MECACS Student Essay Prize – Sub-Honours Category Winner
Shona is a third-year Arabic, Persian, and International Relations student. Originally from Glasgow, she is currently living and studying in Amman, Jordan. At St Andrews, Shona is involved in Amnesty International and the Middle East and North African Society. She derives much of the inspiration and encouragement for her studies and goals from the people she met through these organisations.
An additional note from the MECACS team: This essay was written in Summer 2023. This ought to be taken into consideration when reading this piece.
The rule of law in the Israel-Palestine conflict: legislating occupation
Earlier this year, many Israelis took to the streets of major cities to protest proposed changes to the judiciary which threatened the rule of law and the country’s democracy. For many Palestinians, however, these protests seemed irrelevant – the question of fairness or equality under the law felt small in the face of occupation and a legal system tantamount to “apartheid” (Amnesty International, 2022). In particular, Palestinians were indifferent to the sanctity of Israeli law when Israel’s actions have been classified as illegal under international law for many years, with little effect. This essay will consider the role of the rule of law in the so-called ‘Israel-Palestine conflict’. (This is with awareness that the term ‘conflict’ has been criticised in this context, for suggesting an even footing between the two groups which is not realistic.) It will initially examine Israeli law and the above protests. This will be followed by a discussion of how Israeli legislation is used as a tool of conflict and occupation against Palestinians. This will be evidenced with discussion of land laws, the use of detention and incarceration, and the ongoing court battle for Sheikh Jarrah. Finally, the essay will examine the role of international law in this conflict, and how it has failed to materialise justice.
The protests by Israelis earlier this year were the largest since the states’ formation 75 years ago; an impressive demonstration of Israelis’ passion for the preservation of their rights. They also betrayed the fact that Palestinians have lived with a complete denial of any such rights for just as long, with no such outcry, and with their own attempts at resistance crushed. This lays bare a fallacy at the centre of Israel’s claim to be the only democracy in the Middle East. According to the World Justice Project, achieving ‘rule of law’ requires laws which guarantee equal accountability; are justly, clearly, and evenly applied; made by an open government; and delivered impartially. If rule of law “supports the equality of all citizens before the law”(Britannica, 2023), what happens when there are blatantly different laws for different groups of people? And when these laws are (mis)used by one to tyrannise the other? Ultimately, can Israel really claim to have achieved rule of law, when that same law underpins its brutal occupation?
Firstly, it is necessary to understand Israeli law in Israel. Israel does not have a legal constitution, instead its law is steered by 13 quasi-constitutional ‘Basic Laws’. The most recent of these, from 2018, legislated that Israel is “the nation state of the Jewish people” (Knesset, 2018), which enshrined Jewish settlement as a “national value”(ibid). Additionally, since its conception in 1948, Israel has used emergency laws without usual legal proceedings, which “many times infringe basic civil rights and freedoms” (Kedar,2018). Following the election of Israel’s new government in November 2022, widely considered the most right-wing in its history, a series of judicial reforms were proposed and immediately protested. These would enable the government to override the Supreme Court’s decisions, and influence the appointment of judges. They are seen to “pose a serious threat to democracy” (BBC,2023) and the rule of law.
Hundreds of thousands of Israelis protested this attack on their rights. Arab Palestinians (even those citizens of Israel) scarcely partook in this movement. Israelis were seeking to preserve their existing judicial system, but for Palestinians “the existence of constitutional rights under a judicial system incapable of safeguarding them has little to no value”(Baker,2023). The Supreme Court has rarely advocated for its Palestinian citizens, never mind those in occupied areas. There is a glaring contrast in priorities: when Israelis began to feel their rights threatened, Palestinians had never seen such rights to begin with. This reality was erased from protests. People happily marched with Israeli flags, or even Pride flags. But, as shown in a 2023 VICE Documentary, when some Israelis tried to carry Palestinian flags in protests they had them confiscated by police. A fellow protestor confronts the Israeli man with the Palestinian flag; “it’s no Palestinian struggle here”(VICE News,2023). This makes it clear whose rights are valued and whose injustice is seen as valid: Jewish citizens of Israel. Not the almost 2 million Arab citizens of Israel, not Palestinians in occupied territories of East Jerusalem, the West Bank or Gaza, and not Palestinian refugees outside of these borders. The rule of Israeli law does not extend to them.
