Palestinian Workers Under Israeli Economic Oppression: The Case of Settlement Workers

Contents:

List of Abbreviations

Introduction
1. Hypothesis
2. Methodology and Structure
3. Constraints and Data Problems
4. Definitions

I. The Context: Israeli Oppression and De-Development of the Palestinian Economy leading to Labor Dependency – a Violation of International Law
1. Israeli Policy of Economic De-Development: Pushing Palestinians into Dependency
2. Israeli Economic Policy: Violation of International Humanitarian and Human Rights Law

II. Palestinian Workers in Israeli Settlements in the West Bank and Gaza Strip
1. Data on Settlement Workers
1.1. Numbers of Workers in West Bank and Gaza Strip
1.2. Places and Sectors of Work in Israeli Settlements in West Bank and Gaza Strip
1.3. Qualifications of Workers Working in Israeli Settlements
2. Work Conditions in Israeli Settlements in the West Bank and Gaza Strip
2.1. Employment, Permits and Hiring Arrangements
2.2. Wages
2.3. Working Hours, Holidays and Vacation
2.4. Health
2.5. End of Service Benefits
3. Workers' Chances to Obtain Justice: Limited Legal Assistance
3.1 The Labor Law Dispute
3.2 Practical and Bureaucratic Obstacles to Open a Case Before the Israeli Labor Courts
3.3 Limited Capacities and Willingness of Labor Unions, the Palestinian Labor Ministry and NGOs

III. Conclusion and Recommendations

Bibliography

List of Abbreviations

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Introduction

Since the Israeli occupation of the West Bank and the Gaza Strip (WBGS) in 1967, Israel has used its dominance as the belligerent occupier to create an economic environment that has forced the Occupied Territories into a severe economic dependency. Israel takes advantage of this situation in two respects: First, it uses its dominant position to oppress and to control the Occupied Territories and its inhabitants socially, politically, and economically. Second, Israel utilizes Palestine's dependency to enhance Israel's own economy. A major feature of the latter aspect is the severe dependency of the Palestinian labor market on employment opportunities within the Israeli economy, which principally consists of two labor markets. One is the labor market inside the state of Israel; the other is to be found in the Occupied Territories, namely in Israeli settlements (see Definitions), in particular Israeli settlements and industrial zones. In both markets, Palestinian workers are exploited by Israeli employers under the well-knowing eyes of the state.

Work in the Israeli economy is, however, hardly the result of a free choice in the real sense of the word. Palestinians suffer from high unemployment rates and very limited job opportunities. For many Palestinians, the Israeli settlements in the WBGS offer the only employment opportunities available, since most Palestinians cannot obtain permits to work or to seek work in Israel. The irony is striking: Palestinians help to build the settlements, which occupy the land that was previously stolen from them by fanatic Jewish settlers under the protection of the Israeli state. However, the economic reality that Israel shaped in 33 years of belligerent occupation forces Palestinians to work in these establishments.

The settlements that Israel started to build in the WBGS after the occupation of 1967, form a very special kind of work-place. Various UN Security Council Resolutions have confirmed that settlements 'have no legal validity and constitute a serious obstacle to…peace' (e.g. Resolution no. 446, March 22, 1979) and have pointed out that they are 'a flagrant violation of the Fourth Geneva Convention' (Resolution no. 465, March 1, 1980). However, despite continuous protest by the world community, Israel has—until today—not ceased to de facto annex Palestinian land through the extension of settlements. Indeed Israel applies its laws to the Israeli settlements, however only selectively, to its own population. Palestinians, on the contrary, are hardly given any rights. Israeli employers have little to fear when they take advantage of the workers economic dependency and exploit their labor. Only a small number of the cases come to court, since Palestinians fear to be dismissed. If rights are enforced at all, mostly Jordanian labor law (in the West Bank) is applied. With respect to Palestinian settlement workers—ironically enough—Israel's attorneys argue in the line of international law and call for the application of the pre-1967 laws.

For LAW, the question is not which labor law applies. Israeli settlements in the WBGS are undoubtedly illegal and any action that further manifests Israel's belligerent occupation should be halted. However, with respect to Palestinian settlement workers, a broader approach is required. The Israeli state has created the economic environment in the Occupied Territories throughout its occupation that now force Palestinian workers into a situation whereby they must accept nearly any work opportunity they can get – no matter how bad the conditions are. That is where the human rights and humanitarian rights violations are committed by the Israeli State in the first place: The occupation itself and Israel's oppressive and destructive economic policies towards the WBGS that affect the individual Palestinian workers. Thus, as Charles Shamas from the Palestinian research institute 'The Mattin Group' in Ramallah points out, the situation of the Palestinian workers in Israeli settlements is yet just another ' ugly toxic fruit ' of the Israeli occupation and its belligerent policy.^[1] Accordingly, we formulate our hypothesis:

1. Hypothesis

Israel, throughout more than 33 years of belligerent occupation of the WBGS, has created an economic environment in these territories that has forced Palestinian society into a severe economic dependency on the Israeli economy. The occupation itself and the means by which Israel created this economic dependency are violations of art. 49 in conjunction with art. 51 and art. 52 of the Fourth Geneva Convention of 1949 and principles of international law. The result of these illegal policies is an extreme vulnerability of the Palestinian labor force. Due to the economic dependency on Israel, Palestinian workers are forced to accept virtually any workplace and any work conditions, as long as the employment enables them to sustain their livelihoods. One example of the Palestinian workers' vulnerability is the situation in the Israeli settlements in WBGS. Here, Israel does not consider itself bound to implement economic, social, and cultural rights (ESCR) or to comply with other human rights standards, such as the provisions under the Convention on the Elimination of all Forms of Racial Discrimination (CERD) in the Occupied Territories.

2. Methodology and Structure

In order to prove this hypothesis the report is structured as follows: It is comprised of two parts. The first part (I. Context) provides the context of this study. It is divided into two chapters. The first chapter (1. Israeli Policy) depicts the economic de-development of the Palestinian domestic economy through oppressive and restrictive Israeli (economic) policies and practices; and how these policies lead to severe dependency of the Palestinian labor market on the Israeli labor market (in Israel and in Israeli settlements). In the second chapter (2. Israeli Economic Policy: Violation of International Law) it is shown how these policies and practices violate international humanitarian law and international human rights provisions.

In this part, LAW relied to a large extent on data and information that has been previously investigated by other regional non-governmental organizations and research institutions, as well as and international organizations.

The second part (II. Palestinian Workers in Israeli settlements) is divided into three chapters. In the first chapter (1. Data on Settlement Workers), general data on Palestinian workers employed in Israeli settlements is depicted, including number of workers, places and sectors of work, as well as their qualifications. In the second chapter (2. Work Conditions) we depict their actual working conditions. This includes terms of employment, wages, working hours, holidays, health and benefits. The third chapter (3. Legal Assistance) discusses the workers' chances to receive, or better to fight for fair and just treatment at their workplaces is discussed.

In this part, we had to deal with various constraints on the availability of data and information (see 4. Constraints). Statistical data was obtained from the Palestinian Central Bureau of Statistics and compared to contradicting estimations and assessments of other reliable sources. Workers' conditions were investigated on the basis of testimonies executed by other institutions or by LAW itself. Additionally, interviews with representatives of workers' organizations, Palestinian ministries contributed data and information here. Similar sources were used to evaluate the workers' chances for legal assistance. Whenever possible, the data and information was compared to investigations of international organizations.

As far as data and information on settlement workers is concerned, the study as a whole—apart from its mentioned objectives—does not follow a particular systematic approach. In this sense, the second part in particular, should be understood as a first step of investigation. The sensitivity of the issue calls for further systematic evaluation and investigation. Occasionally in the second part, we used Israeli labor law regulations as a comparison to point out the workers grave situation. However, such a comparison is made for practical reasons and shall by no means imply that LAW encourages the application of Israeli law in the Israeli settlements of the WBGS. The opposite is the case (see Hypothesis and Conclusion).

3. Constraints and Data Problems

As indicated above, Israeli settlements in the Occupied Territories is a highly sensitive issue. Not surprisingly, obtaining data or information from official Israeli sources is correspondingly difficult. Likewise, access to representatives in Israeli settlements is a challenge, and for Palestinians, regularly impossible – unless they are workers. Furthermore, since the issue of settlement workers is not a major issue of the current human rights discussion in Palestine (this might be due to the relatively small number of workers, as well as due to the limited information that has been revealed so far), not much investigation on settlement workers has been carried out thus far. Another difficulty was that the data and information obtained for this report was often contradictory, whereas the reliability of the respective source was not always easy to assess.

4. Definitions

Throughout this report, every Palestinian, living in the West Bank or Gaza Strip who works regularly—to sustain his and/or his family's livelihood—in Israeli settlements, erected illegally after the Occupation of 1967 in the WBGS is considered hereinafter as a 'settlement worker' or just 'worker'. 'Israeli Settlements' in this context refer to (a) any kind of Israeli civil dwelling units (whether they are urban establishments or merely housing containers), erected in the WBGS after 1967; (b) Industrial areas, which are zones used for industrial and commercial areas separate from the civil dwelling units; (c) Facilities, which includes any kind of non-inhabited installations that are not industrial zones but provide supporting services to the dwelling units and industrial areas, like gas stations, agricultural farms and airports.

I. The Context: Israeli Oppression and De-Development of the Palestinian Economy leading to Labor Dependency – a Violation of International Law

This part shall provide the context for this study. In the first part, we will briefly elucidate Israeli state policies that are shaped to create an economic environment in the WBGS that forces the Palestinian economy into a comprehensive dependency on the Israeli economy through systematic de-development. This dependency in particular makes the Palestinian labor force vulnerable to exploitation by Israeli employers as it can be seen from the treatment of Palestinian workers inside Israeli settlements in the WBGS, which—as stated above—is the focus of the second part of this report. LAW considers this policy as a clear violation of international humanitarian and human rights law and will explain this violation in the second section of this chapter.

1. Israeli Policy of Economic De-Development: Pushing Palestinians into Dependency

This section shall, first, briefly explain the concept of de-development (as opposed to underdevelopment). Second, it will be depicted how Israel causes such de-development of the Palestinian economy by imposing three main policies. Third, the results of these policies, i.e. the severe economic dependency of the Palestinian labor force (that compels Palestinians to accept work in Israeli settlements and accept bad conditions) shall be depicted.

In an excellent article on the Palestinian economy after the signing of the Interim Agreement in September 1993 (Oslo I), Sara Roy refers to the process of de-development taking place in WBGS due to Israeli policies and practices. She explains this process by comparing it to underdevelopment:

Both processes describe a structural relationship between a stronger (dominant) and weaker (subordinate) economy. But while most definitions of underdevelopment allow for structural change and reform within the weaker economy (though that change often is disarticulated because it is oriented to the needs of the dominant economy), de-development not only distorts the development process but undermines it entirely.^[2]

Such a process of de-development started in Palestine with Israel's belligerent occupation in 1967 and was prolonged—in some respects even more intensely—after Oslo I and the Protocol on Economic Relations of April 1994. The de-development of the Palestinian economy (and hence, to a certain extent of Palestinian society) is caused by a systematic utilization of hostile policies by the belligerent occupier in order to push the Palestinian economy into complete dependency and thereby keep it weak and underdeveloped. Three main policies that Israel uses for these purposes can be observed:

(i) Dispossession of Key Economic Resources

The first of such policies is the dispossession of key economic resources. These resources primarily consist of land and water, much of which has been confiscated or brought under Israeli military control.^[3] In fact, since June 1967, Israel's military occupation authorities have expropriated at least 5,839,000 dunams^[4] of land. Today, about 73 percent of the West Bank and some 40 percent of the Gaza Strip is under Israeli control (including expropriations).^[5] With respect to water, the Jerusalem Media and Communication Centre (JMCC) reports that shortly after the occupation, 'Israel destroyed 140 Palestinian water pumps in the Jordan Valley which had, until then, been used to irrigate Palestinian farms'.^[6] Subsequent measures led to 'redirecting water supplies' from the West Bank to Israel, whereas a ratio of 4.5 percent remained accessible to West Bank inhabitants while the remaining 95.5 percent was brought under Israeli control.^[7] In 1994, over one quarter of Israel's water consumption had its source in the West Bank wells, accounting for about 80-95 percent of the resources.^[8] Both the seizure of land and the stealing of water served Israeli colonial policies, since Palestinian land and water resources were and are currently used to build settlements, bypass-roads, Israeli industrial zones, various military installations, and other facilities like airports and gas stations.^[9]

The expropriations were formally 'legalized' through military orders, issued by the Israeli occupying military authorities.^[10] Their impact on the Palestinian economy was quite severe as reflected in the dramatic decline of the Palestinian agricultural sector, which used to be the 'backbone' of the Palestinian economy. 'Between 1968/70 and 1983/85 the percentage of agriculture to GDP in the West Bank fell from between 37.4-53.5 percent to between 18.5-25.4 percent, and in the Gaza Strip from 28.8 percent to between 12-15.9 percent'.^[11] More recently, in 1997, the agricultural share of the Palestinian GDP amounted merely 6.4 percent for both the West Bank and Gaza Strip^[12]. For sure, with respect to the latter figure, other economic factors as well as the Israeli closure policy (see next paragraph) carry a responsibility for this decline. However, most importantly, Israeli dispossession-policy has massively de-developed the basis for Palestinian agricultural production and its previously existing economic potential.^[13]

(ii) Israeli Closure Policy

Second, the Israeli policy of 'Closure', introduced in March 1993 (shortly before Oslo I) has been a major measure for economic control under the pretext of 'security'. The term closure describes a state of permanently sealing the WBGS by the military authorities, and has never been lifted until the time of writing. Only if Palestinians possess Israeli-issued permits valid for goods and/or persons may borders and checkpoints be officially crossed.^[14] The availability of these permits depends on the type of closure and on the willingness of the Israeli authorities that seem to follow rather arbitrary methods.^[15] Following a categorization of the United Nations Office of the Special Coordinator in the Occupied Territories (UNSCO), there are three different stages of intensity^[16]:

'General Closure' which indicates that overall restrictions are imposed on the flow of labor, goods, and any kind of production factors between the West Bank and the Gaza Strip and Israel.

'Total Closure' means a complete prohibition of movement and is normally imposed after or in anticipation of violent events (carried out by Palestinian 'extremists') in Israel.

'Internal Closure' refers to the restriction on movement between Palestinian residential areas within the West Bank itself (however, it does not apply to the Gaza Strip due to its different geo-political structure).

Those most affected and damaged economically^[17] by this policy of isolation and movement-restriction are two sectors. First, the one-sided labor movement from WBGS to Israel and, second, the Palestinian trade sector.

Labor movement between WBGS and Israel severely declines when stricter closure (mainly total closure) is imposed. The Palestinian economy is severely effected by immediate high unemployment resulting in a sharp decline of remittances from workers employed in Israel.

