by Tobias Kelly. New York and Cambridge: Cambridge University Press, 2006. 218pp. Hardback. $85.00/£48.00. ISBN: 9780521868068. eBook format. $68.00. ISBN: 9780511258374.
Reviewed by John Quigley, Moritz College of Law, The Ohio State University. Email: Quigley.2 [at] osu.edu.
This book by anthropologist Tobias Kelly analyzes how law works in the West Bank of the Jordan River, with a focus on law as it relates to West Bank Palestinians as workers. The context is the complex post-Oslo bifurcation of authority, stemming from agreements between the Palestine Liberation Organization and Israel negotiated in Oslo in 1993, according to which Israel ceded some of its authority as belligerent occupant in the West Bank. Israel had been in control since the June 1967 war, during which it occupied the eastern sector of what had been known as Palestine while under British control between the world wars.
Under the agreements that followed the 1993 Oslo agreement, the PLO would administer some areas of the West Bank, principally the population centers, while Israel would remain in overall control. The PLO under the agreements set up a Palestinian National Authority as an administrative structure. This bifurcation of administration between Israel and the PLO was designed to last only a few short years, as Israeli withdrawal from the West Bank was expected to be negotiated soon.
The negotiation process lagged, however, and bifurcated government continued. The PNA regulated certain aspects of life, while Israel, through an administration set up at the start of its occupation, regulated others. To make the situation more complex still, many Palestinians performed day labor inside Israel, subjecting them to yet another jurisdiction, namely, Israeli law, and to the institutions of the Israeli government.
Kelly addresses the labor relations of Palestinians and how Palestinians as workers deal with conflicts and disputes that arise in relation to their employment. As the situation admits of little collective labor action, the focus is on individual employment relations with employers. The lack of trade union protection leaves only individual remedies to a Palestinian worker with a grievance against an employer.
The focus on labor relations is not signaled by the book’s title, which leads one to think that Kelly is writing about political issues. But labor is the main topic. In one chapter Kelly deals with Palestinians in employment in the West Bank for Palestinian employers. In another, he deals with Palestinians in employment in the West Bank for Israeli settlements. In still another, he deals with Palestinians in employment in Israel. Each circumstance involves a Palestinian worker in a different set of legal relationships. And in none of them is there a single set of legal norms or a single legal structure.
The political backdrop is never far below the surface in any of these relationships. An issue that arose for Palestinians [*396] working in Israeli settlements was whether the law applicable to this labor relationship was Israeli law on the one hand, or on the other, the Jordanian law that is generally applicable in the West Bank. As the law in force when Israel’s occupation began, Jordanian law has continued to be applied as the law of the territory. For a Palestinian working in an Israeli settlement, however, Israeli law is preferable in certain respects. In particular, it is more generous as to severance pay upon termination. If Israeli law applies, then Palestinians and Israelis are treated the same, since Israel applies its own law to its citizens, even when they are in the West Bank. If Jordanian law applies, then a Palestinian worker has fewer rights than an Israeli fulfilling the same work in the same settlement. To make the matter more confusing, Israel’s application of its own law was, at the international level, unlawful, since an occupant is to apply the law in force.
The position that makes sense for the Palestinians at the ‘macro’ level – that their own law should apply in the West Bank to the exclusion of Israeli law – works against their interests on certain issues, like severance pay. Thus, Israeli lawyers representing Palestinians seek application of Israeli law.
For Palestinian workers employed in the West Bank by Palestinian employers, local Jordanian law applies. Kelly describes the serious difficulties involved in implementing orders of Palestinian courts, as Palestinian officials are not able to operate throughout the territory.
Palestinians working in Israel, as Kelly recounts, also face a complicated situation, perhaps the most complicated of all. Kelly tells one story of a discharged Palestinian worker attempting to sue an Israeli employer but who could not pursue the case because he could not enter the court house. The labor court was in Jerusalem, and as a Palestinian the worker must, under Israeli regulations, have a permit to enter Jerusalem. His lawyer had been unable to get him such a permit. He managed to enter Jerusalem without the permit, but the security guard at the courthouse door denied him entry. That ended his case against the employer.
In many instances, a West Bank Palestinian worker will have arranged work not directly with an Israeli employer, but through a Palestinian who contracts with an Israeli employer to supply labor. For an employee in these circumstances, the legal relationship is with the Palestinian contractor, not with the Israeli employer. One such worker, as Kelly describes, had been employed as a rubbish collector in a municipality near Tel Aviv. The Israeli employer, to muddle the situation further, was Yemen-born, hence as much a part of the Arab culture as a part of the Jewish culture. He had a contract with an Israeli municipality to collect its rubbish. On the basis of that contract, he made an arrangement with the West Bank Palestinian intermediary, who in turn hired other West Bank Palestinians.
