Day 7: The Law in These Parts (The crazy intersection, or lack thereof, of Israeli and International Law)

This post is specifically on the Legal Quagmire in Israel (Where International Human Rights Law, Israeli Human Law, and Israeli Criminal Law collide indiscriminately and complexly).

For people like my brother who enjoy a more visual representation (aka, a film), see The Law in These Parts.

Lesson 1/17/14: The Legal Quagmire in Israel

I was exhausted after planting trees in the West Bank with Rabbis for Human Rights. After 12 hours of sleep over three days (blame the grad school apps), three hours of walking, and caffeinating indiscriminately whenever I had free time, the body had apparently reached its limit, as I went home and slept for 12 hours.

Eizeh Yafeh/Mneeh. This was beautiful/right.

After a day of recuperation, we took off for Tel Aviv in the morning to talk about the situation in the West Bank from a law perspective with Emily Schaeffer, a human rights lawyer working with Michael Sfard (think prominent human rights lawyer that works on behalf of Arabs in the state of Israel and the West Bank) and Yesh Din. I already talked a little about the visit, but I found some actual law that is in effect in the present (on top of the Sheikh Jarrah/Settler land-grabbing ones) very interesting, and perhaps you would think the same.

(I will try to make this as less like a textbook as I can... though Courtney, Matt, Ryan, Elana, and Emily may not agree with how similar this law summary is to what they read day to day... or maybe they will think it's nicer... I don't know. I'm not in law school).

I've also listed my reactions to add some footnotes to what is a very dense bit of contradicting legal clauses and facts. Hopefully they'll make more sense with them in there. Know that these are incomplete and pending more information sources, whether that be in conversations with you, other lawyers, or books.


1.   Who Determines the Law in these Parts (Israel/WB/Gaza)? Four branches of law interact when talking about the West Bank: International Human Rights Law (IHRL), Israeli Human Law (IHL-- the law dealing with civilians/humans), the Israeli Criminal Law (ICL), and the International Criminal Court (ICC)

Hasan: Ok. I understand this. Keep going.

2.   Why this is all so freaking complicated: Whenever IHRL or ICC laws are breached by a particular country, the degree to which they need to follow these laws depends on the power level of the country which violated the law (aka, Russia and the USA, even though they have often violated IHRL, often don't get checked on some of their actions because they have many allies that depend on them to get by, and if these allies turned their back on them and charged them against the law, the US and Russia has the luxury of cutting off aid as punishment). So many powers in the world skirt this, claiming the laws "do not take into account the context and history on the ground."

• What's funny about this claim is... context and history is based on who you ask, and then spread around by the body in power. So of course this process can be quite cyclical to the advantage of the country in power.

Hasan: Enter Foucault. Power is always going to come into play wherever you are. Some of this is valid, some of it not. I think this is also a case-by-case basis. Then again, when enough cases accumulate to a particular general trend, I will be more liable to call out case-by-cases. In the case of the US and Russia, I think they should get on board with all this. They're part of the International community, and just because they have the privilege of being powers, it doesn't mean they get a free pass. Lead by example.

3.   Israel isn't one of these large world powers, so why does this matter. By extension, anyone who has a good relationship with these countries in power often get a free-be for this because they can claim, validly or invalidly, that the situation is "context-based" and shouldn't have to follow a law that doesn't cater to the situation at hand (When Israel violates IHRL a lot, this is the reasoning that they use to continue any actions that violate IHRL).

• So, actually, Israel is a world power because they have political sway due to their relationships with larger world powers

Hasan: Yeah. I knew this. Relationships are vital to Israel's existence, but Israel is also vital to Israel's existence. They get some nice leg room in international waters because of the work they're doing and the relationships they have. It's a well known fact. Do I think it's legitimate that they use these relationships as ways to bypass law? No. But I also know that context matters, so Israel should, in turn, utilize the same systems of conversation, appeals, etc. to prove their point instead of dismissing people outright.

