians and Israelis.

 

Civil Court Jurisdiction

Israel’s Supreme Court exercises jurisdiction from the river to the sea, regardless of the status of the territory, in any case involving Israelis or the Israeli government.

When Israel seized control of the West Bank, Gaza Strip, Golan Heights, and Sinai peninsula in 1967, it found itself ruling in a situation of many overlapping legal systems: Ottoman, British, Jordanian, Egyptian, Syrian (some of those same Ottoman and British laws continued to be in force inside Israel as well). But as an occupying power, the army commanders exercised supreme authority through promulgating military orders. Military orders remain the supreme law for governing Palestinians in the West Bank (those living under the jurisdiction of the Palestinian Authority are also governed by its laws, which are subordinate to Israeli military orders).

Arguably the first step toward legal incorporation was the Israeli Supreme Court’s exercise of jurisdiction in the territories. It is not self-evident that a country’s civilian judiciary should participate in the governance of foreign territories under military control. Many states have resisted such an outcome: for example, this doctrinal question has vexed the U.S. Supreme Court for well over a century. But in the Israeli case, the extension of Supreme Court jurisdiction to the territories occurred with little controversy. As David Kretzmer noted in his seminal study of the Court’s relationship with the territories, the first such case did not even mention a basis for jurisdiction. It was not until six years later, in the Abu Hilu case — which applied to the occupied Sinai — that the Court bothered to find a rationale for jurisdiction. The Court cited a provision of the 1957 Courts Law that provides for jurisdiction over public servants in the exercise of their duties and decided to treat the clause as if it had extraterritorial application.

The Supreme Court’s exercise of jurisdiction over the territories has often been celebrated as a progressive step that allowed Palestinians access to some means to moderate the army’s actions. Putting aside the long debate over whether the Court has done more to curb human rights abuses or rubber-stamp them, what is striking is the relative lack of controversy over whether to exercise jurisdiction at all. Whatever the reasons for this, it set the stage for pulling the territories into Israel’s civil legal system and was compatible with the intention to settle large numbers of Israeli citizens in the new territories.

 

People Over Land: “Enclave” Law

For decades, a significant bulk of Israeli domestic law — with land and planning law being a major stand-out, given its politically sensitive nature — has applied to the 1967 territories (aside from Jerusalem and the Golan Heights, see below), through a variety of means. These include:

  • By military order: There are military orders setting up local governmental bodies in the settlement areas (including special courts) and that apply many Israeli domestic laws (and are also automatically updated if those laws are amended).
  • By legislative action: The Knesset has decided to extend a number of statutes to Israelis in the territories, including many criminal laws and laws pertaining to tax and insurance. It has also enacted statutes with provisions specifically including West Bank settlers, as well as statutes that apply extraterritorially to Israelis no matter where they are in the world.
  • By judicial decision: In some cases, Israeli courts have decided to apply domestic law to Israelis in the territories to resolve ambiguities or fill perceived gaps.
  • By contract: Israelis in the territories often make agreements that include clauses specifying that any disputes should be resolved according to Israeli law.

The combined effect of all these measures has been a regime of what professor, lawyer, and politician Amnon Rubinstein has called “enclave law,” which allows Israeli citizens to move across the Green Line without noticing significant changes to their legal status, even as the occupied Palestinian population continues to live under direct military rule. Because these laws mostly apply to people rather than territory, Israel preserves the fiction that it is not engaged in annexation by arguing that if the settlers were to be evacuated there would no longer be any basis to apply these laws in the territories.

Notably, the enclaves approach received external legitimization in the Oslo Accords, which explicitly exempted Israeli citizens wherever they are in the occupied territories from the jurisdiction of the Palestinian Authority.

