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Segregation is here, just look at Israel's legal system

Although segregated buses provide a clear and obvious picture of discrimination, applying different laws to individuals living side by side may prove to have far greater legal, ethical and strategic consequences for Israel.

By Gerard Horton

Illustrative photo of Abdullah Abu Rahma in court at the Ofer military prison, September 15, 2010 (Oren Ziv/Activestills.org)

Illustrative photo of Abdullah Abu Rahma, a Palestinian leader of the popular resistance movement in the West Bank, sitting in court at Ofer military prison, September 15, 2010. (Oren Ziv/Activestills.org)

On Wednesday, May 20, 2015, Prime Minister Netanyahu announced the freezing of a plan to segregate passengers on buses traveling in the West Bank based on their race or nationality, less than a day after the regulation came into effect. The chief architect of the plan, Defense Minister Moshe Ya’alon, has made it clear that this is a temporary suspension and not a cancellation.

While the regulation presented a public relations disaster for Israel, one must wonder whether its suspension was motivated by something more, such as a genuine concern that it would amount to state-sponsored discrimination based on race or national identity? Unfortunately, the answer to this question appears to be negative. If you’re looking for evidence, just look at the Israeli state’s continued application of dual legal systems in the West Bank based on nationality.

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 offense, 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 offense, 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. While 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.

The Ofer military prison in the snow, December 15, 2013. (Photo by Oren Ziv/Activestills.org)

The Ofer military prison in the snow, December 15, 2013. (Photo by Oren Ziv/Activestills.org)

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 favorable than those applied to their Israeli neighbors 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 in some cases may exceed the rights and protections provided under Israeli civilian law, particularly in the current circumstances of a nearly 50-year military occupation.

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.

Gerard Horton is a lawyer and co-founder of Military Court Watch. Gerard has worked on the issue of children prosecuted in the Israeli military courts for the past seven years and is the author of a number of leading reports on the subject.

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    1. Ginger Eis

      “In practice this means that two children in the West Bank committing the same offense, 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.”

      The above claim is a Non-responsive Nonsense. Here is why:

      a. (More than) 98% of Palestinians live under Palestinian Rule (the figure is undisputed)! Israeli law – civilian, military or otherwise – does not apply to them. They “vote in the institutions that shape their lives” and they live according to their own traditions, culture and religion and they judge themselves according to their own laws.

      b. Israeli-Arabs, non-Jewish Israelis and foreigners with Israeli residence permit ALSO live in Judea & Samaria and are treated the same as Jewish Israelis. Your claim” the application of legislation on a national-ethnic basis” is blatantly false.

      c. Military Orders also apply to Jewish Israelis: http://mondoweiss.net/2011/12/breaking-night-arrests-of-israeli-rightists

      d. The only way to apply the same law to Israelis and non-Israeli Arabs living in Judea & Samaria is to apply Israeli law there. An overwhelming majority of Jewish Israelis are open to applying Israeli law in Area C RIGHT NOW and giving FULL citizenship and EQUAL RIGHTS to those Palestinians living under Israeli Rule in Area C. Guess who is opposed to that: the Palestinian Authority, ACRI, Btselem, +972mag and other political NGO’s who are hell bent on distorting facts, smearing- and destroying Israel – regardless of how disastrous their actions are for the same Palestinians the claim to care about.

      +972mag, your propaganda fools no one.

      Reply to Comment
      • Bruce Gould

        Ginger, here in the U.S. people live under the laws of their city – you need to mow your lawn! – the laws of their state, and the laws of the federal government. All three legal systems apply simultaneously, but federal law usually trumps state law, state law trumps city law, and so on. The fact that I’m subject to the laws of the city I live in doesn’t mean that I’m not also subject to federal law.

        In the Occupied Territories Israeli law trumps Palestinian law; Palestinians are subject to a legal system designed by people they don’t get to vote for. If this isn’t apartheid, it’s pretty close.

        Reply to Comment
        • Pedro X

          Your response is just more non-responsive nonsense. You need to read Ginger’s points again.

          “(More than) 98% of Palestinians live under Palestinian Rule (the figure is undisputed)! Israeli law – civilian, military or otherwise – does not apply to them. They “vote in the institutions that shape their lives” and they live according to their own traditions, culture and religion and they judge themselves according to their own laws.”

          Do you have statistics which dispute this Bruce? Palestinians are treated according to their own laws, unless they commit crimes against Israelis in which when caught they are subjected to the same laws as Israeli citizens and foreigners with residency permits are subject to.

          “Israeli-Arabs, non-Jewish Israelis and foreigners with Israeli residence permit ALSO live in Judea & Samaria and are treated the same as Jewish Israelis. Your claim” the application of legislation on a national-ethnic basis” is blatantly false.”

          Ginger is right. These people are subject to law administered by Cogat for good or bad. Jewish Israelis in Judea and Samaria want Israeli civil law to apply in Judea and Samaria to everyone, including the Arabs who live there.

