December 23, 2011
Dual system of law
Although settlers in the Occupied Territories live in an area that is subject to military rule, and despite the fact that the settlements have not been formally annexed, Israel has applied a substantial part of Israeli law to the settlers. As a result, Israeli civilians living in the Occupied Territories are not subject to military or local law, as are the Palestinians, but are prosecuted according to the Israeli penal law.
The Emergency Regulations (Offenses in the Occupied Territories – Jurisdiction and Legal Assistance), 5727-1967, enacted by the Minister of Defense in July 1967, provided that Israeli civilians who have committed offenses in the Occupied Territories can be tried also in Israeli civil courts. This created extra-territorial personal status for Israeli civilians in the Occupied Territories. Since then, the Knesset has regularly extended these regulations.
Being subject to the Israeli judicial system, settlers enjoy liberties and legal guarantees that are denied Palestinian defendants in the Occupied Territories charged with the same offense. The authority to arrest an individual, the maximum period of detention before being brought before a judge, the right to meet with an attorney, the protections available to defendants at trial, the maximum punishment allowed by law, and the release of prisoners before completion of their sentence – all of these differ greatly in the two systems of law, with the Israeli system providing the suspect and defendant with many more protections.
Thus, different legal systems are applied to two populations residing in the same area, and the nationality of the individual determines the system and court in which he or she is tried. This situation violates the principle of equality before the law, especially given the disparity between the two systems. It also violates the principle of territoriality, conventional in modern legal approaches, according to which a single system of law must apply to all persons living in the same territory.
All persons suspected of committing an offense in the Occupied Territories must stand trial according to the same judicial system and the same laws, irrespective of their ethnic identity. The application of Israeli criminal law solely to Israeli civilians and non-Israeli Jews must be abolished. In accordance with international law, as long as Israel continues to control these territories, military justice and local law must apply to everyone who breaks the law in the Occupied Territories, while protecting human rights.