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

© 2006 American Bar Foundation.

39

Blackwell Publishing LtdOxford, UKLSILaw & Social Inquiry0897-6546© 2006 American Bar Foundation.winter 2006311Original Article

“Jurisdictional Politics” in the Occupied West BankLAW & SOCIAL INQUIRY

“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 occupiedWest Bank. It argues that legal rights are distributed through a “jurisdictionalpolitics” that tries to stabilize the contingent relationship between politicalcommunity, territory, and legal subjects. In particular, this jurisdictionalpolitics seeks to delimit the contradictory boundaries of the Israeli stateby creating distinct categories of person out of the populations that liveand work in the region. These issues are addressed by examining a disputeconcerning the jurisdiction of Israeli law over Palestinian workers in Israelisettlements in the West Bank. The article ends by arguing that in the contextof multiple movements of people, capital, and military force, attention mustbe paid to the often contradictory ways in which jurisdictional regimes seekto produce particular types of citizens and subjects.

Tobias Kelly

is a Lecturer in Social Anthropology at the School of Social and PoliticalStudies, University of Edinburgh. The research for this article was made possible by an ESRCPostgraduate Training Award and an Emslie Horniman Scholarship from the Royal Anthro-pological Institute. This article was written during an ESRC Postdoctoral Fellowship held atthe Crisis States Programme, DESTIN, LSE. I am grateful to Peter Loizos, Mao Mollona, MarthaMundy, Richard Whitecross, audiences at Birzeit, Oxford, Birkbeck, Edinburgh, and the threeanonymous reviewers for

Law & Social Inquiry

for their generous comments. Above all I mustthank the people of Israel/Palestine for their kindness and generosity during the most difficulttimes. The fieldwork for this article was carried out between August 2000 and February 2002in the Ramallah region of the West Bank. Where appropriate, identifying names have beenchanged. Comments can be sent to: [email protected].

LAW & SOCIAL INQUIRY40

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 heworked in the Israeli settlement of Giva’at Zeev. On a clear day, Bashir couldsee his home down the valley while he worked as an electrician for thesettlement’s municipality, fixing streetlights and doing other repair jobs. Therewere several other Palestinians from the neighbouring villages who workedwith Bashir, as electricians, street cleaners, or gardeners. He also had severalcolleagues who were Israeli citizens and either lived in Giva’at Zeev or innearby Jerusalem. In the mid-1990s, after he had been working for themunicipality for several years, Bashir realized that he and his Palestiniancolleagues were receiving considerably fewer benefits at work than theirIsraeli co-workers. His Palestinian colleagues were initially reluctant to takeany action as they feared losing their jobs, which were relatively well paidby the standards of many Palestinians employed in the West Bank. Eventually,however, Bashir managed to persuade several people to join him and findout what they could do. The subsequent struggle over labor rights that Bashir’scomplaint set in motion would raise issues over the relationships betweenpolitical community, territory and economic dependency that went to theheart of the Israeli-Palestinian conflict.

Access to legal rights in the Israeli occupied West Bank has been thesubject of a great deal of interest from lawyers, academics, and politicalactivists (Benvinisti 1989; Hajjar 1995; Kelly 2005; Shehadeh 1988;Tsemel 1989).

1

The distribution of rights in the region has been shaped bytwo apparently contradictory processes. One the one hand, Israel is definedby law as a “Jewish state” that seeks to promote the collective interests ofthe “Jewish people.” On the other, the Israeli legal system is often, if notunproblematically, held up as a model of the “rule of law” for its commitmentto nondiscriminatory principles (cf. Hofnug 1996; Shamgar 1982). The tensionsbetween these two apparently contradictory processes have been central tothe development of the Israeli state and the struggles for the legal rightsof the peoples under the jurisdiction of Israeli law. The 1967 occupation ofthe West Bank by the Israeli military further complicated this picture. Since1967 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 withinthe 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, thepolitical, 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 Israelistate has sought to maintain political boundaries between Israelis andPalestinians in order to try and reproduce Israel as a particularly Jewishstate. These attempts at political separation have led to a very particulardistribution of legal rights in the West Bank. However, although thedistribution of rights has been shaped by the attempt to maintain Israel asa Jewish state, Zionist ideology is in itself too broad a category to explainthe fragmented and contradictory processes through which the West Bankhas been ruled since 1967.

2

Not only have the particular claims of legalityplayed an important role in shaping the forms of governance applied to theWest Bank, but also there is a need to account for the local level strugglesthrough which legal rights are both gained and lost on the ground (Rosenhekand Shalev 2000; Shalev 1989).

This article explores how legal rights in the West Bank are distributedthrough what it calls a “jurisdictional politics” (Benton 1999) that mediatesthe often contradictory institutional and political process that have shapedthe Israeli occupation of the West Bank. It argues that this jurisdictionalpolitics tries to stabilize the contingent relationship between community,territory, and individual legal subjects, and in doing so seeks to create distinctcategories of person out of the populations of the region. The claim that aperson belongs to an Israeli or Palestinian jurisdiction is not a neutral descrip-tion. Rather it is an inherently political attempt to separate deeply integratedpopulations. There is therefore a contingency in the relationship betweena person and the jurisdiction they are said to stand in (Ford 1999, 904). Itis by attempting to reconstitute these contingencies as the result of supposedlyself-evident identities or territorial location, rather than political practices,that jurisdictional regimes help to “promote and legitimate . . . hierarchyand economic inequality” (Ford 2001, 213) and therefore contribute to theunequal distribution of legal rights in the West Bank. However, jurisdictionalpractices also open up spaces for contestation, as they are always fraughtwith 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 Palestinianjurisdictions is never simply a task of mapping discrete units, and althoughthe Israeli state remains the dominant institutional presence, it is itselfcontradictory and fragmented. It is in these spaces opened up by thesescontradictions, and the attempts to close them down again, that jurisdictionalpolitics takes place.

This article focuses on one particular example of legal rights, namelythe 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 aparticularly fruitful avenue into examining the distribution of legal rightsin the West Bank.

3

The labor market of the region is a site of repeated stateregulation (Mundlak 2000), and has been identified as a key area where thedivisions between Israelis and Palestinians are reproduced (Bornstein 2002;Lockman 1996; Shalev 1989).

The first section of this article explores the political implications ofjurisdictional arrangements. It then moves on to examine the often contra-dictory jurisdictional processes through which the West Bank has beengoverned since 1967, and the situation of territorial integration, economicdependency, and legal separation that this has created. The next sectionexplores the forms of political mobilization available to West Bank Palestiniansin the workplace as they seek to contest this jurisdictional regime. The last partof the article is an analysis of the particular case involving Bashir and otherPalestinians 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 personaljurisdictions of the “premodern” world to the territorial citizen of the “modernstate.” According to this narrative the overlapping personal jurisdictionsof “premodern” states produced hierarchal forms of status that were graduallyreplaced by states that sought to extend their laws homogenously throughouttheir territory through the institutions of citizenship (cf. Berman 1983; Biggs1999). However, such a narrative raises important questions about the rela-tionship between spatial practices and citizens/subjects. Recent work hasexplored the ways in forms of personal jurisdiction coexist with the territorialcitizens of the “modern state” (Darian-Smith 1999, 71). Furthermore, therights of citizenship are never uniformly distributed within any given territory(Collier, Maurer, and Navaz 1995).