          “Military Orders also apply to Jewish Israelis: http://mondoweiss.net/2011/12/breaking-night-arrests-of-israeli-rightists

          Do you dispute this, Bruce?

          d. The only way to apply the same law to Israelis and non-Israeli Arabs living in Judea & Samaria is to apply Israeli law there. An overwhelming majority of Jewish Israelis are open to applying Israeli law in Area C RIGHT NOW and giving FULL citizenship and EQUAL RIGHTS to those Palestinians living under Israeli Rule in Area C. Guess who is opposed to that: the Palestinian Authority, ACRI, Btselem, +972mag and other political NGO’s who are hell bent on distorting facts, smearing- and destroying Israel – regardless of how disastrous their actions are for the same Palestinians the claim to care about.

          Reply to Comment
          • Ben

            You know it’s really something the way you two make stuff up. Pedro X you are simply repeating Eis’s blatant elision of the truth. Bruce is absolutely correct. There is NOTHING in what you two have posted that refutes the truth of this statement:

            “In practice this means that two children in the West Bank committing the same offense, 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.”

            Or the truth of this statement:

            “While 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.”

            Now you can post here all day saying a Palestinian child throwing stones gets treated the same as a Jewish child throwing stones gets treated but no one not born yesterday and with two eyes to see is going to believe it. Please try to contest something even slightly more credible and not waste everyone’s time.

            One more thing–regarding:

            “The overwhelming majority of Jewish Israelis are open to applying Israeli law in Area C RIGHT NOW and giving FULL citizenship and EQUAL RIGHTS to those Palestinians living under Israeli Rule in Area C.”

            (1) what they WANT, their annexationist desire, is utterly irrelevant

            (2) it’s a moot point, but no one believes those rights would be truly equal in practice anyway.

            “Guess who is opposed to that?”

            Yes, they are not masochistic idiots. Your attempt at accusation is merely a description of their common sense.

            Reply to Comment
          • BigCat

            Brian Ben David T. Dekkers,

            “Not surprisingly, the child prosecuted in the civilian system will be afforded greater rights and protections.”

            Can you tell us which “rights” you have in mind by citing the specific provisions of the laws that give “greater rights” to “Jewish children” vis-à-vis “Palestinian children”? Or are you going to continue parroting unsubstantiated claims that are anti-Israel?

            Lets test you hypothesis – unless you are afraid as all hateful weasels are…Lol.

            Reply to Comment
          • BigCat

            All you need to do is (a) tell us which specific “rights” you have in mind and (b) cite the Israeli laws that gives “Jewish children” “greater rights” than “Palestinian children” vis-à-vis that “right” you have in mind. That should not be extremely difficult, should it?

            Reply to Comment
          • C Den

            Hum, let’s start with administrative detention?

            Then, let’s have a look at the military orders?
            http://en.wikipedia.org/wiki/Israeli_Military_Order

            In particular,
            Military Order No. 101 (criminalizes demonstrations)

            or Military Order No. 1651 (arrest and detention, including administrative detention to detain Palestinians without charge or trial for prolonged periods)

            If you claim that those orders also apply to settlers, have a look at Military Orders No. 783 and 892 (settlements are enclaves of Israeli civil law within the West Bank). And even when the military orders should be applied to settlers, they face civil courts instead.

            Reply to Comment
          • BigCat

            Read the question AGAIN and answer ONLY the question. If you are incapable of understanding very a simple the question, there is no need to answer it and continue telling me either that you in fact are a moron or that no such laws exist – as you claimed! Try learning when to keep your mouth shut (and maybe let may Brian Ben David T. Dekkers and/or Jon Akkerwhatever speak,….LoL…)

            Reply to Comment
          • Yeah, Right

            BigCat: “All you need to do is (a) tell us which specific “rights” you have in mind and (b) cite the Israeli laws that gives “Jewish children” “greater rights” than “Palestinian children” vis-à-vis that “right” you have in mind. ”

            Self-delusion, writ large.

            The West Bank is an occupied territory, and the IDF is an occupying power.

            The laws of belligerent occupation does not give “ownership” of the territory to the occupier, who merely has “authority” over it.

            Therefore the only criminal code that the occupying power (which, remember, is a MILITARY entity) has the authority to administer is:
            a) the laws that existed prior to the occupation, and/or
            b) any Military Orders that the occupying power may issue during the occupation.

            Yet here is a situation where the occupying power not only insists on applying its own domestic laws inside this occupied territory (which is itself something that no occupier has the authority to do), but then adds insult to injury by insisting that it will only apply those laws to some but not to everyone.

            Or, long story short: I’d untroubled if EVERY kid inside is tried in an IDF military court for violating a Military Order.

            But when two kids throw stones at each other but *this* stone-throwing kid is tried in a Military Court but *that* kid is tried in an Israeli juvenile court then, yeah, one of those kids has more rights than the other.

            This is very, very simple: One law for everyone, and in this occupied territory that maxim is not true.

