The One-State Condition

Occupation and Democracy in Israel/Palestine

Ariella Azoulay, Adi Ophir

• Publisher: Stanford University Press
• Year: 2012
• ISBN:
  9780804784337
• Edition: 1
• Topic: Philosophie
• Subtopic: Philosophie politique

Since the start of the occupation of Palestinian territories in 1967, Israel's domination of the Palestinians has deprived an entire population of any political status or protection. But even decades on, most people speak of this rule—both in everyday political discussion and in legal and academic debates—as temporary, as a state of affairs incidental and external to the Israeli regime. In The One-State Condition, Ariella Azoulay and Adi Ophir directly challenge this belief.

Looking closely at the history and contemporary formation of the ruling apparatus—the technologies and operations of the Israeli army, the General Security Services, and the legal system imposed in the Occupied Territories—Azoulay and Ophir outline the one-state condition of Israel/Palestine: the grounding principle of Israeli governance is the perpetuation of differential rule over populations of differing status. Israeli citizenship is shaped through the active denial of Palestinian citizenship and civil rights.

Though many Israelis, on both political right and left, agree that the occupation constitutes a problem for Israeli democracy, few ultimately admit that Israel is no democracy or question the very structure of the Israeli regime itself. Too frequently ignored are the lasting effects of the deceptive denial of the events of 1948 and 1967, and the ways in which the resulting occupation has reinforced the sweeping militarization and recent racialization of Israeli society. Azoulay and Ophir show that acknowledgment of the one-state condition is not only a prerequisite for considering a one- or two-state solution; it is a prerequisite for advancing new ideas to move beyond the trap of this false dilemma.

Part 1

A SHORT HISTORY OF THE OCCUPATION REGIME

1 THE FIRST DECADE

The apparatus for ruling Palestinian noncitizens in the West Bank and the Gaza Strip was not the only one created after the 1967 war. In the Sinai Peninsula and the Golan Heights, residents were ruled as noncitizens by separate apparatuses, which had separate histories. The apparatus in the Sinai existed for about fifteen years and was dismantled with Israel’s total withdrawal from the peninsula in 1982 under the peace treaty with Egypt. Israel passed a law annexing the Golan Heights about half a year prior to completing its withdrawal from the Sinai, in December 1981, in a speedy legislative procedure that lasted a single day. The Druze inhabitants of the northern Golan Heights (about 13,000 living in four villages, not expelled in 1967) called a general strike, which ended only when they were explicitly promised that their legal status would not be changed. Shortly thereafter, however, this promise was broken. The authorities tried to impose Israeli IDs upon the Druze and implemented severe sanctions against those who refused to accept them. The strike was resumed, and the Druze escalated their struggle. After failing in its various coercive measures, including closure imposed upon the four villages, the government conceded. Except for several hundred Druze who did take up Israeli citizenship, all the others remained Syrian citizens, holding the status of permanent residents of Israel. In spite of the fact that they are not citizens, their situation is entirely different from that of Palestinian noncitizens, and in most respects, except for their formal status, their condition is closer to that of the Israeli state’s Arab citizens. They are ruled and administered like other non-Jewish citizens, both directly by the various government ministries and covertly by the security services.

The ruling apparatus imposed upon Palestinian noncitizens in the West Bank and the Gaza Strip is different. We shall divide its history into four periods, relating mainly to the dominant ruling formations of each period. The periods themselves coincide more or less with the four decades of the Occupation. However, we deal in more detail with the first period, when some of the models and technologies of control that are in force to this very day were formed.

THE JUDICIAL SITUATION

The fundamental juridical features of the Occupation were laid out in a document prepared by Military Advocate General Meir Shamgar, a few years before the 1967 war broke out.¹ It consists of two basic principles: ruling Palestinians as noncitizens and separating the handling of the territories from that of their inhabitants.² An edict issued in June 1967 granted the military commander of the Territories vast legislative authority. Article 35 of the edict specified, however, that if legislation of any kind should conflict with compliance with the Fourth Geneva Convention, regulating the conduct of an occupying army, the Convention should take priority.³ But in October that year, a further edict, no. 144, stated that the Geneva Convention had ceased to serve as a means of control and restraint of the ruling apparatus. From that point on, one can detect systematic and creative efforts by Israel to evade international law, whose language regarding occupation situations is clear and unequivocal, and is based first and foremost on the understanding that they are temporary.

In February 1968, Shamgar was appointed legal adviser to the government. In this capacity, he adopted the same judicial approach he had consolidated as military advocate general, giving it a civil-juridical stamp. He created a framework of rules and arguments under Israeli law that gave status to and made room for the judicial “creativity” implemented in the Occupied Territories during his tenure as military advocate general, reconciling the situation on the ground, Israeli law, Jordanian law, and international law. Shamgar defined the status of the Territories according to the prevailing “situation on the ground”—territories subject to Israeli rule—rather than by the type of action—military conquest—that had brought about this new status. The claim was that prior to the war, there had been no Palestinian sovereign power from whom the Territories had been taken by force: the powers that had ruled there de facto—Jordan in the West Bank and Egypt in the Gaza Strip—had held the Territories temporarily and without international agreement or recognition. Not having been taken from any sovereign power, they could thus not be claimed to be “occupied” in the strictly legal sense.⁴ Precisely the fact that the Palestinians were stateless, and therefore more vulnerable and in need of protection by international law, enabled the Israeli government to claim that the Fourth Geneva Convention does not protect them.

