West Bank legal limbo center stage in Cabinet fight over labor law

A fight currently underway in the Cabinet over the expansion of women’s labor protections to the West Bank offers a window into the legal limbo of Israeli settlements.

A bill introduced by MK Orit Strock (Jewish Home) seeks to apply Israeli legal protections for women working for Israeli companies in the West Bank.

No Israeli government, not even the most right-wing or politically secure, has felt able to apply Israeli civil law — and in effect, to annex — any part of the West Bank beyond the municipal boundaries of Jerusalem. Whatever the wisdom underlying that refusal — there are millions of Palestinians in the territory in question, and a world that stands vehemently opposed to Israeli annexation — the result has been to create a territory trapped in a legal limbo under the ongoing, though officially temporary, legal jurisdiction of the IDF’s Central Command.

In that legal limbo, it is not just Palestinians who lack some of the legal rights and protections enjoyed by those living under civil law, but Israelis as well.

“We had a situation not long ago where a woman living in [a Jewish village in the Etzion Bloc] was fired from her job while she was home on maternity leave,” related an attorney, familiar with the legal issue, who asked to remain anonymous because the subject is politically sensitive.

“The woman called her employer and said, ‘Are you crazy? I’m on maternity leave. You can’t fire me,’” the attorney continued.

Firing a woman on maternity leave is expressly forbidden in Israeli labor law and punishable by steep fines and worse.

“But the employer just told her, ‘I’m sorry, but that law doesn’t apply here. I can do what I want,’” the lawyer concluded.

Both the woman and her employer are Jewish Israelis, but, because they live in the West Bank, are not under many of the legal protections of the civil law in force behind the Green Line and in Jerusalem.

Strock’s bill seeks to change that reality by stipulating that Israeli companies, public institutions, and individuals must act according to Israeli civil labor law when it comes to women’s labor rights, including in the West Bank.

The bill has raised the ire of some coalition partners, with Justice Minister Tzipi Livni (Hatnua) and Science Minister Yaakov Peri (Yesh Atid) opposing it on the grounds that it would mark a step toward applying civil law to the West Bank generally — in effect annexing the territory, some of which they believe must become a future Palestinian state.

The bill has garnered the approval of the Cabinet’s legislation committee, but the protests from Livni and Peri have delayed its progress. The Cabinet raised it for a new debate on Sunday, but will only see another vote on it in a future meeting.

The Jewish Home party, not unexpectedly, protested the delay.

“This bill has nothing to do with annexing Judea and Samaria [the traditional Hebrew name for the West Bank],” Strock said.

Jewish Home has pointed out that by applying the new law only to employers, it would actually offer previously unheard-of protections to Palestinian women employed by any Israeli citizen or institution in the West Bank. And since it applied to employers personally, it could not be said to apply to the West Bank as a territory.

On the narrow legal issue, Strock may have a point. Her bill sets no precedent. Many Israeli laws, including those related to national insurance, fertility treatments, access to higher education and other issues, have already been applied to Israeli citizens over the Green Line without becoming marks of Israeli sovereignty or being applied to the Palestinians or to the West Bank as a territory.

But Peri and Livni are not wrong, either. In the West Bank, laws are established by the IDF, which has already instituted a labyrinthine patchwork of well over 1,500 Central Command directives that constitute the bulk of the legal statutes that regulate the lives of Israelis and Palestinians in the territory.

If Jewish Home wanted to simply expand labor protections in the West Bank, it could push for a government order to the IDF to institute those protections as yet another Central Command directive. Indeed, Tzipi Livni suggested as much in her protest against Strock’s bill.

But for the West Bank settlers who make up the core constituency of the Jewish Home party, the notion that they live under IDF military rule is anathema to their politics and their sense of place in Jewish history. It is harder to ignore the legal reality of Israel’s continued refusal to annex the West Bank when the Jews of Judea and Samaria depend for their labor protections on the IDF governor of the territory.

Prime Minister Benjamin Netanyahu tried to navigate a narrow path between the two sides in his often-fractious coalition. But a carefully crafted statement that he issued showed a clear preference for a more guarded approach than that being pursued by Jewish Home.

“The rights of working women in Judea and Samaria will be equalized in accordance with the laws of the State of Israel by October 13, 2013 (the start of the Knesset winter session),” Netanyahu’s office said in a statement Sunday.

That equality will come about “either by an order of the GOC Central Command that equalizes their rights, or by the matter being submitted for Knesset legislation” by the start of the winter session, the statement read.

In other words, if the head of the Central Command, Maj. Gen. Nitzan Alon, does not institute the new labor protections contained in Strock’s bill through a military directive, Netanyahu will support Jewish Home’s legislation.

The language of the statement does not initially appear to prefer either outcome, but it does, chronologically, place the military solution first. Since Netanyahu is the boss of Alon’s boss’s boss — they are separated in the chain of command by the chief of staff and the minister of defense — the statement amounts to a direct order from the prime minister to the Central Command to solve the labor protections problem within six weeks so Netanyahu won’t be forced to pay a political price for openly resisting legislation that cuts to the heart of a major coalition partner’s political raison d’etre.

In response to Peri’s and Livni’s protests, Jewish Home officials have pointed to other legal protections offered by Israeli civil law that don’t extend to women living in the West Bank, including protections from sexual harassment, daycare subsidies and more.

The implicit threat that Jewish Home would expand the legislative initiative was not lost on Netanyahu.

His Sunday statement read: “And it was also decided to evaluate gaps in legislation vis-à-vis labor laws in order to prevent discrimination against Israelis who live in Judea and Samaria.”

“Israeli women citizens, including those who live in Judea and Samaria, must receive equal rights. I am committed to this,” Netanyahu said on Sunday, declaring himself a champion of “equality” not only between men and women, but between Israelis on either side of the Green Line.

But equality for settlers — or women — was not the issue under debate. On the question at hand, the expansion of civil law protections to settlers, Netanyahu seems to have quietly ruled in favor of his coalition’s doves.

The next few weeks will be busy ones for the military lawyers of the Central Command.