4

Finally, the spaces of “modern states” haveoften been far from homogenous, but instead have been marked by hierar-chically ordered spaces (Ford 1999). Territory is not an abstract object for statesto control, as its meanings are produced through the relationships betweenstates and their citizens/subjects (Lefebvre 1991). Rather than hierarchical

3. While I accept that a critical engagement with Israeli legal arguments is necessaryand important, I am not qualified to judge the “legal integrity” of these arguments. Insteadthe task that I have set myself is an anthropological/sociological understanding of the unequaldistribution of legal rights in the West Bank. Israeli and Palestinian legal sources are thereforenot analyzed directly for their “black letter” consistency, but instead in order to explore howthese 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 multiplehierarchical 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 therelationship between spatial practices and the production of citizens/subjects(Ford 1999). Ford argues that territorial jurisdictions should not be under-stood as being concerned simply with lines on the map or fences on theground, but as governmental techniques that produces status differences (Ford1999, 844). Jurisdictions do more than separate territory, they also separatepeople, and in doing so create differential configurations of rights. Fordextends his analysis by making a distinction between what he calls “organic”and “synthetic” jurisdictions (Ford 1999, 859–61). He argues that organicjurisdictions are seen as the natural outgrowth of prepolitical principles. Suchjurisdictional arrangements encourage citizens/subjects to “present themselvesas organically connected to other people and to territory in a way that requiresjurisdictional autonomy” (Ford 1999, 899). For this reason organic jurisdic-tions are often defended by their proponents on the basis of self-determinationfor the groups involved. Crucially, it is not just that the jurisdictionalautonomy of the group that must be defended, but also the particular moralconnection between the group and place. “Synthetic” jurisdictions, on theother hand, are seen as existing only as long as they serve the purposes ofthe institutions that have created them. Such jurisdictions are created inorder to advance concrete political goals, and have no meaning independentof those goals. Rather than “natural” groups, the individual is the basic unitof synthetic jurisdictions. According to Ford, such jurisdictional arrangementsencourage people to “understand themselves as rational, highly mobile,modern individuals whose connections to land are instrumental and fungible”(Ford 1999, 899).

The implications of different jurisdictional arrangements are themselvesinherently political, as differential access to legal rights is often justified onthe basis on jurisdictional difference. Claims of organic jurisdiction, whetherutilized to centralize power, or by minorities seeking protection from hostilecentral governments, can also produce hierarchically organized distributionsof rights. At the same time synthetic jurisdictions, which treat legal subjectsas isolated individuals can ignore very real collective differences at theeconomic, political, and cultural level. Crucially for Ford’s argument, thedistinction between organic and synthetic jurisdictions is itself largelyarbitrary (Ford 2001, 862). Very few, if any, jurisdictional arrangementsconform entirely to either model, and most are a mixture of the two. Thatwhich is seen in some contexts as synthetic, may, in other contexts, be seen asorganic, and vice versa. The opposition between the two types of jurisdictiondoes not just exist at the level of empirical behavior and history, but alsoat the “realm of rhetoric and discourse” (Ford 1999, 862).

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


2004). The Israeli state is envisaged as both a territorial state and the stateof the Jews wherever they are (Peled 1992; Yiftachel 2002). Furthermore,the Israeli courts seek to uphold the collective rights of Jews as well as theindividual rights of territorially bound citizens. Palestinians have treated juris-dictional arrangements as pragmatic containers of individual right claims,while simultaneously making collective claims to national and territorialself-determination (Bisharat 1992).

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If organic and synthetic jurisdictionsimply different concepts of political life, based on natural preexisting col-lectivities and abstract individuals respectively, their deployment in politicalconflicts reveals different visions of the relationship between persons andstates. The often contradictory mixture of jurisdictional practices in theWest Bank gives a unique and potentially insightful perspective on the wayin which the practices associated with understandings of political community,territorial practices, and economic dependency shape the distribution of legalrights in the West Bank.

TERRITORIAL INTEGRATION AND ECONOMIC DEPENDENCY IN THE WEST BANK

The jurisdictional regime that developed in the West Bank after the1967 Israeli occupation must be understood in the context of the Israeligovernment’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 WestBank between 1948 and 1967 was “illegal” and the Arab state set out bythe U.N. partition plan of 1948 was never established (Israel Ministry ofForeign Affairs 2003). However, the claim that the West Bank is not occupiedterritory has of course been widely disputed (cf. HPCR 2004). In this context,conflicting interpretations of the legal status of the West Bank have not onlyguided the economic and institutional structures that the Israeli state hascreated in the region, but have also played a central in role in framing manyof 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 Israelisettlements were established across the area. These settlements were partlymotivated by perceived security needs, partly motivated by a messianic returnto the land and partly motivated by the need for cheap housing (Chazan2000). Israeli control over the newly occupied Jordan valley, as well as thehills of the West Bank, was seen by many in the Israeli military as crucialfor Israeli “security” (Shlaim 2000, 256). Others within Israel saw the

5. Palestinian appeals to the Israeli Supreme Court are the most obvious example of juris-dictional 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 settlerorganizations, describes the settlements as being in the “heart of Israel” (YeshaCouncil 2003). Similarly, the Israeli Foreign Ministry quotes the late ProfessorEugene Rostow of Yale University as saying that settlements are the“voluntary return of individuals to towns and villages from which they ortheir ancestors have been ousted . . . Israel has valid claims to title in theterritory based . . . on historic and religious connection to the land” (IsraeliForeign Ministry 2001). For many Israelis, the West Bank settlements areat the heart of what Yiftachel has called the “ethno-territorial” project ofZionism (Yiftachel 2002). In this context, over 150 Israeli settlements, housing400,000 people, have been built in the West Bank.

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At the same time as the creation of the Israeli settlements, the WestBank Palestinian labor market became increasingly dependent on Israeliemployers for work. After 1967 Palestinian laborers began to work both insidethe pre-1967 borders of Israel and the Israeli settlements in the West Bank.For much of the 1970s and 80s Palestinians provided key unskilled andsemiskilled labor in agriculture, construction, and the service industry. Fromthe early 1990s, as the Israeli economy shifted toward high-technology industryand began to import labor from Eastern Europe, West Africa, and SouthEast Asia, the importance of Palestinian labor for Israeli employers decreased.However, this did not mean that Palestinian dependence on Israeli employersdeclined in a corresponding way, as there were few other opportunities forwork for many Palestinians.

The reliance of Palestinians on Israeli employers was the result of apolicy designed, in part, to make the West Bank economically dependenton Israel and therefore maximize the cost of political resistance (Bornstein2002, and for Gaza, see Roy 1995). The Israeli government placed heavyimport duties on West Bank agricultural produce and restricted the use ofirrigation (Graham-Brown 1989, 320). Simultaneously, Israeli goods were allowedto flow into the West Bank. Agriculture, the mainstay of the Palestinianeconomy before 1967, became unprofitable, resulting in the gradual “pro-letarianization” of West Bank Palestinians (Tamari 1981). There were alsolimited opportunities for employment elsewhere in the stagnant West Bankeconomy. The Israeli military had closed down all West Bank banks after1967 and so there was little economic investment. Furthermore, accordingto one estimate, West Bank Palestinian industrial establishments paid 35percent more tax than their Israeli counterparts (Shadid 1988, 125). The resultwas 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 set-tlement movement

Gush Emunim

, which sees the land of Israel as extending beyond the WestBank and Gaza Strip (Lustick 1988) and the minimalist policies of the Zionist left, whichsee 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 ofPalestinian dependency on Israeli employers, created a quandary for the Israeligovernment. How were they to deal with the Palestinian population of theWest Bank? Full annexation of the West Bank would also have meant thepolitical and legal incorporation of the Palestinian population into the Israelistate and therefore potentially undermined the Jewish majority in Israel.In the face of this quandary, the Israeli government has not defined itsboundaries in the West Bank (Kimmerling 2002, 1122). While the WestBank may not have been formally annexed to Israel, the Israeli governmenthas also refused to recognize the West Bank as occupied territory. In thiscontext, the relationship between the Israeli state and the West Bank hasbeen left deeply ambiguous.