Prior to closure policies, introduced with Oslo I, employment in Israel used to be very high. For example, the JMCC reports that by 1987, around 64 percent of the Palestinian labor force, or 189,000 Palestinians were working in the Occupied Territories.^[18] Still until 1992, more than a third of the Palestinian work force used to find employment inside the Israeli labor market. This equals some 160,000 workers, of which some 120,000 were permit holders.^[19] However, with the introduction of closure policy in 1993, this movement has undergone a sharp decline. The number of permits issued to Palestinians was dramatically reduced, as table 1 shall indicate.

Table 1. Workdays and number of permit holders in Israel between 1993 and 1996

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Source: compiled from ILO, Report on the situation of workers in the Occupied Territories, Geneva, June 1998

Although the labor flow to Israel increased again in 1997 and 1998, it still ranged well below pre-Oslo I levels with respect to both absolute numbers and the percentage of labor force. For example, the UNSCO estimated that in 1997, on an average day, there were some 40,283 workers working in Israel and in 1998 this number reached some 41,935.^[20] However, total closure continued to be imposed, causing high unemployment and underemployment. For example, following the imposition of a total closure in August-September 1997, 'the official unemployment rate shot up to more than 60 percent, with the inclusion of the severely underemployed and discouraged workers'.^[21] During yet another total closure imposed on 11 September 1998, the average daily number of workers entering Israel dropped to 27,350, which is 44 below the average for July and August. Only this total closure, lasting not even a month caused an income loss to Palestinians of some US$11.4 million.^[22] However, since a large part of the workers that had previously found employment in Israel could no longer reach their places of work, their Israeli employers (despite several thousand Palestinian workers mainly from the West Bank entering Israel illegally) had to seek alternative workers. The Israeli government reacted by allowing the absorption of foreign workers from Eastern Europe and Asia. From 1992 to 1996, the number of work permits for foreigners increased from 4,000 to 107,000.^[23] Today, according to Sara Roy, more than 200,000 legal and illegal foreign workers are partially substituting Palestinians since they are often found in the very same jobs that Palestinians used to obtain.^[24] The results of such policies included not only short term high unemployment and underemployment rates but furthermore, the destruction of long-term employment opportunities for Palestinians in Israel through the exclusion of Palestinians from the Israeli labor market. Not surprisingly, high unemployment rates are persisting currently and further push Palestinians into dependency on every opportunity to earn their livelihoods – even if these are to be found inside Israeli settlements in the Occupied Territories.

The Palestinian trade sector suffers from disruptions due to closure, which 'lead to export market losses and disruption in the domestic supply of goods and services linked to imports'.^[25] In particular, two spheres are affected by closure policy. One is the Palestinian domestic trade, i.e. between West Bank and Gaza Strip; the other is the trade with Israel.

First, trade with Israel is the most important aspect of the Palestinian economy, accounting for some 90 percent of all Palestinian trade activity.^[26] However, because of closure restrictions trade with Israel has been severely reduced, causing enormous losses for the economy. According to estimations given by Radwan Shaban from the World Bank, trade losses occurring as a result of closure amount some 10 percent of the value of exports and 5 percent of value of imports.^[27] For 1998, these losses amounted to US$48,8 million in export trade and US$113,25 million in import trade.^[28] The impact of these losses on private firms is striking. For example, after the imposition of a total closure in spring 1996 (which lasted for nearly two months), nine Palestinian firms surveyed drops in sales averaging 57 percent and in some cases even went up to 90 percent.^[29] On a whole, Palestine's merchandise export lost almost half of its value between 1992 and 1996 when it declined from 11 percent to 6 percent of GDP.^[30] Furthermore, the fact that Israeli products have virtually unrestricted access to WBGS during all types of closure contributes (however is not the main factor) to gigantic trade deficits, which for example, reached an impressive amount of US$1,777 million in 1998.^[31] However, in the long run, imports from Israel also decline but at a much lower rate than Palestinian exports.^[32] These imports decline because Palestinians lose purchasing power to buy Israeli products, due to reduced income. Hence, Palestinian industry and in particular the construction sector also suffers from the decline of raw-material import from or via Israel.^[33]

Second, the unhealthy economic partition of domestic trade, i.e. between the West Bank and the Gaza Strip forced by closure, is most clearly reflected in the decline of domestic agricultural trade. Palestinian farmers during strict closure are not able to transport their products to the other market or at least face long delays of good clearance because of Israeli security checks at borders, which are very costly. This is particularly a problem when transport goods to Gaza as they have to be 'back-loaded' from one truck to the other and are often manually checked on the pretext of security. Goods, of course, are exposed to damage through these procedures.^[34] As a consequence, agricultural producers had begun to re-orient their production towards the domestic market and a shift in production 'to lower value but less perishable crops, such as potatoes and onions, for which there is guaranteed domestic demand' takes place. With this strategy, although farmers earn less, they do not incur the great financial risks that are connected with export produce, due to closure.^[35] The results of this forced re-orientation are striking. Back in 1993 (before closure policy was introduced) Gaza used to sell more than 700 times as much produce to the West Bank as to Israel, whereas in 1997 West Bank and Israeli markets have reached an equal level. Furthermore, by 1997, Gaza's produce sales to the West Bank had dropped to one third of the 1993 levels. In the same period, the West Bank's share of Gaza's total sales fell by half, from 96.4 percent to 48.2 percent. Agricultural production as a whole declined by more than 40 percent between 1992 and 1995 – a de-development that has to be attached—to a large degree—to Israeli closure policy.^[36]

Another Palestinian economic sphere affected during closure is the fisheries sector of Gaza. For example, the Palestinian Center for Human Rights (PCHR) reported that in the March 1996 total closure, some 4-5,000 Palestinian fishermen were put out of work because they were not allowed to access the sea. The losses in this sector have thus been tremendous since one day's catch is estimated to bring in US$400-500,000.^[37]

In sum, the losses for the Palestinian economy resulting from the closure policy and related permit practices have been immense. As we have seen, they arise from three factors: First, from direct loss of income by Palestinian workers in Israel; second, as a result of the income loss, consumption expenditure is reduced and thus depresses Palestinian production and income; and third, the disruption from trade leads to permanent losses in export on one hand and causes interruptions to the import of goods that, in turn, cause damage to domestic production and supply on the other hand.^[38] Expressed in numbers, Shaban estimates, that in the period of 1993 to 1996 these losses totaled at US$2,815 million (at 1995 US dollar prices).^[39] This amount equals one year's Palestinian GDP and is about twice the amount of donor assistance that was disbursed over the same period.^[40]

(iii) Regulatory Oppression and Other Policy Constraints

The third set of policies relates to oppressive regulations and restrictions, on virtually every economic sphere, which are—like land expropriations—formally 'legalized' by military orders. Furthermore, daily discriminatory practices, which even lack of any formal legal basis impede Palestinian economic development and, instead, increase the structural dependency on Israel. These restrictions and practices, in particular, have de-developed and still de-develop the Palestinian potential in agriculture, trade, industry, and tourism.^[41]

In the agricultural sector, for example, since the beginning of the occupation, Palestinian farmers have been subject to prohibitions on producing goods 'in which they have a[n international] comparative advantage…because of Israel's similar comparative advantage in producing the same produce'. Hence, '[w]herever Palestinian and Israeli interests compete—in resources, marketing, etc.—Palestinian efforts are controlled and suppressed'.^[42] For example, as the JMCC reports, prior to 1994, the sale of Palestinian fruits and vegetables in East Jerusalem markets was 'illegal'. In contrast, the sale of Israeli produce was legal. These restrictions were implemented by Israeli soldiers, who confiscated or destroyed produce that did not meet these discriminatory requirements.^[43] Furthermore, stringent quotas determined what could and could not be marketed in Israel, whereas Israeli produce flowed into the Occupied Territories without any restrictions. At the same time, a policy is still in place today whereby under closure (see above), produce from the Territories is subject to Israeli security checks, which are costly and time-consuming and often cause the produce to be ruined.^[44]

The latter practice leads us to the trade sector, where 'draconian restrictions' shape daily business. Particularly striking are Israel's obstinate and hostile attitudes and practices towards the Interim Association Agreement on Trade between the PLO and the European Community (EC) signed on1 July 1997. Although Israel itself benefits from a similar agreement with the EC it appears to be extremely reluctant to allow its full implementation.^[45] For example, as the Commission of the European Communities (CEC) reports, 'many products produced wholly, or substantially processed, in the West Bank and Gaza Strip, are being exported into the European Community as Israel originated products'. In fact, Palestinian traders are forced to accept the export of their products via Israeli agencies, such as 'Agrexco' (Israel's agency for export of non-citrus products), which labels their products as 'made in Israel' and receives the more advantageous EU-prices. At the same time, the Palestinian traders have to pay a commission to the agency for marketing the products. If they do not agree they risk damage or at least delay and therefore suffer large losses through 'security' checks at the borders, which might be even higher than the losses they encounter.^[46] Of course, such practices are regarded as a violation by the CEC. A possible sanction would be a 14 percent tax for Israel on the produce that has been re-labeled.^[47] In anticipation of such a punishment, the Israeli government imposes a so-called 'Palestinian Authority Tax' deposit of the same amount on these products. Palestinian traders have little choice but to cooperate since Israel controls all export outlets and is not hesitant in ruining Palestinian produce through 'security' checks.^[48] As a result, '[o]nly some Palestinian products have been known to have been exported directly into the European Community market'.^[49] Similar restrictive practices are imposed with respect to import from the EC. Israel often does not grant or delays the necessary import licenses or allow unlicensed import under the imposition of a 5 percent fine. Furthermore, Palestinian traders are advised to cooperate with Israeli agents in order not to risk their business. Therefore, goods are increasingly imported indirectly through the Israeli agents. Israeli authorities take advantage of this dependency: purchase tax and custom duties are retained, only VAT is transferred to the Palestinian National Authority .^[50] Inter alia, due to such practices, merchandise exports were cut by half: from 11 to 6 percent of GDP; whereas imports fell from 46 to 38 percent of GDP between 1992 and 1995.^[51]

A similar pattern of restrictions is to be found in the Palestinian industrial sector. Shortly before Israel pursued its economic and political occupation of the WBGS, by 1967, nearly 22,000 Palestinians were employed in this sector. However, only two years later this number had declined dramatically to merely 12,200.^[52] The reason for this decline lied in the extreme reluctance of Israeli authorities to issue the licenses necessary to operate or to open industrial (as well as business) enterprises. If approved at all such a process could have taken up to 5 years. Furthermore restrictions on raw material imports, such as from Jordan were (and are still) harming industrial projects.^[53] However, the most severe constraint that industrialists encountered was the lack of credit and financial infrastructure, 'largely due to the absence of a Palestinian banking infrastructure, and where Israeli banks are considered to offer very limited assistance in providing credit'. Entrepreneurs had to rely on their private financial resources and capital transactions were (completely prohibited in the beginning and later on) severely restricted by a permit system, imposed by a military order.^[54] However, in the long run, the industrial sector has expanded but it did not follow a 'structural development'. Instead, Palestine's industry was forced into further structural dependency on Israel's economy. This pattern is most apparent in the textile industry. In a study conducted by the Women's Study Centre, it is revealed how Israel has been able to assimilate this sector to the needs of the Israeli economy by subcontracting women and men in the formal and informal sectors in the WBGS. The deal is that Palestinians—facing imperishable obstacles to set up their own business or industry due to the economic situation created by Israel—manufacture textile goods (at low wage levels) for Israeli contractors, who provide the raw material. The contractors then sell these products as 'made in Israel' to the domestic (Israeli) or international market.^[55]

Finally, like other economic spheres, the tourism sector has particularly suffered from Israeli obstacles to the development of infrastructure and political and legal uncertainty. Although theoretically facing a great potential due to its numerous 'religious, historical, archeological, natural and cultural attractions…the role of tourism in the WBGS economy is presently very limited'.^[56] Again, the reasons lie—to a large extent—in the Israel policies and restrictions. For example, the latter 'have inhibited the establishment of tourist bus companies in the WBGS, where no such companies were licensed over the three decades of occupation'.^[57] Moreover, even after the beginning of the Oslo 'Peace' Process, tour guides face restrictions on mobility due to 'security' checks; and only busses that are licensed in Israel (visible from the license plate) enjoy free movement in WBGS and to Israel. As Osama Hamed from the World Bank points out, '[t]his has given Israeli tourism operators a clear advantage over their Palestinian counterparts in the competition for tourists'.^[58] Additionally, water supply disruptions and an infrastructure that was intentionally left underdeveloped during more than 30 years of occupation undermines the ability of Palestinians to take advantage of the potential in the tourism sector.^[59]

Conclusion: Outcome of Israeli Economic Policies

The outcome of the above depicted discriminatory and oppressive economic policies is a structural dependency on Israel's economy and a strong de-development of Palestine's own potential. Hence the Palestinian economy remains severely underdeveloped as it can be seen in the various sectors mentioned above. Moreover, the imposed political and legal uncertainty resulted in low investment (of which 85-90 percent has remained residential housing that contributes little to economic growth)^[60] and led to an underdeveloped private sector (consisting of 60,000 individual establishments in WBGS, the majority of which employ fewer than 3 persons that are capitalized for not more than US$10,000)^[61]. Hence, these policies prevent the Palestinian economy from growing and thus from creating new job opportunities.

Israeli restrictions have also shaped the economic policies of the Palestinian National Authority (PNA), forcing them to absorb a large part of the labor force into the public sector due to the lack of alternative employment opportunities. In fact, by the end of 1998, the PNA had absorbed some 20 percent of the total Palestinian labor force. Accordingly, an impressive 60 percent of the 1998 budget was earmarked for their salaries.^[62] For sure, patterns of patronage and clientalism, rooted in Palestinian—or, more precisely in Yasser Arafat's—political culture also have an impact on such policies.^[63] Anyhow, job-creation in the public sector cannot provide a sufficient number of jobs. As Sara Roy points out, '[i]n order to prevent unemployment from exceeding 1997 levels some 450,000 new jobs would be needed…an impossibility [to achieve] under current conditions'.^[64]

Taking Palestinian fast population and labor force growth into consideration (next to Israeli economic oppressive policies) the employment situation is not likely to improve substantially. From 1997 to 1998, UNSCO reported a population growth rate of 6.5 percent, reaching 2,858,021 persons^[65], whereas labor force growth rates throughout the same period were estimated at having increased by '5.9 percent to more than 585,000 persons'.^[66] Despite some recent improvements, actual unemployment figures are still dramatic. According to the Palestinian Central Bureau of Statistics (PCBS) unemployment reached 14.4 percent (WB: 11,5 percent; GS: 20,9 percent) in 1998. In the same year, underemployment was estimated at 6.5 percent (WB: 8.4 percent; GS: 2.3 percent).^[67] These figures are still very high since the PCBS follows the rigorous definition of the International Labor Organization (ILO).^[68]. However, when using a broader definition for unemployment the picture appears even more severe. Following the UNSCO definition^[69] for unemployment, the unemployment rate was estimated at 25 percent (WB: 23.2 percent; GS: 31.4 percent) for 1998, while the figure for underemployment remained the same.^[70]

In short, the de-development of the Palestinian economy, and its assimilation to the needs of Israel's economic objectives have pushed the Palestinian labor market into severe structural dependency on Israel. Israel takes advantage of this dependency by allowing Israeli employers to exploit the Palestinian work force by either not providing a clear regulatory framework, or, where such a frame work exists de jure it is rarely imposed. This exploitation takes place in two sections of the Israeli economy. One is the labor market inside Israel itself (within the 1948 borders), the other is Israeli economic activity inside the settlements, established in violation of international law in the WBGS.^[71] As stated above, the latter is the subject of the second part of this report. The Israeli settlements are significant in the sense that Palestinians working there are not subject to a consistent system of law or regulations on conditions or wages. Palestinian workers in Israeli settlements find themselves extremely vulnerable to all sorts of exploitation and abuses by Israeli employers. This situation is further exacerbated during times of strict closure, when Israeli settlements form virtually the only source of income for Palestinian workers. The responsibility for such a vulnerable environment rests with the Israel government. The State of Israel is responsible and accountable for the creation of Palestinian economic dependency and the de-development of the Palestinian economy through its belligerent occupation, as illustrated above. It therefore violates provisions of international humanitarian law and human rights law. A legal assessment of these flagrant violations is shown in the following chapter.