The Territories were further detached from their inhabitants in February 1968, when the Israeli minister of the interior declared that they were no longer considered enemy territory; their inhabitants, however, were perceived as potential enemies and could be declared so at any moment. Aware of their vulnerability, Shamgar recommended to the government that it abide by the humanitarian articles of the Geneva Convention whenever possible as a matter of goodwill. In the first years of Occupation, the Israeli Supreme Court was careful not to contest the judicial approach and refused to regard this guideline as obligatory, but rather interpreted it as an administrative instruction and applied it only when it found that justice demanded it.⁵ Thus Israel acknowledged its responsibility for the lives of the inhabitants of the Territories in matters of health, food, and personal safety, but separated their actual lives from their existence as political beings, and governing their lives from ruling their land.

The basic judicial form of the ruling apparatus was established, then, shortly after the occupation of the Palestinian territories. It is characterized by three features preserved ever since: subjecting the Palestinians in the Territories to a patchwork legal system that combines British mandatory, Jordanian, international, and martial law in an ad hoc, changeable manner; unraveling the territorial bounds of Israeli law in a way that has allowed it to “follow” Israeli settlers into the Occupied Territories;⁶ and adding a special judiciary arm in the Occupied Territories in form of the military governor, who soon enough issued numerous rules and regulations. The legal system became heterogeneous regarding the origin of the law, the populations subjected to it, and its enforcement apparatuses. This heterogeneity enabled ruling the Territories under the guise of lawfulness without limiting the ruling power’s predatory hold.

The Israeli government never explicitly recognized the validity of the Hague Convention of 1907, which governs the authority of an occupying power in international law. It did, however, accept the principle of the Convention that the occupying power is bound to preserve the law in force prior to the occupation. Israel declared its recognition of the local judicial system in force prior to June 1967 (Jordanian in the West Bank and Egyptian in the Gaza Strip), but observed it only to a limited extent, while violating mechanisms of judgment and enforcement. By means of special edicts, the military ruler annulled parts of the Jordanian law code, and on various occasions revived some of the Ottoman code, as well as the British mandatory “Defense (Emergency) Regulations” (authorizing administrative detention, censorship, prohibition of public gathering and association, movement restriction, etc.), which had been annulled by the Jordanian and Egyptian legal systems. These emergency regulations enabled Israel to promote land confiscation, change the designated use of land, and deploy various sanctions against Palestinians.⁷

Raja Shehadeh and Jonathan Kuttab, lawyers who had followed this process since its early phases, pointed out gradual changes that had already been introduced into the Jordanian legal system at the beginning of the Occupation.⁸ In 1970, the ruling apparatus gave up the guise of preserving Jordanian law, and the military governors took the liberty of radically changing it. The principal change lay in crippling the independence of the local civilian legal system. This resulted in all the other changes: promulgating hundreds of edicts that remain unpublicized and thus not subject to the scrutiny of any public institution; the sparse distribution of such edicts to lawyers; preventing lawyers new at their profession from studying edicts issued before their time; keeping the legal corpus vague, so as to hinder both internal and international criticism; dismantling the Palestinian bar association; compromising the independence of judges; closing down the court of appeals; transferring the high court of justice from Jerusalem to Ramallah; introducing Israeli lawyers into courts in the Occupied Territories; and demanding permits for a variety of everyday activities not required under the Jordanian legal system for various kinds of movement and action.

Gradually detaching itself from Jordanian law, the ruling apparatus began to use each and every legal apparatus at its disposal, as well as their incongruities, to legitimize such actions as expulsion, administrative detention, and house demolition, in violation of international law regarding the duties and limitations of an occupying regime. Subsequent to these changes, Palestinian lawyers held a prolonged strike, which ended without result some years later. Numerous judges left the Occupied Territories without being replaced, and courts went into session with only an occasional junior official of the military administration presiding.⁹ People soon lost faith in civilian courts, came to regard fellow Palestinians officiating in them as collaborators, and were left with no judicial institution they could trust.

The different legal systems inherited by the military administration were cobbled together by “security legislation,” creating a new single judicial corpus. Security legislation granted the military commander authority to revoke or suspend any local law, rescind authorized, lawfully taken local resolutions, ignore international law, oust position holders, and act as legislator, adding rules and regulations and revoking them as often as he considered necessary for preserving order under Israeli rule. A parallel apparatus of military courts was set up to “judge any violation defined by security legislation.” Soon “security legislation” actually covered every aspect of life and outlawed any expression of opposition to Israeli rule and anything that could be interpreted as a disturbance of public order. Palestinians were denied such fundamental rights as the freedom of assembly, speech, and the right to strike, and attempts to invoke these rights were treated as a disturbance of public order. The rule of law was replaced by a rule by decrees under a semblance of legality, articulating the changing interests of Israeli governments (or some factions within them) in the seemingly universal, neutral idiom of the law. Even rights that were granted in principle, such as the right to strike, were denied in practice, for example, by defining strikes as political.