THE LEGAL SEPARATION OF ISRAELIS AND PALESTINIANS

Given this territorial integration and economic dependency, repeatedattempts have been made to produce legal and political distinctions betweenIsraelis and Palestinians, treating them as self-evident categories (Kelly 2006).In particular, attempts have been made to integrate the Israeli citizens livingand working in the West Bank into the protective orbit of Israeli law, whileeffectively treating the Palestinian residents of the West Bank as “foreignnonresidents.” The hundreds of thousands of Israeli citizens who have settledin the West Bank have been extended the protection of the Israeli domesticlaw, while a separate and extensive system of military control has been wasexercised over the Palestinian residents of the region (Hajjar 2005). Thissystem of military control saw the establishment of the Israeli MilitaryGovernor as the supreme legal authority in the West Bank, the setting upof military courts and the passing of numerous military regulations. Prior tol967 the West Bank courts had had jurisdiction over all persons within theterritory. However, following the Israeli occupation, Israeli citizens andPalestinians West Bank identity card holders inside the West Bank wereeffectively ruled under two different legal systems (Benvinisti 1989). Israelicitizens in the West Bank were heard in Israeli civilian courts largely locatedin Israel and governed according to Israeli domestic law. West BankPalestinians were governed through a mixture of military regulations andcourts, and the local civilian courts that applied pre-1967 Jordanian law.

It was against the background of this dual legal structure that the OsloAccords were signed in 1993. The violence of the first

intifada

had demon-strated that the Israeli state could not maintain control over the Palestinianpopulation of the West Bank, while simultaneously claiming to be a “liberaldemocracy” that respected equality before the law (Raz-Krakotzkin 1998).The Oslo Accords therefore passed partial responsibility for the Palestinianpopulation of the West Bank to the newly formed Palestinian National


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

In many ways the Oslo Accords merely further institutionalized processesthat already existed. It is important to remember that the regime of Israelimilitary governance remained in place for West Bank identity card holders,and that the Israeli military retained ultimate “security control” over theentire West Bank. In the absence of clear territorial boundaries, the OsloAccords attempted to make forms of legal status the determining basis ofthe 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 andC. Most of the large Palestinian towns stood in Area A. Most villages stoodin Area B. The space in between, making up most of the West Bank, wasin Area C. The PNA was responsible for civil matters, enforcement andpolicing in Area A. The PNA was also given civil control over areas suchas education and health and some security responsibilities were shared withthe Israeli military in Area B. In Area C, the Israeli Army maintained bothsecurity and civil jurisdiction.

A divided jurisdiction of persons cut across and often overruled thisdivided territorial jurisdiction. Under the Oslo Accords, the PNA would beresponsible for West Bank identity card holders in the West Bank, and theIsraeli government would be responsible for Israeli identity card holders.Israeli identity card holders were due the protection of Israeli law and Israelicourts, no matter where they were in the West Bank. PNA law and thePNA courts covered West Bank identity card holders in the West Bank.

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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 WestBank by Israeli law as an extension of personal rather than territorialjurisdiction.

8

In the words of the former Israeli Attorney General, AlyakimRubinstein:

7. Gaza Strip-Jericho Agreement 1994, Protocol Concerning Legal Matters, Article lll.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 Orders56l and 892 set up rabbinical and municipal courts for the settlements. These courts wereallowed 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 theIsraeli Lands Administration Authority (Benvenisti 1989).


Israelis have a different law that applies to their legal person, this doesnot affect territorial jurisdiction, as Israel has never annexed the territoryand Israel has never applied law outside the official boundaries . . . theIsraeli legislator has made no extra-territoriality determination of Israelilaw. (Brief of the Attorney General in the

Matter of Subhi Hamed etal. v. Municipality of Giva’at Zeev

)

Following the Oslo Accords, the Israeli Attorney General argued that “locallaw,” meaning Jordanian law and its PNA successors, was territorially in forcein the West Bank. However, this was in effect vetoed every time it appliedto an Israeli identity card holder. Baruch Kimmerling has described thissituation as a “personal sovereignty, which accompanies each settler whereverhe or she goes” (Kimmerling 2002, 1137). Rather than the boundaries ofthe PNA and Israeli legal regimes being based on geographical borders, theywere predominantly based on practices of legal status.

It is important to stress here that legal status in the West Bank hasbeen allocated along ethno-national lines (Peled 1992). Through the IsraeliLaw of Return of 1950, all people defined as Jewish by the state of Israelwere claimed as potential Israeli citizens. At the same time those PalestiniansArabs who had fled the region during the wars of 1947–48 were denied Israelicitizenship (Davis 1997, 55–59). According to Baruch Kimmerling, followingthe 1967 occupation of the West Bank, the Israeli government did not grantthe Palestinian residents Israeli citizenship in order not to endanger the statusof Israel as a Jewish state (2002, 1137). Instead, West Bank identity cardswere 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. Althoughthe population registry was maintained by the PNA, the Israeli governmentretained the power to verify and veto any new entries. Furthermore, Israelicitizens 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 issuedWest Bank identity cards. Instead they were issued Israeli identity cards.Through this administrative process, West Bank identity cards were thereforelimited to people, defined by the Israeli state, as the non-Jewish residentsof the West Bank. The legal distinction between those who were duethe protection of the Israeli state or the PNA was based ultimately onethno-national categories.

Although the Oslo Accords have collapsed in the violence on thesecond intifada, which started in late September 2000, they have left animportant legacy in the shape of the institutions that are used to governthe West Bank. These institutions and legal frameworks have left the WestBank in a legal nether world, with the Israeli state claiming that there wasno occupation but the Palestinians not having a state. Although the PNAwas 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 territoryof the West Bank and remained the only state in the region.

In this context, the Israeli state lacks stable legal boundaries in the WestBank, and has instead delimited its reach through armistice lines, walls andcheckpoints that are constantly shifting, sometimes following ethno-nationalbodies and sometimes taking shape within specific places/spaces. Thegovernmental structures of the West Bank do not correspond with clearlydemarked territorial boundaries of a sovereign state, and no single legal regimeis consistently applicable throughout the area. These structures of governanceare not simply located in the West Bank, as they contain institutions andforces, such as the Israeli military, that have their roots within the pre-1967borders of Israel. However, the governmental structures also cannot bedescribed as “Israeli,” as domestic Israeli law is not applied constantly throughthe region. They are certainly not Palestinian, as no sovereign Palestinianstate 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 theoverlapping jurisdictional practices, based on notions of self-evident organicethno-national difference between Israelis and Palestinians.

It is the shifting jurisdictional regime created by the contradictions ofthe Israeli occupation of the West Bank that produces the distinction betweenIsraeli citizens and Palestinian subjects (Mamdani 1996). While Israelicitizens have rights of participation and accountability in the Israeli state,Palestinian subjects are placed under the far more limited protection of thePNA and the ultimate jurisdiction of Israeli military law. This is not to saythat these divisions are absolute. Israelis citizens are clearly subjected toadministrative and coercive power, and, at the same time, Palestinians alsohave legal rights both within the PNA and the Israeli state. However, thedominance of military forms of governance in the lives of West BankPalestinians means that their relationships with public officials are predomi-nately those of subjects rather than citizens. This distinction between citizensand 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 fromstable. As Richard Ford has argued, the claims that “an individual ‘belongs’to a particular jurisdiction . . . relies on a host of controversial premises andarrives through scores of leaps of faith and logic” (1999, 904). Given thatIsraeli settlements were scattered among Palestinian towns and villages andthat many Palestinians worked for Israeli employers and traded with Israelimerchants, these “leaps of faith” were revealed whenever Palestinian andIsraelis interacted. It is in the spaces opened up by these interactions, theattempts 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 theWest Bank.


TRADE UNIONS AND WEST BANK PALESTINIANS

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

After being forced under ground by the Jordanian government and laterthe Israeli occupation, the West Bank trade union movement began toreorganize in the 1970s (Hilterman 1991). To begin with the trade unionmovement was dominated by members of the Palestinian Communist Partyand the leftist Democratic Front for the Liberation of Palestine (DFLP). How-ever, throughout the 1970s and ‘80s, the various factions of the Palestiniannationalist movement began to compete with each other through establishingtheir own trade unions. The result was multiple and overlapping unions, oftenwith nominal or nonexistent memberships that were affiliated with theCommunist Party, DFLP, Popular Front for the Liberation Palestine (PFLP),and increasingly

Fatah

, the largest faction in the PLO. By the mid-1980sthere were several competing trade union federations operating in the WestBank. At the same time the Israeli military became increasingly hostile tothe Palestinian trade union movement, accusing it of encouraging Palestiniannationalism and effectively made union activism “illegal.”

