Israel , Guy Shani, The Constitutional Rights of Foreigners in Israel

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A study of the restrictive arrangement that the state created and applied to foreign workers—unfortunate persons who are separated from their families for months, and even years—gives rise to astonishment mingled with anger: how can persons in authority in our country think that they can treat in this way women and men who only want to provide for their families . . . Every human being—even if he is a foreigner—is entitled to his dignity as a human being. I believe that this is a remarkable decision. It is courageous in its protection of a disempowered group, sensitive in its humanity, and profoundly written. Moreover, the Supreme Court acknowledged, without hesitation, that basic constitutional rights apply to foreign workers. 3. The protection of human rights in times of conflict The question of protecting human rights of foreigners becomes all the more difficult when it comes to the Israeli-Palestinian conflict. Of course, this issue raises many questions that cannot be examined comprehensively in this short paper, but I will try to demonstrate some of the dilemmas. One complexity stems from the fact that the territories of Judea and Samaria ("the West Bank") fall under multiple jurisdictions. Israeli law and administration are explicitly applied to East Jerusalem, but not to the territories, which are subject to belligerent occupation and are not considered part of Israel. The legislation in these territories is comprised of two main layers: Jordanian law and ordinances issued by the Israeli military command. This jurisdictional arrangement is prescribed by international law, but the plot thickens: Israeli citizens residing in the occupied territories are subject to many Israeli provisions that apply to them in personam. The Supreme Court still has not decided whether the Basic Laws protecting human rights generally apply to the territories located beyond Israeli borders. In one 6
case, the Court held that they apply to Israeli settlers in personam, 6 but the question of whether basic constitutional rights apply to non-Israeli citizens remained unanswered. This maze of jurisdictions sometimes creates constitutional questions. For example, in a recent petition filed to the Supreme Court, Palestinian employees of Israeli employers in the occupied territories claimed that the labor law governing their labor relations is the Israeli labor law, not the local Jordanian law which is less beneficial to workers. 7 Examining the unique jurisdictional situation in these territories, the Supreme Court found in favor of the Palestinian petitioners. Several reasons led the Court to this outcome; the most relevant one pertains to the equality consideration. The Court emphasized that the solution to the conflict of laws must conform with the constitutional right to equality. Subjecting Palestinian employees of Israeli employers in the settlements to Jordanian labor law while applying the more liberal Israeli labor law to their Israeli co-workers, was deemed unlawful discrimination. Stating that “Such a differentiation, based on citizenship or nationality, is wrong,” the Court concluded that Israeli law governs the labor contracts of Palestinian employees in the territories, just as it governs the labor contracts of their Israeli co-workers. Maybe the most difficult question is the protection of human rights of a different category of Palestinian foreigners—those belonging to a group that is engaged in terrorist activity. For many years, Israel has been battling terrorism. This inevitably presents one of the most difficult challenges a democratic state and its judicial system can face: balancing the need to safeguard national security with the desire to safeguard 6 See HCJ 1661/05 Regional Council Hof Aza v. Israeli Knesset [2005] IsrSC 59(2) 481. 7 See HCJ 5666/03 Kav LaOved Worker's Hotline v. National Labor Court [2007], http://elyon1.court.gov.il/files/03/660/056/P17/03056660.p17.htm. 7
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Israel , Guy Shani, The Constitutional Rights of Foreigners in Israel

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