2. Israeli Economic Policy: Violation of International Humanitarian and Human Rights Law

This chapter will show how the State of Israel, through its economic policies, violates provisions of international law. Israel commits such violations in two spheres, which will be elucidated upon in the following paragraphs.^[72]

Through its policies, Israel created two spheres of illegality, which are closely linked and inseparable from evaluating the exploitation of Palestinian workers in Israeli settlements. First, the belligerent occupation of the WBGS itself constitutes a gross violation of international humanitarian law and human rights law. Second, there is no legitimacy under international law that allows the State of Israel to take over Palestinian land in WBGS to construct and maintain Israeli settlements , unless for military purposes. However, in the case of urban civilian settlements and industrial zones this is clearly not the case.

(i) The first Sphere of Illegality.

This sphere of illegality refers to occupation. According to the definition for occupation, given in the Hague Regulations of 1907, '[a] territory is considered occupied when it is actually placed under the authority of the hostile army'.^[73] The Israeli occupation of the WBGS clearly violates the principle of the ' inadmissibility of the acquisition of territory by war ' as set down in Article 2 (4) of the United Nations Charter and specified in UN Security Council Resolution 242 with regards to the Israeli occupation of the WBGS. Moreover, according to relevant human rights instruments, such as the Universal Declaration of Human Rights (UDHR) and the International Covenants as well as with regard to the Declaration on the Granting of Independence to Colonial Countries and Peoples^[74] the Israeli occupation constitutes a flagrant breach of the Palestinian right to self-determination. Article 2 of the aforementioned convention defines the right to self-determination as 'the right to freely determine their political status' as well as 'to freely pursue their economic, social and cultural rights'. As illustrated in the first chapter of this part of the report, the State of Israel has created an economic dependency of the WBGS on the Israeli economy, which is in clear violation of this right.

(ii) The second Sphere of Illegality.

This sphere relates to Israel's settlement policy. As Article 2 (4) of the UN Charter prohibits the takeover of territory by force, Israel’s settlement policy is considered illegal. The condemnation and illegality of Israel’s settlement policy has been set out in several UN Security Council resolutions and UN General Assembly resolutions. Moreover, provisions of international humanitarian law, especially the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12 August 1949, explicitly prohibit the establishment of settlements in Occupied Territoriesby the Occupying Power. The Fourth Geneva Convention is regarded as customary international law and therefore binding on all states, whether or not they have ratified it. Article 49 of the Fourth Geneva Convention stipulates ' The Occupying Powershall not deport or transfer parts of its own civilian population into the territory it occupies. ' Additionally, Art 46 (2) of the 1907 Hague Regulations prohibits the Occupying Power ' to confiscate private property of the occupied territory ' . Furthermore, both the UN Security Council and General Assembly condemn Israeli settlement policies and call for the dismantling of all existing settlements. Security Council Resolution 465 (1st March 1980) determines that:

All measures taken by Israel to change the physical character, demographic composition, institutional structure or status of the … territories occupied since 1967, …have no legal validity [and] calls upon the Government and people of Israel to rescind those measures, to dismantle the existing settlements and in particular to cease, on an urgent basis, the establishment, construction and planning of settlements in the Arab territories occupied since 1967, including Jerusalem.

Furthermore, in its seventy-first plenary meeting, the General Assembly reaffirms in Resolution 54/78 of 6th December 1999 that ' Israeli settlements in the Palestinian territory, including Jerusalem…are illegal and obstacle to peace and economic and social development ' and calls upon the Israeli government ' to accept the de jure applicability of the Fourth Geneva Convention to the Occupied Palestinian territory, including Jerusalem, and to abide scrupulously by the provisions of the Convention, in particular article 49 '.

In this context it is worth noting that the Statute of the International Criminal Court (ICC)^[75] elevates Article 49 of the Fourth Geneva Convention regarded as a serious breach of international humanitarian law to a ' war crime '. In Article 8b (viii) of the International Criminal Court Statute Article 49 of the Fourth Geneva Convention is literally incorporated. This means that individuals that are involved in planning or carrying out policies regarding Israeli settlements can be held liable as 'war criminals' under the jurisdiction of the ICC. An essential step was achieved regarding immunity of state officials since the Statute of the ICC ' applies equally to all persons without any distinction based on official capacity '. This implies that a head of state or government as well as a member of a government or parliament shall in no case exempt a person from criminal responsibility^[76]. Not surprisingly, Israel wants to sign the agreement, but has no intention of ratifying the agreement because of the 'settlement clause'.^[77]

The two spheres of illegality and Palestinian Workers in Israeli Settlements

It is crucial not to separate the two spheres of illegality- the occupation itself and the establishment of settlements- from the specific humanitarian and human rights violations of Palestinian workers in Israeli settlements by the State of Israel and its citizens. Two specific provisions of the Fourth Geneva Convention, Article 52 and Article 51 have to be considered in this respect. Article 52 of the Fourth Geneva Convention is aimed at the protection of workers of the occupied territory and illustrates effectively how the creation of economic dependency of the WBGS on the State of Israel that 'induces' Palestinian workers to work in Israeli settlements is a flagrant violation of international humanitarian law. Article 52 paragraph 2 of the Fourth Geneva Convention states ' all measures aiming at creating unemployment or at restricting the opportunities offered to workers in an occupied territory, in order to induce them to work for the Occupying Power, are prohibited '. In the first chapter of this part it was indicated in depth what measures and restrictive policies the State of Israel created to induce Palestinian workers to work in Israeli settlements. The term ' restricting the opportunity offered to workers in an occupied territory ' obviously addresses opportunities of full enjoyment of economic and social rights. As Israel retains control over most of the resources in the WBGS, especially land and water, it is impossible for Palestinians to freely develop their collective and individual capacities through the control and use of national resources.

Article 51 paragraph 2 of the Fourth Geneva Convention lists different types of work for which the occupying power might compel protected persons. Work necessary to satisfy the needs of the population is stated as one of the authorized works that is not considered compulsory labor. It includes work for the feeding, sheltering, clothing, transportation or health of the population of the Occupied Territories. Needless to mention, labor of Palestinian workers in Israeli settlements does not fall under ' work necessary to satisfy the needs of the population '. First, the provision has to be interpreted in a strict sense and cannot be meant to justify or even promote work in settlements established by the Occupying Power. It is the inherent logic and intention of Article 51 'that the Occupying Power does not in any circumstances employ protected persons to serve its own national economy'.^[78]

When determining the nature and legality of the individual labor contract between the Palestinian worker in the Israeli settlements and the Israeli employer, the two spheres of illegality- Israeli occupation of WBGS and the construction and maintenance of Israeli settlements –have to be taken into consideration. To focus solely on the labor contract and thereby exclude the circumstances and two spheres of illegality that induce and force Palestinian workers to accept work in Israeli settlements implies the applicability of Israeli labor law in the Occupied Territories. This highly narrow approach effectively excludes international human rights and humanitarian law that are meant to protect the Palestinian workers. As indicated in the previous chapter, it cannot be maintained that Palestinian workers in Israeli settlements enter voluntarily into the labor contract, be it orally or in written form.

Work in Israeli Settlements: Illegality vs. Legality

The doctrine of non-recognition clearly implies that an illegal act committed by a State cannot create space for legal acts by its own citizens. Whenever there are strong reservations as to the morality or legality of the actions that have been adopted in order to bring about the factual situation, the factual situation will not be recognized. Bearing in mind the continuous condemnation by the international community of Israeli settlement activities in WBGS, the doctrine of non-recognition clearly applies to policies and actions carried out by the State of Israel with regard to Israeli settlements . This doctrine is supported by the principle that legal rights cannot derive from an illegal situation.^[79] This has to be linked to one aspect of state responsibility. Even though a state may not be responsible for all acts performed by its nationals, it cannot be denied that a state may be liable for failing to exercise the control necessary to prevent such acts.^[80] The State of Israel does not prevent its employers from exploiting Palestinian workers in settlements. In fact, as demonstrated in the previous chapter, the situation is quite the opposite.

The State of Israel has created two spheres of illegality and created a situation by non-legal means- the occupation in itself and the construction and maintenance of Israeli settlements - and intentionally pursued a policy of economic dependency of the WBGS and exploitation of the Palestinian workforce. It is stipulated in the Declaration of Principles of International Law (1970), that no territorial acquisition resulting from the threat or use of force shall be recognized as legal.^[81] Correspondingly, none of the 'legal' acts carried out by Israeli employers aimed at exploiting Palestinian workforce in Israeli settlements can be recognized.

Conclusion

Israel's occupation of the WBGS is clearly illegal under various provisions of international law. Furthermore, the creation of settlements is equally illegal. Likewise illegal under international human rights law and international humanitarian law is that Palestinians are compelled by Israel to work under unbearable conditions for which the State of Israel has to be held responsible due to its economic policy inside the WBGS. The State of Israel is not stripped from the responsibility to implement effectively ESCR throughout the WBGS. Due to the fact that it exercises effective jurisdiction in the WBGS^[82], the State of Israel is fully responsible for the implementation of the International Covenant of Economic, Social and Cultural Rights. However, Israel does not fulfill this obligation, as it is clear from the situation of Palestinian workers inside the Israeli settlements in the WBGS. This situation will be depicted in the second part of this report.

II. Palestinian Workers in Israeli Settlements in the West Bank and Gaza Strip

This part of the report will depict the workers' specific situation in the Israeli settlements. The first chapter will show general data, such as their numbers, their places of work, and their education. The second chapter, will elucidate upon their actual work conditions, such as hiring arrangements, wages, working hours, health conditions and benefits. The third chapter asks for the workers chances to improve their situation by receiving legal assistance from various institutions.

1. Data on Settlement Workers

This chapter shall give an overview of the total number of Palestinian workers currently employed in the Israeli settlements and their places of work, as well as of the sectors in which they work and their qualifications. Again, due to the lack of systematic studies, the information provided here is, to a large extent, based on estimations.

1.1. Numbers of Workers in West Bank and Gaza Strip

The total Population in the West Bank is estimated at 1.85 million and in the Gaza Strip at 1.04 million. For the first half of 1999, the total workforce for both territories was estimated by UNSCO at 619,445 persons. About 410,757 Palestinians were employed in the domestic economy inside the WBGS; some 122,730 found work in the Israeli economy, either inside Israel itself or in the Israeli settlements in the Occupied Territories.^[83] Of these, according to the Palestinian Central Bureau of Statistics (PCBS), 9,507 Palestinians were employed in the Israeli settlements – 8,441 in the West Bank and 1,066 in the Gaza Strip during the first three months of the year 2000. Of these 7,026 belonged to the age-group of 15-34, and nearly half of this number were under 25. Only 130 of the workers were women.^[84]

Other estimations, however, range from 12,000 to 16,000 Palestinians working in Israeli settlements in WBGS.^[85] The lower figures represent only those workers who are officially registered through obtaining a permit for work, while the actual number of Palestinians entering the Israeli settlements is probably considerably higher. In recent years, there has been a significant increase in the number of workers in Israeli settlements. UNSCO puts the total number of permits issued in 1998 at 12,709 – compared to 1997 (10,179) this is nearly a 25 percent increase.^[86] In 1998, there were more Palestinians working in Israeli settlements than at any time since the signing of the Oslo accords in 1993.^[87] The relation of workers in Israeli settlements between West Bank and Gaza Strip is about 2:1.

1.2. Places and Sectors of Work in Israeli Settlements in West Bank and Gaza Strip

It is estimated that at least 200 Israeli industrial factories are located within the West Bank – either in the Israeli industrial zones or in the Israeli settlements. There are five Israeli industrial areas in the West Bank (Hinnanit, Barkan, Ariel, Male Efrayim, Qiryat Arba’) plus two in East-Jerusalem, which are by far the largest, but are not included in this report (‘Atarot, Khan al-Ahmar/Mishor Adummim). The seven industrial zones together make up an area of 302,000 hectares. Their major products include aluminum, leather tanning, textile dying, batteries, fiberglass, plastics, and other chemical industries (pesticides, dixon gas) – all of which are harmful to human health and the environment.^[88] There is no considerable industrial activity in the Gaza Strip.^[89]

In addition to the five industrial areas there are, according to the Palestinian Ministry of Planning,^[90] another 345 Israeli settlements in the West Bank (including Jerusalem) – including 175 civil dwelling units in various forms, 59 so-called ‘outposts’^[91] and 45 facilities, as well as 19 settlements in Gaza^[92], which employ Palestinian workers in small production facilities, in services or – above all – in agriculture. The three largest of these settlements are Ariel, Barkan and Male Efraim. The largest agricultural farms that employ huge numbers of workers are near Jericho in the Jordan valley.

Agriculture is in fact the most important sector of employment for Palestinian working in the Israeli settlements, after construction. The importance of the different sectors according to the Palestinian Central Bureau of Statistics in shown in the following table:

Table 1: Employed Palestinians in Israeli Settlements by Sector of Employment

Abbildung in dieser Leseprobe nicht enthalten

Source: Palestinian Central Bureau of Statistics^[93]

1.3. Qualifications of Workers Working in Israeli Settlements

The years of schooling that workers have enjoyed cover the whole range from a few years of elementary to 12 years of secondary schooling. University graduates are rare but it is remarkable that they are to be found at all, since the jobs for Palestinians in the settlements are exclusively low-skilled jobs. The vast majority of these jobs being elementary occupation, craft and related trade workers and agricultural.^[94]

Table 2: Employed Palestinians in Settlements by years of schooling

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Source: see Table 1

Table 3: Employed Palestinians in Settlements by occupation

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Source: see Table 1

2. Work Conditions in Israeli Settlements in the West Bank and Gaza Strip

This chapter will provide information on the workers' actual working conditions. It will explain the different forms of hiring arrangements, none of which are based on a written contract but on oral ones. Although, legally, oral contracts are not less valid than written ones but for the settlement workers it means that do not have any chances to prove their employment relation (see II. 3. Workers Chances) and have no basis for bargaining since no rules are set. Furthermore, workers' wages in the different sectors will be depicted, as well as working hours, holidays and vacation. Also, health conditions are briefly considered and the end of service benefits. The reader might find some contradictions in some fields. This is due to contradictory information that was obtained through interviews and further illuminates the vulnerable working environment in which Palestinians in the Israeli settlements find themselves.