9

In this context,West Bank trade unionism decided to “freeze the class struggle” in favor ofmore nationalist concerns, and began to focus on the issues of the Israelioccupation (Hilterman 1991, 53).

In the early 1990s, under pressure from the PLO, the West BankPalestinian union movement unified, and by 1993 had formed the PalestinianGeneral Federation of Trade Unions (PGFTU). The newly formed PGFTUnominally involved representatives from all the political factions of the PLO,but was largely seen as being dominated by conservative elements within

Fatah

.

10

There were allegations that the new Executive Committee of thePGFTU included many people who worked for the

amn waqa’i

(PreventativeSecurity [PS]).

11

Furthermore, many local activists left the trade union

9. Israeli Defense Force, Military Governor of Judea and Samaria, Military Order 825made it an offense for any one who had been convicted of a crime from running for tradeunion office. As trade unionists were also often political activists, this had the effect of excludingmany 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 bloclater joined the rest of the newly named PGFTU. In the summer of 2000, the Islamic Unionasked 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 the1990s, had been involved in the crackdown on

Hamas

and had reportedly received trainingfrom the CIA.


movement with the creation of the PNA in the mid-1990s and took uppositions with the newly established PNA Ministry of Labor.

12

In this context,the PGFTU was involved in relatively little organized collective action aimedat protecting jobs or improving working conditions. Those West BankPalestinians who did join the PGFTU did so in order to receive cheaperhealth insurance, and following the start of the second

intifada

in September2000, in order to be eligible for financial relief that the PNA distributedthrough 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 Palestinianswere not allowed to join.

13

According to the Israeli sociologist MichaelShalev, the

Histradut

’s main strategy in relation to Palestinian workers is to“define them as the lowliest market caste” (Shalev 1989, 121). Arab citizensof Israel were not allowed to join the

Histradut

until 1960, could not votein

Histradut

elections until 1965, and were effectively barred from union officeuntil 1976. After the occupation of the West Bank in 1967, the

Histradut

initially wanted to organize Palestinians in the Occupied Territories, but afterconsultations with the Israeli government, it was decided that this was “a toopolitical decision” (Shalev 1989, 115).

14

However, the

Histradut

continuedto represent Israeli citizens who worked or lived in the area. Arguably themost important intervention that the

Histradut

took in regards to West BankPalestinians affected those Palestinians who went to work inside pre-1967Israel. In 1970, fearing that cheap Palestinian labor would create unemploymentin 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 arivalry between Haider Ibrahim and Shaher Sa’ad. Haider Ibrahim headed the General Unionof Palestinian Workers (GUPW), which had been based with the PLO in Tunis and nominallycovered all Palestinians wherever they worked. Shaher Sa’ad was General Director of thePGFTU 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 theWest Bank and Gaza Strip reached such a level that Haider Ibrahim was beaten up at a 1999meeting of the PGFTU in Gaza.

13. Article 1 of the Constitution of the

Histradut

states that “Every worker who is acitizen and/or resident and who is 18 years of age, who undertakes to accept the HistradutConstitution, its principles and the resolutions of its qualified bodies will become a memberof the

Histradut

.”14. Relations between the PGFTU and the

Histradut

were tense. In March 1995, Arafatmet with Amir Peres, the then head of the

Histradut

, and reached an agreement to “establisha committee for issues of mutual concern.” The major issue of concern was the deductionsthat were paid by Palestinian workers in Israel to the

Histradut

. Palestinian workers in Israelpaid 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 halfbeing kept by the

Histradut

to “protect workers in Israel” (Agreement Signed between thePGFTU and the Histradut, undated, untitled). Palestinian unions estimated the

Histradut

haddeducted NIS 700 million ($120 million) from Palestinian workers’ wages between 1970and 1994. However, in 1998 the

Histradut

went into financial crisis and stopped transferringmoney 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 BankPalestinian and an Israeli “resident.” Crucially, the cabinet decision was aimedat equalizing the cost of Palestinian and Israeli workers for their employers,rather than the wages and benefits that they received.

15

As a result, since1970, West Bank Palestinians have gone to work in Israel and paid socialinsurance contributions to the Israeli state, but as unemployment-cover, old-age pensions, child’s allowance, disability pensions, and nursing care requirethe person to be a resident of Israel, they have not been legally entitled tobenefit 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 tomobilize along nationalist lines, rather than directly address employmentissues. This has meant that it has been left largely to individual Palestiniansto try and improve their working lives. Legal claims provided the most obviousand perhaps the only avenue to do so.

“CAUSE LAWYERS” AND WEST BANK PALESTINIANS

Although the numbers of lawyers in the West Bank has increased greatlysince the creation of the PNA, very few of them have been willing to takeon labor cases.

17

In the whole of the West Bank, there were no lawyers who

15. Decision No. B/1 of the Ministerial Committee for Security Matters, Jerusalem, October8, 1970. One expert estimates that if Palestinians only paid national insurance for the benefitsthat they were entitled to receive, they would pay less than 1 percent of their wages, ratherthan over 12 percent (Mundlak 2000, 601–02). The balance was apparently transferred to theIsraeli Civil Administration in the West Bank, a branch of the Military government. It has beenestimated that between 1970 and 1987 these funds were as much as $1 billion. In 1994, thissystem was changed. The difference between the payments for social benefits due to West Bankidentity card holders and the benefits due to Israeli residentswas made up by an EqualizationLevy, 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 servicedecided upon by the Palestinian Authority” (Agreement on the Gaza Jericho Area Annex 4Protocol on Economic Relations Article VII(3)(a)). Under a new Israeli law, all previous deduc-tions 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, themoney from the Equalization Levy has yet to be transferred to the PNA, on the basis that thePNA 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 lawyersin the West Bank at over 1,000. This is double the number of seven years previously. Notonly have those lawyers who were on strike since 1967 (Bisharat 1989) returned to work, butthree new law schools have been established in Nablus, Jerusalem, and Birzeit. In 2001 therewas a ratio of lawyers to population in the West Bank that compared favorably with WesternEurope. Abel and Lewis estimate that the average ratio for Western Europe is 1:1,200 (Abeland Lewis 1988). If the West Bank population is two million this makes a ratio of one lawyerto every 2,000 West Bank Palestinians.


have specialized solely in labor law, preferring to concentrate on commercialcontract or property cases instead. As most West Bank lawyers work on a“no win no fee” arrangement, the relatively low fees involved mean that manylabor cases are unprofitable. Many cases would only give the lawyer a fewhundred Israeli shekels (NIS) after maybe four or five years’ work.

18

Lawyerswho have taken on labor cases have therefore demanded a nonreturnabledeposit, often of around NIS500 ($125), before even starting the case.However, according to some estimates, up to 90 percent of all labor casesare refused from the start by lawyers.

19

If a lawyer did agree to take on acase, there have been numerous complaints that once the deposit had beenpaid, they would simply sit on the case and do nothing with it. Lawyerswould also often try and get a quick out-of-court settlement meaning thelaborers lost many of their legal rights. The cost of specialized legal knowledgeand representation was often too high for laborers given their limited financialresources.

20

Similarly, given the low wages of laborers, the potential fees thatlawyers 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 inother 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 anIsraeli court. However, for a West Bank Palestinian, finding a lawyer to takethe case to an Israeli labor court could be problematic. Not only were therethe problems caused by the low potential winnings, but also getting physicalaccess to a lawyer could be almost impossible. Cases could only be takento the Israeli labor courts by members of the Israeli Bar Association, whowere largely based in Tel Aviv or Jerusalem. However, it was often difficultfor West Bank Palestinians to get permits to cross the Green Line to enterIsrael, in order to visit these lawyers. This meant that many faced visitingtheir lawyers illegally or persuading the lawyer to come to them in the WestBank. Several Palestinian lawyers, who were residents of East Jerusalem, hadmanaged to get round this issue by joining the Israeli Bar Association buthaving offices in Ramallah. In this way, they could offer legal services toWest Bank Palestinians who wanted to take cases to the Israeli courts. Theyalso had the additional advantage that they could pass through restrictionsplaced 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 stoppedbecause 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 somehad been trained in Israeli law schools. However, these lawyers were oftenexpensive and would refuse to take on labor cases.

