"jurisdictional politics" in the occupied west bank: territory, community, and economic...

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"Jurisdictional Politics" in the Occupied West Bank: Territory, Community, and EconomicDependency in the Formation of Legal SubjectsAuthor(s): Tobias KellySource: Law & Social Inquiry, Vol. 31, No. 1 (Winter, 2006), pp. 39-74Published by: Wiley on behalf of the American Bar FoundationStable URL: http://www.jstor.org/stable/4092676 .

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"Jurisdictional Politics" in the

Occupied West Bank: Territory, Community, and Economic

Dependency in the Formation of Legal Subjects

Tobias Kelly

This article examines the distribution of legal rights in the Israeli occupied West Bank. It argues that legal rights are distributed through a "jurisdictional politics" that tries to stabilize the contingent relationship between political community, territory, and legal subjects. In particular, this jurisdictional politics seeks to delimit the contradictory boundaries of the Israeli state by creating distinct categories of person out of the populations that live and work in the region. These issues are addressed by examining a dispute concerning the jurisdiction of Israeli law over Palestinian workers in Israeli settlements in the West Bank. The article ends by arguing that in the context of multiple movements of people, capital, and military force, attention must be paid to the often contradictory ways in which jurisdictional regimes seek to produce particular types of citizens and subjects.

Tobias Kelly is a Lecturer in Social Anthropology at the School of Social and Political Studies, University of Edinburgh. The research for this article was made possible by an ESRC Postgraduate Training Award and an Emslie Horniman Scholarship from the Royal Anthro- pological Institute. This article was written during an ESRC Postdoctoral Fellowship held at the Crisis States Programme, DESTIN, LSE. I am grateful to Peter Loizos, Mao Mollona, Martha Mundy, Richard Whitecross, audiences at Birzeit, Oxford, Birkbeck, Edinburgh, and the three anonymous reviewers for Law & Social Inquiry for their generous comments. Above all I must thank the people of Israel/Palestine for their kindness and generosity during the most difficult times. The fieldwork for this article was carried out between August 2000 and February 2002 in the Ramallah region of the West Bank. Where appropriate, identifying names have been changed. Comments can be sent to: [email protected].

? 2006 American Bar Foundation. 39



40 LAW & SOCIAL INQUIRY

You are on earth, there's no cure for that. Samuel Becket, Endgame

INTRODUCTION

Bashir is a Palestinian from the West Bank. Throughout the 1990s he worked in the Israeli settlement of Giva'at Zeev. On a clear day, Bashir could see his home down the valley while he worked as an electrician for the settlement's municipality, fixing streetlights and doing other repair jobs. There were several other Palestinians from the neighbouring villages who worked with Bashir, as electricians, street cleaners, or gardeners. He also had several colleagues who were Israeli citizens and either lived in Giva'at Zeev or in nearby Jerusalem. In the mid-1990s, after he had been working for the municipality for several years, Bashir realized that he and his Palestinian colleagues were receiving considerably fewer benefits at work than their Israeli co-workers. His Palestinian colleagues were initially reluctant to take any action as they feared losing their jobs, which were relatively well paid by the standards of many Palestinians employed in the West Bank. Eventually, however, Bashir managed to persuade several people to join him and find out what they could do. The subsequent struggle over labor rights that Bashir's complaint set in motion would raise issues over the relationships between political community, territory and economic dependency that went to the heart of the Israeli-Palestinian conflict.

Access to legal rights in the Israeli occupied West Bank has been the subject of a great deal of interest from lawyers, academics, and political activists (Benvinisti 1989; Hajjar 1995; Kelly 2005; Shehadeh 1988; Tsemel 1989).' The distribution of rights in the region has been shaped by two apparently contradictory processes. One the one hand, Israel is defined by law as a "Jewish state" that seeks to promote the collective interests of the "Jewish people." On the other, the Israeli legal system is often, if not unproblematically, held up as a model of the "rule of law" for its commitment to nondiscriminatory principles (cf. Hofnug 1996; Shamgar 1982). The tensions between these two apparently contradictory processes have been central to the development of the Israeli state and the struggles for the legal rights of the peoples under the jurisdiction of Israeli law. The 1967 occupation of the West Bank by the Israeli military further complicated this picture. Since 1967 hundreds of thousands of Israeli citizens have settled in the West Bank. At the same time, due to the underdevelopment of the Palestinian economy, many Palestinians have become dependent on Israeli employers for work.

1. A similar debate has taken place in reference to the distribution of legal rights within the pre-1967 borders of the Israeli state (Ghanem 1998; Kimmerling 2002; Peled 1992; Rab- inowitz 1997; Smooha 1990). Although I shall draw on this literature where relevant, the political, institutional and economic history of the West Bank is very different.



"Jurisdictional Politics" in the Occupied West Bank 41

In this context of economic dependency and territorial integration, the Israeli state has sought to maintain political boundaries between Israelis and Palestinians in order to try and reproduce Israel as a particularly Jewish state. These attempts at political separation have led to a very particular distribution of legal rights in the West Bank. However, although the distribution of rights has been shaped by the attempt to maintain Israel as a Jewish state, Zionist ideology is in itself too broad a category to explain the fragmented and contradictory processes through which the West Bank has been ruled since 1967.2 Not only have the particular claims of legality played an important role in shaping the forms of governance applied to the West Bank, but also there is a need to account for the local level struggles through which legal rights are both gained and lost on the ground (Rosenhek and Shalev 2000; Shalev 1989).

This article explores how legal rights in the West Bank are distributed through what it calls a "jurisdictional politics" (Benton 1999) that mediates the often contradictory institutional and political process that have shaped the Israeli occupation of the West Bank. It argues that this jurisdictional politics tries to stabilize the contingent relationship between community, territory, and individual legal subjects, and in doing so seeks to create distinct categories of person out of the populations of the region. The claim that a person belongs to an Israeli or Palestinian jurisdiction is not a neutral descrip- tion. Rather it is an inherently political attempt to separate deeply integrated populations. There is therefore a contingency in the relationship between a person and the jurisdiction they are said to stand in (Ford 1999, 904). It is by attempting to reconstitute these contingencies as the result of supposedly self-evident identities or territorial location, rather than political practices, that jurisdictional regimes help to "promote and legitimate. . . hierarchy and economic inequality" (Ford 2001, 213) and therefore contribute to the

unequal distribution of legal rights in the West Bank. However, jurisdictional practices also open up spaces for contestation, as they are always fraught with contradictions and fractures created by the contingency and unpre- dictability of political, social, and economic relationships (Coutin, Maurer, and Yngvesson 2002, 811). The delineation of Israeli and Palestinian jurisdictions is never simply a task of mapping discrete units, and although the Israeli state remains the dominant institutional presence, it is itself contradictory and fragmented. It is in these spaces opened up by theses contradictions, and the attempts to close them down again, that jurisdictional politics takes place.

This article focuses on one particular example of legal rights, namely the labor rights of West Bank Palestinians who work in Israeli settlements.

2. There is, of course, a long literature that explores the "partial autonomy" of the state, both in Israel specifically (Kimmerling 1989) and more broadly (Abrams 1988; Migdal, Kohli, and Shue 1994).




Conflicts over legal entitlements in employment relationships offer a particularly fruitful avenue into examining the distribution of legal rights in the West Bank.3 The labor market of the region is a site of repeated state regulation (Mundlak 2000), and has been identified as a key area where the divisions between Israelis and Palestinians are reproduced (Bomstein 2002; Lockman 1996; Shalev 1989).

The first section of this article explores the political implications of jurisdictional arrangements. It then moves on to examine the often contradictory jurisdictional processes through which the West Bank has been governed since 1967, and the situation of territorial integration, economic dependency, and legal separation that this has created. The next section explores the forms of political mobilization available to West Bank Palestinians in the workplace as they seek to contest this jurisdictional regime. The last part of the article is an analysis of the particular case involving Bashir and other Palestinians working in Israeli settlements, with which this article started.

THE POLITICS OF JURISDICTIONAL ARRANGEMENTS

There is a familiar narrative that tells of the movement from the personal jurisdictions of the "premodern" world to the territorial citizen of the "modem state." According to this narrative the overlapping personal jurisdictions of "premodern" states produced hierarchal forms of status that were gradually replaced by states that sought to extend their laws homogenously throughout their territory through the institutions of citizenship (cf. Berman 1983; Biggs 1999). However, such a narrative raises important questions about the relationship between spatial practices and citizens/subjects. Recent work has explored the ways in forms of personal jurisdiction coexist with the territorial citizens of the "modem state" (Darian-Smith 1999, 71). Furthermore, the rights of citizenship are never uniformly distributed within any given territory (Collier, Maurer, and Navaz 1995).4 Finally, the spaces of "modem states" have often been far from homogenous, but instead have been marked by hierarchically ordered spaces (Ford 1999). Territory is not an abstract object for states to control, as its meanings are produced through the relationships between states and their citizens/subjects (Lefebvre 1991). Rather than hierarchical

3. While I accept that a critical engagement with Israeli legal arguments is necessary and important, I am not qualified to judge the "legal integrity" of these arguments. Instead the task that I have set myself is an anthropological/sociological understanding of the unequal distribution of legal rights in the West Bank. Israeli and Palestinian legal sources are therefore not analyzed directly for their "black letter" consistency, but instead in order to explore how these legal arguments are shaped by and, in turn, gave shape to particular institutional, poltical, and economic formations.

4. Shafir and Peled have argued, for example, that Israeli citizenship contains multiple hierarchical forms of status (Shafir and Peled 1998).




status relationships having been replaced by homogenous territorial citizenship, fractured spaces continue to produce hierarchally organized citizens/subjects.