Since there is no legal framework governing the relationship between the Palestinian workers in the Israeli settlements in the WBGS and their employers, due to the illegality of these establishments, the legal situation of these workers depends on their individual negotiations and contracts. Since virtually none of the settlement workers have written contracts, or often not even any form of written documentation of their employment, they are very much dependent on the individual behavior of their employers. If any law is applied at all it is usually Jordanian labor law (Law 2, 1965), which is inferior to Israeli labor law in almost every area. This law was updated in Jordan but has the old version remained in force in the territories since 1967 and has not undergone any changes. Its provisions are correspondingly little protective: Workers are not entitled to any fringe benefits, such as traveling expenses, vacation pay or work clothes. Pay for severance, sick leave or accident leave is less than that stipulated by Israeli law.^[95] Workers in the Gaza Strip still come under 1957 Egyptian legislation, which grants no social security protection at all.^[96]

2.1. Employment, Permits and Hiring Arrangements

Palestinians entering Israel itself for work are required to apply for a magnetic card that gives their security records as well as for a work permit that is issued for a period of three months and that can only be obtained if the applicant meets certain requirements regarding his age and family status.^[97] This requirement does not apply to Palestinians working in the Israeli settlements in the WBGS, although the Israeli authorities nevertheless issue the permits to satisfy the employers' security needs.^[98] However, most workers from the WBGS that work in Israel, do so without a permit. According to the Palestine Economic Policy Research Institute (MAS), in the fourth quarter of 1998, permit holders accounted for only 37.3 percent of West Bank and Gaza Strip (18 percent in the West Bank) workers in the Israeli economy.

Interestingly, although they are ostensibly not necessary, the number of permits issued for work in settlements rose by nearly 25 percent from 1997 (10,179) to 1998 (12,709), but it is likely that there are also a few thousand unofficial workers (see II.1.1.) since there are different ways to find work in the settlements without permits. It seems to be common practice for workers to wait outside the settlements in front of the Israeli checkpoint for potential employers to meet them there and to offer them work. This seems to also be the procedure for workers who already have a job inside the settlement but no official work permit. The employers can take their workers with them into the settlement under their guarantee, while the workers have to leave their IDs at the checkpoint.^[99] However, according to the Palestinian Labor Ministry, all workers must possess a magnetic card (that states their security record) in any case to be allowed into the settlements.^[100]

Besides the possibility of waiting outside settlement checkpoints for employers. there are two more ways to find employment in a settlement. First, there is the official procedure involving Israeli labor agencies (which will then issue a work-permit), and second there are the ‘subcontractors’ or Arab manpower companies: These are usually Palestinians, often collaborators that carry an Israeli ID and therefore fall under Israeli jurisdiction, that act as employers for job-seeking Palestinians (these subcontractors do have to obtain work permits for the people they employ) and then hire out their workers to interested employers. Legally, the workers fall under the relevant labor law prevailing in the region. In other words pre-1967 Jordanian labor law applies to workers in the West Bank while pre-1967 Egyptian labor law applies in the GS. The employer pays the workers' salaries to the contractor, who deducts a large portion in commission and pays the rest to the worker. This deduction is said to be usually between 20-30 percent, but in some cases even more. There have even been cases where a subcontractor is said to have taken as much as NIS 120 from a wage of NIS 200.^[101] From the Gaza Strip where the job situation is a lot more difficult than in the West Bank, there have even been reports of subcontractors forcing job-seeking Palestinians to pay large fees, up to NIS 1000-4000, in order to get a work-permit.^[102]

Since the second Gulf War of 1991, Israeli employers have increasingly used subcontractors as a way to avoid having to deal with the Palestinian workers directly and thereby passed on practically all responsibility for them.^[103] This system of recruitment is especially pronounced in the construction sector, since it is considered to ensure cyclical flexibility.^[104]

According to Kav La'Oved, Israeli employers operating in the settlements in West Bank and Gaza Strip in 1997 also began to establish Palestinian man-power companies. The factories then attempted to transfer their workers to these companies to obtain the profits described above. Kav La'Oved is convinced, that these contractors are 'straw companies controlled by the Israeli employers'.^[105] According to an article that appeared in Israel's largest daily newspaper 'Yediot Ahronot', in 1997 the ‘Commercial Center for Trade’ opened offices in Ramallah and Tulkaram. The company's representatives appeared in the Barkan industrial area, entered several factories and urged the workers to become employed through their companies. Apparently, the workers who refused to sign the form transferring them to a man-power company were fired.^[106] Palestinian worker Fuad Ahmed Hajjeh from Qalquilia (north West Bank) reports:

I was hired through an Arab-owned manpower business so they wouldn't have to pay me full benefits under Israeli law. I worked at a rope factory for three years without minimum wage and no other rights. No health, no paid vacation, no severance. 'If you don't like it, go home', they told anyone who complained. I left for another factory there where I get my rights and a fair salary. Of the 10 to 12 factories in the settlement, this is the only one which follows the law strictly.^[107]

2.2. Wages

On 19 November 1987, Military Order No. 1198 was decreed, which specifies that Palestinians employed in a settlement in the Occupied Territories 'are entitled to receive from their employers wages that are not less than the minimum wage, and to cost of living increases, as may take effect in Israel from time to time.'^[108] Furthermore it stipulates that the employer should make public what the minimum wage level and cost of living allowance are. The official in charge can also pass regulations to enforce this order; the employer should submit a report along with the employee about the employment-terms. A medical insurance covering work accidents is also required. However, this military order has obviously never been enforced in practice. Low wages and non-payment of wages is one of the major problems for Palestinians working in Israeli settlements .^[109]

According to workers’ organizations in the Occupied Territories and testimonies given to B’Tselem the vast majority of Palestinian workers in the settlements receive wages significantly lower than the minimum wage stated in Israeli labor law,^[110] except for skilled and semi-skilled workers in the construction sector, where wages can go up to NIS100 or even 200.^[111] The majority of Palestinian workers in Israeli settlements receive not only much less than their Israeli counterparts for the same kind of labor, but also less than Palestinians working in Israel itself, and at times even less than workers in the domestic Palestinian economy. While the Israeli minimum wage is currently set at NIS15.05,^[112] which constitutes about NIS120 for an eight-hour day, the real daily wage for an average fully-employed Palestinian worker in the Palestinian economy is estimated at NIS61.81 per day (about NIS1.366 a month) for 1999, and at NIS86.68 per day for Palestinians employed in Israel (about NIS1.711 a month).^[113] Most Palestinians employed in Israeli settlements, however, only receive an average of NIS35-40 per day, especially in the Gaza Strip where the maximum daily wage is supposedly NIS60 (according to the Democracy and Workers’ Rights Center).^[114]

The PGFTU reports that 67 percent of workers in West Bank settlements receive less than the Israeli minimum wage, 50 percent receive about half the minimum wage and another 25 percent less than half. According to the PGFTU, some 2000 workers are only receiving wages between NIS4.5-6.0 an hour.^[115]

The ILO has confirmed that the discrimination in wages is particularly acute for Palestinians employed in Israeli settlements. According to an ILO report of 1998, wages paid to Palestinian workers amounted to NIS6-10 ($1.50-$2.50) per hour while the hourly minimum at that time was NIS 12.63.^[116] Similar data is provided by Kav La'Oved, which indicated in a 1998 statement that 'the hourly wage that a Palestinian employed in the settlements receives generally ranges from between NIS 7 to 13 (about $1.90-3.50) whereas the minimum wage in Israel [was] NIS14.30 an hour (about $3.90)'.^[117]

According to a testimony from a settlement worker from the village of Kfar Lakif, Palestinians regularly only receive a fourth of the wages of Jews who do the same job in the same factory.^[118]

Overtime work is often not paid since many workers only receive a daily wage regardless of hours worked. If they are paid for overtime work at all, it is rarely at the official Israeli rate that requires 125-150 percent of normal wages.^[119]

Low wages and also the delay of payment seem to be a common practice in Israeli settlements. Mohammed Tamimi^[120], working at a wood factory in Barkan reported his case to LAW. He said that 2 ½ years ago, the owner of the same factory in which he is currently working announced bankruptcy and left for the USA taking some of the machines with him. A new manager came and took over the factory and the workers. Mohammed follows now two problems: first, he did not receive the minimum wage during the time he was employed by the other manager, not to speak about any other rights to which he should be entitled. Second, during the time of change, he was working for two months but he has not yet received his wages for this time. Currently he does also not earn the minimum wage. The workers protested and wanted an increase of their wages. The employer promised it but eventually nothing happened. The minimum wage is currently NIS15.05. But for 201.4 hours of work he received only NIS1581 (which equals a wage of NIS7.85) instead of NIS3029. Moreover, the delay of payment is very regular. For example, by the end of April, he received the wage for March. Finally, the costs for transport are not covered by the company. He needs NIS10 – 12 per day to get to work and back, but the company pays only NIS7.^[121]

Most employers also do not compensate workers for their transportation expenses or only for part of them. Out of four workers that were interviewed at the Democracy and Workers’ Rights Center in Gaza in May 2000, all four stated that they receive no transportation allowances whatsoever, and that they also did not receive their convalescence pay, and one of them got no compensation for overtime work.^[122]

As has been reported in several testimonies of Palestinian workers to human rights or workers’ rights organizations, it seems to be common practice that employers withhold considerable deductions from their salaries threatening that they will be confiscated if the worker wants to resign against the employer’s will (see II.2.5.).^[123]

The problem of enforcing minimal employment standards in the Israeli settlements is that there are no monitoring procedures. Firstly, neither the Civil Administration nor the Ministry of Labor and Social Welfare enforce the military order.^[124] Secondly, workers do not receive their wages through the Payments Division of the Labor Ministry (like Palestinians who are employed within Israel itself), but directly from their employer. The Payments Division usually ensures that workers are paid at least the minimum wage and receive accompanying social benefits (annual vacation, recuperation pay, sick leave, pensions rights). With the absence of that minimum protection, unfettered exploitation has become the norm in labor relations in the settlements.^[125] Due to this lack of supervision, not even the provisions of Jordanian labor law (which are inferior to Israeli labor law regarding several rights) are enforced. ‘The rights ensured by Jordanian labor law, such as prior notice of dismissal, severance pay, and annual vacation pay, are often realized only after suit is brought, and then usually by a compromise settlement.’^[126]

The Palestinian Labor Unions are not even allowed to enter the settlements which are considered by Israel as a military security zone. According to Kav La'Oved and the PGFTU, 'representatives of the Palestinian Trade Unions in the West Bank are denied access to work sites in Jewish settlements'.^[127] According to the Democracy and Workers’ Rights Center there is supposed to be a monitoring commission from the Palestinian Ministry of Labor, however, this commission is also prevented from doing its work since it has been denied permission to enter the Israeli settlements.^[128]

Therefore, circumventing labor regulations is made easy for Israeli employers, especially in the Israeli settlements in the West Bank and Gaza Strip. If labor law regulations are applied at all – which is not the case for the many Palestinians that are only employed on a daily basis – the usual practice is to apply the pre-1967 Jordanian labor law.^[129] In some cases though, Palestinian workers tried—through the assistance of human rights organizations—to make Israeli labor law applicable to settlements. Employers rejected this approach, however obviously not on the ground of international law but due to the fact that Israeli labor law regulations would be more costly for them. In one case, reported by Kav La'Oved, Israfut Industries Ltd. (a print factory in the Karnei Shomron region), argued for the application of Jordanian labor law and demanded that the workers sign documents agreeing to be paid accordingly. When the workers refused to sign they found the factory gates closed and locked. They demanded the equitation of their salaries to those of their Israeli co-workers. The factory's answer was simple: All 60 Palestinian workers were fired.^[130]

Another method to circumvent the minimum wage obligation and to employ the workers under Jordanian labor law is to hire them through Palestinian manpower companies or ‘subcontractors’ (see I.2.1.). Sometimes workers are asked to sign labor agreements retroactively and are threatened with dismissal if they do not concede.^[131]

Finally, some employers simply deny the legally-binding character of military order no. 1198. Instead, they consider it as a mere 'recommendation'. An example of such an attitude is reflected in a statement of David Shapira, one of the owners of the Abir factory in the Barkan industrial area, mixing economic rationale with diffuse racial argumentation:

It is true that a minimum-wage order was issued, but we consider it a recommendation. Even a minimum wage for Jews is not healthy for the economy. If there is a wave of complaints, a wave of factory closures will follow. It would be a tragedy for the Arabs more than for us... You have to understand that not only legally are they not entitled to a minimum wage, morally, too, they are not entitled: if an Arab worker receives a minimum wage, he would clearly be preferred to a Jew. The expenses expended by a Jewish worker, his standard of living, is higher than the Arab worker. If we have to pay a minimum wage, we would get rid of all the Arabs tomorrow. ^[132]

Unlike Palestinian workers in Israel the settlement workers do not pay any fees to the Israeli Labor Union Histadrut or on social security and insurance, which means they are not entitled to any of the possible benefits.^[133]

2.3. Working Hours, Holidays and Vacation

The 8-hour workday is regularly exceeded, up to 10 or 12 hours.^[134] In some extreme cases it has been reported that workers were even forced to work 24 hours or to stay at work overnight. Workers have reported strenuous 12-hour days, every day of the week. Workers who miss work because of illness are sent home for a week or more without pay as a form of punishment. Overtime and minimum wage are not paid.^[135] The Democracy and Worker’s Rights Center (DWRC) reports for the Gaza Strip that 35 percent of workers in Israeli settlements get the official one hour break, while 50 percent receive half an hour and fifteen percent only irregular breaks depending on the circumstances.^[136]

There is often no extra pay or only very little for overtime work. Working days vary between 5 and 7 days per week, Saturday being the usual weekly holiday (some have Fridays off, some Fridays and Saturdays). Many workers are employed on a daily basis without a fixed compensation per hour or paid weekends or holidays.^[137] They are supposedly often threatened with dismissal if they oppose the circumstances.^[138] In this context a striking example is given by the case of Mohammed Tamimi again. He reports that his normal work time is 7-10 hours and sometimes he was working from 7am to 2pm, sleeping at the factory covered under cartons. Nevertheless, he did not receive any overtime pay. His normal wage is below the minimum wage as well with NIS13 per hour. He says that he is afraid of getting fired if he refuses to work overtime hours.^[139]

As far as vacation is concerned, the Israeli labor law grants two weeks (twelve days plus Shabbat) of paid vacation and Jordanian labor law stipulates three weeks (18 days plus Fridays). While employers usually argue in favor of Jordanian law – if any law is applied at all – they like to make an exception concerning the length of vacation. In many cases, however, no paid vacation is granted at all.^[140] Of four workers that were interviewed by LAW at the DWRC in Gaza, all of whom work in different settlements, all four stated that they received no vacation whatsoever. Three of them said they would be able to get a few days urgent vacation if necessary, but it would, in all cases, be unpaid.^[141]

Regarding religious holidays, all workers in Israel are entitled to 9 paid holidays a year (according to their religion) after they have been working for three months. If the holiday falls on Shabbat, the worker is not paid for that holiday.^[142] Many Palestinian workers in the Israeli settlements are not granted these holidays at all or at least not the full number of them. Kav La'Oved reports a similar situation in the case of Abir factory in Barkan:

(…) Palestinian labor unions have received numerous complaints from Palestinian workers employed by the Abir factory in the industrial quarter of Barkan, near Ariel. These workers were not even paid the required minimum wage, not to mention R&R, vacations with pay, fares, etc. (benefits given to Israeli workers in the same factory chain). Some of the workers, sent to Kav La'Oved by the labor unions, got full social benefits after litigation was initiated. Others are still awaiting the outcome of the legal battle over the question of Israeli vs. Jordanian [labor] law (…).^[143]

2.4. Health

The health conditions under which Palestinians work in the Israeli settlements and the regulations governing sick leave, accidents and insurance, are particularly difficult.