            Reply to Comment
          • andrew r

            To answer your very simple question, the Israeli Nationality Law repealed the Palestine Citizenship Orders of 1925 and left anyone who would not be a citizen under the Nationality Law and Law of Return stateless. This is what gives Jews – Israeli or not – greater rights in Occupied Palestine (from river to sea) than Palestinians. The Yishuv inaugurated their Jewish State in Palestine by going to war against their own citizens.

            Reply to Comment
          • Yeah, Right

            Ginger: “a. (More than) 98% of Palestinians live under Palestinian Rule (the figure is undisputed)! Israeli law – civilian, military or otherwise – does not apply to them. ”

            Untrue. IDF military orders – i.e. “Israeli military law” – applies to 100% of the Palestinians living in the West Bank.

            That is indisputable, because the IDF can – and does – go anywhere to arrest anyone, and when the IDF does arrest then those Palestinians are not handed over to the Palestinian security forces so that they may be tried under PA criminal courts.

            You. Are. Wrong.

            Ginger: “c. Military Orders also apply to Jewish Israelis:”

            I shall point out that Ginger’s (c) flatly contradicts her point (a) since, du’oh!, the “also rans” in her statement include the Palestinians to whom those Military Orders are applicable.

            I’ll also point out that her point-of-order has already rebutted in this article i.e. although the Israeli authorities *could* “also apply Military Orders” the Jewish colonists inside the West Bank, when it comes to criminal proceedings the civil authority all-but-invariably puts them on trial in an Israeli civilian court.

            Ginger: “d. The only way to apply the same law to Israelis and non-Israeli Arabs living in Judea & Samaria is to apply Israeli law there.”

            Ginger has just told an untruth, because the **other** way to apply the same laws to everyone is to try everyone in a military court, which is a point that she has **already** conceded in her (c) above.

            I’ll also point out that her basic argument is a violation of international humanitarian law i.e. under the laws of belligerent occupation you can’t “apply Israeli law” to anyone inside an occupied territory, precisely because Israeli civil law is only applicable within Israeli territory.

            And – du’oh! – an occupied territory doesn’t belong to the occupying power.

            It merely has “authority” over that territory, nothing more.

            Ginger: “+972mag, your propaganda fools no one.”

            Oh, please, luvvie, look in the mirror.

            Reply to Comment
          • Yeah, Right

            PX: “Do you have statistics which dispute this Bruce?”

            Pedro, can the IDF arrest anyone it wants anywhere within the West Bank?

            The answer is “yes”.

            Yes, it can and, yes, it does.

            And when such arrests are made does the IDF hand over the individual to the PA security forces so that they can be tried in a PA criminal court?

            The answer is “no”. No, the individual is tried in a military court, or is placed under indefinite “administrative detention”.

            All of that is indisputable, and give a lie to Ginger’s claim in (a).

            PX: “Jewish Israelis in Judea and Samaria want Israeli civil law to apply in Judea and Samaria to everyone, including the Arabs who live there.”

            And I want to be the King of Londinium and wear a shiny hat.

            But I’m not and so I don’t.

            Equally, the occupying power does *NOT* have the authority to apply its own domestic laws inside the territory that it holds under a belligerent occupation.

            It isn’t a matter of “wants”, but of “authority”, and every time that Israel “applies Israel Law” to anyone for any act carried out inside that territory then it has exceeded the authority granted to any occupier.

            PX: “Do you dispute this, Bruce? ”

            The article clearly states that the occupying power CAN apply its own military law to everyone inside this occupied territory, but invariably tries its own citizens in its own domestic courts.

            That it *also* applies those same domestic laws to Everyone Who Isn’t A Protected Person (i.e. to everyone who isn’t a Palestinian) is immaterial, because no matter who is the beneficiary of that largesse that act of largess is *itself* something that an occupying power has no authority to bestow on anyone.

            Honestly, the self-delusion is breathtaking.

            Pedro, Ginger, get this through your very-thick skull: Israel doesn’t OWN the West Bank. It ISN’T Israeli territory, and therefore “Israeli law” has absolutely zero jurisdiction over acts carried out inside that territory.

            The laws that were in effect before the occupation? Sure, the occupier can enforce those laws, but only in an IDF military court.

            IDF Military Orders? Of course, but again only in an IDF military court.

            But what about “Israeli Law”? No. It’s not “Israeli territory”

            Reply to Comment
          • BigCat

            O.M.G! This madman “yeahright” has started going ballistic yet again, jumping up and down shouting, screaming and screeching all over the thread, while deluding himself that any self-respecting person will waste his/her time trying to make sense of his salvo of loooooooong monotonous, incoherent, rambling mumbo jumbos that stream out of his confused mad mind! Somehow this moron thinks that the website: http://www.icrc.org where he gets his “legal education” makes him some kind of a “jurist” – even as what is written there gets him even more confused than he was before he read anything there! Oh dear…. what delusional madman!