Richard Ford has provided perhaps the most powerful analysis of the relationship between spatial practices and the production of citizens/subjects (Ford 1999). Ford argues that territorial jurisdictions should not be understood as being concerned simply with lines on the map or fences on the ground, but as governmental techniques that produces status differences (Ford 1999, 844). Jurisdictions do more than separate territory, they also separate people, and in doing so create differential configurations of rights. Ford extends his analysis by making a distinction between what he calls "organic" and "synthetic" jurisdictions (Ford 1999, 859-61). He argues that organic jurisdictions are seen as the natural outgrowth of prepolitical principles. Such jurisdictional arrangements encourage citizens/subjects to "present themselves as organically connected to other people and to territory in a way that requires jurisdictional autonomy" (Ford 1999, 899). For this reason organic jurisdictions are often defended by their proponents on the basis of self-determination for the groups involved. Crucially, it is not just that the jurisdictional autonomy of the group that must be defended, but also the particular moral connection between the group and place. "Synthetic" jurisdictions, on the other hand, are seen as existing only as long as they serve the purposes of the institutions that have created them. Such jurisdictions are created in order to advance concrete political goals, and have no meaning independent of those goals. Rather than "natural" groups, the individual is the basic unit of synthetic jurisdictions. According to Ford, such jurisdictional arrangements encourage people to "understand themselves as rational, highly mobile, modem individuals whose connections to land are instrumental and fungible" (Ford 1999, 899).

The implications of different jurisdictional arrangements are themselves inherently political, as differential access to legal rights is often justified on the basis on jurisdictional difference. Claims of organic jurisdiction, whether utilized to centralize power, or by minorities seeking protection from hostile central governments, can also produce hierarchically organized distributions of rights. At the same time synthetic jurisdictions, which treat legal subjects as isolated individuals can ignore very real collective differences at the economic, political, and cultural level. Crucially for Ford's argument, the distinction between organic and synthetic jurisdictions is itself largely arbitrary (Ford 2001, 862). Very few, if any, jurisdictional arrangements conform entirely to either model, and most are a mixture of the two. That which is seen in some contexts as synthetic, may, in other contexts, be seen as organic, and vice versa. The opposition between the two types of jurisdiction does not just exist at the level of empirical behavior and history, but also at the "realm of rhetoric and discourse" (Ford 1999, 862).

The structures of governance that have been developed in the West Bank shift between organic and synthetic notions of jurisdiction (Rosen-Zvi




2004). The Israeli state is envisaged as both a territorial state and the state of the Jews wherever they are (Peled 1992; Yiftachel 2002). Furthermore, the Israeli courts seek to uphold the collective rights of Jews as well as the individual rights of territorially bound citizens. Palestinians have treated jurisdictional arrangements as pragmatic containers of individual right claims, while simultaneously making collective claims to national and territorial self-determination (Bisharat 1992).5 If organic and synthetic jurisdictions imply different concepts of political life, based on natural preexisting col- lectivities and abstract individuals respectively, their deployment in political conflicts reveals different visions of the relationship between persons and states. The often contradictory mixture of jurisdictional practices in the West Bank gives a unique and potentially insightful perspective on the way in which the practices associated with understandings of political community, territorial practices, and economic dependency shape the distribution of legal rights in the West Bank.

TERRITORIAL INTEGRATION AND ECONOMIC DEPENDENCY IN THE WEST BANK

The jurisdictional regime that developed in the West Bank after the 1967 Israeli occupation must be understood in the context of the Israeli government's greatly contested interpretation of the legal status of the area. In particular, the Israeli government has claimed that the West Bank is "disputed" rather than "occupied" territory and therefore the Geneva Con- ventions do not apply. Their argument is that Jordanian control of the West Bank between 1948 and 1967 was "illegal" and the Arab state set out by the U.N. partition plan of 1948 was never established (Israel Ministry of Foreign Affairs 2003). However, the claim that the West Bank is not occupied territory has of course been widely disputed (cf. HPCR 2004). In this context, conflicting interpretations of the legal status of the West Bank have not only guided the economic and institutional structures that the Israeli state has created in the region, but have also played a central in role in framing many of the forms of legal opposition to the Israeli presence in the West Bank.

In the years following the occupation of the West Bank, scores of Israeli settlements were established across the area. These settlements were partly motivated by perceived security needs, partly motivated by a messianic return to the land and partly motivated by the need for cheap housing (Chazan 2000). Israeli control over the newly occupied Jordan valley, as well as the hills of the West Bank, was seen by many in the Israeli military as crucial for Israeli "security" (Shlaim 2000, 256). Others within Israel saw the

5. Palestinian appeals to the Israeli Supreme Court are the most obvious example of jurisdictional arrangements being treated as neutral containers of individual rights.




occupation of the West Bank as the "liberation" of biblical Israeli territory. The Yesha Council, for example, an umbrella grouping for Israeli settler

organizations, describes the settlements as being in the "heart of Israel" (Yesha Council 2003). Similarly, the Israeli Foreign Ministry quotes the late Professor Eugene Rostow of Yale University as saying that settlements are the

"voluntary return of individuals to towns and villages from which they or their ancestors have been ousted... Israel has valid claims to title in the territory based.., .on historic and religious connection to the land" (Israeli Foreign Ministry 2001). For many Israelis, the West Bank settlements are at the heart of what Yiftachel has called the "ethno-territorial" project of Zionism (Yiftachel 2002). In this context, over 150 Israeli settlements, housing 400,000 people, have been built in the West Bank.6

At the same time as the creation of the Israeli settlements, the West Bank Palestinian labor market became increasingly dependent on Israeli

employers for work. After 1967 Palestinian laborers began to work both inside the pre-1967 borders of Israel and the Israeli settlements in the West Bank. For much of the 1970s and 80s Palestinians provided key unskilled and semiskilled labor in agriculture, construction, and the service industry. From the early 1990s, as the Israeli economy shifted toward high-technology industry and began to import labor from Eastern Europe, West Africa, and South East Asia, the importance of Palestinian labor for Israeli employers decreased. However, this did not mean that Palestinian dependence on Israeli employers declined in a corresponding way, as there were few other opportunities for work for many Palestinians.

The reliance of Palestinians on Israeli employers was the result of a

policy designed, in part, to make the West Bank economically dependent on Israel and therefore maximize the cost of political resistance (Bornstein 2002, and for Gaza, see Roy 1995). The Israeli government placed heavy import duties on West Bank agricultural produce and restricted the use of

irrigation (Graham-Brown 1989, 320). Simultaneously, Israeli goods were allowed to flow into the West Bank. Agriculture, the mainstay of the Palestinian economy before 1967, became unprofitable, resulting in the gradual "pro- letarianization" of West Bank Palestinians (Tamari 1981). There were also limited opportunities for employment elsewhere in the stagnant West Bank

economy. The Israeli military had closed down all West Bank banks after 1967 and so there was little economic investment. Furthermore, according to one estimate, West Bank Palestinian industrial establishments paid 35 percent more tax than their Israeli counterparts (Shadid 1988, 125). The result was the dependency of the West Bank labor market on Israeli employers.

6. Claims for the territorial extent of Israel include the maximalist visions of the settlement movement Gush Emunim, which sees the land of Israel as extending beyond the West Bank and Gaza Strip (Lustick 1988) and the minimalist policies of the Zionist left, which see Israel's territory as limited to the area around its 1967 borders (Beilin 1998).




Israeli territorial claims to the West Bank, and the gradual creation of Palestinian dependency on Israeli employers, created a quandary for the Israeli government. How were they to deal with the Palestinian population of the West Bank? Full annexation of the West Bank would also have meant the political and legal incorporation of the Palestinian population into the Israeli state and therefore potentially undermined the Jewish majority in Israel. In the face of this quandary, the Israeli government has not defined its boundaries in the West Bank (Kimmerling 2002, 1122). While the West Bank may not have been formally annexed to Israel, the Israeli government has also refused to recognize the West Bank as occupied territory. In this context, the relationship between the Israeli state and the West Bank has been left deeply ambiguous.

THE LEGAL SEPARATION OF ISRAELIS AND PALESTINIANS

Given this territorial integration and economic dependency, repeated attempts have been made to produce legal and political distinctions between Israelis and Palestinians, treating them as self-evident categories (Kelly 2006). In particular, attempts have been made to integrate the Israeli citizens living and working in the West Bank into the protective orbit of Israeli law, while effectively treating the Palestinian residents of the West Bank as "foreign nonresidents." The hundreds of thousands of Israeli citizens who have settled in the West Bank have been extended the protection of the Israeli domestic law, while a separate and extensive system of military control has been was exercised over the Palestinian residents of the region (Hajjar 2005). This system of military control saw the establishment of the Israeli Military Governor as the supreme legal authority in the West Bank, the setting up of military courts and the passing of numerous military regulations. Prior to 1967 the West Bank courts had had jurisdiction over all persons within the territory. However, following the Israeli occupation, Israeli citizens and Palestinians West Bank identity card holders inside the West Bank were effectively ruled under two different legal systems (Benvinisti 1989). Israeli citizens in the West Bank were heard in Israeli civilian courts largely located in Israel and governed according to Israeli domestic law. West Bank Palestinians were governed through a mixture of military regulations and courts, and the local civilian courts that applied pre-1967 Jordanian law.

It was against the background of this dual legal structure that the Oslo Accords were signed in 1993. The violence of the first intifada had demon- strated that the Israeli state could not maintain control over the Palestinian

population of the West Bank, while simultaneously claiming to be a "liberal

democracy" that respected equality before the law (Raz-Krakotzkin 1998). The Oslo Accords therefore passed partial responsibility for the Palestinian population of the West Bank to the newly formed Palestinian National




Authority (PNA). For the Palestinian Liberation Organization (PLO), lead by Yasser Arafat in distant Tunis, the Oslo Accords came at a crucial juncture, as the PLO had been economically and politically weakened by its support for Saddam Hussein in the first Gulf War, and was in danger of becoming marginal to any attempts at Palestinian state-building in the West Bank and Gaza. In this way, the Oslo Accords and the creation of the PNA helped ease, at least initially, several tensions both for the Israeli state and the PLO.

