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No to segregated buses; yes to segregated courts
[21 May 2015] - On Wednesday, 20 May 2015, the Prime Minister of Israel announced the freezing of a plan to segregate passengers on buses travelling in the West Bank based on their race or national identity. The announcement came less than one day after the regulation came into effect. However, it should be noted that the chief architect of the plan, Defence Minister Moshe Ya’alon, has made it clear that this is a temporary suspension and not a cancellation.
Clearly this regulation presented a public relations disaster for Israel, but was its suspension motivated by something more, such as a genuine concern that such a regulation would amount to state sponsored discrimination based on race or national identity? Unfortunately, the answer to this question appears to be no and the evidence to support this conclusion is the continued application of dual legal systems in the West Bank.
Since 1967, Israel has exercised penal jurisdiction over both Palestinians and Israeli settlers living in the West Bank. Although Israeli military law technically applies to all individuals in the West Bank, in practice civilian law is applied to settlers. Accordingly, if an “Israeli” (as defined in the regulations) present in the West Bank is charged with an offence, he or she can be tried before a civilian court. This means that an “Israeli” in the West Bank, although in theory subject to concurrent jurisdiction (civilian and military), will invariably be prosecuted in a civilian court as a matter of public policy.
In practice this means that two children in the West Bank committing the same offence, such as throwing stones, are dealt with under two distinct legal systems, depending on who is Palestinian (military jurisdiction) and who is a settler (civilian jurisdiction). Not surprisingly, the child prosecuted in the civilian system will be afforded greater rights and protections.
It is important to note that in most conflict situations the issue of unlawful discrimination does not arise. However, it does arise in the context of the West Bank as a direct consequence of Israeli settlement activity. Whilst there is no serious dispute as to the legal status of the settlements, there is also no lawful justification upon which Israel can discriminate between persons over whom it exercises penal jurisdiction.
This conclusion does not mean that Israel must apply its civilian law to Palestinians in the West Bank, as this would be tantamount to unlawful annexation. However, it does mean that the laws applied to Palestinians in the West Bank must contain rights no less favourable than those applied to their Israeli neighbours living next door in a settlement. It must also be noted that the rights and protections afforded to Palestinians living under occupation are ultimately derived from international law, which may, in some cases, exceed the rights and protections provided under Israeli civilian law, particularly in the current circumstances of a military occupation extending beyond four decades.
Although segregated buses provide a clear and obvious picture of discrimination, applying different laws, with different rights and protections, to individuals living side by side based on nothing more than their race, may prove to have far greater legal, ethical and strategic consequences for Israel.