The bill to extend the validity of regulations that apply Israeli law to Israelis living in Judea and Samaria failed to pass the preliminary Knesset plenum vote Monday - Dr. Libman explains the law's history and its implications
What is the law known as the “Judea and Samaria Law”?
Its full name is the “Law to Extend the Emergency Regulations (Judea and Samaria—Jurisdiction and Legal Aid 5727-1967).”
It was passed 55 years ago, shortly after the Six Day War, initially as a set of emergency regulations instituted by the government. However, regulations of this kind are only temporary, and thus a law was passed to extend their application, and has been renewed since for periods ranging from a year each time up to five years for each renewal.
The aim of the law is to address a highly unusual situation, in which Israel rules over territory to which it does not apply its laws, and thus in effect, there are different legal systems in Israel and in the occupied territories. Indeed, from the perspective of Israeli law, the territories are “abroad,” as it were. At the same time, Israelis and Palestinians move back and forth between the territories and Israel.
What is the purpose of the law?
Initially, there was a need to regulate criminal powers, such as what happens with an Israeli citizen who commits a criminal offense in the territories: Can he or she be tried in a court in Israel? The regulations provide the authority for such a person to be tried in Israel according to Israeli law. Similarly, they allow for a Palestinian who was arrested in Israel for a crime committed in the territories to be sent for trial in a military court in the territories, and also rule that if a resident of the territories receives a prison sentence from a military court in the territories, then they can be transferred to serve this sentence in a prison in Israel.
Over the years, Israeli settlements were established in the territories, creating a situation in which Israeli citizens are resident in the territories (that is, from a legal viewpoint they are residents in areas outside of Israel) while the Israeli legislator wants to treat them as if they are residents of Israel. Thus, the law was expanded to rule that Israelis living in the territories are to be considered as Israeli residents for the purpose of various laws, including both obligations (such as taxes, military service, licensing of various professions such as lawyers and medical professions, and so on) and rights (such as national insurance and state health insurance).
How was the law applied so as to avoid conflict with international law?
The method used by the law is to apply certain laws on a personal basis to Israelis, without applying them to the territory itself—which may conflict with international law. Israel’s official stance is that the territories are a “contested area” until a negotiated resolution to the conflict. In the Oslo Accords, Israel committed to engaging in negotiations over a permanent solution to the conflict, and in the meantime, temporary arrangements were agreed on. Currently, most international experts consider the territories to be “occupied territory” under international law, which means that restrictions apply to how it is administered. The main such restriction is the obligation to maintain public order and safety while respecting existing legislation as much as possible, which in the case of Judea and Samaria means respecting the Jordanian law that was in place prior to the 1967 Six Day War. The application of Israeli law to this area could be seen as a form of annexation and be criticized as a violation of international law. However, states are allowed to apply certain laws to their citizens on an ex-territorial basis, a step that would not in theory be problematic in the same way as applying law to the territory itself.
Yet, as the process of applying Israeli law to Israeli citizens living in the territories grew broader, and so did a separate and complementary process by which the military commander in the territories issues orders applying certain Israeli laws to the jurisdictions of Israeli local authorities in the territories, then there was increasing criticism of the fact that Israel is creating de facto a situation in which two populations living in the same area—Israelis and Palestinians—are subject to different legal systems, to the benefit of the Israelis.
Thus, for example, the periods of arrest that are permitted before the arrested person is brought before a judge, and then until the end of legal proceedings, are longer for military courts (in which Palestinians are tried) than are those applicable to Israeli citizens under Israeli criminal law (though it should be noted that following a petition to the Supreme Court on this issue, the differences between the two were reduced). Similarly, there are different arrangements regarding the trial of minors, as well as differences in labor laws (though in this context as well, the Supreme Court has ruled that in many cases in which Palestinians are employed by Israelis in Israeli settlements, Israeli law applies to their labor contracts).
What arrangements were added to the law after the Oslo Accords?
It should be noted that since the Oslo Accords, the law also regulates legal cooperation between Israel and the Palestinian Authority. For example, it defines the way in which documents issued by Palestinian courts, such as rulings on inheritance, are to be recognized in Israeli courts. This may have particular importance for Arab citizens of Israel, who have relatives and other close ties with Palestinians in the territories.
What are the various implications if the law is not renewed?
The current law will expire at the end of this month (June). If it is not extended before this deadline, then this may cause a large number of problems in daily life, especially for Israelis who live in the territories.
For example, the authority of the courts in Israel to rule on inheritance matters relating to Israelis who live in the territories will expire, unless the assets left behind are in Israeli territory. Similarly, the Execution Office (the state debt-collecting agency) will no longer have powers to enforce rulings by Israeli courts with regard to Israelis living in the territories and their property.
In addition, the law makes it possible for Palestinians who were sentenced to imprisonment by military courts in the territories to serve their sentences in prisons in Israel. If it is not renewed, this will remove the legal basis for the holding of Palestinian prisoners sentenced by military courts in any Israeli prison, with the exception of the Ofer facility, which is located in the territories. This will doubtless cause huge problems for the Israel Prison Service.