In many ways the Oslo Accords merely further institutionalized processes that already existed. It is important to remember that the regime of Israeli military governance remained in place for West Bank identity card holders, and that the Israeli military retained ultimate "security control" over the entire West Bank. In the absence of clear territorial boundaries, the Oslo Accords attempted to make forms of legal status the determining basis of the distinctions between the responsibilities of the Israeli state and the PNA. At a territorial level, the West Bank was divided into three areas, A, B and C. Most of the large Palestinian towns stood in Area A. Most villages stood in Area B. The space in between, making up most of the West Bank, was in Area C. The PNA was responsible for civil matters, enforcement and policing in Area A. The PNA was also given civil control over areas such as education and health and some security responsibilities were shared with the Israeli military in Area B. In Area C, the Israeli Army maintained both security and civil jurisdiction.

A divided jurisdiction of persons cut across and often overruled this divided territorial jurisdiction. Under the Oslo Accords, the PNA would be responsible for West Bank identity card holders in the West Bank, and the Israeli government would be responsible for Israeli identity card holders. Israeli identity card holders were due the protection of Israeli law and Israeli courts, no matter where they were in the West Bank. PNA law and the PNA courts covered West Bank identity card holders in the West Bank.7 Cases involving Israeli identity card holders had to be heard in Israeli courts, unless the Israeli identity card holders gave their express permission otherwise. This has never happened in practice.

The Israeli state envisaged the coverage of Israeli citizens in the West Bank by Israeli law as an extension of personal rather than territorial jurisdiction.8 In the words of the former Israeli Attorney General, Alyakim Rubinstein:

7. Gaza Strip-Jericho Agreement 1994, Protocol Concerning Legal Matters, Article 111.4. 8. This interpretation is hotly contested, as many of the laws of the Israeli state appear

to be applied territorially. The Israeli Military Governor of Judea and Samaria's Military Orders 561 and 892 set up rabbinical and municipal courts for the settlements. These courts were allowed to apply Israeli rather than Jordanian law despite being in the West Bank. In addition, a parallel land registry was set for land held by Israeli residents and incorporated into the Israeli Lands Administration Authority (Benvenisti 1989).




Israelis have a different law that applies to their legal person, this does not affect territorial jurisdiction, as Israel has never annexed the territory and Israel has never applied law outside the official boundaries.., .the Israeli legislator has made no extra-territoriality determination of Israeli law. (Brief of the Attorney General in the Matter of Subhi Hamed et al. v. Municipality of Giva'at Zeev)

Following the Oslo Accords, the Israeli Attorney General argued that "local law," meaning Jordanian law and its PNA successors, was territorially in force in the West Bank. However, this was in effect vetoed every time it applied to an Israeli identity card holder. Baruch Kimmerling has described this situation as a "personal sovereignty, which accompanies each settler wherever he or she goes" (Kimmerling 2002, 1137). Rather than the boundaries of the PNA and Israeli legal regimes being based on geographical borders, they were predominantly based on practices of legal status.

It is important to stress here that legal status in the West Bank has been allocated along ethno-national lines (Peled 1992). Through the Israeli Law of Return of 1950, all people defined as Jewish by the state of Israel were claimed as potential Israeli citizens. At the same time those Palestinians Arabs who had fled the region during the wars of 1947-48 were denied Israeli citizenship (Davis 1997, 55-59). According to Baruch Kimmerling, following the 1967 occupation of the West Bank, the Israeli government did not grant the Palestinian residents Israeli citizenship in order not to endanger the status of Israel as a Jewish state (2002, 1137). Instead, West Bank identity cards were issued to all persons who were on the West Bank population registry. In 1994 the issuing of these cards was taken over by the PNA. Although the population registry was maintained by the PNA, the Israeli government retained the power to verify and veto any new entries. Furthermore, Israeli citizens or those entitled to Israeli citizenship under the Israeli Law of Return, who, since 1967, have lived in increasing numbers in West Bank settlements, were not included on the West Bank population registry and were not issued West Bank identity cards. Instead they were issued Israeli identity cards. Through this administrative process, West Bank identity cards were therefore limited to people, defined by the Israeli state, as the non-Jewish residents of the West Bank. The legal distinction between those who were due the protection of the Israeli state or the PNA was based ultimately on ethno-national categories.

Although the Oslo Accords have collapsed in the violence on the second intifada, which started in late September 2000, they have left an important legacy in the shape of the institutions that are used to govern the West Bank. These institutions and legal frameworks have left the West Bank in a legal nether world, with the Israeli state claiming that there was no occupation but the Palestinians not having a state. Although the PNA was granted partial control of some aspects of the lives of Palestinians in




the West Bank, the Israeli state did not relinquish its claim to the territory of the West Bank and remained the only state in the region.

In this context, the Israeli state lacks stable legal boundaries in the West Bank, and has instead delimited its reach through armistice lines, walls and

checkpoints that are constantly shifting, sometimes following ethno-national bodies and sometimes taking shape within specific places/spaces. The governmental structures of the West Bank do not correspond with clearly demarked territorial boundaries of a sovereign state, and no single legal regime is consistently applicable throughout the area. These structures of governance are not simply located in the West Bank, as they contain institutions and forces, such as the Israeli military, that have their roots within the pre-1967 borders of Israel. However, the governmental structures also cannot be described as "Israeli," as domestic Israeli law is not applied constantly through the region. They are certainly not Palestinian, as no sovereign Palestinian state exists. The PNA is an "Autonomous Authority" and not a state. Instead, the hybrid and shifting legal regime in the West Bank emerges out of the

overlapping jurisdictional practices, based on notions of self-evident organic ethno-national difference between Israelis and Palestinians.

It is the shifting jurisdictional regime created by the contradictions of the Israeli occupation of the West Bank that produces the distinction between Israeli citizens and Palestinian subjects (Mamdani 1996). While Israeli citizens have rights of participation and accountability in the Israeli state, Palestinian subjects are placed under the far more limited protection of the PNA and the ultimate jurisdiction of Israeli military law. This is not to say that these divisions are absolute. Israelis citizens are clearly subjected to administrative and coercive power, and, at the same time, Palestinians also have legal rights both within the PNA and the Israeli state. However, the dominance of military forms of governance in the lives of West Bank Palestinians means that their relationships with public officials are predomi- nately those of subjects rather than citizens. This distinction between citizens and subjects is structured around Israeli statehood and Palestinian statelessness (Hajjar 1997, 479; see also Davis 1997).

However, the jurisdictional arrangements in the West Bank are far from stable. As Richard Ford has argued, the claims that "an individual 'belongs' to a particular jurisdiction... relies on a host of controversial premises and arrives through scores of leaps of faith and logic" (1999, 904). Given that Israeli settlements were scattered among Palestinian towns and villages and that many Palestinians worked for Israeli employers and traded with Israeli merchants, these "leaps of faith" were revealed whenever Palestinian and Israelis interacted. It is in the spaces opened up by these interactions, the

attempts to close them down again, and the leaps of faith that this causes, that political struggles are fought over the nature of the Israeli state, the PNA, and their relationships with the people who live and work in the West Bank.




TRADE UNIONS AND WEST BANK PALESTINIANS

To understand the shape that struggles over the allocation or legal rights have taken, it is important to understand the forms of collective organization available to Palestinians in the workplace. In particular, the trade union movement in the West Bank has long reflected the wider tensions of the Israeli-Palestinian conflict (Bernstein 2000; Budeiri 1979; Hilterman 1991).

After being forced under ground by the Jordanian government and later the Israeli occupation, the West Bank trade union movement began to reorganize in the 1970s (Hilterman 1991). To begin with the trade union movement was dominated by members of the Palestinian Communist Party and the leftist Democratic Front for the Liberation of Palestine (DFLP). How- ever, throughout the 1970s and '80s, the various factions of the Palestinian nationalist movement began to compete with each other through establishing their own trade unions. The result was multiple and overlapping unions, often with nominal or nonexistent memberships that were affiliated with the Communist Party, DFLP, Popular Front for the Liberation Palestine (PFLP), and increasingly Fatah, the largest faction in the PLO. By the mid-1980s there were several competing trade union federations operating in the West Bank. At the same time the Israeli military became increasingly hostile to the Palestinian trade union movement, accusing it of encouraging Palestinian nationalism and effectively made union activism "illegal."9 In this context, West Bank trade unionism decided to "freeze the class struggle" in favor of more nationalist concerns, and began to focus on the issues of the Israeli occupation (Hilterman 1991, 53).

In the early 1990s, under pressure from the PLO, the West Bank Palestinian union movement unified, and by 1993 had formed the Palestinian General Federation of Trade Unions (PGFTU). The newly formed PGFTU nominally involved representatives from all the political factions of the PLO, but was largely seen as being dominated by conservative elements within Fatah.'1 There were allegations that the new Executive Committee of the PGFTU included many people who worked for the amn waqa'i (Preventative Security [PS])." Furthermore, many local activists left the trade union

9. Israeli Defense Force, Military Governor of Judea and Samaria, Military Order 825 made it an offense for any one who had been convicted of a crime from running for trade union office. As trade unionists were also often political activists, this had the effect of excluding many people who had been tried for political crimes by the Israeli military.

10. The DFLP initially accused Fatah of organizing a takeover of the trade union movement (Interview with Mohammed Aruri, Ramallah, January 22, 2002). However, the DFLP bloc later joined the rest of the newly named PGFTU. In the summer of 2000, the Islamic Union asked to join the PGFTU but its applications was declined (Interview with Mohammed Aruri, Ramallah January 14, 2002).