This means that Israel needs to add into the legal framework and account some Palestinian voices from the West Bank and Gaza. How can Israel be the voice of Palestinians that Israel, for better (for Israelis) or for worse (for WB/Gazan Palestinians), literally has had power over for decades? Palestinians' voices need to be heard in this "assessment" by Israel, or else there's a key voice missing in this legal (justice?) question.

4.   The West Bank Area A is under Palestinian rule uniformly... but only when Israel has no reason to come in. If Israel does not like what is going on in Area A, they can intervene using the IDF because they are the sovereign body in the West Bank. Essentially what this means is that the IDF is in power in the West Bank directly, and the Israeli government indirectly. In this definition of a sovereign body according to law, the IDF has the following duties:

• To protect all people in the West Bank, Israeli and Arab
• Can utilize and apportion territory, but cannot damage it
• Has the right to enact laws in order to ensure safety and order (in the name of security)
• Questions that get asked about these duties:
• Is an action done by the IDF dealing a proportionate amount of damage to justify the needs?
• Is the IDF doing certain actions for the safety of ALL residents?

Hasan: There is way too much to talk about with regard to the piecemeal that is the West Bank right now. Suffice it to say that the IDF being under varying degree of control in all of these areas effectively maintains security for Israelis in Israel and in Israeli townships (or settlements, depending on your terminology), but that there are significant after-effects that truly inhibit the ability of any person under the IDF's control to move freely, to follow their goals in life, to develop their home community, and (insert another fundamental right to live peacefully and progressively here) due to the FEAR of stepping over this line.

Yes. There are people in the WB that have violent motivations that happen to be Palestinian. I contend that not all of these motivations are on the Palestinian side (see: Settler problems), and as such they should rule the whole area fairly for each people according to context (not saying they don't here. The I government has come out with great publications against destructive settler actions).

But the long and the short is that the West Bank is under Israeli power. Yes, the Palestinian Authority is the day-to-day rulers. But outside of infrastructure and underfunded public services, Israel has the last say on everything in the West Bank. So how fair is it, really, that Palestinians are walled into their homes when only a fraction of their population is committing violent acts? This seems to be a context issue here, but Israel seems to be playing this context, again, without any average Palestinian voices that just live their lives day to day in the West Bank.

And Gaza... is too complicated for this post. Maybe I'll get to it later.

5.   The West Bank Area C (refer to link in #4), as I said before, is where Israelis have full jurisdiction, and cover the complete area of all Israeli settlements in the West Bank (in addition to strategic 'buffer zone' locations that help to ensure security of the current Israeli state... the question often asked from the other side of the equation is: you have to cut the Palestinian's jurisdiction into small discontiguous land parcels in order to maintain security? Doesn't that sound a little bit odd to you?). However, in these places are areas where Bedouin peoples call home. In the often talked about E1, for example, many people that support building Israeli settlements in the West Bank say there is nothing there. On the contrary: there is a sizable population of Bedouins that have been living there for a very long time, and these people are continually evicted from Area C because of the land swaps and grabs as history has rolled on.

Hasan: Well. I also have something to say about this.

I'm working with some of these Bedouins... and because of these decisions, they are displaced and have the following attitude towards Israelis and Jews: BAD. They learned I was Jewish with a Muslim name, and they asked me why I had to be so bad.

Hopefully I can prove them wrong about Jews. Israelis... maybe not. They are not a sizable enough majority to cause a huge stir, and Bedouins are REALLY peace-loving people if you look at their attitude towards others, who do not often defy a large body of law, and who go with the flow of what life gives them (see this creative poem I wrote of my time with a Bedouin for a more creative look at their passive go-with-the-flow lifestyle).

Then again, that's what we thought about the people who made up Hamas and Hezbollah before they became like that. And look where that got us. People still are dying and people are still suffering.

All I'm saying is that why should you anger more people, when everyone on all sides of this equation are already angry at you?

It's an easy answer. Israel is there to protect Israelis first. Then others come after that. The West Bank is enough of a grey area that Israel can simply turn the other way and say "we're protecting Israelis by doing this." Sadly they're also pushing away peaceful people that I know, all of whom fight for their freedom by going to school and enrolling in classes.