Given the difficulties in persuading lawyers to take on labor cases, severalorganizations had been set up to act as brokers between Palestinians andlawyers. In particular, the PGFTU would often organize lawyers for itsmembers. Indeed the largest activity of many PGFTU offices was coordinatingthe lawyers and cases for its members in the Israeli courts. There was alsoan NGO based in the center of Ramallah called the Democracy and WorkersRights Centre (DWRC) that played a similar role. The DWRC was foundedin 1993 by a group of left-wing academics, trade unionists, and lawyers, whowere initially, at least, largely associated with the Palestinian People’s Party,the former Communist Party. The PGFTU accused the DWRC of trying toundermine its work and the DWRC claimed that the PGFTU was “not aproper union and only exists on paper.”

22

An Israeli NGO called

Kav LaOved

(Worker’s Hotline) also provided similar services for Palestinians whoworked in the Israeli economy.

Kav La Oved

was founded in the early 1990sas a voluntary organization to protect Palestinian workers in Israel. However,the mandate of the organization soon spread to include foreign workers anddisadvantaged Israeli citizens. Furthermore, as

Kav La Oved’s

office was insouth Tel Aviv, many West Bank Palestinians found it difficult to reachand therefore preferred to go to the DWRC or PGFTU. None of these organ-izations had their own “in-house” lawyers and, instead, hired private lawyerson retainers, and paid the initial costs of the case, in return for a smallpercentage of the winnings from the cases if they were successful. This meantthat they faced many of the same problems as individual claimants inpersuading lawyers to deal with labor cases adequately.

The literature of “cause lawyering” in the context of Israel/Palestinesuggests that there are tensions over which legal strategy to take in caseswith potential political implications (Bisharat 1989; Hajjar 1997; Shamir andChinski 1998). Ronen Shamir argues that lawyers are often faced with achoice between whether to present a case as a narrow technical legalargument, or one with broader collective implications for the distribution ofresources (Shamir 2001). A narrow legal argument will increase the chancesof winning, as it will reduce the institutional pressures on the courts to decidein a particular direction. However, a narrow legal argument will also limitthe wider impact of any victory. This conflict over how best to representPalestinians in Israeli courts is often played out in tensions between Israeliand Palestinian lawyers. Lisa Hajjar argues that Palestinian lawyers oftenaccuse Israeli lawyers of being “usurpers” and of not fully presentingPalestinian 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, andof 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 theirPalestinian clients, there is often a conflict over “who has the greater rightto act on behalf of the Palestinian population” (Hajjar 1997, 493). Suchconflicts can be seen in the relationship between the PGFTU and

KavLa Oved

. The PGFTU routinely accused

Kav La Oved

of interfering inPalestinians concerns, while

Kav La Oved

accused the PGFTU of beingconfined by a nationalist agenda.

23

Despite this conflict over the best strategies to take, several writers haveargued that the political motivation of lawyers often has only indirectimplications for the style of legal service offered (Bisharat 1998; Shamir andChinksi 1998). Bisharat, for example, argues that many lawyers do not cometo ostensibly political cases because of ideological commitment, but ratherbecause of the lack of other available cases (Bisharat 1998, 447). Labor casesare low down the list of “attractive” cases, and many lawyers will only takethem when they have no other work. Indeed very few of the lawyers hiredby the PGFTU, DWRC, or

Kav La Oved

were specialized labor lawyers. Thepolitical commitment of many of them was ambiguous. One lawyer who tookcases for

Kav 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 methat he had previously been a Major in Israeli Military Intelligence andrepresented Palestinians as he wanted to keep a “toe in.” While some of thelawyers who represented Palestinian in Israeli labor courts were undoubtedlydriven by political motivations and expressions of solidarity, many others justsaw it as a job that was indistinguishable from any other type of case theymight deal with. However, as Shamir and Chinski argue, “non-ideologicallawyers” may, ironically, be more committed to the cause of the clients(Shamir and Chinksi 1998, 255). Lawyers who gain clients throughpoliticized organizations, such as

Kav La Oved

or the DWRC, often nevermeet 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 forlabor rights to

Kav La Oved

, the Israeli labor rights NGO based in Tel Aviv.After listening to Bashir’s problems,

Kav La Oved

agreed to take on the case.The NGO wrote a letter to the municipality of Giva’at Zeev demandingthat Bashir and their other Palestinian employees be employed under thesame working conditions as their Israeli colleagues. A few months later a

23. Interviews with

Kav La Oved

and the PGFTU, January 26 and 28, 2001.


lawyer wrote back saying that under the law, the Palestinian workers hadto be covered by “local” West Bank law and Israeli workers by Israelilaw, and this explained their different working conditions. However, themunicipality’s lawyer wrote that as a sign of “good will,” the municipalitywas willing to give each of the workers a small monetary gift. After con-sulting with Bashir and the other workers,

Kav La Oved’s lawyer turneddown the offer and took the case to the Israeli Labor Courts, demandingequal treatment for Israelis and Palestinians under Israeli law.24

Giva’at Zeev is, in effect, a small commuter suburb of Jerusalem, withplans to eventually house 20,000 Israeli citizens. In 2001 it had 10,000residents, split between a religious and a secular neighborhood. At first glance,Giva’at Zeev looks like many affluent suburbs around the world. White picketfences surround small children playing with tricycles outside semidetachedhouses. However, the politics of Giva’at Zeev are much more explosive thanthe casual observer might expect. Giva’at Zeev was founded in 1982 on landconfiscated by the Israeli military from the nearby Palestinian village ofBaitunia and has been growing ever since. In 1998 it was included in the“Plan for a Greater Jerusalem” published by the Israeli government ofBenjamin Netanyahu (Palestinian Society for the Protection of HumanRights and the Environment 1998). The plan outlined the development ofseveral large towns, around the fringes of Jerusalem, in an attempt to builda ring of “continuous Jewish settlement” around Jerusalem. The aim of theproject was, in the words of its Israeli mayor of at the time, to “JudeaizeJerusalem” and to reinforce the place of Jerusalem as the “undivided capitalof Israel” (Ha’aretz June 2, 2000).25 Through the negotiations for the OsloPeace Process, which lasted for much of the 1990s, it was widely assumedthat Giva’at Zeev would be annexed to Israel. Following the start of thesecond intifada in the autumn of 2000 this annexation effectively, if notlegally, took place. After several Israelis were shot by Palestinian militantson the roads around Giva’at Zeev, the local Israeli military commanderdeclared the area closed to all West Bank identity card holders.

Many of the Israeli residents of the settlements either commute to workin Jerusalem and Tel Aviv or are ultra-Orthodox religious Jews and thereforespend most of their time in religious study. There is therefore a shortage oflabor both to build the settlements and to provide their basic services suchas rubbish collection, street cleaning, and maintenance. Foreign workers fromthe 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 employeesof 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 theundivided capital of Israel.


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

For West Bank Palestinians the underdevelopment of the Palestinianeconomy has meant that there are few other opportunities for work, andevery day tens of thousands of Palestinians have gone to work in the Israelisettlements. According to some estimates, these numbers are said to haveincreased since the start of the second intifada in the autumn of 2000, dueto the collapse of the Palestinian economy and the increased difficulties ingoing to work in Israel.26 A survey from Birzeit University estimated thatacross the West Bank, 69 percent of respondents had a family member wholost a job as a result of the intifada (Birzeit University Development StudiesProgramme 2001). Similarly a U.N. report estimated that over 40 percentof 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 thatit has not officially required the permits that are needed to work in Israel(Bornstein 2002). Although some settlements have demanded permits, beforethe second intifada at least, this was a voluntary measure and can usuallybe circumscribed. It is estimated that in 1999 up to 35,000 West Bank identitycard holders worked in Israeli settlements on a daily basis (Palestinian Societyfor the Protection of Human Rights and the Environment 2000).