11. The PS was the largest and most powerful PNA security agency, which, through the 1990s, had been involved in the crackdown on Hamas and had reportedly received training from the CIA.




movement with the creation of the PNA in the mid-1990s and took up positions with the newly established PNA Ministry of Labor.12 In this context, the PGFTU was involved in relatively little organized collective action aimed at protecting jobs or improving working conditions. Those West Bank Palestinians who did join the PGFTU did so in order to receive cheaper health insurance, and following the start of the second intifada in September 2000, in order to be eligible for financial relief that the PNA distributed

through the PGFTU. The other trade union that operated in the West Bank was the Israeli

Histradut. However, as they were not Israeli citizens, West Bank Palestinians were not allowed to join." According to the Israeli sociologist Michael

Shalev, the Histradut's main strategy in relation to Palestinian workers is to "define them as the lowliest market caste" (Shalev 1989, 121). Arab citizens of Israel were not allowed to join the Histradut until 1960, could not vote in Histradut elections until 1965, and were effectively barred from union office until 1976. After the occupation of the West Bank in 1967, the Histradut

initially wanted to organize Palestinians in the Occupied Territories, but after consultations with the Israeli government, it was decided that this was "a too

political decision" (Shalev 1989, 115)."4 However, the Histradut continued to represent Israeli citizens who worked or lived in the area. Arguably the most important intervention that the Histradut took in regards to West Bank Palestinians affected those Palestinians who went to work inside pre-1967 Israel. In 1970, fearing that cheap Palestinian labor would create unemployment in Israel or drive down wages, the Histradut pressured the Israeli cabinet to

12. The PGFTU has also faced other internal political splits. In particular, there is a rivalry between Haider Ibrahim and Shaher Sa'ad. Haider Ibrahim headed the General Union of Palestinian Workers (GUPW), which had been based with the PLO in Tunis and nominally covered all Palestinians wherever they worked. Shaher Sa'ad was General Director of the PGFTU in the West Bank and Gaza. The PGFTU was theoretically subordinate to the GUPW However, tensions between the two men over who should lead the union movement in the West Bank and Gaza Strip reached such a level that Haider Ibrahim was beaten up at a 1999 meeting of the PGFTU in Gaza.

13. Article 1 of the Constitution of the Histradut states that "Every worker who is a citizen and/or resident and who is 18 years of age, who undertakes to accept the Histradut Constitution, its principles and the resolutions of its qualified bodies will become a member of the Histradut."

14. Relations between the PGFTU and the Histradut were tense. In March 1995, Arafat met with Amir Peres, the then head of the Histradut, and reached an agreement to "establish a committee for issues of mutual concern." The major issue of concern was the deductions that were paid by Palestinian workers in Israel to the Histradut. Palestinian workers in Israel paid deductions to the Histradut, despite the fact that they were not allowed to join the union. It was agreed that half of the deductions would be paid to the PGFTU with the other half

being kept by the Histradut to "protect workers in Israel" (Agreement Signed between the PGFTU and the Histradut, undated, untitled). Palestinian unions estimated the Histradut had deducted NIS 700 million ($120 million) from Palestinian workers' wages between 1970 and 1994. However, in 1998 the Histradut went into financial crisis and stopped transferring money to the PGFTU (Interview with member of the Executive Committee of the PGFTU, Ramallah, April 24, 2001).




make a decision aimed at equalizing the cost of employing a West Bank Palestinian and an Israeli "resident." Crucially, the cabinet decision was aimed at equalizing the cost of Palestinian and Israeli workers for their employers, rather than the wages and benefits that they received." As a result, since 1970, West Bank Palestinians have gone to work in Israel and paid social insurance contributions to the Israeli state, but as unemployment-cover, old- age pensions, child's allowance, disability pensions, and nursing care require the person to be a resident of Israel, they have not been legally entitled to benefit from all the deductions taken from their wages.16

In this context, as far as West Bank Palestinian workers are concerned, both the Israeli and Palestinian trade union movements have sought to mobilize along nationalist lines, rather than directly address employment issues. This has meant that it has been left largely to individual Palestinians to try and improve their working lives. Legal claims provided the most obvious and perhaps the only avenue to do so.

"CAUSE LAWYERS" AND WEST BANK PALESTINIANS

Although the numbers of lawyers in the West Bank has increased greatly since the creation of the PNA, very few of them have been willing to take on labor cases. 7 In the whole of the West Bank, there were no lawyers who

15. Decision No. B/i of the Ministerial Committee for Security Matters, Jerusalem, October 8, 1970. One expert estimates that if Palestinians only paid national insurance for the benefits that they were entitled to receive, they would pay less than 1 percent of their wages, rather than over 12 percent (Mundlak 2000, 601-02). The balance was apparently transferred to the Israeli Civil Administration in the West Bank, a branch of the Military government. It has been estimated that between 1970 and 1987 these funds were as much as $1 billion. In 1994, this system was changed. The difference between the payments for social benefits due to West Bank identity card holders and the benefits due to Israeli residentswas made up by an Equalization Levy, administered through the Israeli Employment Bureau. According to the Oslo Agreements, this money was supposed to be transferred to the PNA "for social benefits and health service decided upon by the Palestinian Authority" (Agreement on the Gaza Jericho Area Annex 4 Protocol on Economic Relations Article VII(3)(a)). Under a new Israeli law, all previous deductions were "considered to have been legally paid," whether or not they had actually been paid (Israeli Law Implementing the Agreement on the Gaza Strip and Jericho Area 1994). By 2004, the money from the Equalization Levy has yet to be transferred to the PNA, on the basis that the PNA had not yet set up the relevant social security institutions or passed a Social Security Law.

16. Israeli National Insurance Law No. 5728-1968, see, for example, Articles 2, 127A, 127U, and 127.

17. The Year Book of the Palestinian Bar Association for 2001 puts the number of lawyers in the West Bank at over 1,000. This is double the number of seven years previously. Not only have those lawyers who were on strike since 1967 (Bisharat 1989) returned to work, but three new law schools have been established in Nablus, Jerusalem, and Birzeit. In 2001 there was a ratio of lawyers to population in the West Bank that compared favorably with Western Europe. Abel and Lewis estimate that the average ratio for Western Europe is 1:1,200 (Abel and Lewis 1988). If the West Bank population is two million this makes a ratio of one lawyer to every 2,000 West Bank Palestinians.




have specialized solely in labor law, preferring to concentrate on commercial contract or property cases instead. As most West Bank lawyers work on a "no win no fee" arrangement, the relatively low fees involved mean that many labor cases are unprofitable. Many cases would only give the lawyer a few hundred Israeli shekels (NIS) after maybe four or five years' work.'8 Lawyers who have taken on labor cases have therefore demanded a nonreturnable deposit, often of around NIS500 ($125), before even starting the case. However, according to some estimates, up to 90 percent of all labor cases are refused from the start by lawyers.'9 If a lawyer did agree to take on a case, there have been numerous complaints that once the deposit had been paid, they would simply sit on the case and do nothing with it. Lawyers would also often try and get a quick out-of-court settlement meaning the laborers lost many of their legal rights. The cost of specialized legal knowledge and representation was often too high for laborers given their limited financial resources.20 Similarly, given the low wages of laborers, the potential fees that lawyers could charge were too low to ensure their survival as legal profes- sionals.21 In the absence of ideological commitment to take on cases, as in other more nationalist causes such as Israeli land confiscations (Bisharat 1998), the majority of laborers were excluded from the courts at the first hurdle.

If the labor case involved an Israeli employer, it had to be taken to an Israeli court. However, for a West Bank Palestinian, finding a lawyer to take the case to an Israeli labor court could be problematic. Not only were there the problems caused by the low potential winnings, but also getting physical access to a lawyer could be almost impossible. Cases could only be taken to the Israeli labor courts by members of the Israeli Bar Association, who were largely based in Tel Aviv or Jerusalem. However, it was often difficult for West Bank Palestinians to get permits to cross the Green Line to enter Israel, in order to visit these lawyers. This meant that many faced visiting their lawyers illegally or persuading the lawyer to come to them in the West Bank. Several Palestinian lawyers, who were residents of East Jerusalem, had managed to get round this issue by joining the Israeli Bar Association but having offices in Ramallah. In this way, they could offer legal services to West Bank Palestinians who wanted to take cases to the Israeli courts. They also had the additional advantage that they could pass through restrictions placed on the movement of West Bank Palestinians, as they had Israeli

18. One lawyer who had previously taken a lot of labor cases told me that he had stopped because they "hardly paid for cigarettes." He explained that if he won a case for NIS1000 ($250), he would only make 10 percent of that, or NIS100 ($25) for maybe one year's work. Most lawyers will therefore demand a minimum NIS500 ($125) upfront.

19. Interview with Mazen Barghouti, lawyer at the DWRC, Ramallah, October 22, 2000. 20. Throughout my time in the West Bank, I never heard of anyone suggesting legal

aid was a way out of this predicament. 21. This did not mean that lawyers necessarily earned more than laborers; often they

earned less.




identity cards. Furthermore, nearly all spoke fluent Hebrew and some had been trained in Israeli law schools. However, these lawyers were often expensive and would refuse to take on labor cases.

Given the difficulties in persuading lawyers to take on labor cases, several organizations had been set up to act as brokers between Palestinians and lawyers. In particular, the PGFTU would often organize lawyers for its members. Indeed the largest activity of many PGFTU offices was coordinating the lawyers and cases for its members in the Israeli courts. There was also an NGO based in the center of Ramallah called the Democracy and Workers Rights Centre (DWRC) that played a similar role. The DWRC was founded in 1993 by a group of left-wing academics, trade unionists, and lawyers, who were initially, at least, largely associated with the Palestinian People's Party, the former Communist Party. The PGFTU accused the DWRC of trying to undermine its work and the DWRC claimed that the PGFTU was "not a proper union and only exists on paper.""22 An Israeli NGO called Kay La Oved (Worker's Hotline) also provided similar services for Palestinians who worked in the Israeli economy. Kay La Oved was founded in the early 1990s as a voluntary organization to protect Palestinian workers in Israel. However, the mandate of the organization soon spread to include foreign workers and disadvantaged Israeli citizens. Furthermore, as Kay La Oved's office was in south Tel Aviv, many West Bank Palestinians found it difficult to reach and therefore preferred to go to the DWRC or PGFTU. None of these organizations had their own "in-house" lawyers and, instead, hired private lawyers on retainers, and paid the initial costs of the case, in return for a small percentage of the winnings from the cases if they were successful. This meant that they faced many of the same problems as individual claimants in persuading lawyers to deal with labor cases adequately.