 

Land Over People: Jerusalem and the Golan Heights

The most dramatic legal incorporation of the 1967 territories has been in Jerusalem and the Golan Heights, where Israeli civil law and administration fully apply. But indigenous non-Jews in these areas are nevertheless considered only permanent residents rather than Israeli citizens: they have greater mobility and labor rights than the rest of the occupied population, but they cannot vote in Knesset elections. Israel allows Arab residents of Jerusalem and the Golan to apply for Israeli citizenship, but few opt to do so out of a desire not to legitimize the annexations — moreover, recent reports suggest that the majority of such applications from Jerusalemites are rejected by the state in any event. So even here, annexation — a word that Israel has studiously avoided using — is not complete: it includes territory but excludes the indigenous population from equal citizenship.

The international community has condemned these annexations as unlawful acquisitions of territory by force. Nevertheless, they have become normalized over the decades. For example, when Israelis speak of settlements or numbers of settlers in the West Bank, they tend to exclude Jerusalem as a matter of course.

Israel’s incorporation of occupied Jerusalem was swift but calibrated at first to attenuate international criticism. Shortly after the 1967 war, the Knesset empowered the government to extend Israeli law, jurisdiction, and administration anywhere in the former British Mandate of Palestine (“any area of Eretz Israel”) on its own initiative. The government concurrently redefined the city’s municipal boundaries to include not only occupied east Jerusalem but a larger surrounding area and decided to apply Israeli law in those areas. These steps were portrayed as mere administrative integration measures rather than outright annexation. In 1980, the Knesset dropped this pretense altogether by enacting the Basic Law: Jerusalem, which declared all of Jerusalem — including the occupied areas — as the “united and complete” capital of Israel.

Annexed areas of Jerusalem (source: PASSIA).

In contrast, Israel maintained a military regime in the Golan Heights after 1967, akin to the West Bank (outside Jerusalem), Gaza, and the Sinai peninsula. And because the Golan was never part of the British Mandate of Palestine, the full extension of Israeli civil law to the territory required special legislative action. In 1981, the Knesset accordingly enacted the Golan Heights Law, which extended Israel’s civil “law, jurisdiction, and administration” to the area.

The Golan and Jerusalem statutes were in many ways shows of defiance vis-à-vis the international community as well compensatory moves taken in the shadow of peace negotiations with Egypt, which would entail withdrawal and settler evacuation from the Sinai.

 

Recent Proposals: Inequality in the Name of “Equalization”

In recent years, there have been various proposals for even further extension of Israeli civil law into the territories. These initiatives have sought to apply Israeli civil law to Area C — the 61% of the West Bank that contains all the settlements as well as 300,000 Palestinians still living under direct occupation — on a territorial rather than a personal basis. These proposals do not explicitly address the legal status of these Palestinians, if they would be offered Israeli citizenship, granted permanent residency status, or be placed in a new legal category.

Although the sponsors of these measures make no secret of their ideological commitment to annexation, they have chosen to frame their bills in terms of “equalization” — that is, ensuring that all settlers in the 1967 territories receive the same rights as Israelis inside the Green Line. To dramatize their case, they have highlighted some discrepancies for Israelis across the Green Line, especially labor protections for pregnant workers. Such justifications, however, seem unconvincing since the ad hoc approach that has characterized enclave law over the past four decades would seem more than adequate to address perceived gaps.

Under the “Norms Bill” introduced in 2014, any new Knesset legislation would have to be promulgated in Area C by the military commander within 45 days. This initiative came in the form of a proposed amendment to the Law and Administration Ordinance — the same law that was amended to enable the application of Israeli civil law and administration to Jerusalem. The bill was endorsed by the Knesset Legislative Committee over the objections of the Attorney General, who argued it would improperly fetter the military’s discretion. Ultimately it was not passed during the Knesset’s last session.

In May 2016, Justice Minister Ayelet Shaked announced plans to apply Israeli civil law to the West Bank settlements within a year. The mechanism for this would be unclear. Shaked referred to a committee of experts from the justice and defense ministries who would work together and review whether laws should apply to Area C on their own terms or by military order. In other words, Shaked appears to be proposing a centralization and formalization of the “enclave law” approach that has been ongoing for the past few decades.