In 2000, however, Israeli-Palestinian relations at the political level took a downward turn. Negotiations for an overall settlement of the conflict that had [*397] begun in 1999 ended without result, and a period of heightened confrontation commenced. The Israeli employer decided that he should no longer have West Bank Palestinians doing the rubbish collection work. He so informed the Palestinian intermediary. The Palestinian worker sued in an Israeli court for wrongful discharge, thinking he would collect from the Israeli employer. But at a certain point he was made to understand that he could sue only the Palestinian contractor, and he eventually compromised.
One useful aspect of Kelly’s book is that it demonstrates how difficulties of this sort will persist in Israeli-Palestinian relations, even if the much-discussed two-state solution is achieved. The economic inter-connection between the two areas will be a persistent source of conflict and will require appropriate regulation. Moreover, the territory of Israel was formerly part of Palestine. For Palestinians living outside Israel, the territory of Israel is not ‘foreign,’ but the land of their parents or grandparents. Many West Bank Palestinians, like many Gaza Strip Palestinians, are from families who lived until 1948 in the territory that became Israel in that year. They became refugees in nearby areas. When Israel occupied the Gaza Strip and West Bank in 1967, the border between those areas and Israel opened, and many began to work as day laborers in Israel. According to one perhaps apocryphal story, a Palestinian living in Gaza was hired to repair the plumbing in a house in Israel. The Israeli who hired him was impressed with the plumber’s knowledge of the house. The reason, the plumber explained, was that the house was actually his own.
Kelly’s analysis perceptively unravels the different interpersonal and political layers that may be involved in a particular dispute. For the Palestinian worker mentioned above who was fired in 2000, the relation with the Palestinian contractor was complicated by the fact that they lived in the same West Bank village and thus had a history of personal and family associations. Kelly criticizes others who have argued that Palestinians resolve disputes through traditional, informal mechanisms, as result of the bifurcation of authority and the resulting weakness of institutions like the courts. Kelly sees no disinclination to sue.
An additional issue that the casual observer of the Israeli-Palestinian conflict may miss, but which Kelly highlights, is economic differentiation among the Palestinians. The dispute involving the fired rubbish collector involved one Palestinian whose livelihood was based on physical labor, and another who served as go-between with Israelis. The worker walks, while the contractor drives an expensive car. The Palestinians are in one sense a people facing the Israelis, but as in all societies they also face internal social and economic stratification.
There is perhaps a danger in Kelly’s intensive focus on a small number of particular disputes. He spent a considerable amount of time living in the West Bank to develop the connections that allowed him to gain intimate knowledge of work situations of quite a few local Palestinians. A great value of [*398] his book is his ability to explain the life situation of those whose labor relationships he describes.
Whether this small number of examples is representative, however, might be challenged. Only a larger sample would provide confirmation. At the same time, one suspects that there is much that is representative in the disputes that Kelly recounts. And there is much to be learned from Kelly’s detail on how these disputes were handled.
Kelly’s book is useful in a number of different ways. First, he offers an understanding of how the Oslo process has led, perhaps by historical accident, to an extremely complex legal situation that makes life difficult for all involved. He also sheds light on the ramifications of Israel’s attempt to make its law apply, extraterritorially, to its settlements and settlers in the West Bank (and whose presence there is itself unlawful by international standards). In addition, he nicely illustrates the challenges of daily existence in the West Bank – a Palestinian’s need to work in a highly unstable context for lack of any alternatives.
The occupation by Israel limits economic options for West Bank Palestinians. Much of their land was taken over for settlements, for military use, to build roads that would service the Israeli settlers and soldiers. In more recent years, more land was taken to build a security wall that snakes through the West Bank. Indeed, such extensive land takeover has devastated the agricultural sector in the area. Not only is there less land to farm, but restraints on physical movement make it difficult to get products to market in a timely fashion. As for industry, restrictive regulations impede manufacturing development. The occupation has left Palestinians economically marginalized. The limited employment options open to West Bank Palestinians are reflected in the labor relationship examples Kelly provides.
Most who think about the legal, or political, situation in the West Bank operate in global terms: denial of self-determination, or Israel’s security concerns. Kelly’s book focuses on interaction at the economic and personal level, thus rendering these broader issues more concrete. His elucidation of these relationships may be helpful to potential mediators. Israelis and Palestinians will likely interact for a long time to come, and a sound legal basis for that interaction would make life more bearable for all concerned.
At a more general level, Kelly’s book invites thought about how disputes are handled in other societies. His approach is not comparative, but once he discusses such issues as propensity to sue versus resolving disputes through informal mechanisms, a reader inevitably will draw comparisons to the similarities and differences observable in other jurisdictions. The labor relations focus, and the many facets that Kelly explores, put the book squarely within the scope of other titles in the Cambridge series in which it has been published.
© Copyright 2007 by the author, John Quigley.