            Reply to Comment
          • Yeah, Right

            *yawn*

            BigCat doing what he always does – reaching for the ad-hom.

            It is as tedious as it is predictable.

            Dude, this is an occupied territory.
            Sunshine, Israel is an occupying power.

            This is therefore a truism: Israel merely has authority over this territory, it does not have “sovereignty” over this territory and, therefore, “Israeli Law” does not and can not have jurisdiction over acts carried out inside that territory.

            That Israel claims otherwise is about as convincing as, well, as your ignorant arguments.

            The result is the same in both cases: the Zionist is insisting that everyone play a kindergarden game of Let’s Pretend, and then acts all mystified when nobody else shows any interest in getting into the sandpit with them.

            Dude, sunshine, nobody does, precisely because you are playing pretendies and everyone else are grown-ups.

            Reply to Comment
          • BigCat

            O.M.G! This madman “yeahright” has started imploding and exploding yet again, jumping up and down shouting, screaming and screeching all over the thread, while deluding himself that any self-respecting person will waste his/her time trying to make sense of his salvo of loooooooong monotonous, incoherent, rambling mumbo jumbos that stream out of his confused mad mind! Somehow this moron thinks that the website: http://www.icrc.org where he gets his “legal education” makes him some kind of a “jurist” – even as what is written there gets him even more confused than he was before he read anything there! Oh dear…. what delusional madman!

            Reply to Comment
      • Yeah, Right

        Ginger: “a. (More than) 98% of Palestinians live under Palestinian Rule (the figure is undisputed)! Israeli law – civilian, military or otherwise – does not apply to them. ”

        Untrue. IDF military orders – i.e. “Israeli military law” – applies to 100% of the Palestinians living in the West Bank.

        That is indisputable, because the IDF can – and does – go anywhere to arrest anyone, and when the IDF does arrest then those Palestinians are not handed over to the Palestinian security forces so that they may be tried under PA criminal courts.

        You. Are. Wrong.

        Ginger: “c. Military Orders also apply to Jewish Israelis:”

        I shall point out that Ginger’s (c) flatly contradicts her point (a) since, du’oh!, the “also rans” in her statement include the Palestinians to whom those Military Orders are applicable.

        I’ll also point out that her point-of-order has already rebutted in this article i.e. although the Israeli authorities *could* “also apply Military Orders” the Jewish colonists inside the West Bank, when it comes to criminal proceedings the civil authority all-but-invariably puts them on trial in an Israeli civilian court.

        Ginger: “d. The only way to apply the same law to Israelis and non-Israeli Arabs living in Judea & Samaria is to apply Israeli law there.”

        Ginger has just told an untruth, because the **other** way to apply the same laws to everyone is to try everyone in a military court, which is a point that she has **already** conceded in her (c) above.

        I’ll also point out that her basic argument is a violation of international humanitarian law i.e. under the laws of belligerent occupation you can’t “apply Israeli law” to anyone inside an occupied territory, precisely because Israeli civil law is only applicable within Israeli territory.

        And – du’oh! – an occupied territory doesn’t belong to the occupying power.

        It merely has “authority” over that territory, nothing more.

        Ginger: “+972mag, your propaganda fools no one.”

        Oh, please, luvvie, look in the mirror.

        Reply to Comment
    2. Ginger Eis

      1. SEGREGATION means: “the separation or isolation of a race, class, or ethnic group by enforced or voluntary residence in a restricted area, by barriers to social intercourse, by separate educational facilities, or by other discriminatory means”;

      2. ISRAELIS UNDER THE LAWS OF THE STATE OF ISRAEL are: all Human Beings with the Nationality of The State Of Israel. These include: (a) Muslim Arabs, (b) Christians, (c) Jews, (d) Druze, (e) Baha’i, (f) Circassians, (g) Samaritans, (i) others , regardless of their Race, Ethnicity, Religion, Gender, etc. (!).

      3. INDISPUTABLE FACTS: the same rights apply to all “Israelis” by LAW! The laws of the State Of Israel forbid discrimination of any ISRAELI based on race, ethnicity, color of skin, religion, gender, etc. All Israelis as described above work together, attend the same schools (ALL Universities and public schools in Israel are mixed!), intermarry/marry whomever they choose to be marry to, play together on the same public play ground, bath together in the same public areas, ride the same buses and trains, eat in the same restaurants, use the same public WC’s, etc. There are tens of hundreds of Arab doctors, resp. lawyers, resp. teachers in Israel treating Jews as their patients resp. representing Jews as their client s rep. educating Jews as their students; there are thousands of Arab policemen and women in Israel policing Jewish Israelis, there are tens of Arab Members Of Parliament (MK’s) in the Israeli Parliament, there are two Supreme Court Justices of Arab descent (Justice Abdel Zuabi and Justice Salim Joubran) in the Highest Court Of the State Of Israel; Arabs serve both as diplomats and other as forms of Representatives of The State Of Israel, etc.