The presence of Palestinian labor in the Israeli settlements is highlycontroversial. For some Israeli settlers, Palestinian workers in the settlementscall into question the notion of independent Jewish national existence inthe West Bank. Dating back to well before the start of the second intifadain September 2000, there was an internal debate among the Israeli residentsof the settlements as to whether they should employ Palestinian workers atall. This debate intensified during the second intifada. For example, onOctober 3, 2001, it was reported on a settler radio station that the residentsof the West Bank settlement of Gonot Shomron voted to expel what theycalled “Arab workers,” announcing that they would “not tolerate Arabs inthe community while we are under daily attack from Arabs” (Aretz 7, October3, 2001). An article in the liberal Israeli newspaper Ha’aretz blamedPalestinian attacks on settlements on the continued employment ofPalestinian workers. After one attack on a settlement in Gaza, which leftseveral Israelis dead, Israeli settlers were reported to be widely ignoring adecision taken by the local municipality to exclude Palestinian labor (Ha’aretz

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


October 4, 2001). Finally, in June 2002 the Israeli Army reportedly bannedIsraeli 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 centraldevice through which the Israeli occupation of the West Bank has beenentrenched. The Negotiations Affairs Department of the PLO argues thatthe settlements “have served not only to facilitate territorial acquisition andto justify the continuing presence of Israeli Armed Forces on Palestinianlands, but also . . . preclude the establishment of a viable independentPalestinian state” (Palestinian Liberation Organization, No date).

Claims against the settlements have been at the heart of manyPalestinians’ political demands. The late Edward Said called for civil resistanceagainst the settlements. He wrote of the need for a “large number ofPalestinians 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 madeby Palestinians against the settlements were considerably more militant thanSaid’s. Throughout the internal debates that have taken place in the WestBank over the direction of the armed struggle, it was never suggested tohalt attacks on Israeli settlers. As one political activist put it: “Settlers arean armed militia. They are not civilians. They are a saratan (cancer) thatneeds to be eradicated.”28

In this context, the presence of so many Palestinians working inthe settlements was particularly problematic. During fieldwork, manymiddle-class Palestinians refused to admit that Palestinians worked in thesettlements at all. Other Palestinians would criticize these workers in thesettlements for indirectly contributing to the entrenchment of the Israelioccupation. For example, Edward Said wrote that “the labourers who buildthe Israeli settlements on a daily basis are in fact Palestinians; this shouldgive some fairly simple idea of how deeply misled, misguided, under mobilisedand unpoliticised the Palestinian people are today” (Al-Ahram Weekly,December 7–13, 2000). Said was not alone in expressing such opinions. Therewere several attempts by the PNA in the 1990s to prevent Palestiniansfrom working in the settlements. During these campaigns PNA policemenwere sent to physically prevent workers from entering Israeli settlements.There were also campaigns to boycott all produce from the settlements, andPNA police and Ministry of Food inspectors would intermittently confiscateany 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 lackof 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 whichlabor law should apply to the Israeli settlements was very important.

This debate had important economic implications for the workersinvolved. In general, Israeli labor law is more generous to employees thanPNA law or its Jordanian predecessors.29 The Israeli state has twenty-six laborlaws on the books. The PNA has only one. Israeli labor law sets a minimumwage, while there is no minimum wage in PNA law (Israeli Minimum WageLaw 5747-1987). Similarly, Israeli legislation sets out no limit for severancepay (Israeli Severance Pay Law 5723-1963 1.2.a). Under the law applied bythe PNA at the time of the case, severance pay is limited to the equivalentof nine months’ salary (Jordanian Labour Law of 21-1960, amended by LabourAmendment Law 2-1965). In Israeli law, there is accident insurance if anemployee is injured on the way to or at work (Israeli National InsuranceLaw 5728-1968 Chapter 3). Insurance will pay for long-term care andcompensate for suffering. The law applied by the PNA only gives loss ofincome and medical treatment. There is, however, one exception to thegeneral rule. PNA law stipulates a greater amount of paid annual vacation(compare Israeli Annual Leave Law 5711-1951 Section 2.3 and JordanianLabour Law 21-1960 (amended by Labour Amendment Law 2-1965)Article 45.1.a). While Israeli military orders have made a minimum wageand injury insurance compulsory in the settlements, these remainedunenforced (Israeli Military Order 663). By being covered by “local” WestBank rather than Israeli law, Bashir and thousands others were missing outon 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 lawshould be applied cannot be solved by looking at whether either law applies tothe employee, the employer, or the place of work. The debate was taking placeone 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: “Israelisettlement policy clearly contravenes . . . the Fourth Geneva Convention. . . .

29. Until 2001 the PNA applied the Jordanian Labour Law of 21-1960 (amended byLabor Amendment Law 2-1965) in the West Bank. This was replaced by the PNA Laborand Laborers Law 4-2001. This article will refer to the old Jordanian law throughout, as thiswas 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 NegotiationsAffairs Department goes on to quote U.N. Resolution 446 of 1979 in orderto back up its arguments, which states that: “the policy and practices of Israelin establishing settlements in the Palestinian and other Arab territories occu-pied since 1967 have no legal validity and constitute a serious obstructionto achieving a comprehensive, just and lasting peace in the Middle East.”Many Palestinians, as well as members of the international community, seethe very existence of Israeli settlements in the West Bank as a challengeto international law in general and the Palestinian right for national self-determination in particular. Among Palestinian activists, the importance ofstressing that that the West Bank was occupied and not disputed territorymeant that many argued that under no circumstances should Israeli law applyin the West Bank. LAW, at that time a leading Palestinian human rightsorganization, has argued that “under no circumstances should Israeli law beapplied in Israeli settlements” and to do so would be a “contravention ofinternational law” (Palestinian Society for the Protection of Human Rightsand the Environment 2000, 14, 19). Similarly, the PGFTU would take casesto the Israeli courts for Palestinian workers in the settlements, but wouldargue for the application of PNA law rather than Israeli law.30 The argumentwas that the West Bank is occupied Palestinian territory and thereforePalestinian law, or its Jordanian predecessors, should apply.

The implication of these arguments was, of course, that PNA law shouldalso apply to Israeli citizens in the West Bank. However, given the politicaland military protection that Israeli identity card holders enjoyed in the WestBank, this was not possible. In this context, legal arguments based oninternational law and claims to national self-determination over the entireterritory of the West Bank ended up applying only to Palestinians. Territorialjurisdiction was reduced to effective personal jurisdiction by the unequaldistribution of political and military resources.

Somewhat ironically, the Israeli settlers made arguments that, althoughbased on very different assumptions from Palestinian human rights activists,ended up having the same effect in practice. Ideologically many Israeli settlerssaw 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 agreementwith Israeli employers in the Erez Industrial Estate. Erez is an area within the Gaza Stripcontrolled by the Israeli military and containing Israeli-owned factories. The agreement statedthat the Palestinian workers were covered by the Egyptian Labor Law that was in force inthe 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 withHassan Barghouti, Director of the DWRC, Ramallah, June 17, 2001). Between 1948 and 1967the Gaza Strip was controlled by the Egyptian military. Where new PNA laws have not replacedit, 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 toPalestinians in the settlements as no territorial annexation of Giva’at Zeevhad taken place. The municipality’s lawyer claimed that the extension of Israelilaw had been granted to Israeli citizens who lived in the settlements by virtueof their personal legal status, not by virtue of the territory on which theystood. For the settlers’ lawyer, Israeli law should therefore only be applied toIsraeli identity card holders. There is an apparent contradiction between theideological justification for the settlements as sovereign Israeli territory and thearguments 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 protectionof the Israeli state, as well as, and perhaps more importantly, the cheaperlabor that is produced through the application of “local” West Bank, ratherthan Israeli law. For the settlers’ lawyer, the West Bank was therefore notseen as a homogenous space, but fractured according to concepts of nationalaffiliation 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 politicalreasons. As one of the few specialized labor lawyers in Israel and a formersupporter of Mapam, a now defunct political party that supported a binationalstate in Israel/Palestine, he believed that “rights were rights” and should beapplied to everyone equally, irrespective of their ethnic identity. He had how-ever, he told me, also been criticized for his stance by some Palestinian humanrights activists. They accused him of extending Israeli territorial jurisdictionto the West Bank. Spinrad also told me that he thought that Bashir andhis colleagues had been pressured by the unions to drop the case and pushfor the application of “local” West Bank rather than Israeli law. Therelationship between Kav La Oved and the PGFTU had been strained forseveral years.32 The PGFTU accused Kav La Oved of “meddling” in internalPalestinian affairs. Ironically, many Israeli lawyers saw Kav La Oved as beingtoo 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 Kav 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 arrangementstopped. Kav La Oved however still maintained some cooperation with the Tulkarm branchof the PGFTU.