The jurisdiction and role of laws, as with all things in this conflict, is confusing. This is in no small part due to the “fragmented”(Rinad,2016) nature of Palestinian lands and people under Israel’s occupation. Nevertheless, Israel’s applications and manipulations of law affect the “entire Palestinian people and the whole territory of historical Palestine”(ibid). Israeli law applies primarily to those in Israel (1948 territories) although Arabs and Jews have markedly different experiences here. In annexed East Jerusalem, Palestinians are under Israel’s law and taxation, but have no representation. It also applies to Jewish settlers in occupied territories of the West Bank (1967 territories). While the Palestinian Authority which governs the West Bank does have a constitution – unlike Israel – it is often overridden by Israel’s “de facto”(Shehadeh,2019) military law. Palestinians are tried in military courts “with a nearly 100% conviction rate” (HRW, Haaretz2022). Palestinian law applied in Gaza is complicated due to Hamas’ rule (under which torture of detainees has been reported) and the Israeli control and blockade of its land and sea borders. Israel’s law does not directly affect Palestinians displaced outside of these areas. Indirectly, however, it at once enforces their statelessness, and disables their right to return to their land. Ultimately, “the Israeli settler colony extends it laws to rule occupied and besieged Palestinians while excluding itself and its Jewish citizen colonists from the legal instruments of occupation and siege”(Ronid,2016). Paradoxically, Israel’s rule of law most harshly impacts those who are denied recourse to it.
Israel uses the law as a weapon of occupation. Land laws are very important, since the issue of land ownership is the fundamental issue in this conflict. Palestinians are oppressed through the expropriation of their land and the denial of their right to it. Scholar Hanafi terms this ‘spacio-cide’, since “in the Palestinian-Israeli conflict, the Israeli target is the place”(Hanafi,2009). A series of laws remove Palestinians from their land and prevent them from returning to it. These include the ‘Absentees Property Law’ 1950, which argued that Palestinians who had left their homes even under violence or threat, were absent, and their land was Israeli state property. This was the “most fundamental settler’s law created for the seizure of Palestinian land”(Abu-Sitta,2010). Another law, after the Elon Moreh Case 1979, enabled the reclassification of much Palestinian territory in the West Bank as ‘state lands’ unless ownership could be proven with title deeds. This ignored that under Ottoman and Jordanian law which formerly governed this area, title deeds were not needed nor provided. “This strategy depended on a wholesale reinterpretation and invalidation of much of the existing law in force in the occupied territory”(Galchinsky,2006). Ultimately, using these laws, Israel took swathes of land and zoned them to prioritise Israeli settlements’ access to resources, and cut off Palestinian areas and cities.
Also crucial is how the criminal justice system is deployed against Palestinians by Israel and the use of incarceration and detention. Arguably, “the entire structure of the occupation regime… can be seen as a carceral enterprise, which is designed to confine, control, and dominate the Palestinians”(Khalidi,2014). Since 1967 up to 40% of the male population of occupied territories experienced imprisonment (ibid). As of June 2023, there are 4,892 ‘security’ inmates held by Israel, including 1,083 administrative detainees (Hamoked,2023) and some 160 children (Addameer,2023). Administrative detention refers to the practice of holding individuals indefinitely without charge, which according to Amnesty International functions to “circumvent the legal protection and due process guaranteed for all persons deprived of their liberty under international law”(Amnesty,2022). B’tselem, an advocacy group, found this practice has reached a peak not seen in two decades. In prisons and detention centres, the use of torture is “widespread” (Amnesty,2022). An investigation, covered by HRW, revealed that 74 out of 100 Palestinian children who had been detained in 2022 reported physical abuse, and 42 solitary confinement(Military Court Watch,2022). Even outside of actual prisons, the use of fences/ walls, checkpoints, restrictions on movement, invasive security systems and often biassed courts reaffirms the sense of imprisonment. This is most blatantly seen in Gaza, which is commonly described as an ‘open-air prison’ (Khalidi 2014, Davis, 2019). Such practices form further evidence of the abuse of law and its grey areas by Israel.
In a final focus on the Israeli justice system’s targeting of Palestinians, this essay will consider the litigative case concerning Sheikh Jarrah in East Jerusalem. In this neighbourhood, Palestinians face unique legal status and challenges. The area of East Jerusalem is considered a major obstacle to Israel’s vision of a united Jerusalem as its capital. Therefore, since the annexation of the area in 1967, Palestinian residents have been subject to a “severe matrix of control”(Shehadeh,2019). In a specific arrangement, they carry permanent resident cards which do not give them the status of a citizen. They pay taxes to the Israeli government and are subject to its laws, but they cannot vote in elections (as a result of a PLO boycott) and are almost uniformly denied building permits to expand their houses or provide for their community. Several of the Palestinian families here relocated to the area, safe-guarded at the time by the UN, after being expelled from villages and cities following the 1948 formation of Israel; they cannot return to these places due to abandonment of land laws. In recent years many families have been evicted from Sheikh Jarrah, displacing them again. They have been replaced by Israeli settlers, who claim the land was owned by Jewish families in the past; they cite the title-deeds land law. Therefore, these Palestinians are denied both their original, and refuge, homes under two different Israeli land laws. This case has been progressing through courts for many years.