Basically every sector of work in which Palestinians are employed poses considerable health risks. As has been mentioned in Chapter II.1.1., many of the factories in the settlements have been moved from inside Israel because of pollution and health risks.^[144] The factories produce textile and leather products, batteries, aluminum, plastics and chemicals like pesticides.

There are some striking examples of environmental pollution in the West Bank through settlement industries: for example, a pesticide and a Dixon gas factory have been moved from locations inside Israel to Tulkarem in the West Bank near the 1967 border. According to the Applied Research Institute Jerusalem, waste water from these factories has polluted the soil in the area and solid waste is burned in free air. It is reported that the Israeli government has moved an Israeli Military Camp from the area because of health risks.^[145]

Construction, which is the biggest sector of employment in the Israeli settlements, also poses considerable health risks, especially since many workers seem to be working without adequate protection in the form of protective clothing, helmets or safety measures on the construction site.

But the sector that seems to be the most critical is agriculture: Palestinian workers report that they are employed to do jobs that Israelis and foreign workers have rejected because of health risks – like bringing out fertilizers and pesticides without appropriate protection.^[146]

The second matter of grave concern for workers and workers’ rights organizations is that of work-related injuries, their follow-up costs and disability pensions. Workers in the Israeli settlements in the West Bank and Gaza Strip are not covered by the Israeli National Insurance (as Palestinian workers in Israel are) for such cases, and although the Israeli Civil Administration issued a military order obligating employers to insure their workers privately (Military Order 663, 1976), this order is not enforced.^[147]

Employers also try to circumvent obligations by disposing the injured worker inside the Occupied Territories so the accident will not have to be recorded at Israeli hospitals and later the worker will find it hard to prove when and where the accident happened.^[148] Since most employers refuse to fulfill their obligations in the case of work-related injuries, many workers – in addition to their loss of income and maybe a life-long disability – have to pay for their health costs from their own or families’ and friends’ savings.^[149] Disability pensions depend on the employers personal responsibility and are hardly ever paid unless the worker sues for them.

In one typical event, the Technoplast company in the Barkan industrial area fired a worker after he was injured in a workplace accident. He was forced to pay over 1500 NIS of his personal savings for hospital treatment.^[150] The workers at Technoplast eventually went on strike in September 1999 because they did not receive any treatment in cases of accidents (and also because they were neither receiving minimum wage nor overtime pay). The company told the workers they could go to court if they wanted to and refused to pay. The Secretary General of the PGFTU who wanted to investigate the working conditions was denied access to the premises.^[151]

Another worker, working at the plastic factory “Ben Or” in Barkan, told LAW in an interview that he wants to change jobs because of the lack of security. There had been some accidents in the past at the factory where he is currently working and the workers were not treated very well. There is a mutual understanding between the employer and the Israeli National Insurance Institute (NII). They agreed that the NII does not deal with the worker directly, rather it pays the money to the employer who is supposed to transfer it to the worker. The employer normally takes some of this money for himself and gives a small portion to the Palestinian workers. One worker added that the conditions of work completely depend on the personality of the employer/manager and his ideological and political background. When we asked him how he can be sure that at a new place of work the conditions will be better, he said that he has learned this from speaking to other workers.^[152]

2.5. End of Service Benefits

As has been mentioned before, arbitrary dismissal is one of the most common violations that Palestinian workers have to deal with both in Israel and in the Israeli settlements in the WBGS. The many workers who do not have a work-permit and are being paid in cash (and therefore have no written proof of their employment) are usually completely helpless when their employer dismisses them, very often without any prior notice. They have hardly any chance of securing severance pay or even outstanding wages (Jordanian Labor Law entitles any worker who has worked for an employer for more than 240 days to receive severance pay when he resigns or gets dismissed: One month’s pay for each of the first three years worked, and half a month’s pay for the years three to fifteen).^[153] But even if they have an official work-permit, there are many ways for employers to deprive them of their rights – not to mention the fact that Palestinian employed in Israeli settlements in the Occupied Territories have no chance to receive old-age pensions.^[154]

One of these ways is the forging of pay slips seems to be a common habit. Kav La’Oved and B’Tselem report, that many employers, if they issue pay-slips to their workers at all, do not record the full amount of hours worked or the amount of wages paid, but give much lower figures. Since social rights like annual vacation, convalescence pay and severance pay are based on these figures, workers are at least partly deprived of their entitled benefits. The workers usually prefer to remain silent for the fear of being dismissed.^[155] It has to be mentioned, though, that in the settlements, employers also forge pay slips with a different intention: To record the official minimum wage on the pay slips while the worker is actually being paid less – so it will be difficult to sue them for not paying the minimum wage.^[156]

An other problem for every Palestinian worker is the recurring periods of total closure of the West Bank or Gaza Strip or of certain areas inside them (see I.1.). In addition to the sometimes dramatic loss of income due to missing work days, Palestinians have often experienced that employers take advantage of their forced absence by dismissing them without paying severance or even replacing them through foreign workers from Romania, Thailand, or other countries.^[157] Employers in the Israeli settlements in the Occupied Territories have it even easier, since the these establishments are fenced in high security areas anyway and a worker will not be able to enter unless his employer allows him to do so. Sa'id Ji'aan, of the PGFTU's legal unit in Nablus provided an example of how this inaccessibility of Israeli settlements is used to deprive worker of their entitlements. He reported that a 62 year-old worker who had been working in the industrial area of Ariel for 12 and a half years, had been told by his employer to take a week off. When he came back to his workplace at the end of the week, he found out that the company had been secretly moved inside Israel, sure enough without intending to pay him severance pay or anything.^[158]

While the employers can dismiss the workers to their liking, without paying them any benefits and knowing that they are very unlikely to face any consequences, the workers themselves are often bound to the employer by illegal practices: It has often been reported by workers, that their employers have forced them to pay large deposits or even monthly wage deductions, which they keep as collateral in case the workers do not want to come back to work. There have been ample examples of this in testimonies given to B’Tselem, the DWRC or Kav La’Oved. One worker from the Dolah settlement in Gaza reported to the DWRC:

Until now I am still working for [my employer], but he took one month’s wage of NIS 1500 from me as a deposit and every month he threatens me by saying: “If you leave work you will not get this money back. ^[159]

The following testimony was given to B'Tselem by workers 'Abd al-Rahman and 'Omar Yasssin both employed in Arial industrial area. It gives a good summary of the problems previously mentioned and can hardly be considered an exception:

Nine Palestinian workers work in the Ariel Metal Factory in Ariel [a settlement in the West Bank]. I have worked there the longest, having begun in 1984. The others started to work there at various times afterwards. The last to be hired were Tahsin Yusuf and Bassem Haj Muhammad, who began in 1994.

Prior to October 1996, the company did not give pay slips to the workers All of the workers receive less than the minimum wage. Now, the minimum wage is NIS 15.03 an hour. The company pays some workers NIS 14.10 , and others NIS 14.40. They only pay us four days a year for holidays, rather than nine. They pay twenty-three days a year for vacation and convalescence pay, with a work day being calculated at NIS 112.80 a day for some, and NIS 115.20 for others, even though one convalescence day is worth NIS 260. The company fired workers without paying severance pay. That is what happened, for example, to Jamal Muhammad al-Asud, from Askar Refugee Camp. We worry that the company will do the same to usOne worker, Ghasan Abu Yaqub, was paid for thirty-six hours as sick pay covering twelve days. Hussein Abu al-Khir suffered an injury to a nail of his right hand, and couldn’t work for a week, but he received no wages or compensation. Bassem’s and Ghassan’s mother died a year ago, but the company didn’t pay them anything for the day of mourning that they took off. The Israelis who work in the factory, like Haim, who has an ordinary job, receive NIS 18.50 an hour. Ezra Hillel , for example, who is a metalworker like some of us, receives NIS 22 an hour. We feel exploited and discriminated against.^[160]

3. Workers' Chances to Obtain Justice: Limited Legal Assistance

Settlement workers have very limited chances to enforce fair and just treatment via the courts for three reasons. One is the legal uncertainty in which they find themselves, surrounding the unsettled dispute over the applicability of labor law inside Israeli settlements. The second is Israeli reluctance to allow monitoring of what is going on in settlements and Industrial zones. Third, Israeli court practices set up bureaucratic obstacles that regularly make it economically too risky for Palestinians to appeal to these courts. These three problematic aspects are discussed in the following sections.

3.1 The Labor Law Dispute

The dispute over which labor law should be applicable to Palestinian workers in Israeli settlements is dominated by economic and political considerations rather than by questions concerning fair and just treatment of the workers. Palestinian workers, of course, would favor the applicability of Israeli labor law since its provisions are highly protective and beneficial. On the other side stands the interest of the Israeli employers, who argue that the 'prevailing' laws in the West Bank and Gaza Strip would be applicable to the Israeli settlements, which are Jordanian and Egyptian labor law provisions, respectively.^[161] The latter are less protective and include fewer obligations for the employer. The State of Israel backs this position, however, indirectly through the High Labor Court.^[162] One case occurred concerning Palestinian workers in the settlement Givat Ze'ev (West Bank, south-west of Ramallah). After the decision was taken by a lower Israeli labor court in favor of the application of Israeli labor law, the high labor court reversed the decision. Three rather cynical arguments used by the Israeli state against the applicability of Israeli labor shall be briefly depicted.

In the first argument ironically enough the attorney emphasizes that the norms of international law prohibit Israel from applying its law in WBGS.^[163] Hence, Israel must 'respect the law in effect in the occupied territory and limit its intervention in it, unless there is an absolute reason to do so'. Accordingly he goes on:

It should be especially noted that the Israeli legislature did not legislate extra-territorial application of its labor laws, and neither the Israeli executive branch, the government, nor the Minister of Defense, considered it appropriate to extend application of Israeli law beyond the State's borders, in Judea and Samaria, except for East Jerusalem….^[164]

Second, he referred to the personal jurisdiction of the workers. He states that Palestinian workers are subject to a different law than their Israeli colleagues, because the labor law applies to their legal person, not to the territory, which 'Israel has never annexed ... and ... has never applied law outside the official boundaries'. Therefore a Palestinian worker should be entitled to Jordanian labor law, since his legal person is subject to this law.^[165]

Third, the attorney presents an argument that raises the question of discrimination of Palestinian employees towards their Israeli colleagues. Therefore, he examines whether the two subjects (Palestinian and Israeli workers) are equal in terms of their legal status or whether they ought to be defined as unequal. In other words: is there a permitted distinction between the two workers? If there is not, one has to note that the workers are treated unequally (i.e. the Palestinians are discriminated against). In his conclusion, the Attorney states that there is no discrimination of the Palestinians by quoting from a former decision, ruled by the Israeli National Labor Court:

It seems to us that the distinction is permissible between a resident and someone who is not a resident. This is relevant and is not unacceptable because it cannot be said to be a “discrimination between equals” because only unfairness in the practice in the equality amongst equals for discriminatory purposes should be viewed as unlawful. For example, an Israeli citizen serving abroad in a foreign country in a diplomatic posting is entitled to a different condition to those of his colleagues that are local residents and there is nothing with this. Just as the condition of a policeman who is resident of Israel working in Judea and Samaria will be different form a local policeman.^[166]

On the other side stands, in this particular case, the Israeli workers' rights organization Kav La'Oved, arguing the applicability of Israeli labor law to workers in Israeli settlements. Their main argument addresses the question of inequality between the Palestinian workers and their Israeli colleagues. It takes Israeli workers inside Israeli settlements as a group of comparison. Basically it says that since the two workers are doing the same kind of work, working under similar conditions there is no objective for treating them unequally in terms of their payment. Within this line of argumentation, Judge of the National Labor Court, Elisheva Barak, ruled in a 1995 case that

public policy and considerations of justice demand that the contract be construed pursuant to Israeli law. Take, for example, the case of an Israeli employer in Alon Shvut who employs Israeli workers and workers from the local area in the same job and tasks. It would be [an] unjustifiable discrimination if the rights secured in Israeli labor law apply only to Israel[i] workers and not to foreign workers at the same place of work.^[167]

Things with the Givat Ze'ev case are more complex. As the attorney, who defended the workers in this case on behalf of Kav La'Oved, explained to LAW that a distinction has to be made between Palestinians employed by the settlement's municipality and by private employers. The former could be considered as the longer arm of the Israel government and therefore Israeli labor law should apply. Whereas with respect to the latter, Israeli law is only applicable if the Israeli settlements themselves are considered as 'outdroppings of Israeli law' or as '[Israeli] enclaves'.^[168] The Palestinian workers he represented were employed in the Givat Ze'ev municipality.^[169] In his argumentation he used the so-called 'maximum connection principle'. This argument asks for the relation the worker has with Israel in the context of his employment (in terms of workplace, employer, work-relationship, etc). He argued that there are more connections with Israel than with the WB and therefore Israeli labor law should be applicable. Moreover, he stressed that such an argument 'is stronger because that [was] the one on which the lower court decided and it does not have any political overtone'.^[170]

It has to be noted in this context that both argumentations, quoted above, contradict international humanitarian law – in particular art. 52 and 64 of the Fourth Geneva Convention (see I. 2. Israeli Economic Policy). These arguments do not address the issue of occupation and settlements as the two spheres of illegality but are based instead on a private law perspective. However, this dispute takes place at the periphery of the whole settlement workers issue. In practice, Palestinians face severe difficulties to obtain rights on the basis of both Israeli or pre-1967 labor laws. Bureaucratic obstacles, the inaccessibility of settlements for external observers, Israel's and Israeli employer's reluctance to cooperate, as well as political constrains make it extremely difficult to provide the workers with legal assistance. This will be shown in the following two parts of this chapter.