6.   The 4th Geneva Convention in 1949: During this convention powers that have occupied land as a result of war are NOT allowed to do the following things: move its population into other territories belonging to other people or force these people out from their territory without compensation (aka, change demographics) nor can they change the legal situation or physical barriers on the ground. 

Something important to note: Israel SIGNED ONTO every document coming out of this convention.

• Thus, any Israeli development across the green line (building of settlements) is illegal by International Human Rights Law, because the action has A) changed demographics on the ground, B) annexed significant portions of land that had previously not been their own, and C) forced people from areas without compensation
• BUT it gets complicated, because the Israeli Ministry of Foreign Affairs says that these statutes don't apply to Israel because the territory is "disputed" as opposed to "another country's."

Hasan: Cool. Israel is held to these laws. But I'm confused why the UN and int'l community doesn't cite this for their actions in the WB/Gaza.

Enter the:

7.  Rome Statute. This was a statute passed in the ICC that changed the above conditions. 

What it says: "you cannot transfer a population directly or indirectly into occupied territories." This essentially nullifies any statement that the Israeli Ministry of Foreign Affairs says with regard to "disputed" territory, as it now defines the IHRL in those terms and not solely into "another's country." All well and good, right?

Wrong:

• Israel didn't sign onto this statute, so therefore they don't see it as applying to them at all.
• In addition, other major powers, such as China, have not
• The United States, when it came out, was under George Bush who did not think that the US should ratify it (remember we were under possession of Afghanistan at the time, and a year later, Iraq). In the process, each nation that signed it and depended on US aid got cut off by the Bush administration. So, therefore, the US continually debates their ratification to this statute. So far they have not officially done so, but some of the original aid recipients who had been cut off started to receive aid from the US once again.
• When the case was taken to the Supreme Court that the settlements violated IHRL, it got denied because the Supreme Court said "it didn't have the authority to say whether this situation was legal or illegal."
• Another thing is that all legal issues from the WB and Gaza are taken directly to the Supreme Court, and it only has one shot to pass (no appeal). So if it doesn't pass, you cannot bring back the same exact case or else it'll be thrown away.
• This is the classic IHRL v. IHL conundrum that completely derails any clear understanding of the "legality of the settlements"

Hasan's Assessment: Ah, ok. This is why they can do what they do.

Israel doesn't want to sign onto this because it explicitly will undermine the power they have in the West Bank. Maintaining security is great. But you also must understand the implications of how you seem to the international community when you defy its jurisdiction: selfish, unaware, closed, and inhumane. Israel needs to answer to this statute right now in a less demanding manner. I'm not advocating for a full on signature or anything, but perhaps a new creation of this 

And the USA?... Come on. You guys are the heads of the UN. Whatever you say goes. This is the problem: people are not getting the ability to live to their potential and motivations. You need to address this USA, and you need to be a country that takes a stand for justice, which I think is how you like to brand yourself. Right?

8.   Law of Eminent Domain This law actually originates from the Ottoman Era, and is probably one of THE MOST complex and difficult legal dilemmas in the settlement/wall situation in the West Bank.

What it says: if the state needs to take an action/create an amenity that impacts the land for the "good of the people in the land it rules," it can do so. As a corollary, the state makes this amenity public, and it must compensate the people living in areas that the state affected.