It has been particularly well-documented, and received media attention, due to two well-known activists who were born and raised in the neighbourhood: twins, Muna and Mohammed el-Kurd. The extension of their house, in Sheikh Jarrah, is occupied by several Jewish settlers. The two have used social media and film to document the creeping occupation of their neighbourhood and home. Mohammed spoke at the UN last year, where he incisively discussed the role of the Israeli law in his looming dispossession: “As my grandmother used to say, if the judge is your enemy, to whom do you complain? Israeli land-grabbing has been rubber-coated with legislation, making it almost impossible to challenge”(el-Kurd,2022) In a 2021 VICE Documentary by journalist Hind Hassan, the experience of the el-Kurd family and their journey through courts was recorded. This detailed violent raids by police, brutal detention of the twins’ younger brother, and even the denial of an Arabic translator at the Supreme Court. This is common, and Arab litigants are expected to pay for a Hebrew-Arabic translator out-of-pocket – something unaffordable particularly in long-lasting cases (Haaretz,2022). Muna reflected on her frustration; “I don’t cry because I’m weak, never, I swear; I cry because we are not dealing with a just state. This is an occupation…. This is a war crime. Forced eviction is a war crime” (ibid/ el-Kurd,2021) From the experience of this one Palestinian family in Eastern Jerusalem emerges a story emblematic of the experience of so many Palestinians. The contortion and weaponization of Israeli law are central to this.
It is essential to remember that – even if Israeli law legitimises some of the actions above – they are illegal under international law. There have been extensive rulings of Israeli state criminality for tactics used in the conflict and occupation. Since the situation is considered a conflict, Israel is in breach of the 4th Geneva Convention as a belligerent occupying power. It is in particular in breach of Article 49 due to settlements in the West Bank. This means settlements and forced evictions are war crimes (United Nations,2016). Recently, human rights groups including Amnesty International (2022) and Human Rights Watch (2021) found Israel culpable of apartheid and persecution under the 1973 Apartheid Convention and 1989 Rome Statute of the International Criminal Court. These are crimes against humanity. The separation/ occupation wall Israel built is also considered a violation of international law by the UN (UN,2006). Finally – although this list is not exhaustive – last year Israel admitted to the killing of journalist Shireen Abu Akleh in broad daylight, while she was clearly marked as press(al-Jazeera,2022).
There are many reasons Israel can be in constant, flagrant violation of international law with, in essence, no repercussions (Maguire,2021). International law suffers from a lack of enforcement mechanisms. Palestine is not recognised fully as a state, and therefore has less ability to bring cases against Israel. Furthermore, Israel is backed by the United States, which frequently and willingly prevents investigations into its criminality. Scholar Galchinsky states that “many who care about Israel have learned to stop caring about international law”(Galchinsky,2006) since it has found Israel guilty so many times. These findings often prompted claims of anti-Semitism, especially due to UN Resolution 3379 which found Zionism to be a form of racism (a ruling later annulled). In the view of this essay, however, Galchinsky’s claim is short-sighted: many who care about Palestine have also learned to stop caring about international law. In spite of Israel’s blatant criminality, Palestinians – in Israel, occupied territories, refugee camps, and the diaspora – have been awarded no tangible justice. Neither Israeli law nor international law have achieved rule of law (meaning clarity, fairness, and effectiveness) for Palestine or this conflict.
To conclude, this essay has explored the role laws play in the Israel-Palestine conflict and how this compromises Israeli claims of rule of law. This essay was not meant as a criticism of Israeli protests for their constitutional rights, but it did seek to question how valuable these laws are, and for whom, when they are foundational to occupation, apartheid, and war crimes under international law. While any movement in defence of freedom is heartening to see, the absence and negation of Palestinian voices and issues from these was startling. It was a reminder that in many ways the international community is permissive of, and numbed to, Palestinian pain and violation. As Mohammed el-Kurd said in his UN speech, “I am tired of reporting the same brutality every day, of thinking of new ways to describe the obvious”(el-Kurd,2022). It should be clear that Israel cannot claim rule of law with any degree of self-awareness, when these laws fuel an unequal conflict and cruel occupation. Israelis cannot seek freedom, and then use it to deny Palestinians their liberty.
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