3.2 Practical and Bureaucratic Obstacles to Open a Case Before the Israeli Labor Courts

It has to be noted, first of all, that any case that is fought on behalf of settlement workers has to be carried out in front of Israeli labor courts. Israel and accordingly Israeli employers do not acknowledge the authority of Palestinian courts. As far as the labor law dispute is concerned, the application of Israeli labor law is quite unlikely in most of the cases. Indeed, even if the Givat Ze'ev case would be decided in favor of Israeli labor law it is most likely that such a decision would not be considered as a precedent. Instead, 'in every case the judge will have to do a "mini trial"' to find out which labor law applies before the actual claim can be considered.^[171] Such a procedure naturally involves additional time (up to several years) and higher costs, whereas the prospects for success are very limited due to the political indicators of such a claim. Hence, in reality, if Palestinians appeal to Israeli courts at all, they normally do so on the grounds of Jordanian labor law. The workers regularly need the money they hope to obtain through legal assistance in order to sustain their very livelihoods. So, the priority for the workers—sad enough—is not so much to achieve fair and just treatment but to obtain the minimum benefits (to which they are entitled by any law) to ensure their and their family's survival.

When workers are in need of legal assistance they regularly face four problems that often keep them from bringing legal action and thus force them to absorb their financial losses, which in turn severely harms the sustainability of their livelihoods:

The first and most severe problem is that the workers have to deposit a huge guaranty in advance in order to insure that the costs of the trial are covered in case the worker loses. The cost of such a guaranty can amount to between NIS1,000 and NIS6,000 (US$250 to US$1,500). Although the guaranty is supposed to be returned to the worker at the end of the proceedings (if his case is won), most Palestinian plaintiffs cannot afford such an amount, especially when they are unemployed. Therefore, most abstain from bringing action against their employer at all.^[172] An earlier report, published by B'Tselem, pointed out that '[t]he deposit is unrelated to the court fee, comprising one percent of the claim, which every plaintiff must pay'. It also says that '[i]n 1996, the National Labor Court decided, in accordance with the opinion of the Attorney General, to approve imposition of a “guaranty” on Palestinian workers to ensure the payment of court expenses in the event that the worker loses the suit'. The report furthermore stressed that 'Israelis are not required to provide a guaranty when they file suit'. According to B'Tselem, '[t]he grounds for the requirement is that Palestinian residents of the Occupied Territories are considered foreign residents, against whom it is difficult to collect expenses in the event they lose the case and refuse to pay. Although the judge has discretion in each case in determining whether to require the guaranty, in most cases the judge orders that a guaranty be deposited with the court'.^[173]

A second difficulty arises due to Israel's closure policy (see first chapter). The DWRC reports that the closure 'hindered workers to attend the hearings of the courts'.^[174] Since workers in Israeli settlements often do not have a permit to enter Israel they have to apply for such permission to be present at the courts hearing. Often they are refused on 'security' grounds.^[175] In the same context B'Tselem points out that the application is 'often an exhausting process, the results of which are unpredictable'. Even though the worker is not required to appear at the preliminary hearing of the claim, 'his appearance at the proof and testimony stage is crucial, and his absence is liable to result in rejection of his claims'.^[176] If the worker does not appear and his claim is rejected, he will be held accountable for the expenses of the lawsuit and when trials have to be re-opened, workers will get rights 'only after a long time'.^[177]

A third problem is that in order to prove the employer's violations workers need pay-slips, salary checks, or any other kind of document that proves the working relationship, worked hours and actual payment. In many cases, workers do not possess such documents either because they were never provided with such because they did not accurately collect and keep them. The latter happens frequently due to the workers lack knowledge about their legal entitlements.^[178] However, in Gaza, according to the local branch of DWRC, settlement workers do not receive pay slips or any kind of documents that could prove rights violations on any legal ground whatsoever.^[179] In the West Bank the situation appears to be slightly different. Depending on the place of employment (more precisely: the personality of the employer) and the kind of work relation (i.e. long term employment over several years or seasonal employment like in agriculture, particularly in the Jordan Valley where workers are paid in cash) workers, in several cases obtain documents that can help them to obtain their entitlements. This will be discussed in the next section of this chapter.

Finally, workers are generally hesitant to sue their employers because they fear to be dismissed. Israeli employers, in Israeli settlements as well as in Israel itself generally show a very indifferent attitude towards the complaints of their Palestinian workers. An Israeli employer quoted by PHRMG, threatened a Palestinian employee who had requested fair and legal treatment, by stating '[e]very donkey can be replaced'.^[180] Such an attitude seems to be the norm and is not limited to words only. In one case, some 60 Palestinian workers employed at 'Technoplast' industry in Barkan industrial zone, where involved in a strike for better working conditions (health, over-time pay, minimum-wage).^[181] According to the head of the Palestinian General Federation of Trade Unions (PGFTU), Shaher Sae'd, the strike (like in other incidents) resulted in no improvement of the situation but in the dismissal of all sixty workers who took part in the strike.^[182] Hence, workers only claim their rights when the risk of being dismissed is equally threatening as the conditions they might face when they are unemployed. Indeed, most of the workers that sue Israeli employers were dismissed already (and deprived of last months wages, not to speak about severance pay) before they try to obtain rights through legal assistance.^[183]

When workers decide, despite these obstacles, to sue an Israeli employer they must either pay a lawyer at their own expense, what they normally cannot afford, or they have to address various other institutions confronted with very limited capacity or willingness for legal assistance. The workers opportunities to obtain rights through these institutions are shown in the following section.

3.3 Limited Capacities and Willingness of Labor Unions, the Palestinian Labor Ministry and NGOs

The level of self-organization of settlement workers is very low. According to Mohammed Saleh, Head of the PGFTU Legal Unit in the West Bank, there are 'only one or two cases' in which Palestinian settlement workers organize themselves in committees and try to improve working conditions.^[184] Also, as noted above, workers face the risk of being dismissed when they raise their voice. Hence, they largely depend on external institutions to help and to provide legal assistance. Principally, there are three sets of institutions that carry the potential to assist the workers in legal matters. One is labor unions, the second is non-governmental organizations, and the third is governmental institutions. However, as noted above, the assistance that workers actually receive is very limited either because these institutions have a limited financial capacity or because they show reluctance to provide assistance out of political considerations.

(i) On part of the governmental institutions, there is the Palestinian National Authority on the one side and the Israeli government on the other. The State of Israel has obliged itself to inspect workplaces in order to assure, in particular, that the Israeli minimum wage is paid. According to an Israeli military order, as mentioned above, Israeli employers are obliged to pay wages that are not below the minimum wage. However, the inspection of workplaces in the Israeli settlements rarely occurs. According to Kav La'Oved, inspectors from the Israeli Labor Ministry's Minimum Enforcement Unit do not conduct investigations in Israeli settlements, even when specific complains are reported to the unit.^[185] In July 1998, it was reported in Ha’aretz that although the Ministry of Labor announced that it would seek to enforce the minimum wage, in 1997, only 12 complaints against employers in the Israeli settlements were investigated. In 10 of the cases workers were awarded compensation.^[186] Israel's reluctance to ensure fair and just working conditions for Palestinians working in Israeli settlements is also reflected in its position on the applicability of the International Covenant on Economic, Social and Cultural Rights (ICESCR) in the WBGS. Like any other State party Israel is obliged to submit reports on the implementation to the Committee on Economic, Social and Cultural Rights. Israel submitted its last and second report in November 1997.^[187] The report indicates that Israel rejects both the application of the Covenant to the WBGS and also its own exercise of effective jurisdiction over the WBGS. Correspondingly, the Palestinian workers in the settlements were excluded from both the contents of the report and thus from the protection of the covenant. At the same time, however, the report indicated that Israeli settlers in the Occupied Territories enjoy the rights of the covenant.^[188]

With regard to the Palestinian National Authority, Israeli settlements are viewed as illegal and therefore working inside them is correspondingly considered illegal.^[189] Following this approach, in July 1997, the Ministry of Labor made a unilateral decision to stop issuing work permits to workers employed in the settlements.^[190] Before this decision, the PNA had—in the Interim Agreement, in 1995—agreed with Israel to cooperate in this matter.^[191] More recently, Hussein al-Abed, responsible for labor and employment issues in the West Bank at the Palestinian Ministry of Labor told LAW that the Ministry 'tr[ies] to defend the rights of the workers in the settlements and tr[ies] to find job vacancies in the domestic economy instead' but was not willing to release any details on this assistance.^[192]

However, in the past, instead of providing legal assistance or alternative employment opportunities, the PNA hindered workers through force from reaching their workplace in Israeli settlements. For example, in the Gaza Strip, on June 1999, a police order was issued that made it illegal for Palestinians to go to work in the settlements. Khalid al-Khatib, spokesman of the Palestinian National and Islamic Committee for Settlement Resistance, explained that this action was taken in cooperation between his committee and the Palestinian Police. The campaign's purpose was to stop the further growth of settlements, by hurting the settlers economically when they are cut off their source of cheap Palestinian labor. The Palestinian police ordered construction workers to quit their jobs and the security forces started to confiscate working permits of workers employed in the settlements of Morag, Gush Katif, Neveh Dekalim and Nitzarim (all in the south of the Gaza Strip). Moreover, laborers said that they were required to sign an understanding that a violation of the ban on settlement labor holds a penalty of six months in jail and a fine of 2,000 NIS. Palestinian security officials said that workers could continue to work as farm hands in the settlements but not in construction. The order was rubber stamped and approved by the Palestinian cabinet in Ramallah (West Bank).^[193] In a similar action a few months later—reported by Ha'aretz in November 1999—again, the PNA security forces blocked the workers of Gush Katif settlement from entering their place of work.^[194] Such campaigns, apparently, do not follow a certain strategy and are not carried out consistently but still, they completely ignore the conditions of the workers. With such actions, the PNA contributes to the deterioration of the workers' living conditions since they loose—depending on the length of the campaign—their daily wages, needed to support their families. Additional, the result could be—as it happened in other cases before—that work in the Israeli settlements is profoundly damaged but that Palestinians are simply replaced by foreign workers and thus become completely unemployed.^[195]

(ii) More responsive to the workers needs is the Palestinian General Federation of Trade Unions. Although the PGFTU also rejects Israeli settlements as illegal, it recognizes the need of the workers and consequently provides them with legal assistance. The settlement workers are absorbed in various trade unions according to their profession and are thus treated like Palestinians employed in the domestic economy.^[196] However, their financial capacities are very limited, since the Federation's budget mainly consists of its members' contributions, which are very low.^[197] Sa'id Ji'aan, General Secretary of the PGFTU Legal Unit in the Nablus District, explained that the lawyers face many difficulties because none of the Federation's employees are allowed to enter the Israeli settlements and workers often do not possess the necessary documents to prove rights violations. Cases are only taken if they are 'waterproof', meaning that the chances to win are almost one hundred percent. Otherwise, the unit could not afford to provide the money required by the Israeli courts as a guaranty (see second section of this chapter).^[198] Further compromises have to be made due to the worker's dependency on receiving their payments as quick as possible. Although actual payments might be lower than those that could have been eventually achieved through the trial, a settlement out of court is often the preferred solution for the worker. Long court procedures would delay the reception of payments, in most cases severely needed by the worker since he is often unemployed already when he asks for legal assistance. Moreover, except for the Israeli minimum wage order, cases are generally fought on the grounds of Jordanian labor law for two reasons. One is the Federation's political considerations, the other is that Israeli employers and Israeli courts are more likely to accept Jordanian labor law provisions as a legal basis because they imply fewer and smaller obligations.^[199]

Limited information was obtained with respect to the Israeli trade union, Histadrut. However, it can be assumed that settlement workers, like Palestinian workers in Israel do not receive any direct legal assistance through this organization.^[200] Moreover, an agreement between the PGFTU and the Histadrut was signed in March 1995 that called for cooperation but it did not cover Palestinian settlement workers in any respect.^[201] According to PGFTU representatives, there has been no further agreement between the two organizations.

(iii) Finally, workers receive legal assistance from non-governmental organizations. Currently there are basically two organizations that provide legal assistance to settlement workers on a regular basis. One is the Israeli based organization Kav La'Oved, which assists workers by lending them fifty percent of the guaranty to cover court costs. The other is the Democracy and Workers' Rights Center located in Ramallah with a branch in Gaza city. Both organizations—apart from limited budgets—face the same problems that were described in the previous section. In particular, the DWRC in Gaza told LAW that they cannot do much for settlement workers at all because they normally do not receive any kind of documents there, which are necessary to prove violations in front of the court. Another difficulty was mentioned by attorney Ribhi Qatamesh, of the Center's Head Office in Ramallah. He said that his organization has handled several suits in which the court required the workers to deposit a guaranty and, after they won their suits, found that the employer had disappeared, gone bankrupt, or paid the judgment by a check on an account with insufficient funds.^[202]

III. Conclusion and Recommendations

Summary. The report has shown, in the first part, how the State of Israel created an economic environment in the WBGS that forces the Palestinian economy, in general, and the Palestinian labor force in particular, into a severe dependency on Israel. The violation of international law provisions and principles, especially with respect to the Fourth Geneva Convention of 1949 were elucidated upon in the same part.

Furthermore, the report has shown how the State of Israel fails to ensure the implementation of economic, social and cultural rights in the Occupied Territories, according to the International Covenant on Economic, Social and Cultural Rights; and how it violates the provisions of the Convention of Elimination of all Forms of Racial Discrimination by allowing the exploitation of Palestinian workers in Israeli settlements in the WBGS. This exploitation was made clear in the second part of the report, where the conditions of Palestinian workers inside Israeli settlements were depicted.

LAW's position. Under no circumstances, should Israeli law be applied in Israeli settlements. The settlements are illegal under international law and the State of Israel has to be held responsible and accountable for the creation of an environment that allows the exploitation of Palestinian workers inside these areas. Consequently, the international community (of states and donors) and the Palestinian National Authority should work towards:

the implementation of all United Nations Resolutions that clearly identify Israeli settlements as illegal and call for their dismantling.

the implementation of the provisions of the Fourth Geneva Convention, in particular with respect to art. 49, 51 and 52, as well as 56.

the implementation of the Convention for the Elimination of all Forms of Racial Discrimination, especially with respect to the treatment of Palestinian workers in Israeli settlements in WBGS.

the realization of the Israeli policies that comply with the provisions of the International Covenant of Economic, Social and Cultural Rights.

the removal of all arbitrary restrictions imposed by Israel on Palestinian society that impede economic growth inside the territories.

the creation of alternative job opportunities in the Palestinian economy that can offer sufficient substitution for Palestinian workers that are currently working in Israeli Establishments.

the establishment of a comprehensive social security system in the WBGS that eases the risk of unemployment for Palestinian (settlement) workers.

the establishment of funds (e.g. in cooperation with the Israeli Histadrut, the Palestinian General Federation of Trade Unions and/or through the Palestinian Labor Ministry and the Israeli Ministry of Labor and Social Welfare) to provide legal assistance to exploited settlement workers.^[203]

increasing public awareness on the importance of Israeli settlements as a major impediment for the establishment of just and lasting peace in the region.