• Why is this a very fishy situation?: 
• Well for all you intuitive folks who understand the current settlement situation, Israel builds settlements ONLY for Jewish residents, creates many roads ONLY for these Jews,, and runs buses ONLY for these Jews as well.
• The separation wall/security fence is not able to be proven in these more general terms, because an argument can be made for it to be there for the safety and security of all citizens, Israeli/Arab/Palestinian
• Thus, the courts take these cases on a case-by-case basis to see what to do... more on this later.
• In addition, these same Jewish residents have Israeli citizenship, while Arabs in all of the surrounding areas do not have Israeli citizenship. The trouble with this is that Israeli citizens are easily able to go into Israel and any Arabs who do not have this citizenship cannot (or must have a VERY convincing argument why, and must stay at the border for about 2 hours on average while this process goes through, regardless of the reason, i.e. medical emergency, seeing family, sometimes work permit if the day is particularly bad)
• A member of our group eavesdropped on a person taking an Arab bus from Ramallah to Nablus: "This whole checkpoint thing is stupid. I am an Arab, but all I want to go to Tel Aviv and shop. I'm even SUPPORTING their economy while I do this. I don't care about killing the state of Israel. I just want to go get some shoes."
• On the flip side, there are some serious demographic (what happens when Arabs come to settle in Israel) and security (there are definitely those that would pass through a checkpoint with violent intent)
• On the flip flip side.... there are serious demographic and security issues to Arabs in Palestine who are witnessing violence by Jewish settlers that go completely unprotected by the IDF; AND the crimes by violent Arabs have an origin: continued oppression of their rights as a people since Israel came into existence in 1948 (which isn't all Israel's fault, but that's when it started).
• A final fish to the frying pan is that there have been many cases won on behalf of Palestinians who have either not received compensation or have complicated their basic livelihood because of land taken for "state use." In this case, the Israeli court, almost continually, have ruled on BEHALF OF THE PALESTINIANS because the law checks out.
• However, it is not always guaranteed that compensation or removal are awarded. Here are the three things that happen:
• The state intervention is removed. Done.
• The state comes up with a reason to keep the change they made (aka, that it benefits the livelihood of people in the WB, which almost always means settlers)
• The state delays removal of the change, sometimes because of "natural delays between legal action and actual action," "they don't have enough money in the budget" (but, conversely, they do have enough in the budget to keep putting up the wall in places that may compromise P livelihoods in the future...), or they "do it intentionally so that they can come up with a reason to keep the change in road/checkpoint/settlement/wall."

Hasan: This type of unilateral discrimination between two people who are supposedly "sharing a land" and "being protected/taken care of" by the ruling power (the Israeli Defense Force) is in direct violation of the 

You would think this would be it.

But there's more.

9.   Int'l C Court vs. Israeli C Law. Criminal law in Israel is also complex. Like seriously. Here's my attempt:

What the ICC says: When a person commits a crime in any occupied territory, detainment must occur in the criminal's home environment so that they have access to 1) their family, 2) their lawyer, and 3) familiarity/amenities/etc. in their home culture. They must also be judged by the "occupying" country's court system.

What ICL does: Yeah, we don't like the ICC understanding of our situation. So instead we're going to do this by de facto mode: 1) detain a person who commits a crime in Gaza or the West Bank in jails within Israel, 2) have the criminal judged by courts in Palestine (which are under the auspices of the Israeli Defense Force, aka the military), and 3) offer them legal representation from Israel as would an Israeli in detainment.

• Why this is acceptable: Israel claims that the territories are disputed, not occupied, and because they did not sign the Rome Statute, they align to this story and legitimize their actions according to a case-by-case ICL ruling rather than the top-down ICC ruling. They also want to see these things on a case-by-case basis 
• Why this is problematic: Palestinians don't get direct access to their lawyer, and often the lawyer is Israeli (I don't say this as if it is a bad thing-- Michael Sfard and company work with the detained P.'s, and they are more able to help them understand their rights given their context. There are other Israeli lawyers that do this type of work too. The point I'm making is that they are put in the hands of a legal system that is not familiar and it requires a great deal of trust in a body that some convicted P.'s would never trust), their families are not around and therefore their support network is undermined, and they are in Israeli soil, where they have no citizenship rights. Thus, there are MANY cases of P.'s that are detained being tortured, threatened, etc. because of these three fundamental things. Check out PCATI, which works to end torture for Israelis and Palestinians (and all others) that are in detainment for more information on this.

Hasan: I am so clueless right now about what I think. This move to do everything in Israel save the IDF judgment is for the benefit of the security of Israelis (and so jailbreaks do not happen, etc.). BUT it also violates a criminal's right to fair trial, which is a universal constant, which I disagree with. AND it also doesn't take into account the countless number of Palestinians that are jailed unjustly.

Ja hey. I'm in conflict with the conflict.