      4. GIVEN (a) the content of the LAWS of The State Of Israel and (b) the indisputable facts re the PRACTICE of said LAW in The State Of Israel, the accusation of “segregation” is wholly and utterly unfounded.

      Said accusation is the epitome of imbecility and maliciousness and, as such, fails – with prejudice!

      @ +972mag

      Reply to Comment
      • BigCat

        What has the article you linked got to do with the subject Gerard Horton/+972 wrote about, you troll?

        You still don’t get it, do you? No one disagrees with legitimate criticism of Israel. In fact Israelis have more criticism of Israel than anyone else – including our distracters. At the same time, we fervently oppose anti-Semites who hid behind the Arab-Israeli conflict to practice anti-Semitism, while claiming to be “human rights” activists or just offering critique of Israel’s policies. When you – Brian Ben David T. Dekkers – don’t have a job and instead of finding a job jog fixate on- and obsess with Jews 24/7, ranting on every comment section of Jewish websites against Jews and/or Israel, etc. while not knowing or even caring about what goes on in your own country (which has far more serious social problems than Israel) or elsewhere where innocent men, women and children are being massacred on a daily basis in the hundreds, you have “a problem with Jews”! When you call Israel an “apartheid state”, etc. you have “issues with Jews”, etc. There is a difference between legitimate critique of Israel’s policies and anti-Semitism that masquerades as legitimate critique. You are a hateful racist anti-Semite still looking for justification for your psychotic fixation on- and obsession with Jews and Israel. Your posts on this site as “Brian” provide ample evidence of your anti-Semitism. I am sure you don’t want us to go there, do you?

        Reply to Comment
        • Ben

          “What has the article you linked got to do with the subject Gerard Horton/+972 wrote about…?”

          The appalling thing is that you see no connection between an article on segregation in Israel, including segregated buses, and an interview with America’s first African-American President that affords the rest of us an opportunity to understand his perspective in regard to Israel. That just floors me. Are you really this dense?

          Reply to Comment
          • BigCat

            Indeed, here is the EVIDENCE of “segregation” in Israeli buses and trams, you anti-Semitic moron:

            http://alotofocelots.tumblr.com/post/115329289206/eretzyisrael-it-doesnt-get-any-more-apartheid

            Btw

            Do you know that your own country imprisons Black men MORE than Apartheid South Africa did?

            Do you know how many Black men who are CURRENTLY innocently sitting (on death row) in jails in your own country (the USA)? Do you care about them? What have you done for them?

            Do you know how many innocent Black men who have been wrongly convicted and executed of a crime they did not commit in your own country (the USA)? Do you care about them? What have you done for them?

            Do you know that Black men get higher prison sentences than their White counterparts for the same crimes in your own country? Do you care about them? What have you done for them?

            Do you know that a Black man is very likely to be put away in prison for the best part of his life for a crime an Israeli Arab/Jew or a White American will most likely get suspended sentence for? Do you care about them? What have you done for them. They are your countrymen, are they not?

            You don’t know or care about the evils that go on in your own country on a daily basis, but you psychotically fixate on- and obsess about Jews 24/7 and spreading the lies of “apartheid” and “segregation” against the Jewish State. You really have a problem with Jews. Go seek professional help, you psychotic moron!

            Reply to Comment
    3. Tony Riley

      Somebody should tell this clown that Israeli buses aren’t segregated.

      Reply to Comment
    4. Bruce Gould

      Stats (see, particularly, detainees and prisoners):

      http://www.btselem.org/statistics

      But these stats come from B’tselem (and Machsom Watch, the U.N. agencies, Human Rights Watch, the Red Cross, Yesh Gvul, Yesh Din and a dozen other groups) so no one will believe them.

      Reply to Comment
      • BigCat

        Your point, Bruce, is exactly what?

        The number of foreign prisoners in your own country (the USA) is per capita waay higher than the number of foreign prisoners in Israeli jails, including Palestinians who have committed crimes in Israel, have been tried and sentenced and are serving jail time. Maybe you should start worrying about your own country first, or is there any special reason why Israel should not bring criminal offenders to justice who entered and committed crimes in Israel – regardless of who they are and where they come from? The statistics in your source are completely irrelevant to the discussion.

        The number of administrative detainees in countries like the UK, Germany, the Netherlands, the United States is per capita waay higher than the number of administrative detainees in Israel. In the European countries mentioned, the most prevalent reason for administrative detention is “illegal immigration”. In Israel, the foremost reason is security – to prevent terrorist attacks against innocent civilians (such as suicide bombers in busses, restaurants etc. or using cars and buses to run over people on the street and crush then to death along with their children, etc.). In comparison, Israel comes out on top as having the most cogent reason to put anyone in administrative detention and on that ground most just of all those countries. The statistics in your source are completely irrelevant to the discussion.