As long as the Israeli State prolongs its oppressive and destructive policies towards the Palestinian territories and its inhabitants, an improvement of the economic situation in the WBGS and thus that of the settlement workers is unlikely. Consequently, in order to find a solution to the problem presented in this report, Israel has to be held accountable for its gross violations of international humanitarian and human rights law.

Bibliography

Benvenisti, Meron, The West Bank Data Base Project: A Survey of Israel's Policies, American Enterprise Institute for Public Policy Research, Washington and London, 1984.

B'Tselem, Human Rights Violations of Palestinians from the Occupied Territories Working in Israel and the Settlements, draft report, August 1999; info via: www.btselem.org .

CEC, Implementation of the Interim Agreement on Trade and Trade Related Matters between the European Community and Israel, Brussels 12/05/1998.

Diwan, Ishac and Radwan A. Shaban (eds), Development under Adversity: The Palestinian Economy in Transition (World Bank and MAS), Washington 1999.

DWRC, Thuruf al-'amal dakhil al-mustautanat al-isra'iliyya fi qita' ghaza (Work Conditions inside Israeli Settlements in the Gaza Strip), draft report, April 2000; info via: dwrc@p-i-s.com, or dwrc@netvison.net.il .

Farsah, Leila, The Implementation of Labor-related Articles in the Protocol on Economic Relations between the Government of Israel and the PLO: A Critical View, (publication of MAS), Ramallah, November 1999.

Hindiyel-Mani, Suha, Women and Men in the Informal Sector in the West Bank Palestine: Home-based Workers in the Textile Industry, Woman's Studies Centre (published by the World University Service), September 1996

ILO, Report of the Director General: Appendix – Report on the Situation of the Workers of the Occupied Arab Territories, Geneva, June 1998; info via: www.ilo.org .

JMCC, Israeli Obstacles to Economic Development in the Occupied Territories, 2nd edition, April 1994.

Kav La'Oved (Workers Hotline) bi-monthly Newsletters; info via: kavl@netvision.net.il

LAW, An Overview of the Consequences of Israeli Occupation on the Environment in the West Bank and Gaza, Jerusalem, January 2000.

LAW, Right to Work: Economic Rights under Military Occupation, Jerusalem, November 1999.

Palestine Economic Policy Research Institute (MAS), Economic Monitor, Issue no. 5, June 1999.

PCBS, various data; info via: diwan@pcbs.pna.org .

PCHR, Israeli Policy of Closure: Legal, Political and Humanitarian Evaluation, Series Studies no. 6, 1999; info via: www.pchrgaza.com .

PHRMG, Workers' Rights…Hard Times, draft report, July 1999; info via: eid4hr@aquanet.co.il .

Roy, Sara, 'De-Development Revisited: Palestinian Economy and Society since Oslo', Journal of Palestine Studies XXVIII, no. 3 (Spring 1999), pp.64-82.

Shaw, Malcolm, International Law, 4th edition (Cambridge University Press), Cambridge and New York 1997.

UNSCO, Economic and Social Conditions in the West Bank and Gaza Strip: Quarterly Reports; info via www.arts.mcgill.ca/mepp/unsco/unfront.html .

[...]

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^[1] Charles Shamas used this term in an interview with LAW in Ramallah, June, 2000; The Mattin Group, Mattin@palnet.com.

^[2] Roy, Sara, De-Development Revisited; p. 64/65.

^[3] ibid.; p. 65.

^[4] Measurement of land; one dunam equals about 1,000 sq. meters.

^[5] CESR, Enforcing the International Covenant on Economic, Social and Cultural Rights, Reports on Israeli Violations, January 2000.

^[6] JMCC, Israeli Obstacles; p. 45.

^[7] ibid.; p. 46.

^[8] ibid.; p. 47.

^[9] For a detailed survey on Israel's policy of land expropriation after 1967 until the 1980s see: Benvenisti, Meron, The West Bank Data Base Project: A Survey of Israel's Policies, American Enterprise Institute for Public Policy Research, Washington and London, 1984.

^[10] Since 1967, more than 1,370 MOs in the WB with a respective regulatory body in the GS; for an overview on military orders see: JMCC, Special Reports from Palestine - Israeli Military Orders in the occupied Palestinian West Bank, 1967-1992, 2nd edit. 1995.

^[11] JMCC, Israeli Obstacles; p. 58.

^[12] MAS, Economic Monitor, Issue no. 5, June 1999.

^[13] Diwan, Ishac and Shaban, Radwan A., 'Introduction and Background' in Ishac Diwan and Radwan A. Shaban (eds) Development under Adversity; p. 6.

^[14] In contrast to the Gaza Strip, which can be hermetically sealed, the borders of the West Bank with Israel are porous. Hence, even if not permitted, some workers from the West Bank are able to circumvent these restrictions and work illegally. This, in turn, forces them into a vulnerable situation, since they are not protected by any law. For more details on Palestinian workers in Israel see LAW, Right to Work, November 1999.

^[15] Shaban, Radwan A., 'The Harsh Reality of Closure' in Ishac Diwan and Radwan A. Shaban (eds) Development under Adversity; p.49.

^[16] UNSCO, Quarterly Report, April 1997.

^[17] Apart from pure economic damages, the 'human cost' of closure is not taken into consideration here, since it is beyond the scope of this report. However, it is an important dimension to grasp the overall living conditions in WBGS that—at least indirectly—have an impact on the economic activity of the Palestinian society. Human cost relates to, inter alia, racial harassment of Palestinians at check-points by soldiers of the Israeli Defense Forces (IDF) and also border police; the impossibility for Palestinian worshippers to access the holy sites that are located on Israeli territory; the denial of access to proper medical treatment, which in a number of cases has led to the death of Palestinians; and finally to the fact that many Palestinians (especially from Gaza) cannot access schools or universities for long periods and therefore fall back in their education.

^[18] JMCC, Israeli Obstacles; p. 102.

^[19] ILO, Report on the situation of workers; para. 38.

^[20] UNSCO, Quarterly Report, Spring 1999.

^[21] Data from UNSCO, Quarterly Report, Summer 1997; quoted by Roy, Sara, De-Development Revisited; p. 70. Using the same definition, the unemployment rate prior to the total closure would have been at 49.1 percent.

^[22] Data from UNSCO, Quarterly Report, Autumn 1998; quoted by Roy, Sara, De-Development Revisited; p. 70.

^[23] Diwan, Ishac and Shaban, Radwan A., 'Introduction and Background' in Ishac Diwan and Radwan A. Shaban (eds) Development under Adversity; p.5.

^[24] Roy, Sara, De-Development Revisited; p. 70.

^[25] Shaban, Radwan A., 'The Harsh Reality of Closure' in Ishac Diwan and Radwan A. Shaban (eds) Development under Adversity; p.50.

^[26] Roy, Sara, De-Development Revisited; p. 72.

^[27] Shaban, Radwan A., 'The Harsh Reality of Closure' in Ishac Diwan and Radwan A. Shaban (eds) Development under Adversity; p.50.

^[28] World Bank, Fact Sheet: West Bank and Gaza at a Glance, 22/09/99.

^[29] Data from World Bank and MAS quoted by Roy, Sara, De-Development Revisited; p. 74.

^[30] Data from IMF, quoted by Roy, Sara, De-Development Revisited; p. 74.

^[31] World Bank, Fact Sheet: West Bank and Gaza at a Glance, 22/09/99.

^[32] Shaban, Radwan A., 'The Harsh Reality of Closure' in Ishac Diwan and Radwan A. Shaban (eds) Development under Adversity; p.48.

^[33] Palestinian Centre for Human Rights (PCHR), Israeli Policy of Closure, 1999.

^[34] Shaban, Radwan A., 'The Harsh Reality of Closure' in Ishac Diwan and Radwan A. Shaban (eds) Development under Adversity; p.62.

^[35] Roy, Sara, De-Development Revisited; p. 75.

^[36] Data in this paragraph steams from the U.S. Department of State, quoted by Roy, Sara, De-Development Revisited; p. 75.

^[37] PCHR, Israeli Policy of Closure, 1999.

^[38] Shaban, Radwan A., 'The Harsh Reality of Closure' in Ishac Diwan and Radwan A. Shaban (eds) Development under Adversity; p.50.

^[39] ibid.; p.51.

^[40] World Bank, Development under Adversity: The Palestinian Economy in Transition – Summary; p.7.

^[41] For a brief but comprehensive picture on the current 'underutilized potential' of Palestine's development assets see: Diwan, Ishac and Shaban, Radwan A., 'Introduction and Background' in Ishac Diwan and Radwan A. Shaban (eds) Development under Adversity; p.8-13.

^[42] JMCC, Israeli Obstacles; p.53.

^[43] ibid.; p.53.

^[44] ibid.; p.55.

^[45] CEC, Implementation of the Interim Agreement; p. 9.

^[46] ibid.; p.11.

^[47] Such a tax has been imposed previously when Israel was importing orange juice from Brazil and selling it to the EU as an Israeli product.

^[48] CEC, Implementation of the Interim Agreement; p. 13.

^[49] ibid.; p. 11.

^[50] ibid.; p. 12.

^[51] ibid.; p. 14.

^[52] Data from Palestinian economist Samir Abdallah provided to JMCC; JMCC, Israeli Obstacles; p. 70.

^[53] JMCC, Israeli Obstacles; p. 70-71.

^[54] ibid.; p. 72. For a detailed description of financial exploitation of the Palestinian population through discriminatory taxation policies before Oslo see: ibid., p. 129-144.

^[55] Hindiyel-Mani, Suha, Women and Men in the Informal Sector; 5-6.

^[56] Hamed, Osama, 'Private Investment' in Ishac Diwan and Radwan A. Shaban (eds) Development under Adversity; p.80.

^[57] ibid.; p.80.

^[58] ibid.; p.82.

^[59] Diwan, Ishac and Shaban, Radwan A., 'Introduction and Background' in Ishac Diwan and Radwan A. Shaban (eds) Development under Adversity; p.7-8.

^[60] Roy, Sara, De-Development Revisited; p. 71.

^[61] ibid.; p. 71.

^[62] Data from MOPIC in Gaza and Nigel Roberts, The Prospects for the Palestinian Economy, conference paper; quoted by Roy, Sara, De-Development Revisited; p. 71.

^[63] Brynen, Rex, 'The Neopatrimonial Dimension of Palestinian Politics' in Journal of Palestine Studies XXV, no. 1 (Autumn 1995), pp. 23-36.

^[64] Roy, Sara, De-Development Revisited; p. 70.

^[65] UNSCO, Quarterly Report, Autumn 1999; in contrast to these estimations, the 'Palestinian Central Bureau of Statistics' (PCBS) reports a population growth rate of 'merely' 4.08 percent for 1997 to 1998 in PCBS, Palestine in Figures 1999, October 1999.

^[66] UNSCO, Quarterly Report, Autumn 1999; in contrast to the labor force estimation of the UNSCO, MAS, based on PCBS findings, estimated the size of the Palestinian labor force to amount at some 633.380 for the fourth quarter of 1998 in MAS, Economic Monitor, Issue no. 5, June 1999.

^[67] PCBS, Palestine in Figures 1999; Ramallah, October 1999.

^[68] According to this definition, someone is unemployed, if he or she has not worked at all (not even an hour), was available for work, and sought employment during the reference week.

^[69] According to this definition those persons of the labor force are added to the standard unemployment rate that are not actively seeking work, due to their belief that no work could be found, so-called discouraged workers.

^[70] UNSCO, Quarterly Report, Spring 1999.

^[71] For a comprehensive report on rights violations of Palestinian workers inside Israel see: LAW, Right to Work, 1999; furthermore, the Israeli NGO 'Kav La'Oved – Workers Hotline' follows up rights violations of Israelis as well as Palestinians in Israel in its bimonthly newsletters, available at kavl@netvision.net.il.

^[72] The state of Israel has also violated and not fulfilled various minutes and regulations of the bilateral agreements between the State of Israel and the Palestinian Authority. However, an assessment of this aspect would go beyond the scope of this report and was done already elsewhere. See e.g.: PCHR, Israeli Policy of Closure; 1999.

^[73] Hague Regulations 1907, Section II (Military Authority over the Territory of the Hostile State), Art. 42.

^[74] UN General Assembly Resolution 1514 (XV) of 14 December 1960

^[75] The International Criminal Court was created by a treaty signed in Rome to serve as a permanent body to try war criminals. Up to now, the international community only established temporary criminal courts for specific situations (Rwanda, former Yugoslavia). Its Statue was adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court on 17 July 1998. The court needs sixty ratifications to begin functioning. It will probably come into existence in 2002.

^[76] Article 27 of ICC. Irrelevance of official capacity is one of the core elements of the ICC .

^[77] Ha’aretz, Aluf Benn, Settlement block agreement on war crimes court, June 13 2000.

^[78] International Committee of the Red Cross, Commentary on the Fourth Geneva Convention Relative to Civilian Persons in Time of War, Geneva 1958, p. 296

^[79] Shaw, Malcolm, International Law; p. 315. The principle is called ex injuria jus non oritur.

^[80] ibid.; p. 550

^[81] See also Article 11 of the Montevideo Convention on the Rights and Duties of States, 1933. Consider Security Council Resolution 242 on the solution to the Middle East conflict.

^[82] Even though the PA has full jurisdiction in A areas, Israel still has effective control. The non-contiguous areas that are subject to Israeli siege and closures illustrate this very clearly, preventing Palestinians to fully enjoy economic and social rights.

^[83] UNSCO, Quarterly Report, Autumn 1999.

^[84] PCBS, www.pcbs.org .

^[85] The Israeli Civil Administration supposedly estimated the numbers for 1998 at 16,000 (B’Tselem, Human Rights Violations, p. 44); Shaher Sa’ed, Secretary General of the PGFTU estimates that in addition to the official 9,500 there are up to 4,000 non-official workers in the settlements; in an interview on 12/04/00.

^[86] UNSCO, Quarterly Report, Spring 1999.

^[87] Abu Ramadan, Saud, ‘Settlement workers sent home’, in: Palestine Report, No. 4, June 1999, published by the Jerusalem Media and Communications Center, www.jmcc.org/media/reportonline .

^[88] See www.arij.org/palenet/jew-ind, 23/08/99.

^[89] Also not considered in this report are the Erez- and Karni Industrial areas on the northern Gaza border, of which the latter is a cooperation project between Israel and the Palestinian Authority, whereas Erez is an Israeli Industrial zone but does not exclusively host Israeli companies. Therefore these establishments do not fit into the category of Israeli settlements as defined in the Introduction.