The literature of "cause lawyering" in the context of Israel/Palestine suggests that there are tensions over which legal strategy to take in cases with potential political implications (Bisharat 1989; Hajjar 1997; Shamir and Chinski 1998). Ronen Shamir argues that lawyers are often faced with a choice between whether to present a case as a narrow technical legal argument, or one with broader collective implications for the distribution of resources (Shamir 2001). A narrow legal argument will increase the chances of winning, as it will reduce the institutional pressures on the courts to decide in a particular direction. However, a narrow legal argument will also limit the wider impact of any victory. This conflict over how best to represent Palestinians in Israeli courts is often played out in tensions between Israeli and Palestinian lawyers. Lisa Hajjar argues that Palestinian lawyers often accuse Israeli lawyers of being "usurpers" and of not fully presenting Palestinian national interests (Hajjar 1997, 492). On the other hand, Israeli

22. Interview with Hassan Barghouti, Ramallah, January 22, 2002.




lawyers often accuse Palestinian lawyers of lacking professional skills, and of not fully taking advantage of all the legal avenues available to their clients. While many lawyers see their work as an expression of solidarity with their Palestinian clients, there is often a conflict over "who has the greater right to act on behalf of the Palestinian population" (Hajjar 1997, 493). Such conflicts can be seen in the relationship between the PGFTU and Kay La Oved. The PGFTU routinely accused Kay La Oved of interfering in Palestinians concerns, while Kay La Oved accused the PGFTU of being confined by a nationalist agenda.23

Despite this conflict over the best strategies to take, several writers have argued that the political motivation of lawyers often has only indirect

implications for the style of legal service offered (Bisharat 1998; Shamir and Chinksi 1998). Bisharat, for example, argues that many lawyers do not come to ostensibly political cases because of ideological commitment, but rather because of the lack of other available cases (Bisharat 1998, 447). Labor cases are low down the list of "attractive" cases, and many lawyers will only take them when they have no other work. Indeed very few of the lawyers hired

by the PGFTU, DWRC, or Kay La Oved were specialized labor lawyers. The

political commitment of many of them was ambiguous. One lawyer who took cases for Kay La Oved described himself to me as being "to the right of Likud," referring to Ariel Sharon's right-wing political party. He also told me that he had previously been a Major in Israeli Military Intelligence and

represented Palestinians as he wanted to keep a "toe in." While some of the

lawyers who represented Palestinian in Israeli labor courts were undoubtedly driven by political motivations and expressions of solidarity, many others just saw it as a job that was indistinguishable from any other type of case they might deal with. However, as Shamir and Chinski argue, "non-ideological lawyers" may, ironically, be more committed to the cause of the clients (Shamir and Chinksi 1998, 255). Lawyers who gain clients through politicized organizations, such as Kay La Oved or the DWRC, often never meet their clients and have no personal relationship with them.

BASHIR, THE SETTLEMENT OF GIVA'AT ZEEV, AND THE POLITICS OF ISRAELI SETTLEMENTS

Bashir, with whom this article started, decided to take his claim for labor rights to Kay La Oved, the Israeli labor rights NGO based in Tel Aviv. After listening to Bashir's problems, Kay La Oved agreed to take on the case. The NGO wrote a letter to the municipality of Giva'at Zeev demanding that Bashir and their other Palestinian employees be employed under the same working conditions as their Israeli colleagues. A few months later a

23. Interviews with Kay La Oved and the PGFTU, January 26 and 28, 2001.




lawyer wrote back saying that under the law, the Palestinian workers had to be covered by "local" West Bank law and Israeli workers by Israeli law, and this explained their different working conditions. However, the municipality's lawyer wrote that as a sign of "good will," the municipality was willing to give each of the workers a small monetary gift. After con- sulting with Bashir and the other workers, Kay La Oved's lawyer turned down the offer and took the case to the Israeli Labor Courts, demanding equal treatment for Israelis and Palestinians under Israeli law.24

Giva'at Zeev is, in effect, a small commuter suburb of Jerusalem, with plans to eventually house 20,000 Israeli citizens. In 2001 it had 10,000 residents, split between a religious and a secular neighborhood. At first glance, Giva'at Zeev looks like many affluent suburbs around the world. White picket fences surround small children playing with tricycles outside semidetached houses. However, the politics of Giva'at Zeev are much more explosive than the casual observer might expect. Giva'at Zeev was founded in 1982 on land confiscated by the Israeli military from the nearby Palestinian village of Baitunia and has been growing ever since. In 1998 it was included in the "Plan for a Greater Jerusalem" published by the Israeli government of Benjamin Netanyahu (Palestinian Society for the Protection of Human Rights and the Environment 1998). The plan outlined the development of several large towns, around the fringes of Jerusalem, in an attempt to build a ring of "continuous Jewish settlement" around Jerusalem. The aim of the project was, in the words of its Israeli mayor of at the time, to "Judeaize Jerusalem" and to reinforce the place of Jerusalem as the "undivided capital of Israel" (Ha'aretz June 2, 2000).25 Through the negotiations for the Oslo Peace Process, which lasted for much of the 1990s, it was widely assumed that Giva'at Zeev would be annexed to Israel. Following the start of the second intifada in the autumn of 2000 this annexation effectively, if not legally, took place. After several Israelis were shot by Palestinian militants on the roads around Giva'at Zeev, the local Israeli military commander declared the area closed to all West Bank identity card holders.

Many of the Israeli residents of the settlements either commute to work in Jerusalem and Tel Aviv or are ultra-Orthodox religious Jews and therefore spend most of their time in religious study. There is therefore a shortage of labor both to build the settlements and to provide their basic services such as rubbish collection, street cleaning, and maintenance. Foreign workers from the Far East and Eastern Europe have increasing occupied many of the low- paid jobs in the Israeli economy. However, perhaps fearing that they could

24. The case would eventually involve workers at another settlement, as well as employees of private organizations. For reasons of narrative clarity, this article will not deal with them, as they do not effect the core issues under debate.

25. The Israeli Basic Law: Jerusalem (5740-1980, Section 1) defines Jerusalem as the undivided capital of Israel.




be the victims of violence, they are often reluctant to work in the Israeli settlements. Palestinians have often filled many of these jobs. For Israeli employers, Palestinian workers have the attraction that they can be paid less than Israeli citizens, as, in practice, they have not received the same legal protection or social security payments (Mundlak 2000).

For West Bank Palestinians the underdevelopment of the Palestinian economy has meant that there are few other opportunities for work, and every day tens of thousands of Palestinians have gone to work in the Israeli settlements. According to some estimates, these numbers are said to have increased since the start of the second intifada in the autumn of 2000, due to the collapse of the Palestinian economy and the increased difficulties in going to work in Israel.26 A survey from Birzeit University estimated that across the West Bank, 69 percent of respondents had a family member who lost a job as a result of the intifada (Birzeit University Development Studies Programme 2001). Similarly a U.N. report estimated that over 40 percent of the West Bank and Gaza's population has experienced "economic distress" since the start of the intifada, with unemployment rising to 38 percent (UNSCO 2001, 10-11). Work in the settlements also has the advantage that it has not officially required the permits that are needed to work in Israel (Bomstein 2002). Although some settlements have demanded permits, before the second intifada at least, this was a voluntary measure and can usually be circumscribed. It is estimated that in 1999 up to 35,000 West Bank identity card holders worked in Israeli settlements on a daily basis (Palestinian Society for the Protection of Human Rights and the Environment 2000).

The presence of Palestinian labor in the Israeli settlements is highly controversial. For some Israeli settlers, Palestinian workers in the settlements call into question the notion of independent Jewish national existence in the West Bank. Dating back to well before the start of the second intifada in September 2000, there was an internal debate among the Israeli residents of the settlements as to whether they should employ Palestinian workers at all. This debate intensified during the second intifada. For example, on October 3, 2001, it was reported on a settler radio station that the residents of the West Bank settlement of Gonot Shomron voted to expel what they called "Arab workers," announcing that they would "not tolerate Arabs in the community while we are under daily attack from Arabs" (Aretz 7, October 3, 2001). An article in the liberal Israeli newspaper Ha'aretz blamed Palestinian attacks on settlements on the continued employment of Palestinian workers. After one attack on a settlement in Gaza, which left several Israelis dead, Israeli settlers were reported to be widely ignoring a decision taken by the local municipality to exclude Palestinian labor (Ha'aretz

26. Personal communication with Leila Farsakh. The increase can partly be explained by the increasing difficulty in finding work in Israel due to the restrictions on permits that have been in place since the start of the second intifada.




October 4, 2001). Finally, in June 2002 the Israeli Army reportedly banned Israeli settlers from employing West Bank identity card holders. However, settlements were widely reported to have continued to employ Palestinians, as they presented the most readily available source of cheap labor.27

Palestinian workers in the settlements raised, for many Palestinians, the spectre of fellow nationals seemingly working against their own self- determination. For many Palestinians the settlements have been the central device through which the Israeli occupation of the West Bank has been entrenched. The Negotiations Affairs Department of the PLO argues that the settlements "have served not only to facilitate territorial acquisition and to justify the continuing presence of Israeli Armed Forces on Palestinian lands, but also.., .preclude the establishment of a viable independent Palestinian state" (Palestinian Liberation Organization, No date).