10. Freedom of Expression in the Territories: 

• According to law, you cannot engage in a political gathering that consists of 10+ people. Israel therefore has the right to disband any of these gatherings. This right is enacted by the military, and because of this, Israel can respond in any way necessary (aka violently)
• Israel can at any time revoke your citizenship (which is EXTREMELY hard to renew if you are not Jewish or have Muslim lineage), deport any person from Palestine, Jerusalem, or Israel that they see as a "problem" politically. This means you can be Jewish, Israeli, Palestinian, Armenian, a Jerusalem resident (aka Palestinian without Israeli citizenship), Christian, Muslim; whatever. If you cause a disturbance that Israel does not like, then you can be deported.
• THIS BREAKS DOWN ONLY IN ONE CONDITION: If you are Jewish and you say the following words: "I am planning to make Aliyah and add to Israeli society." In this situation, you will still go to court and be tried, but the Israeli authorities will do everything in their power to keep you in the country and keep you to this word of yours.
• The implication here is that any non-Jewish folk can be deported and not have a bail unless they win a convincing case in court.

Hasan: I am Jewish with Muslim lineage who wants to do peace work on the ground between populations, which means sometimes I'll be perceived as Arab until I prove to people that my mom is Jewish and I can recite key words of Jewish prayers... So this proves really complicated for me, and it shows, in my telling of my own identity, how a person can be pieced apart according to their identity and their perceived actions, when all of you know that I wouldn't commit to an action that is violent or existentially questionable for anyone.

Or at least I hope you all know that. If you don't, you should definitely know that right now.

11. The Security Fence/Wall: I'll cover this in my Ramallah entry. It's long and I don't feel like getting into it right now. Suffice it to say the claims on all sides are VERY DUBIOUS legally.

Very dubious.

And.... remember all the above was from a lawyer who studies the intersection of all of the law that impacts any cases coming from the West Bank or Gaza. She represents mostly Palestinian clients, because Israeli clients are mostly covered by Israeli law, as you can tell. 

She argues that looking at this framework is useful, and it will help solve problems across the board.

But, to a layman, it is REALLY difficult to represent and argue on behalf of Palestinian clients unless you really really know the law. The implication she was getting at is that you don't have to worry as much if you are an Israeli. I'm pretty sure she's correct, because though each thing depends on the context, you look at each case-by-case and see that Palestinians living in the WB have significant borders to their legal processes that Israeli citizens (Jews, Arabs, etc.) just don't have to even consider.

Power is key here. Israel has a lot of power over Palestinian lives in the West Bank. It's true--Palestinians have the right to engage their lives in the way they see fit on the daily and Israel must protect its citizens (a sidenote, so far in this past year, Jewish Israelis have killed Israelis more than Palestinians--Gazan or Israeli--have). Palestinians commit crimes and it is very well documented that they are punished for it (per international law this is a statute of being under a sovereign nation). But, Palestinians at the end of the day experience violence much more often the comfortable Israeli, and thus enacting their daily lives becomes a violent ordeal. It is much like the youth I worked with in South Brooklyn: they became gang members because they had an abusive father who legitimized physical abuse in their midst.

It is a little crazy to me that you are not taking into account the real stories of displacement, violence, and psychological trauma that exists for Palestinians every day, and that this conversation is put aside legally just because it's a disputed territory. The Israeli government says that all Palestinians must give up the hope of ever reconquering Israel for Palestine and then it will give more leeway. I do believe Palestinians need to be more forgiving, but then again, how can they with what is going on in their homes, where fathers and sons are being arrested and detained for years because of being suspected as involved with political activity (see #10)? I feel from this side, then, education, psychological resources, and support could benefit better than a uniform military law or system that discounts the day to day violence as a "crime" instead of, perhaps, a reaction.

But... this is out of my hands. I am not an Israeli member of Knesset, nor am I a negotiator, nor am I part of the Palestinian Authority, nor am I even a citizen of either people. I am an American with a Bachelor's and a passion to educate as a mode of empowerment, no matter who they are, no matter where they live. I do have religious ties to both sides and a wish for people in this land to be able to love and live with what they have instead of hate and kill others.

Simply put: I lack the power to do anything but teach people English and learn about this situation from multiple sides.

For me, all of this is just a wish that I hope can come true.