^[90] MOPIC, Current Facts on the Palestinian Authority’s Territory, April 2000.

^[91] Such 'out-posts' are, in fact, further settlements, build after the Oslo Accord. However, the Israeli government considers them merely as extensions of the existing settlements describing them as a result of 'natural growth'.

^[92] The total number of settlers in the Occupied Territories is now estimated at 175,000, Israel Central Bureau of Statistics, Statistical Abstract of Israel 1998, No. 49.

^[93] Data provided to LAW on request by the PCBS Field Work Directorate, diwan@pcbs.pna.org; Al-Bireh 13/05/2000.

^[94] In the 1970s and, to a lesser extent, 1980s Jordan and the Gulf Cooperation Council Countries used to absorb a large number of skilled Palestinian workers, especially Graduates. Since the Gulf War this possibility for new Palestinian Graduates has basically disappeared; see: Development under Adversity, p. 4.

^[95] PHRMG, Workers Rights, p. 26.

^[96] ILO, Report on the situation of workers, para. 46.

^[97] There used to be fixed limitations on the total number of permits issued, but today they are issued according to market requirements. According to the human rights organization, B’Tselem, applicants have to fall into one of the following groups: married, aged 25 or above, without children; married, aged 21 or above with at least one child; single men aged forty or above; and single women aged thirty or above, see: B’Tselem, Human Rights Violations, footnote 14. Workers in the settlements are allowed to be 18 and unmarried.

^[98] B’Tselem, Human Rights Violations, p. 45.

^[99] E.g. interview with Nidal Ghabin from the DWRC in Gaza on 06/04/00.

^[100] E.g. interview with Hussain al-Abed, responsible for labor and employment issues at the Palestinian Labor Ministry on 15/04/2000.

^[101] Shaher Sa’ed, Secretary General of the PGFTU, in an interview on 12/04/00, referring to a case in Tarkum.

^[102] Ibid.

^[103] Interview with Mohammad Sahleh Arouri, Head of the PGFTU Legal Unit in the West Bank, on 25.04.2000.

^[104] Farsakh, Leila, The Implementation of Labor-related Articles; p. 8.

^[105] Kav La'Oved, Newsletter, July 1997, p. 3.

^[106] Enosh, Hagar, ‘Israeli Employers in Factories in the Territories are Establishing Palestinian Man-Power Companies’, Yedit Ahronot (Israeli Newspaper), July 7, 1997; quoted from Kav La'Oved, Newsletter, July 1997, p.3.

^[107] In an interview at the PHRMG in Qalqilia on 25 July 1998; quoted from PHRMG, Workers Rights; p.27.

^[108] Military Order No. 1198 which was a 1987 addition to Military Order No. 967/1982, relating to the Employment of Workers in Certain Places (Judea and Samaria), translation by B’Tselem.

^[109] ILO, Report on the Situation of Workers; para.13.

^[110] See, for example, Kav La’Oved, Information Sheet, August 1998; ILO, Report on the Situation of Workers; June 1998.

^[111] E.g. interviews with Mohammed Saleh, Head of PGFTU Legal Unit, Ramallah, 25/04/2000; interview with Hassan Ayoub, member of the PLO Executive Council Nablus,19/04/2000.

^[112] Kav La’Oved, Email: kavl@netvision.net.il , 12/01/2000.

^[113] UNSCO, Quarterly Report, Autumn 1999.

^[114] DWRC – Gaza Branch, Thuruf al’amal, April 2000.

^[115] Interview with Sa’id Ji’aan, Secretary General of the PGFTU Legal Unit, Nablus District, 19/04/2000.

^[116] ILO, Report on the Situation of the Workers, para. 55.

^[117] Kav La’Oved, Newsletter, August 1998.

^[118] LAW/ Welborn, Layla, The Politics of Vulnerability: The Working Class in Palestine, (not published) p.24. If workers are not mentioned by name this is not to endanger them.

^[119] DWRC – Gaza branch, Thuruf al’amal, April 2000.

^[120] His name was changed by LAW in order not to endanger him.

^[121] Interview at PGFTU Legal Unit Office in Nablus, 29/04/2000.

^[122] Interviews with workers Akram Abu Obaida, Doulah settlement, Asaad Sameer Al-Nims, Genital settlement, Abed al-Motty Alul, Jadid settlement, Yaser Omar al-Astal, Goush Katif settlement – all workers live in Khan Yunis, 05/2000.

^[123] DWRC – Gaza branch, Thuruf al’amal, April 2000.

^[124] B’Tselem, Human Rights Violations; p. 45.

^[125] Kav La'Oved, Newsletter August 1998.

^[126] B’Tselem, Human Rights Violations; p. 46.

^[127] Kav La'Oved, Newsletter August 1998.

^[128] Interview with Nidal Ghabin at the DWRC in Gaza, 06/04/2000.

^[129] E.g. B’Tselem, Human Rights Violations; p. 45.

^[130] The workers received their salaries for the months of August and September only after appealing to the Tel Aviv Labor Court. A suit demanding their remaining rights (severance pay, annual vacation, etc) has just been filed with the Labor Court; reported by Kav La'Oved, Newsletter, December 1998; see also Kav La'Oved, Newsletter December 1997.

^[131] Kav La'Oved Newsletter, December 1997.

^[132] Amira Hass, ‘A War over Twelve Shekels,’ Ha’aretz, 1 January 1998; quoted from B'Tselem, Human Rights Violations; p. 45.

^[133] Interview with Shaher Sa’ed, Secretary General of the PGFTU, on 12/04/00.

^[134] This and the following information is derived from testimonies, that individual workers gave to the DWRC, the Israeli Human Rights Organization B’Tselem, the PHRMG, or the PGFTU.

^[135] PHRMG, Workers Rights; p.27.

^[136] DWRC – Gaza branch, Thuruf al’amal; April 2000.

^[137] ibid.

^[138] E.g. ibid.

^[139] Interview with two workers both working in Barkan, at PGFTU Legal Unit Office in Nablus, 29/04/2000.

^[140] Interview with Sa’id Ji’aan, Secretary General of the PGFTU Legal Unit, Nablus District, 19/04/2000.

^[141] Interviews with workers from the settlements of Doulah, Genital, Jadid, Goush Katif, all in Gaza Strip; all workers live in Khan Yunis, 05/2000.

^[142] B'Tselem, Information Sheet on Workers Rights.

^[143] Kav La'Oved Newsletter, December 1997.

^[144] See www.arij.org/palenet/jew-ind, 23/08/99.

^[145] See www.arij.org/palenet/jew-ind, 23/08/99; see also: LAW, An Overview of the Consequences, January 2000.

^[146] The problem that there is no adequate protection at the workplace, e.g. from poisonous materials, has been repeatedly stated in testimonies given by settlement workers to the DWRC in Gaza, to B’Tselem or Kav La’Oved. (See reports by these organizations.)

^[147] B’Tselem, Human Rights Violations; p. 47.

^[148] Interview with Sa’id Ji’aan, Secretary General of the PGFTU Legal Unit, Nablus District, 19/04/2000.

^[149] ibid.

^[150] Al-Rissalah, ‘120 Work like Slaves at the Plastic Factory in the Barkan Settlement’, 16 July 1998, in: PHRMG, Workers Rights; p.27.

^[151] Interview with Shaher Sae’d, Secretary General of the PGFTU, 12/04/2000.

^[152] at PGFTU Legal Unit Office in Nablus, on 29.04.00

^[153] Interview with Sa’id Ji’aan, Secretary General of the PGFTU Legal Unit, Nablus District, 19/04/2000.

^[154] See e.g. B’Tselem, Human Rights Violations; p. 34.

^[155] See e.g. ibid.; p. 34-35.

^[156] Interview with Sa’id Ji’aan, Secretary General of the PGFTU Legal Unit, Nablus District, 19/04/2000.

^[157] ILO, Report on the Situation of the workers, para. 40.

^[158] In an interview with Sa’id Ji’aan, Secretary General of the PGFTU Legal Unit, Nablus District, 19/04/2000.

^[159] DWRC – Gaza branch, Thuruf al’amal; April 2000.

^[160] Quoted from: B’Tselem, Human Rights Violations; p. 47. The testimony was given to Najib Abu-Rokaya on 22 May 1999 in Qalqiliya.

^[161] Recently, in May 2000, the draft Palestinian Labor Law passed the third reading in the Palestinian Legislative Council (PLC) and was subsequently signed by president Yasser Arafat. In theory, the Palestinian Labor Law is the applicable labor law in WBGS now. However, its enforcement will depend on political and economic realities in the future, as representatives of the DWRC in Ramallah explained to LAW.

^[162] The influence of political considerations on Israeli court decisions in this matter became apparent in an interview with an Attorney from Haim Zadock & Co, Rotshild 38 Blvd. Tel Aviv, 66993 Israel; 10/04/00.

^[163] In March 1979 the Israeli Prime Minister Menachim Begin announced that “the Jewish inhabitants of Judea and Samaria [West Bank]...will be subject to the laws of Israel”, quoted in: Benvenisti, Meron ,The West Bank Data Base Project, A Survey of Israel's Policies, 1984, p. 39. For an analysis of the legal operations to justify the implementation of Israeli Law in the WB see: Shehadeh, Raja ,Occupier's Law, Israel and the West Bank, 1985, esp. chap. 3, Administrative Structures in the West Bank, p. 63-75.

^[164] Submission of the Attorney General in the matter of appeal 30050/98, quoted from: B'tselem, Human Rights Violations; p. 46.

^[165] An unofficial translation of the Attorney-General’s submission in the Givat Ze’ev and Barkan cases provided by Harriet Lewis of Kav La’Oved, quoted from LAW, Right to Work; p. 142.

^[166] LAW ,Right to Work, p. 143.

^[167] Decision of the Israeli National Labor Court of 1995, in the case of Mahmud Muhammad vs. David Brand, quoted from: B'tselem ,Human Rights Violations, p. 45-46.

^[168] Interview with an attorney from Haim Zadock & Co., Tel Aviv, Israel; 10.04.00.

^[169] According to DWRC, in 1997, 62 Palestinians were employed in three factories in Givat Ze'ev; DWRC, Annual Report 1997, Ramallah 1997.

^[170] Interview with an attorney from Haim Zadock & Co., Tel Aviv, Israel; 10.04.00.

^[171] This assumption was pointed out to LAW on basis of the Attorney General's position in this case by an attorney from Haim Zadock & Co., Tel Aviv, Israel; 10.04.00.

^[172] This information was approved by Majdi Shelleh, Education Department, PGFTU, 12/04/2000. see also: Kav La'Oved, Newsletter, December 1998.

^[173] B'Tselem, Human Rights Violations; p.49.

^[174] DWRC, The General Report; p.19.

^[175] Kav La'Oved, Newsletter, December 1998.

^[176] B'Tselem, Human Rights Violations; p.50.

^[177] DWRC, The General Report; p.19.

^[178] This information was approved to LAW by representatives of the PGFTU Legal Unit in Nablus in various interviews in March-April 2000.

^[179] This information occurred in various interviews with representatives of the DWRC in Gaza in March-April 2000.

^[180] PHRMG, Workers Rights; p.16.

^[181] PGFTU monthly publication, 'saut al-umal', idrab 'amali ihtijaji fi masna' <technoplast> fi barkan !!: 'amil: thuruf al-'aml fi al-masna' la tataq!!, no. 61, August 1998; p.4.

^[182] Interview with Shaher Sae'd, General Secretary of the PGFTU, Nablus, 12/04/2000. See also Al-Rissalah, 120 Workers from Nablus work like Slaves in the Barkan Settlement, July 2. 1998, quoted at PHRMG, Workers Rights; p. 27.

^[183] This information was revealed in various interviews with representatives of PGFTU, DWRC and settlement workers during the course of this study.

^[184] Interview with Mohammed Sahleh, Head of the PGFTU Legal Unit, Ramallah, 25/04/2000.

^[185] Kav La'Oved, Newsletter, August 1998.

^[186] Zvi Zarchia, Yishai, The Labor Ministry is Enforcing the Administrative Order Concerning Minimum Wage in the Territories, Ha’aretz, 13/07/98.

^[187] Israeli Ministry of Foreign Affairs/ Justice/ Labor and Social Affairs, Combined and Second Report of the State of Israel concerning the Implementation of the United Nations Covenant on Economic, Social and Cultural Rights, 28 November 1997.

^[188] Center for Economic and Social Rights (CESR), Enforcing the International Covenant on Economic, Social, and Cultural Rights—CESR Reports on Israeli Violations, January 2000, p. 6.

^[189] This position was stressed by Hussein al-Abed, responsible for labor and employment issues at the Palestinian Labor Ministry, Betounia, 15/04/2000.

^[190] Farsakh, Leila, The Implementation of Labor-related Articles; p.40, footnote 27.

^[191] Annex III (Protocol Concerning Civil Affairs) of the Israeli-Palestinian Interim Agreement on the West Bank and Gaza Strip, September 28, 1995; article 11 (Employment), para. 4 and 5.

^[192] Interview on 15/04/2000.

^[193] Ramadan, Saud Abu, Palestine Report, 25/06/99.

^[194] Harel, Amos and Hass, Amira, PA cops block Palestinians from Jewish settlements, Ha'aretz, 22/11/99. On the same campaign see: Sahmoud, Sami, Boycott of settlements not just political, Palestine Report, vol. 6 no. 23, 24/11/99.

^[195] Harel, Amos and Hass, Amira, PA cops block Palestinians from Jewish settlements, Ha'aretz, 22/11/99.

^[196] Interview with Shaher Sae'd, General Secretary of the PGFTU, Nablus, 12/04/2000.

^[197] Majdi Sheleh from the PGFTU Educational Department explained to LAW that international donors only fund certain projects but do not contribute to the Federation's budget. Also, according to Shaher Sae'd (see previous footnote) the PNA does not provide any funding.

^[198] Interview, Nablus, 19/04/2000.

^[199] Interview with Sa'id Ji'aan, General Secretary of PGFTU Legal Unit in Nablus District, Nablus, 19/04/2000

^[200] However, unlike Palestinian workers in Israel, settlement workers, ostensibly, are not forced to make any payments to the Histadrut.

^[201] Framework for Cooperation between Histadrut – the General Federation of Labour in Israel and PGFTU the Palestine General Federation of Trade Unions, signed by Haim Ramon M.K., chairman of the Histadrut and Shaher Sa'ed, General Secretary of the PGFTU on March 5, 1995. This document was obtained through the PGFTU head office in Nablus.

^[202] Qatamesh provided this information to B’Tselem, Ramallah, 19/04/1999; quoted from B'Tselem, Human Rights Violations; p.47. See also: Kav La'Oved, Newsletter, September 1996.

^[203] According to B'Tselem, a similar suggestion (concerning workers in Israel) was proposed by the Israeli Ministry of Labor and Social Welfare in the Palestinian-Israeli Joint Subcommittee for Labor Matters. However, so far, it was not realized. See: B'Tselem, Human Rights Violations; p.48.