Claims against the settlements have been at the heart of many Palestinians' political demands. The late Edward Said called for civil resistance against the settlements. He wrote of the need for a "large number of Palestinians intervening directly in the settlement process, blocking roads, preventing building materials from entering . .. isolating the settlements" (Al-Ahram Weekly, December 7-13, 2000). Many of the arguments made by Palestinians against the settlements were considerably more militant than Said's. Throughout the internal debates that have taken place in the West Bank over the direction of the armed struggle, it was never suggested to halt attacks on Israeli settlers. As one political activist put it: "Settlers are an armed militia. They are not civilians. They are a saratan (cancer) that needs to be eradicated."28

In this context, the presence of so many Palestinians working in the settlements was particularly problematic. During fieldwork, many middle-class Palestinians refused to admit that Palestinians worked in the settlements at all. Other Palestinians would criticize these workers in the settlements for indirectly contributing to the entrenchment of the Israeli occupation. For example, Edward Said wrote that "the labourers who build the Israeli settlements on a daily basis are in fact Palestinians; this should give some fairly simple idea of how deeply misled, misguided, under mobilised and unpoliticised the Palestinian people are today" (Al-Ahram Weekly, December 7-13, 2000). Said was not alone in expressing such opinions. There were several attempts by the PNA in the 1990s to prevent Palestinians from working in the settlements. During these campaigns PNA policemen were sent to physically prevent workers from entering Israeli settlements. There were also campaigns to boycott all produce from the settlements, and PNA police and Ministry of Food inspectors would intermittently confiscate any goods found in Palestinian shops that were deemed to have originated

27. Personal communication with union activist, Ramallah, August 14, 2003. 28. Interview with political activist, Ramallah, November 15, 2001.




in the settlements. However, these campaigns have usually failed due to lack of other available jobs for West Bank Palestinians.

THE ECONOMIC AND POLITICAL IMPLICATIONS OF LEGAL JURISDICTION

In the context of these political and legal debates the issue of which labor law should apply to the Israeli settlements was very important.

This debate had important economic implications for the workers involved. In general, Israeli labor law is more generous to employees than PNA law or its Jordanian predecessors.29 The Israeli state has twenty-six labor laws on the books. The PNA has only one. Israeli labor law sets a minimum wage, while there is no minimum wage in PNA law (Israeli Minimum Wage Law 5747-1987). Similarly, Israeli legislation sets out no limit for severance pay (Israeli Severance Pay Law 5723-1963 1.2.a). Under the law applied by the PNA at the time of the case, severance pay is limited to the equivalent of nine months' salary (Jordanian Labour Law of 21-1960, amended by Labour Amendment Law 2-1965). In Israeli law, there is accident insurance if an employee is injured on the way to or at work (Israeli National Insurance Law 5728-1968 Chapter 3). Insurance will pay for long-term care and compensate for suffering. The law applied by the PNA only gives loss of income and medical treatment. There is, however, one exception to the general rule. PNA law stipulates a greater amount of paid annual vacation (compare Israeli Annual Leave Law 5711-1951 Section 2.3 and Jordanian Labour Law 21-1960 (amended by Labour Amendment Law 2-1965) Article 45.1.a). While Israeli military orders have made a minimum wage and injury insurance compulsory in the settlements, these remained unenforced (Israeli Military Order 663). By being covered by "local" West Bank rather than Israeli law, Bashir and thousands others were missing out on the minimum wage, the calculation of severance pay, and injury insurance, among other things.

It is important to note that the issue of whether PNA or Israeli law should be applied cannot be solved by looking at whether either law applies to the employee, the employer, or the place of work. The debate was taking place one step further back. The very applicability of either law was under debate.

Crucially, the debate is not just an economic but is profoundly political. The Negotiations Affairs Department of the PLO argues that: "Israeli settlement policy clearly contravenes .. the Fourth Geneva Convention ....

29. Until 2001 the PNA applied the Jordanian Labour Law of 21-1960 (amended by Labor Amendment Law 2-1965) in the West Bank. This was replaced by the PNA Labor and Laborers Law 4-2001. This article will refer to the old Jordanian law throughout, as this was the law referred to in Bashir's case.




If a just and lasting peace ... comes to fruition, then settlements must be dis- mantled" (Palestinian Liberation Organization, No date). The Negotiations Affairs Department goes on to quote U.N. Resolution 446 of 1979 in order to back up its arguments, which states that: "the policy and practices of Israel in establishing settlements in the Palestinian and other Arab territories occupied since 1967 have no legal validity and constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East." Many Palestinians, as well as members of the international community, see the very existence of Israeli settlements in the West Bank as a challenge to international law in general and the Palestinian right for national self- determination in particular. Among Palestinian activists, the importance of stressing that that the West Bank was occupied and not disputed territory meant that many argued that under no circumstances should Israeli law apply in the West Bank. LAW, at that time a leading Palestinian human rights organization, has argued that "under no circumstances should Israeli law be applied in Israeli settlements" and to do so would be a "contravention of international law" (Palestinian Society for the Protection of Human Rights and the Environment 2000, 14, 19). Similarly, the PGFTU would take cases to the Israeli courts for Palestinian workers in the settlements, but would argue for the application of PNA law rather than Israeli law.30 The argument was that the West Bank is occupied Palestinian territory and therefore Palestinian law, or its Jordanian predecessors, should apply.

The implication of these arguments was, of course, that PNA law should also apply to Israeli citizens in the West Bank. However, given the political and military protection that Israeli identity card holders enjoyed in the West Bank, this was not possible. In this context, legal arguments based on international law and claims to national self-determination over the entire territory of the West Bank ended up applying only to Palestinians. Territorial jurisdiction was reduced to effective personal jurisdiction by the unequal distribution of political and military resources.

Somewhat ironically, the Israeli settlers made arguments that, although based on very different assumptions from Palestinian human rights activists, ended up having the same effect in practice. Ideologically many Israeli settlers saw Giva'at Zeev as part of the territory of Greater Israel. However, the

30. Interview with Mohammed Aruri, Director of the PGFTU, Ramallah, November 4, 2001. On this basis in the mid-1990s the PGFTU in Gaza tried to sign a collective agreement with Israeli employers in the Erez Industrial Estate. Erez is an area within the Gaza Strip controlled by the Israeli military and containing Israeli-owned factories. The agreement stated that the Palestinian workers were covered by the Egyptian Labor Law that was in force in the Gaza Strip before the 1967 occupation. However, some of the Palestinian workers protested, demanding the application of Israeli law, and the agreement was withdrawn (Interview with Hassan Barghouti, Director of the DWRC, Ramallah, June 17, 2001). Between 1948 and 1967 the Gaza Strip was controlled by the Egyptian military. Where new PNA laws have not replaced it, the law in force in the Gaza Strip dates largely from before 1967.




municipality's lawyer argued that the PNA Labor Law should be applied to Palestinians in the settlements as no territorial annexation of Giva'at Zeev had taken place. The municipality's lawyer claimed that the extension of Israeli law had been granted to Israeli citizens who lived in the settlements by virtue of their personal legal status, not by virtue of the territory on which they stood. For the settlers' lawyer, Israeli law should therefore only be applied to Israeli identity card holders. There is an apparent contradiction between the ideological justification for the settlements as sovereign Israeli territory and the arguments of the municipality's lawyer that no annexation had taken place. However, this apparent contradiction can be understood in terms of the sym- bolic importance of excluding the Palestinian "other" from the protection of the Israeli state, as well as, and perhaps more importantly, the cheaper labor that is produced through the application of "local" West Bank, rather than Israeli law. For the settlers' lawyer, the West Bank was therefore not seen as a homogenous space, but fractured according to concepts of national affiliation and economic interest.

BASHIR AND THE LAWYER'S PERSPECTIVES

In January 2001 I met with Alex Spinrad, Bashir's lawyer in the case.31 Alex Spinrad's office was high up central Tel Aviv's rather prematurely named "Peace Tower." Alex Spinrad told me that he had taken the case for political reasons. As one of the few specialized labor lawyers in Israel and a former supporter of Mapam, a now defunct political party that supported a binational state in Israel/Palestine, he believed that "rights were rights" and should be applied to everyone equally, irrespective of their ethnic identity. He had however, he told me, also been criticized for his stance by some Palestinian human rights activists. They accused him of extending Israeli territorial jurisdiction to the West Bank. Spinrad also told me that he thought that Bashir and his colleagues had been pressured by the unions to drop the case and push for the application of "local" West Bank rather than Israeli law. The relationship between Kav La Oved and the PGFTU had been strained for several years.32 The PGFTU accused Kav La Oved of "meddling" in internal Palestinian affairs. Ironically, many Israeli lawyers saw Kav La Oved as being too pro-Palestinian. One Israeli lawyer had told me that Kav La Oved inter- fered in cases for "political reasons, just to show up Israel."33

31. Interview with Alex Spinrad, January 16, 2001, Tel Aviv. 32. In the early 1990s Kay La Oved cooperated with the workers movement associated

with FIDA, a breakaway movement from the Democratic Front for the Liberation of Palestine (DFLP). However, in the mid-1990s, when the FIDA bloc joined the PGFTU, this arrangement stopped. Kay La Oved however still maintained some cooperation with the Tulkarm branch of the PGFTU.

33. Interview with Shimon Levi, lawyer, Ramat Gan, March 25, 2001.




However, Alex Spinrad claimed that the case did not have "nationalist implications," but was instead a technical legal issue. Spinrad explained that he had based his argument on the fact that the Giva'at Zeev municipality was a member of the Israeli Union of Local Authorities. It was, he argued, in effect an extension of the Israeli state. Alex Spinrad had used what he called the "maximum connection principle." Although Bashir and his colleagues were working in the West Bank and were West Bank identity card holders, they had a "maximum connection" with Israel, as their employer was part of the Israeli state. Therefore, he argued, Israeli law should be applied. Alex Spinrad's argument continued with the logic of separating territorial from other forms of jurisdiction. For Alex Spinrad, the institution of an Israeli municipality could be separated from the territory upon which it stood. Spinrad said that this argument had the benefit that it did not imply the extension of Israeli territorial sovereignty and was therefore, he thought, "less political."