        Reply to Comment
    5. susy

      Middle East Policy Council

      “Palestinians”: The Ongoing Attempt to Simplify “the Others”

      As efforts to renew the Palestinian-Israeli peace process move ahead, the claim that Palestinians do not exist as a people has become increasingly common. Israeli Tourism Minister Uzi Landau recently asserted that Palestinians “never existed as a nation [but] suddenly everyone talks about a state.” During his last visit to Israel casino magnate Sheldon Adelson called Palestinians just “southern Syrians” or Egyptians until Yasir Arafat “came along with a pitcher of Kool-Aid and gave it to everybody to drink and sold them the idea of Palestinians.” Previously, Harvard Law professor Alan Dershowitz noted that the number “of Palestinians with deep roots in the area of Jewish settlement” constitutes “a tiny fraction,” while American scholar Berel Wein pointed out that pre-Zionist Palestine was almost a desert populated mainly by “Arab immigrants” that “came in great part because of the Jews.”

      The rationale behind such declarations is clear. If Palestinians do not exist, or are recent immigrants, why would there be a need to negotiate with them, much less permit them a state?

      Indeed, each of the above considerations, besides not bringing any real benefit to the interested parties, is vitiated by the transposition of values, uses and traditions which are as relevant in the West as they are negligible within the realities to which they refer.

      Palestinian poet Mahmoud Darwish used seven words to indirectly clarify most of the current “misunderstandings.” “Who are they,” he asked in his Une rime pour les Mu‘allaqāt (“A Rhyme for the Odes”) referring to he the native majority, “That’s someone else’s problem.” In many respects this was indeed a problem of “others,” of “outsiders.” What made the difference for the “insiders” was, besides religion, the provenance from a certain village, the belonging to a specific family clan, the use of a particular dialect, a way of dressing, a product of the earth, a religious festival (the Nabi Musa festival, for example, was a clear expression of a proto-national cohesion), a dance.

      Before the imposition of the nationalist ideologies and the emergence of exclusivist approaches, it was these factors, not primarily political identity, that defined “Palestinianness.” These characteristics form the “rudiments of a nation” in Anthony Smith’s sense of the concept—a set of identifiers so fundamental and so long-existing, so taken for granted, that virtually no one had any need to investigate. “The whole game of identity definition,” Meron Benvenisti noted, “reflects the immigrant’s lack of connection. Natives don’t question their identity.”

      In the context of this “game of identity definition” it is relevant to mention that some scholars have suggested that the use of the term Palestine was not an exclusive prerogative of the Arabs and that therefore a more precise distinction should refer to two distinct realities: the Arab Palestinians (or Arabs of Palestine) and the Palestinian Jews. In this sense it was noted that from 1932 to 1950 the Jewish newspaper Jerusalem Post was called The Palestine Post. The clarification is relevant, and in fact the Jews that over the centuries did remain on the spot can be defined Palestinian Jews.

      The charter of the Palestine Liberation Organization (PLO) itself, a document certainly not very inclined to compromise, recognized that “the Jews who had normally resided in Palestine until the beginning of the Zionist invasion are considered Palestinians.” This means that before the emergence of insular and exclusivistic approaches, such as the avodah ivrit (“Hebrew labor,” i.e. only “Jewish hands” could work the “Jewish land”) logic, there was no urgency to define the different ethnicities in a clear-cut way. Moreover, even if we focus the attention on an “ethnocentric perspective” it is necessary to keep in mind that such an aspect does not alter the terms of the question in a substantial way. Referring to an overwhelming “Palestinian Arab majority,” or to an overwhelming “Palestinian majority,” as opposed to a possible “Jewish-Palestinian minority” or “Jewish minority,” is little more than a semantic disquisition.

      The reference to a “Palestinian Arab majority” is not a secondary one. The reference to a majority, and thus to numbers, is relevant in as much as it directly tackles the common thesis according to which that majority was indeed composed by “Arab immigrants” that “came because of the Jews.” In the context of our interest, numbers and “identity” are strictly related. In other words, answering to the question of how many the Palestinians were also helps to explain who these people were.

      The first official census was taken in Palestine in 1922, by the British mandated government. In that occasion a total population of 757,182 individuals was found, of whom 590,390 were Muslims, 83,694 Jews, and 73,024 Christians. The previous surveys presented obvious difficulties. The Ottoman authorities usually counted, for tax and military service purposes, almost exclusively adult males or heads of family. The various Christian denominations, like the Jewish millet and the consulates that were gradually created, kept their own records.

      The most reliable estimates of previous centuries reveal that in 1800 the total population of Palestine numbered 250,000 individuals, reaching 500,000 in 1890. Justin McCarthy, an acknowledged expert on the issue, indicated the number of residents in Palestine in 1860 as 411,000, the overwhelming majority of which (around 90 percent) Arabs.