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


However, Alex Spinrad claimed that the case did not have “nationalistimplications,” but was instead a technical legal issue. Spinrad explained thathe had based his argument on the fact that the Giva’at Zeev municipalitywas 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 hecalled the “maximum connection principle.” Although Bashir and hiscolleagues were working in the West Bank and were West Bank identitycard holders, they had a “maximum connection” with Israel, as their employerwas part of the Israeli state. Therefore, he argued, Israeli law should be applied.Alex Spinrad’s argument continued with the logic of separating territorialfrom other forms of jurisdiction. For Alex Spinrad, the institution of an Israelimunicipality could be separated from the territory upon which it stood. Spinradsaid that this argument had the benefit that it did not imply the extensionof Israeli territorial sovereignty and was therefore, he thought, “less political.”

Spinrad’s narrow legal strategy is similar to that adopted by severalother Israeli NGOs that take cases to Israeli courts to further the rights ofPalestinians, both in Israel and in the West Bank. Gad Barzilai, for example,argues that Israeli NGOs often challenge on the basis of very distinct legalremedies rather than larger political issues, so as to minimize the institutionalpolitical pressures and maximize the chances of winning (Barzilai 2003, 140).However, as Ronen Shamir has pointed out, such narrowly individualisticand technical arguments also limit the collective claims that can be madethrough the law and therefore the wider impact of any legal victory (Shamir2001, 10). This would eventually be an issue in Bashir’s case.

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

Although labor law applied to individual workers, the disputes over thejurisdictions of Israeli and PNA law were also concerned with the relationshipbetween states, political communities, and territory. For many Palestinianlegal 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 hascalled the “organic” (Ford 1999) understanding of the relationship betweencollective subjects and place that are found in claims to national self-determination. The settlement’s lawyer also worked with an organic notionof jurisdiction arrangements, but had a much more flexible understandingof how this related to territorial presence, which was probably rooted inthe de facto control of the West Bank. For her, Israeli law should be limitedto Israelis irrespective of where they lived. For Kav La Oved and AlexSpinrad, with less of an investment in specifically Palestinian claims to self-determination, jurisdictional practices were treated as synthetic arrangementswithin which rights were granted to individuals. According to this perspec-tive, the state should treat all persons within its territory equally, irrespectiveof 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 jurisdic-tional politics in the West Bank, not all actors have the same institutionalpower. It was after all the Israeli Labor Courts that had the jurisdictionto hear the case and enforce their interpretations. Through its continuedoccupation of the West Bank the Israeli state remained the dominantinstitutional force in the West Bank. These disputes were being played outin a context marked by Israeli statehood and Palestinian statelessness, andwhere the institutional parameters had been formed through Israeli attemptsto 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. Despitethe fact that West Bank identity card holders had been working in Israelisettlements since the 1970s, there had never been a clear-cut court rulingas to whether Israeli or “local” West Bank law should be applied. Part ofthe reason for this was that employment practices in Israeli settlementswere often not challenged in law. Due to the absence of alternative sourcesof employment, the relatively high wages in the settlements and the absenceof organized collective action from the trade unions, many Palestinians didnot 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 solvedout of court. Because of the small fees involved, many of the lawyers whotook on cases involving Palestinian laborers only did so out of a sense ofpolitical solidarity. One such lawyer explained to me that he was too afraidto 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 recognizethe annexation of the West Bank to Israel.” On the other hand, he did notwant to get a ruling that PNA law should be applied, as he could often getcompanies to pay under the Israeli law through ignorance. Companies thathad branches both in Israel and the West Bank, while in practice oftenapplying no law at all, would, when confronted by a lawyer, sometimes assumethat Israeli law should apply in the West Bank and pay up under Israeli law without asking any questions. Bashir’s case could potentially end this uncertainty.

Bashir’s case had its first court hearing set for April 1996. After severaldelays the Jerusalem District Labor Court judge ruled in December 1997 thatIsraeli law was applicable in the case (Subhi Hamed et al. v. Municipality ofGiva’at Zeev). However, the municipality immediately appealed.

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

In 1999, while Bashir waited for the appeal, the Israeli Attorney Generalsent an announcement to the National Labor Court that he intended tobe present during the appeal proceedings. He based his action on the groundsthat “the rights of the state of Israel, or a certain public rights or publicmatter, is liable to be violated” (Brief of the Israeli Attorney General inthe Matter of Subhi Hamed et al. v. Municipality of Giva’at Zeev).35 Theannouncement 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 indetail. The Attorney General argued that Israeli law could not be applieda priori to a West Bank identity card holder. Instead, he argued that in eachand every case, the connection of the West Bank identity card holder toIsraeli law had to be proved. The Attorney General wrote, “If it is decidedin this case to grant the Palestinian workers in the West Bank the protectionof Israeli law then this must be specifically limited to Israeli law in the specificcircumstances. It should not be afforded to all Palestinian workers” (Briefof 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 Kav La

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


involving Palestinian workers in the settlements had, in effect, to be precededby a hearing, which would decide the connection of the worker to the Israelistate.

The Israeli Attorney General then addressed Alex Spinrad’s argumentconcerning the “maximum connection” principle, which claimed that as themunicipality was a branch of the Israeli state, Israeli law should apply. TheAttorney General argued that Giva’at Zeev was not a branch of the Israeligovernment as the municipality was created by a military order declared bythe Israeli military administration (Israeli Military Order 783). This militaryorder was based on powers created by Emergency Regulations passed underthe British Mandate, and that were still in force in the West Bank duringthe Israeli invasion of 1967 (British Mandate Defense (Emergency)Regulations, 1945). This meant that the Israeli military administration wasseen by the Israeli state as having a legal quasi independence from the stateof Israel, as it was created under the law territorially said to be in force inthe West Bank. Therefore, according to the Attorney General at least,the municipality’s authority came from the Israeli military administrationin the West Bank, not the Israeli government or membership of the IsraeliAssociation of Local Municipalities. For the Attorney General, Bashir andhis colleagues’ major connections were therefore with the West Bank andnot the Israeli state.

The Israeli Attorney General also addressed the issue of whether it wasdiscriminatory to apply Israeli law to Israeli citizens and PNA law to WestBank identity card holders, despite the fact that they were doing the samework 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 adifference between an Israeli worker and Palestinian employed in WestBank? 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 andsomeone who is not a resident. This is relevant and is not unacceptablebecause it cannot be said to be a “discrimination between equals” becauseonly unfairness . . . amongst equals for discriminatory purposes shouldbe viewed as unlawful.

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


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

Bill Maurer has argued that legal regimes with pretensions to equalityrelegate inequality to a domain of essential difference that is said to occurbefore the law (Maurer 1997, 10; see also Collier et al. 1995). By declaringeveryone equal before the law, legal regimes construct a realm outside thelaw, where inequality can flourish. The Attorney General’s argument in effecttreated residence as a category of comparison existing prior to legal inter-vention, as a neutral prelegal fact and therefore not an issue of discrimination.However, treating the distinction between residents and nonresidents asa difference that occurred before the law, it ignored the ways in whichthe law and its administration had been central to the creation of this verydistinction.36

How could the Attorney General argue that Israelis citizens were residentsand West Bank Palestinian card holders were nonresidents, when Israel hadno stable legal boundaries on the West Bank, and the Attorney Generalhad himself argued that their had been no “extra-territorial determination”of Israeli law? Under an Amended Emergency Regulation, Israeli residencewas defined as including Israeli citizens and those eligible for citizenship underthe Law of Return, who also lived in the West Bank or Gaza Strip.37 TheIsraeli Law of Return further stipulates that anyone defined as Jewish by thestate of Israel is eligible for Israeli citizenship. Therefore, you could live inthe West Bank and, so long as you were an Israeli citizen or defined as Jewishby the Israeli state, could also be legally defined as an Israeli resident. Ifyou were on the West Bank population registry, which was administrativelylimited to Palestinians, you were defined as a West Bank resident. Therewas no geographic distinction between an Israeli resident and a nonresident.At all times, both categories were within territory controlled by Israelicustoms, immigration, and military.

