The Dramatic Consequences of Not Renewing the Judea and Samaria Law

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The expiration of the Judea and Samaria Law will have dramatic consequences for both Israelis and Palestinians. Is there a way to bypass this expiration? Will Israelis residing in the territories be able to vote in the elections? What else is at risk?

Flash 90

Monday, the Knesset voted down the government’s proposal to renew the application of the Law to Extend the Emergency Regulations (Judea and Samaria—Jurisdiction and Legal Aid, 5727-1967), known as the “Judea and Samaria Law” or the “Judea and Samaria Regulations.” At the end of the month, if the government cannot pass its renewal in the Knesset, the law will expire. What would be the consequences?

Will the law really be automatically renewed if the Knesset is dissolved?

First, it is worth responding to what some members of the opposition have stated—that if the Knesset is dissolved, the existing law will be extended “automatically” until three months after the swearing in of the next Knesset. This is true, though in order for this to occur, the decision to dissolve the Knesset must be passed before the law expires at the end of the month, or alternatively, the current Knesset will need to conclude its term within less than two months after the expiration of the law. This is an extremely tight schedule.

What arrangements will be annulled if the law expires?

If the law does expire, then the many arrangements it stipulates will be annulled. These include arrangements in both criminal law and civil law. In criminal law, the arrangements are designed to coordinate between the different legal systems in Israel and in the territories; for example, to enable Israelis to be tried in Israeli courts for offenses under Israeli law that were committed in the territories; or to permit the imprisonment in jails located inside Israel of Palestinians sentenced by the military courts in the territories. Regarding civil law, through the focus is mainly on arrangements that apply Israeli law on an individual basis to Israelis living in the territories, it is important to note that the civil arrangements do not relate solely to these individuals, nor are they only for their benefit.

Thus, for example, the law regulates legal aid with the Palestinian Authority, which on the face of it enables the delivering of subpoenas to Israeli courts to Palestinians residing in Areas A and B of the territories. Israelis seeking to sue Palestinians for damages resulting from road accidents or terror attacks may now find themselves at a dead end. Israelis seeking to execute court rulings made in their favor against Israelis residing in the territories, will suffer from the expiration of the powers granted by the law to the Enforcement Authority , which allow it to act against Israeli debtors in the territories in order to enforce Israeli judgements. Likewise, Arab citizens of Israel who want Israeli courts to recognize inheritance rulings issued by Palestinian courts are also likely to be negatively affected.

Regarding Israelis living in the territories, the Judea and Samaria Law stipulates that they are to be considered residents of Israel for the purposes of a series of laws, despite the fact that legally speaking, they live outside the state’s territory. The expiration of the law will omit the possibility of forcing them to fulfill their obligations or of extending them the rights granted to “residents” under Israeli law. Each of these legal arrangements is different, and here we cannot present a detailed analysis of them all. Instead, just a few examples are provided below, as well as a brief examination of the limitations on finding some kind of "bypass" in order to solve the problem.

One of the laws applied on an individual basis to Israelis by the Judea and Samaria Law, is the Population Registry Law, which stipulate that only Israeli residents are entitled to receive an identity card. This means that as soon as Israelis living in the territories are no longer considered “Israeli residents” for the purposes of the law, it will not be possible to issue them identity cards.

Will Israelis who live in the territories be able to vote in the elections?

If new Knesset elections are held soon, the situation would seem to be less problematic, because the ability of Israelis residing in the territories to vote in Knesset elections is not granted by the Judea and Samaria Law, but rather-directly by the Knesset Elections Law. In 1970, it was stipulated that voters whose place of residence as listed in the population registry is in an area controlled by the IDF will be included in the voting registry. In 1992, a further amendment was made enabling these Israelis to vote in their place of residence, that is, in the territories. This is not a temporary law, and on the face of things would not be affected by the expiration of the Judea and Samaria Law. However, on a practical level, serious problems would arise, because the population registry itself, as explained above, could not be updated with new details of Israelis living in the territories; thus, anyone who moved there after the law expired, or who has not yet updated their address in the territories in the population registry, would not be able to register their address and vote in their place of residence.

The situation regarding state health insurance is complicated: On the one hand, a “resident” is defined by the State Health Insurance Law itself to include Israelis living in the territories (referring to the definition provided in the National Insurance Law). This is a permanent and separate law, which will be unaffected by the expiration of the Judea and Samaria Law. Accordingly, it ensures that Israelis residing in the territories will continue to be legally entitled to health services. On the other hand, the State Health Insurance Law stipulates that health services are to be given “in Israel.” A clause ruling that health services for Israelis should also be provided in the territories, under arrangements to be set by the Minister of Health, was included in the Judea and Samaria Law, and will expire if and when the law itself expires. As a result, it is possible that there will be no legal basis requiring health funds (Kuppot Hollim) in Israel to provide Israelis living in the territories with services close to their place of residence.

Registration with the Israel Bar Association is likely to be difficult: An Israeli living in the territories who completes his or her law studies and internship, passes the bar exams, and wishes to register with the Israel Bar Association, is likely to face difficulties. The Bar Association Law allows only Israeli residents to become members and to practice law in Israel. If the regulations in the Judea and Samaria Law expire which rule that Israelis living in the territories are to be considered “residents” for the purposes of the Bar Association Law, then the individual in this example will not be able to practice law.

Another result of the expiration of the law would be that courts in Israel would not have jurisdiction to issue adoption orders to Israelis living in the territories who wish to adopt a child.

Is it possible to find an alternative way to provide the powers which would be annulled when the law expires?

Only in a very partial manner. Under international law, the military commander of Judea and Samaria holds the main legislative power in the area. To the extent required to maintain public order and safety, he can issue legal decrees. In effect, in the context of law enforcement, the current decrees of the military commander, which grant powers of arrest and law enforcement to police officers and soldiers in the territory of Judea and Samaria, apply equally to Israelis. From a legal perspective, there is no reason why Israelis should not be investigated, arrested, and tried by the military courts in the territories, though this would present many substantive, procedural, and logistical problems. For example, without the Judea and Samaria Law, those Israelis would also have to serve their sentences in prisons in the territories. Similarly, there are offenses in Israel that have no equivalent in the territories, and for which those Israelis would not be able to answer before a military court.

However, the military commander does not have the authority to force or to empower Israeli authorities in Israel to extend rights or to enforce obligations vis-à-vis Israeli citizens. He cannot issue an order to the Israel Population Registry Administration indicating that it should act in a certain way, nor to an Israeli court, indicating that it should have jurisdiction over a particular case.

Finally, it would appear that the government cannot issue new emergency regulations to solve the problems deriving from the Knesset’s refusal to renew those same emergency regulations.

Thus, in closing, it would not be an exaggeration to say that if the Judea and Samaria law were to expire, this would have dramatic consequences across many areas of life, for both Israelis and Palestinians, in the territories and outside them.