      From a Eurocentric perspective these numbers might seem negligible. To get an idea, one has only to think that when Paris reached one million inhabitants in 1846, Jerusalem and Haifa numbered, respectively, little more than 18 thousand and a bit less than 3 thousand. It would, however, still be wrong to choose countries on the Old Continent instead of those in the Oriental Mediterranean area for a reliable comparison. It is more logical to compare Egypt at the start of the 1800s with Palestine in the same period. It is estimated that the first one had at the time a population of around three million inhabitants: today it numbers 77 million. The second, inhabited at that time by 250,000/300,000 people (therefore 225,000/270,000 Arabs), registers today little more than five million individuals. In comparison, these data demonstrate substantial “comparative convergence” between Palestine and the historically most important, as well as most populous Arabic country.

      Among the Arab majority of Palestine different senses of identity (connected to religious, local, transnational and family allegiances) coexisted without any contradiction between various loyalties being felt. In fact, they were identities as both distinguishable and overlapping. Not by chance, as Barnett and Telhami also noted, one of the ways in which the entire area differs from other regions “is that the national identity has had a transnational character.”

      It is in this “regional” context that it is worthy to explain the inconsistency of the “Arab immigrants” thesis mentioned above. The reference is to an assumption made popular by Joan Peters in her From time immemorial. In the latter, through an analysis of migratory processes registered throughout the course of the 1800s and in the period of the British mandate, the author depicted Palestinian Arabs as “foreigners” coming from “outside areas.” Following Peters’s approach, many later scholars tried to demonstrate that Palestine was a semi-desert and that the inhabitants the first Zionists encountered were nothing more than “travelers” attracted by the Jewish immigration.

      At least until the 1920s the growth of the Arab population — not an isolated case in the region (in Iraq, for example, between 1867 and 1905 the population went from 1 million 250 thousand to 2 million 250 thousand) — had, in reality, little to do with Jewish immigration. As Justin McCarthy noted, “the province that experienced the greatest Jewish population growth (about .035 annually), Jerusalem Sanjak, was the province with the lowest rate of growth of Muslim population (.009).” The increase in Palestine’s Arab population was mostly due to high demographic growth: a phenomenon which started already in the middle of the 1800s, thus prior both to the first wave of Zionist immigration and the first construction company founded in the 60s in Jerusalem by Yosef Rivlin.

      Such demographic growth was accompanied by a reduction in average mortality — placed well below the 40 years in the first decade of the XX century — prompted mostly by the innovations introduced by the Jewish component of the population. The latter, on the contrary, multiplied thanks to immigration, embodied mainly by worshipers, often persecuted, coming from other continents.

      This (immigration) is one of the main points which merits further clarification. Small groups did indeed immigrate in earlier years from outside Palestine. Among these was a group of Egyptians, which settled in Palestine during the years in which the region was subject to the rule of Muhammad Alì. Not long after, a small number of Bosnian, Algerian and Circassian immigrants arrived, who then settled primarily in the Galilee (their presence today is seen in the villages of Rehaniya and Kfar Kama) and at the “border” with Lebanon. Unlike the Jews who arrived in later decades during the Second and Third aliyot — the latters, through practices such as the above mentioned “Jewish Labor,” opted for exclusion and therefore the non-integration with the local Arab population — the aforementioned groups almost immediately integrated with the local majority.

      Most of the Arab Palestinians that Peters and many other “outsiders” defined as “foreigners,” or “former invaders,” were, in reality, people deeply rooted in what Khayr al-Dīn al-Ramli (1585-1671), an influential Islamic lawyer from Ramla, defined in the XVII century “Filastīn bilādunā” (“Palestine our country”); the fact that it was not a separate political and administrative entity did not make al-Ramli’s “Filastīn” less real.

      Maxime Rodinson explained the “former invaders’s myth” taking the English people as a term of reference. “It is ridiculous,” Rodinson clarified, “to call the English of today invaders and occupiers, on the grounds that England was conquered from Celtic peoples by the Angles, Saxons and Jutes in the fifth and sixth centuries. The population was ‘Anglicized’ and nobody suggests that the peoples which have more or less preserved the Celtic tongues — the Irish, the Welsh or the Bretons — should be regarded as the true natives of Kent or Suffolk, with greater titles to these territories than the English who live in those counties.”

      The “foreigners’ approach” is problematic on many other grounds; it is not necessary, in order to realize this, to go back to a far past. The minority whose origins were from other areas lived, in great percentage, in the context of Bilād al-Shām. “Filastīn,” in other words, was/is an integral part of the Arab world without erasing its peculiarities. Considering the movement within the region as a migratory process among reciprocally “foreign” populations, is a simplistic way to define a reality that was anything but simple. In Adel Manna’s words: “A Palestinian who moved to south Lebanon or a Lebanese who moved to Palestine — or a Syrian or a Jordanian, for that matter — is surely not a foreigner because he is part of the culture of the society of Bilad-al-Sham, or Greater Syria, where there were no borders between countries […] there is a big difference between them and foreigners who came from Europe, whether Christians or Jews.”