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

36. The classification of West Bank Palestinians as nonresidents also had the effect ofmaking West Bank Palestinians ineligible for other benefits. The Israeli Employment Bureauroutinely defined West Bank identity card holders as day workers, despite the fact thatthey may be working in the same place for several months. There was no legal basis for thisadministrative decision, but it had the effect of denying permit holders the right to notificationof dismissal and other rights found in collective agreements, which are only available to monthlyworkers.

37. Israeli Emergency Regulations (Judea and Samaria, Gaza Region, Sinai and SouthernSinai) 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 WestBank. Through the category of residence, the legal geography of the WestBank, and the distribution of rights within that space, were being reorderedaccording to the political logic of ethno-nationalism. In this way, residencemoved between synthetic and organic notions of difference. At one levelresidence was treated as a solely legal criterion, necessary only at a practicallevel. However, the basis of this distinction was the organic notion of com-munity found in the Law of Return. In a double move, the Israeli AttorneyGeneral first separated political identity from territory in order to separatethe PNA and the Israeli state. Then, in order to reaffirm the universalityof Israeli law within the territorial boundaries of the state, identity wasreterritorialized through the concept of residency. By constant referenceto the textual authority of the law, the Attorney General was able toremain silent “about the actual circumstances and struggles” at the originof 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 thenapplied by the PNA, was the default law in force in the West Bank, andtherefore Palestinian workers should be covered by this and not Israeli law(Subhi Hamed et al. v. Municipality of Giva’at Zeev). However, the judge alsoruled that in specific circumstances, Israeli law could be applied if it couldbe proved that there was a discriminatory effect in not doing so. Bashir’scase was therefore sent back to the District Labor Court to rule on thediscriminatory effect of not applying Israeli law in specific cases.

Importantly, no precedent was set, and Palestinians continued predomi-nantly still, in practice, to be employed under “local” West Bank law, whileIsraelis enjoyed the protection of Israeli law. The ruling was limited toBashir’s individual case and therefore did not apply to the thousands ofother Palestinian employed under similar conditions. Furthermore, the dis-tinction between an Israel and West Bank resident in the allocation of legalprotection was not challenged.

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

The case was delayed several times over the following years. It was dueto 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 Kav La Ovedand now involved several other groups of workers, employed both bymunicipalities and private employers. The Civil Administration, the branchof the Israeli military that had provided municipal services to the Palestinianresidents of the West Bank, also presented a case that PNA law should applyto Palestinian workers. The Civil Administration had previously employedthousands of Palestinians under the Jordanian law that had been in forcebefore the creation of the PNA. If the judge ruled that Israeli law shouldapply, the Civil Administration potentially faced huge back claims inpensions and wages for the thousands of Palestinians it had employed overthe 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 understoodin the context of jurisdictional politics, which seeks to stabilize the contingentrelationship between political community, territory, and legal subjects. Indoing so this jurisdictional politics seeks to delimit the contradictoryboundaries of the Israeli state by creating distinct categories of person outof the populations that live and work in the region. These processes takeshape in the context of the tensions in the forms of governance throughwhich the Israeli state has attempted to control the region. The conflictbetween territorial claims to the West Bank, the economic integration ofthe Palestinian population, and the desire to maintain Israel as a Jewishethno-national state, have created a shifting jurisdictional regime, whichhas included effective annexation for Israeli citizens and a combination ofmilitary rule and partial, if extremely limited, autonomy for Palestiniansubjects. West Bank Palestinians have depended on the Israeli economy forwork but have been divided from their Israeli employers and co-workers bycomplex and hybrid systems of legal jurisdiction. For the tens of thousandsof West Bank Palestinians who work in Israeli settlements, this has meantthat 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 verydifferent legal conditions. There was a constant movement between organicnotions of jurisdiction based on supposedly self-evident categories of differ-ence and syntheticjurisdictional arrangements that treated jurisdictions asneutral and pragmatic containers of individual rights. It is the movementbetween these two types of jurisdictional arrangements, reflecting widerconflicts over the relationships between political community and territorialsovereignty, which has produced distinct legal subjects out of the populationsof the West Bank, who are then treated differently both before the lawand beyond.


Richard Ford argues that jurisdictional regimes help to “legitimate . . .hierarchy and economic inequality” (Ford 2001, 213). However, as Ford alsopoints out, an analysis of jurisdictional regimes is not about “unmaskingreality” in order to reveal the true jurisdictional formation that lies under-neath (Ford 1999, 863). Rather, an analysis of jurisdictional arrangementsacts as a conceptual filter through which to understand how the relationshipbetween territory, collective subjects, and individual rights are organized inparticular political contexts. While the jurisdictional regime in place in theWest 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 aremediated, in a context of institutional inequality, that produce particularconfigurations of rights.

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

However, the institutional dominance of the Israeli state should notbe taken as an indication of the inherent stability of the Israeli nation-stateand its jurisdictional practices, in contrast to the seeming fragility ofPalestinian claims to the West Bank. The processes that are described asthe Israeli state, Israeli law, or the Israeli economy depend in important waysfor their reproduction on their Palestinian other. The Israeli settlements, forexample, depend on Palestinian labor, Israeli courts apply Palestinian law,and perhaps most importantly, the status of Israel as a Jewish state dependson the creation of the PNA. The spaces of Israeli citizenship and rightsdepend on the nonspaces, noncitizens, and nonrights of West BankPalestinians. In this way the processes and practices that are often describedas “Israeli” rely on the very things they would seem to deny, creating anirreducible tension that is mediated by the creation of constantly shiftingjurisdictional regimes. At times this jurisdictional regime is unable tosuccessfully mediate the contradictions of the Israeli occupation, resultingin the much more violent attempts to separate Israelis and Palestinians thathave marked the second intifada.


It is important to note that, although the occupation of the West Bankis undoubtedly an extreme example, the Israeli state is not alone in facingtensions due to contingent relationship between forms of political com-munity, place, and individual subjects in a context of economic inte-gration and military interventionism. It is, as Navaro-Yashin argues, byexamining the seemingly “abnormal” practices at the extreme, that we canalso invite further reflection on the abnormal qualities of seemingly “ordinary”states (Navaro-Yashin 2003). From Guantanomo (Steyn 2004) to theFree-Trade Zones of South-East Asia (Ong 2003), jurisdictional regimes areremodeled in order to produce particular configurations of rights. As themovement of capital, labor, and military force puts the claims of states toprovide equality before the law within their territorial boundaries understress, the mapping of the world, as a series of discrete political, territorial,and legal entities, has rightly seen a great deal of critical analysis (Guptaand Ferguson 1997, 3). This has meant questioning the distinctions betweencitizens and noncitizens, residents and nonresidents, as the territorial locationof the legal rights of membership becomes increasingly unstable (Calavita2005). However, territorial jurisdictions, rather than being neutral containersof rights, should be understood as being concerned with mediating thecontingent and often contradictory relationship between categories ofperson and the state (Ford 1999). In this way, the path is opened to movebeyond narrow debates over whether economic, military, or cultural move-ment undermines or strengthens territorial categories of belonging, in orderto explore how jurisdictional practices are remodeled to mediate the con-tradictions of capitalist political formations. In this process, jurisdictionalregimes attempt to produce particular citizens and subjects out of diversepopulations who live and work in the same economic and political spaces.

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CASES CITED

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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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