Spinrad's narrow legal strategy is similar to that adopted by several other Israeli NGOs that take cases to Israeli courts to further the rights of Palestinians, both in Israel and in the West Bank. Gad Barzilai, for example, argues that Israeli NGOs often challenge on the basis of very distinct legal remedies rather than larger political issues, so as to minimize the institutional political pressures and maximize the chances of winning (Barzilai 2003, 140). However, as Ronen Shamir has pointed out, such narrowly individualistic and technical arguments also limit the collective claims that can be made through the law and therefore the wider impact of any legal victory (Shamir 2001, 10). This would eventually be an issue in Bashir's case.

A few weeks after visiting Spinrad I went to visit Bashir to see what he thought. The village in which he lived was perched on the crest of a hill looking down on the valley and an Israeli settlement below. Bashir told me that he had originally brought the case to get his huquq (rights), and that was all he had wanted. When I raised with him the political issues at stake, Bashir told me that "It is not important which law they use as long as I get my rights." He then qualified this statement by saying that "of course I want Palestinian law as this is Palestinian land but we have no dawla (state) so there is nothing that we can do. The most important thing is that there is law. At the moment there is no law." Bashir pointed out the rather mundane but crucial point that at present no labor law was enforced. When he is trying to provide for his family, it was a rather academic and secondary point, as far as he was concerned, whether the symbols of the PNA or the Israeli state were at the top of the laws through which he made his claims.

Although labor law applied to individual workers, the disputes over the jurisdictions of Israeli and PNA law were also concerned with the relationship between states, political communities, and territory. For many Palestinian legal actors, primarily concerned with combating the Israeli occupation, Bashir was a Palestinian standing on Palestinian territory and therefore should




be covered by PNA law. Such an argument was based on what Ford has called the "organic" (Ford 1999) understanding of the relationship between collective subjects and place that are found in claims to national self- determination. The settlement's lawyer also worked with an organic notion of jurisdiction arrangements, but had a much more flexible understanding of how this related to territorial presence, which was probably rooted in the de facto control of the West Bank. For her, Israeli law should be limited to Israelis irrespective of where they lived. For Kay La Oved and Alex

Spinrad, with less of an investment in specifically Palestinian claims to self- determination, jurisdictional practices were treated as synthetic arrangements within which rights were granted to individuals. According to this perspective, the state should treat all persons within its territory equally, irrespective of political or cultural identity. Bashir took a slightly different perspective, where the substantive content of laws was more important than the philo- sophical considerations of equality and group membership.

It is important not to forget that despite the instability in the jurisdictional politics in the West Bank, not all actors have the same institutional power. It was after all the Israeli Labor Courts that had the jurisdiction to hear the case and enforce their interpretations. Through its continued

occupation of the West Bank the Israeli state remained the dominant institutional force in the West Bank. These disputes were being played out in a context marked by Israeli statehood and Palestinian statelessness, and where the institutional parameters had been formed through Israeli attempts to control the West Bank and manage its populations.

THE POSSIBLE SETTING OF A PRECEDENT

Bashir's case was potentially going to set an important precedent. Despite the fact that West Bank identity card holders had been working in Israeli settlements since the 1970s, there had never been a clear-cut court ruling as to whether Israeli or "local" West Bank law should be applied. Part of the reason for this was that employment practices in Israeli settlements were often not challenged in law. Due to the absence of alternative sources of employment, the relatively high wages in the settlements and the absence of organized collective action from the trade unions, many Palestinians did not want to risk challenging the situation and potentially losing their jobs. This was the attitude held by many of Bashir's colleagues at the municipality, and explains their initial reluctance to push the case.

Even when Palestinians did turn to the law, cases were usually solved out of court. Because of the small fees involved, many of the lawyers who took on cases involving Palestinian laborers only did so out of a sense of

political solidarity. One such lawyer explained to me that he was too afraid to set a precedent either way in the Israeli Labor Court, and so he always




tried to settle before a ruling could be made.34 On the one hand, he said, "I do not want to get a ruling that Israeli law applies, as this will recognize the annexation of the West Bank to Israel." On the other hand, he did not want to get a ruling that PNA law should be applied, as he could often get companies to pay under the Israeli law through ignorance. Companies that had branches both in Israel and the West Bank, while in practice often applying no law at all, would, when confronted by a lawyer, sometimes assume that Israeli law should apply in the West Bank and pay up under Israeli law with out asking any questions. Bashir's case could potentially end this uncertainty.

Bashir's case had its first court hearing set for April 1996. After several delays the Jerusalem District Labor Court judge ruled in December 1997 that Israeli law was applicable in the case (Subhi Hamed et al. v. Municipality of Giva'at Zeev). However, the municipality immediately appealed.

At this point the Histradut, the largest trade union in Israel, announced that it was going to join as a respondent supporting Bashir's case. The Histradut became involved, as the case also involved benefits created by collective agreements between the Histradut and the municipality. The municipality was refusing to pay these benefits as it argued that the Palestinians were not Israeli residents and therefore not covered by the collective agreements.

In 1999, while Bashir waited for the appeal, the Israeli Attorney General sent an announcement to the National Labor Court that he intended to be present during the appeal proceedings. He based his action on the grounds that "the rights of the state of Israel, or a certain public rights or public matter, is liable to be violated" (Brief of the Israeli Attorney General in the Matter of Subhi Hamed et al. v. Municipality of Giva'at Zeev).35 The announcement of the Attorney General was accompanied by a twenty-one- page report from the Israeli Attorney General's office.

THE SUBMISSION OF THE ISRAELI ATTORNEY GENERAL

The submission of the Israeli Attorney General is worth looking at in detail. The Attorney General argued that Israeli law could not be applied a priori to a West Bank identity card holder. Instead, he argued that in each and every case, the connection of the West Bank identity card holder to Israeli law had to be proved. The Attorney General wrote, "If it is decided in this case to grant the Palestinian workers in the West Bank the protection of Israeli law then this must be specifically limited to Israeli law in the specific circumstances. It should not be afforded to all Palestinian workers" (Brief of the Attorney General). The Attorney General was arguing that each case

34. Interview with Daoud Khouri, Jerusalem, December 3, 2001. 35. An unofficial translation of the Attorney General's submission provided by Kay La

Oved. Full text is available from Kay La Oved, Tel Aviv.




involving Palestinian workers in the settlements had, in effect, to be preceded by a hearing, which would decide the connection of the worker to the Israeli state.

The Israeli Attorney General then addressed Alex Spinrad's argument concerning the "maximum connection" principle, which claimed that as the municipality was a branch of the Israeli state, Israeli law should apply. The Attorney General argued that Giva'at Zeev was not a branch of the Israeli government as the municipality was created by a military order declared by the Israeli military administration (Israeli Military Order 783). This military order was based on powers created by Emergency Regulations passed under the British Mandate, and that were still in force in the West Bank during the Israeli invasion of 1967 (British Mandate Defense (Emergency) Regulations, 1945). This meant that the Israeli military administration was seen by the Israeli state as having a legal quasi independence from the state of Israel, as it was created under the law territorially said to be in force in the West Bank. Therefore, according to the Attorney General at least, the municipality's authority came from the Israeli military administration in the West Bank, not the Israeli government or membership of the Israeli Association of Local Municipalities. For the Attorney General, Bashir and his colleagues' major connections were therefore with the West Bank and not the Israeli state.

The Israeli Attorney General also addressed the issue of whether it was discriminatory to apply Israeli law to Israeli citizens and PNA law to West Bank identity card holders, despite the fact that they were doing the same work in the same place. He wrote:

A crucial aspect in examining discrimination is a question of equality. Is this a contract that discriminates amongst equals or is there a difference between an Israeli worker and Palestinian employed in West Bank? Is there a permitted distinction between the two workers?

He went on to argue that:

It seems to us that the distinction is permissible between a resident and someone who is not a resident. This is relevant and is not unacceptable because it cannot be said to be a "discrimination between equals" because only unfairness... amongst equals for discriminatory purposes should be viewed as unlawful.

The Attorney General argued that Israeli and West Bank identity card holders were not comparable as they held different legal statuses. The Israeli employees of the municipality were residents of Israel, while Bashir and his colleagues were residents of the West Bank. It was therefore not a case of comparing like with like, and so no argument for discrimination could be made. For




the Attorney General, it was common for states to distinguish between those who live within its borders and those who do not.

Bill Maurer has argued that legal regimes with pretensions to equality relegate inequality to a domain of essential difference that is said to occur before the law (Maurer 1997, 10; see also Collier et al. 1995). By declaring everyone equal before the law, legal regimes construct a realm outside the law, where inequality can flourish. The Attorney General's argument in effect treated residence as a category of comparison existing prior to legal intervention, as a neutral prelegal fact and therefore not an issue of discrimination. However, treating the distinction between residents and nonresidents as a difference that occurred before the law, it ignored the ways in which the law and its administration had been central to the creation of this very distinction.36

How could the Attorney General argue that Israelis citizens were residents and West Bank Palestinian card holders were nonresidents, when Israel had no stable legal boundaries on the West Bank, and the Attorney General had himself argued that their had been no "extra-territorial determination" of Israeli law? Under an Amended Emergency Regulation, Israeli residence was defined as including Israeli citizens and those eligible for citizenship under the Law of Return, who also lived in the West Bank or Gaza Strip.37 The Israeli Law of Return further stipulates that anyone defined as Jewish by the state of Israel is eligible for Israeli citizenship. Therefore, you could live in the West Bank and, so long as you were an Israeli citizen or defined as Jewish by the Israeli state, could also be legally defined as an Israeli resident. If you were on the West Bank population registry, which was administratively limited to Palestinians, you were defined as a West Bank resident. There was no geographic distinction between an Israeli resident and a nonresident. At all times, both categories were within territory controlled by Israeli customs, immigration, and military.

