Ep03: Separate & Unequal: Israel’s Discriminatory Dual Legal System

 

Ep03: Separate & Unequal: Israel’s Discriminatory Dual Legal System

Palestinians throughout historic Palestine are living under an Apartheid regime, with varying degrees of intensity. Palestinians in Israel are effectively denationalized, and those living in the Gaza Strip, since 2007, have lived under a brutal, not to mention illegal, siege and blockade. Israel illegally annexed East Jerusalem, in contravention law, and therefore applies Israeli law to its “residents,” a system fraught with its own institutional discrimination. In the West Bank, however, a more intricate form of division and domination exists.

Two unequal national communities live in the West Bank: Approximately 3 million Palestinians, and about 440,000 (excluding East Jerusalem) Israeli Jewish settlers. The former are subject to military laws and courts, and the latter are subject to Israeli civil laws, thereby structurally discriminating based on nationality. Israel’s High Court of Justice (HCJ) enshrined this separation by characterizing illegal settlements on the West Bank as “Israel enclaves,” and therefore logically applying Israeli laws toward what the High Court considers extensions of the Israeli state. This created a hierarchy of rights for two peoples living in the same land.

This dual legal system was established through two processes: establishing military rule immediately after the Naksa (June 1967 war), and applying Israeli law on a personal and extraterritorial, as opposed to territorial, basis, thereby attempting to circumvent international law’s prohibition on annexation. Not only does this separation exist in military orders and regulations, but also through court rulings. 

As a settler-colonial regime, Israel’s dual legal system is logically placed. Settler-colonial projects are predominantly about the “deterritorialization of indigenous outsiders.” As a juridical phenomenon, the system entails the displacement and non-recognition of indigenous laws, which is replaced by settler laws. This in turn whitewashes the violent origins of settler-colonialism. 

The legal basis for Israel’s military rule in the West Bank derives from Emergency Regulations enacted by the British Mandatory authorities in Palestine in 1945, designed to subjugate the indigenous Palestinians and repress resistance to British colonial rule. Israel applies these regulations to the Palestinians that remained in the 1948 territories after its establishment. In 1967, the logic of this policy was transferred to the Occupied Palestinian Territories (OPT), namely the West Bank, including East Jerusalem, and Gaza.

As of now, two military courts operate in the West Bank, the Ofer Court and Salem Court, both in closed military zones. Military court reports show that the Palestinian conviction rate is 99% for those charged. Moreover, military court charges are divided into 5 categories: 1) “Hostile Terrorist Activity,” 2) Disturbance of public order, 3) classic criminal offenses, 4) illegal entry into Israel, and 5) traffic violations. These categories are sweeping in scope, and criminalize basic political activities and organizing. 

Palestinians experience a multitude of inequities throughout every procedural proceeding, from arrest, detention, interrogation, trial, and sentencing. Military courts impose the legal jurisdiction of colonial rule on Palestinian civilians. By trying Palestinians in military courts, Israel denies them their right to civil life. 

An extreme example of this inequity is children. Israel is the only regime in the world that tries children in military courts. A 2013 report from the United Nations Convention on the Rights of the Child (UNICEF) concluded that “ill-treatment of Palestinian children in the Israeli military detention system appears to be widespread, systematic and instituitionalized.” Under Israeli criminal law, a “minor” who’s not yet 18. However, under military legislation, until 2011, minors were categorized as “child” under the age of 12, “juvenile” between ages 12 and 14, and “young adult,” between ages 14 and 16. Therefore, if a Palestinian is over 16, he/she is an adult. In 2011, Israel modified this categorization by characterizing as minors those that have not yet reached 18 but only for adjudication proceedings, meaning that the age of majority is still over the age of 16 for purposes of arrest, detention, and interrogation. 

Since 1967, Israel has imposed over 1,800 military orders in the OPT, enforced by a military court system that lacks fundamental fair trial guarantees. Even the pretense of impartiality is nonexistent given that military courts are exclusively run by military personnel and active-duty soldiers.  Under this military court system, military orders take precedence over Israeli civil law and more importantly, international law.