About a month after war broke out, the authority of Israeli courts was extended to Israelis in the Occupied Territories, removing the authority of local courts to sit in judgment on Israeli citizens. This was the first manifestation of judicial segregation of Jews and Palestinians in the Territories.¹⁰ Except for dependence upon the Knesset’s approval, which has never been seriously doubted, and in spite of the fact that some formalities still differentiated Israeli citizens residing in the Occupied Territories from those living inside the Green Line, Jewish settlers were considered citizens subject to Israeli law like any others. The difference between settlers and Israelis living within Israel proper was not entirely erased, however, and it was invoked and amplified years later when the government decided to dismantle some Jewish settlements. These exceptional moments aside, and for most practical purposes, the difference did not lie in a different judicial status but in the existence of a separate system of law enforcement that consistently ignores the use of force against Palestinians, hardly deals with conflicts among Jews themselves, and has gradually come to grant immunity to Jews who commit crimes against Palestinians.¹¹

On June 7, 1967, the first edict was issued regulating military administration in the Occupied Territories. Martial law applied to “every authority of governance, legislation, appointment, and administration of the area or of its inhabitants.”¹² A government resolution of June 19, 1967, left intact the “military status” of the Occupied Territories, except for the annexed area in and around Jerusalem.¹³ The territories that were not annexed were first called “seized,” and soon “held” or “possessed,”¹⁴ but never “occupied” de jure. The term “held territory” bridged an ideological rift between the Zionist Left, which insisted on using parts of the Occupied Territories at least as bargaining chips, and the political Right, which regarded them as “liberated land.” The term became part of a common language and an ideological platform for the cooperation of the two political camps in the new phase of the colonization project. Although it reflected the situation ad hoc, even its temporariness, without establishing any future commitment, it could nonetheless be used for claiming the “held territory.”

The polyvalent term reflected suspension—but not annulment—of a development that might have taken place in one of two opposing directions: complete withdrawal or full annexation. At the same time, it became more and more common to refer to specific regions within the Occupied Territories by Hebrew names that—when not ad hoc inventions (e.g., Merhav Shelomo [Solomon District], for southern Sinai)—certainly lack any clear geographical designation (e.g., Yehudah [Judea] for the southern part of the West Bank, and Shomron [Samaria] for its northern part). Hebraization of the map, as well as referring to the Territories in terms of “return” and “reclaim”—common even among nonreligious Israelis—along with the collective harnessing of a passion for an unknown land, sowed the seeds of eternity and messianic yearning in the language of legal temporariness. This ambivalence characterized the growing gap between the “situation on the ground” in the Occupied Territories and their judicial status, which the new legal dictionary was supposed to bridge: on the one hand, to give legal sanction to the physical, administrative, and demographic changes that Israel generated in the Occupied Territories; on the other hand, to postpone either legally redefining their status or putting an end to the Occupation regime. Caught in this gap were the occupied population, the vulnerable Palestinians who were governed as noncitizens in a land that was not recognized as theirs. The idea of their expulsion was contemplated by some but was rejected for political and moral reasons. Although they were not expelled en masse, as Palestinians had been in 1948, they could not “conceivably” become naturalized citizens either—naturalization was conceivable, of course, but only in order to reject the idea out of hand. Turning Palestinians into people whose status is yet to be determined and whose political rights have been temporarily revoked contributed to the legitimization of the de facto changes that began to take place on the ground at the time.

Acting in the Territories as though Israel were their recognized sovereign, although declaring them to be “held” and disputed (a diplomatic declaration of status as well as an internal political dispute), at least potentially created a loophole for legitimizing the colonial project. This undecidedness consistently enabled the Israeli Supreme Court to avoid ruling on the pertinence of the Fourth Geneva Convention—which forbids the transfer of population from the occupier state to the occupied territory—in the Occupied Territories. The court has never questioned the legality of the Jewish settlements, which clearly contradict the letter of the Convention. At the same time, however, the ambivalent status of the Occupied Territories, and the fact that Israeli law was not enforced in them, has made it relatively easy for the government of Israel to invoke the temporariness of the Occupation when it suits it. It has done so twice. Fifteen years after the settlement project in the Occupied Territories began, in spring 1982, following the peace treaty with Egypt, the government carried out a large-scale evacuation of settlements in the Sinai; twenty-three years later, in summer 2005, it dismantled the settlements in the Gaza Strip and a few in the northern West Bank. After the fact, the Israeli Supreme Court formulated the rule that had been in force from the outset when it declared that the military administration in the Territories is temporary, since “the nature of belligerent occupation is te...