Rather than residence reflecting prelegal connections, it was a category that stabilized the uneasy relationship between the Israeli state and the populations of the West Bank (Ford 1999; Kelly 2004). Through a series of legal interventions, political community and territorial practices were reordered in order to create two supposedly distinct legal statuses, Israeli

36. The classification of West Bank Palestinians as nonresidents also had the effect of making West Bank Palestinians ineligible for other benefits. The Israeli Employment Bureau routinely defined West Bank identity card holders as day workers, despite the fact that they may be working in the same place for several months. There was no legal basis for this administrative decision, but it had the effect of denying permit holders the right to notification of dismissal and other rights found in collective agreements, which are only available to monthly workers.

37. Israeli Emergency Regulations (Judea and Samaria, Gaza Region, Sinai and Southern Sinai) Criminal Jurisdiction and Legal Assistance (Amendment and Extension of Validity) Law 7744-1984 No. 18 4.6b(a).




and Palestinian, out of the deeply integrated populations of the West Bank. Through the category of residence, the legal geography of the West Bank, and the distribution of rights within that space, were being reordered according to the political logic of ethno-nationalism. In this way, residence moved between synthetic and organic notions of difference. At one level residence was treated as a solely legal criterion, necessary only at a practical level. However, the basis of this distinction was the organic notion of community found in the Law of Return. In a double move, the Israeli Attorney General first separated political identity from territory in order to separate the PNA and the Israeli state. Then, in order to reaffirm the universality of Israeli law within the territorial boundaries of the state, identity was reterritorialized through the concept of residency. By constant reference to the textual authority of the law, the Attorney General was able to remain silent "about the actual circumstances and struggles" at the origin of those texts (Mitchell 2002, 77).

THE DECISION OF THE LABOR COURT AND THE APPEAL TO THE ISRAELI SUPREME COURT

In June 2003 the National Labor Court finally ruled on Bashir's case. The judge argued that Jordanian law, referring to the Jordanian law then applied by the PNA, was the default law in force in the West Bank, and therefore Palestinian workers should be covered by this and not Israeli law (Subhi Hamed et al. v. Municipality of Giva'at Zeev). However, the judge also ruled that in specific circumstances, Israeli law could be applied if it could be proved that there was a discriminatory effect in not doing so. Bashir's case was therefore sent back to the District Labor Court to rule on the discriminatory effect of not applying Israeli law in specific cases.

Importantly, no precedent was set, and Palestinians continued predominantly still, in practice, to be employed under "local" West Bank law, while Israelis enjoyed the protection of Israeli law. The ruling was limited to Bashir's individual case and therefore did not apply to the thousands of other Palestinian employed under similar conditions. Furthermore, the distinction between an Israel and West Bank resident in the allocation of legal protection was not challenged.

Alex Spinrad, acting on behalf of Kav La Oved and the workers immediately applied for a writ to the Israeli Supreme Court in order to over- rule the National Labor Court decision (Subhi Hamed et al. v. Municipality of Giva'at Zeev). Spinrad argued that by refusing to make a definitive legal judgment, the court had perpetrated a situation of legal uncertainty and, in practice, was therefore producing legal discrimination.

The case was delayed several times over the following years. It was due to be heard in the winter of 2004 but was postponed due to a strike in the




courts. Eventually an expanded panel of judges heard the case in March 2005. The case had grown considerably since Bashir had first gone to Kay La Oved and now involved several other groups of workers, employed both by municipalities and private employers. The Civil Administration, the branch of the Israeli military that had provided municipal services to the Palestinian residents of the West Bank, also presented a case that PNA law should apply to Palestinian workers. The Civil Administration had previously employed thousands of Palestinians under the Jordanian law that had been in force before the creation of the PNA. If the judge ruled that Israeli law should

apply, the Civil Administration potentially faced huge back claims in

pensions and wages for the thousands of Palestinians it had employed over the years. As of writing the Court has yet to give its decision.

CONCLUDING REMARKS

The distribution of legal rights in the West Bank must be understood in the context of jurisdictional politics, which seeks to stabilize the contingent relationship between political community, territory, and legal subjects. In

doing so this jurisdictional politics seeks to delimit the contradictory boundaries of the Israeli state by creating distinct categories of person out of the populations that live and work in the region. These processes take

shape in the context of the tensions in the forms of governance through which the Israeli state has attempted to control the region. The conflict between territorial claims to the West Bank, the economic integration of the Palestinian population, and the desire to maintain Israel as a Jewish ethno-national state, have created a shifting jurisdictional regime, which has included effective annexation for Israeli citizens and a combination of

military rule and partial, if extremely limited, autonomy for Palestinian subjects. West Bank Palestinians have depended on the Israeli economy for work but have been divided from their Israeli employers and co-workers by complex and hybrid systems of legal jurisdiction. For the tens of thousands of West Bank Palestinians who work in Israeli settlements, this has meant that that they have been employed doing the same work, at the same time, in the same place, as Israeli citizens but have been employed under very different legal conditions. There was a constant movement between organic notions of jurisdiction based on supposedly self-evident categories of difference and syntheticjurisdictional arrangements that treated jurisdictions as neutral and pragmatic containers of individual rights. It is the movement between these two types of jurisdictional arrangements, reflecting wider conflicts over the relationships between political community and territorial

sovereignty, which has produced distinct legal subjects out of the populations of the West Bank, who are then treated differently both before the law and beyond.




Richard Ford argues that jurisdictional regimes help to "legitimate ... hierarchy and economic inequality" (Ford 2001, 213). However, as Ford also points out, an analysis of jurisdictional regimes is not about "unmasking reality" in order to reveal the true jurisdictional formation that lies under- neath (Ford 1999, 863). Rather, an analysis of jurisdictional arrangements acts as a conceptual filter through which to understand how the relationship between territory, collective subjects, and individual rights are organized in particular political contexts. While the jurisdictional regime in place in the West Bank is based upon fundamentally contingent political relationships, the legitimacy of these relationships is not taken at face value by anyone, but is instead highly contested. It is the ways in which these conflicts are mediated, in a context of institutional inequality, that produce particular configurations of rights.

In this context, it is of crucial importance to recognize that the Israeli military remained deployed across the West Bank, and the Israeli state remained the dominant political and economic force in the region. It was the institutional structures established through its occupation of the West Bank that shaped the options available to Palestinian workers. Individual legal cases, often channeled through NGOs or the unions, have been the only way for many Palestinians to improve their working conditions or demand their legal rights. Such claims have been faced with the choice between treating jurisdictional arrangements as neutral containers of individual rights, and thereby failing to challenge wider structures of collective inequality or treating jurisdictional arrangements as an issue of collective self-determination and thereby potential undermine the legal rights of specific individuals. In this way Palestinian workers were forced to work within the parameters of the jurisdictional regime and its ethno-national notions of residence.

However, the institutional dominance of the Israeli state should not be taken as an indication of the inherent stability of the Israeli nation-state and its jurisdictional practices, in contrast to the seeming fragility of Palestinian claims to the West Bank. The processes that are described as the Israeli state, Israeli law, or the Israeli economy depend in important ways for their reproduction on their Palestinian other. The Israeli settlements, for example, depend on Palestinian labor, Israeli courts apply Palestinian law, and perhaps most importantly, the status of Israel as a Jewish state depends on the creation of the PNA. The spaces of Israeli citizenship and rights depend on the nonspaces, noncitizens, and nonrights of West Bank Palestinians. In this way the processes and practices that are often described as "Israeli" rely on the very things they would seem to deny, creating an irreducible tension that is mediated by the creation of constantly shifting jurisdictional regimes. At times this jurisdictional regime is unable to successfully mediate the contradictions of the Israeli occupation, resulting in the much more violent attempts to separate Israelis and Palestinians that have marked the second intifada.




It is important to note that, although the occupation of the West Bank is undoubtedly an extreme example, the Israeli state is not alone in facing tensions due to contingent relationship between forms of political community, place, and individual subjects in a context of economic integration and military interventionism. It is, as Navaro-Yashin argues, by examining the seemingly "abnormal" practices at the extreme, that we can also invite further reflection on the abnormal qualities of seemingly "ordinary" states (Navaro-Yashin 2003). From Guantanomo (Steyn 2004) to the Free-Trade Zones of South-East Asia (Ong 2003), jurisdictional regimes are remodeled in order to produce particular configurations of rights. As the movement of capital, labor, and military force puts the claims of states to provide equality before the law within their territorial boundaries under stress, the mapping of the world, as a series of discrete political, territorial, and legal entities, has rightly seen a great deal of critical analysis (Gupta and Ferguson 1997, 3). This has meant questioning the distinctions between citizens and noncitizens, residents and nonresidents, as the territorial location of the legal rights of membership becomes increasingly unstable (Calavita 2005). However, territorial jurisdictions, rather than being neutral containers of rights, should be understood as being concerned with mediating the contingent and often contradictory relationship between categories of person and the state (Ford 1999). In this way, the path is opened to move beyond narrow debates over whether economic, military, or cultural movement undermines or strengthens territorial categories of belonging, in order to explore how jurisdictional practices are remodeled to mediate the contradictions of capitalist political formations. In this process, jurisdictional regimes attempt to produce particular citizens and subjects out of diverse populations who live and work in the same economic and political spaces.

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CASES CITED

Subhi Hamed et al. v. Municipality of Giva'at Zeev, Israeli Labor Court Appeal 30050/98.

Subhi Hamed et al. v. Municipality of Giva'at Zeev, Israeli High Court of Justice 5666/03.

STATUTES CITED

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Jordanian Labour Law of 21-1960 (Amended by Labour Amendment Law 2-1965).

OTHER DOCUMENTS CITED

Brief of the Attorney General in the Matter of Subhi Hamed et al. v. Munic- ipality of Giva'at Zeev, Labor Court Appeal 30050/98.



"jurisdictional politics" in the occupied west bank: territory, community, and economic...

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