      Manichean temptations have always been harbingers of misrepresentations, as well as of great suffering. The “black or white” approach according to which Palestinians were/are a well defined nation, or were/are nothing more than “Arab immigrants” that “came because of the Jews,” and so people who would be relatively easy to dislocate to any other region in the Arab world, has for long been an inaccuracy diffused in the literature on the issue. An inaccuracy that, on the one hand, contributes to further radicalize the present day history of the region, and, on the other, continues to foster the long-established attempt of simplifying the local universe.

      As Haim Gerber once noted, “one basic claim is that the Palestinians lacked positive values in their nationalism, their ideology being confined to a fundamental hatred of Zionism […] Other historians (Zionist and other) claim that […] the people we today call ‘Palestinians’ saw themselves at the time as simply Arabs and nothing more specific […] I shall argue that not one of the historians who have dealt with these questions really got it right.”

      Reply to Comment
    6. Ben

      I see no one was able to answer Yeah Right’s thorough rebuttals, above (one in a long and repetitive series). We can at long last now put to rest, mercifully, these nonsensical legal opinions and stop wasting time and energy on these distractions. Next time someone pops up beating the same dead horse just link to Yeah Right’s four posts of May 24th here and say, “this argument has already been decisively refuted, and to save time, please see here. And yet, why are these ones such gluttons for punishment? They keep coming back with the same darn incoherent argument. And getting clobbered each time. Here’s what I think is the energy behind it: officious, nitpicking, pseudo-legal sophistry allows one to emotionally distance oneself from plain injustices that any non-lawyer can see merely by being a human being with an intact mind and an intact sense of justice. The legal officiousness is an emotional defense mechanism (intellectualization and rationalization). When it’s not just conscious flimflammery.

      Reply to Comment
      • Ben

        Now in addition to all that follows from the subjection of one group of people to military rule and military law and the application to the other group of civilian law–and you have to read Our Harsh Logic to understand the incredible cruelty involved in the day to day treatment of the Palestinians–there is a crucial aspect to the settler-IDF relationship that is not really touched on above but is described in detail in Part Four of Our Harsh Logic, which is devoted to this dual regime of law enforcement.

        This crucial aspect is this: the settlers have a dual status themselves–they “participate in military activity, command soldiers and guide them, and even participate in the operational decision-making…. Soldiers…receive and carry out instructions of the settlers…especially with regard to the expulsion of Palestinians from agricultural land…such is the method through which settlers succeed in dispossessing Palestinians of their land….” “When settler activity deviates from the law…undeniable violations of the law transform, in the context of the Territories, into differences of opinion between settlers and law enforcement authorities, and ultimately conclude in compromise, which usually comes at the expense of Palestinians and their rights…. The failure to enforce Israeli law on settlers…is evidence of the double status given settlers…settlers are able to act in the Territories…as if they were a branch of the security forces.”

        That is, the settlers get to have Israeli civilian law applied to them–but often not enforced on them–while they also get to behave like the military. This double standard is a systematic phenomenon, an essential part of the system. The soldiers’ testimonies in Part Four of Our Harsh Logic describe this dual regime, double status and double standard in interaction in concrete, living detail, and it is appalling in its cruelty. Read it.

        Reply to Comment
        • BigCat

          mama mia. This unemployed moron is actually not looking for a job to support himself, but instead uses his time fixating on- and obsessing with Jews 24/7, reading on every Jewish site about Jews and ranting on every comment section against Jews and the Jewish State, while not knowing- or even caring about the greater social evils taking place in his own country or elsewhere. Ginger and Pedro have explained the situation very clearly to you but your envy and hatred of the Jewish State blinds you so much that you can’t think clearly! Oh dear…. Dude, you are mentally deranged. Seek professional help!

          Reply to Comment
    7. Yeah, Right

      “The Palistinians were invented in the 60s and will soon disappear.”

      How odd, since there was most definitely a Palestinian Citizenship law in 1925.

      It was one of the requirements of the Mandate for Palestine, which meant that there were, most definitely and without any dispute – such a thing as a “Palestinian” some four decades before there was such a thing as an “Israeli”.

      But, hey, let’s not let facts get in the way of a good racist rant….

      Reply to Comment
      • Ben

        Interesting.

        Reply to Comment
    8. Ben

      As the failed efforts of those above to argue the merits of the dual regime show, in the occupied territories the law has become an alibi of power not a constraint on it and that empties the supposed law of any honest meaning and integrity. In the documentary, “The Law in These Parts” one of the designers of the whole system, now much older and years later, says that it was always an inherently unnatural situation with the system putting on trial–if it even affords them a trial and not arbitrary indefinite detention–those it regards as enemies and that this was barely acceptable when the time frame was months or a year or two–but going on now for forty-eight years it is outrageous and impossible and utterly incompatible with justice.

      The makers of “The Law in These Parts are coming out now with a new, innovative, interactive website:
      http://www.haaretz.com/news/israel/.premium-1.658092

      Exposing Israeli law in the Palestinian territories – on the silver screen and on the web
      New website picks up where Ra’anan Alexanderowicz’s outstanding documentary ‘The Law In These Parts’ left off.

      Reply to Comment
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