Repressive inclusion

ABSTRACT

This article examines the relation between emergency legal doctrine and racial sovereignty in the context of Palestine. It theorises Israel's multifarious emergency modalities in a colonial present paradigm where traditional territorial colonisation is fused with modern security biopolitics. The Israeli juridical-security apparatus mimics European liberal legalism in presenting itself as generally accepting of human rights obligations, save in circumstances where particular illiberal measures are necessitated on security grounds. These measures, however, comprise a pervasive patchwork of emergency modalities that have penetrated all spheres of Palestinian political, economic and cultural life. The retention and application of the British Mandate-era Defence Emergency Regulations as well as the constitutional state of emergency have produced an emergency marked by longevity and racialisation. Furthermore, Israel has invoked the emergency derogation option under international treaties to claim the legality of measures such as mass internment without trial. I articulate these dynamics of legality, emergency and sovereignty in terms of “repressive inclusion”: a racially contingent inclusion within – and repression by – the juridical order. This evokes the suffocating hold of racialised emergency legal structures. The consequences for Palestinian lives and bodies have been severe; the alienation of land and fragmentation of territory have been acute.

KEYWORDS:

• Emergency
• exception
• sovereignty
• racialisation
• Palestine
• Israel

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1. See, e.g. Ophir, Givoni, and Hanafi (2009, 23). In this regard, much of the contemporary state of exception analysis in the context of Palestine (and beyond) draws on Giorgio Agamben's conceptualisations of exception and example as “inclusive exc'usion” and “exclusive inclusion” respectively. See Agamben (1995, 21, 107). Agamben's formative work in this field can, however, be fairly critiqued for its lack of attention to race and colonialism. I address this further in Reynolds (2017, 36–46).

2. On such invocation of self-defence (and the acquiescence of large parts of the international community) as justification for its “Operation Cast Lead” offensive on the Gaza Strip, for example, see Reynolds (2010).

3. For a sample of the (renewed) engagement of Palestine scholarship with settler colonial studies, see the 2012 special issue on “Past is Present: Settler Colonialism in Palestine” in Settler Colonial Studies 2(1): 1–272.

4. “The Mandate marginalized the identity of the Palestinians, enshrining this in law. Whereas the Jewish population … has a clear identity, the Palestinians (90% of the population) were merely ‘non-Jewish’ or ‘other’. In this way, international legal discourse dispossessed a people of their identity which opened the way for others to dispossess them of their land” (Strawson 2002, 369).

5. Resolution of the Zionist Congress, September 1921.

6. The Jewish Agency, along with the World Zionist Organisation and other “para-state” institutions, remains central to the continuing colonisation of Palestinian land.

7. “[E]ven where there is no semantic ambivalence whatsoever, international law remains indeterminate because it is based on contradictory premises and seeks to regulate a future in regard to which even single actors’ preferences remain unsettled. To say this is not to say much more than that international law emerges from a political process whose participants have contradictory priorities and rarely know with clarity how such priorities should be turned into directives to deal with an uncertain future.… It follows that it is possible to defend any course of action—including deviation from a clear rule—by professionally impeccable legal arguments that look from rules to their underlying reasons, make choices between several rules as well as rules and exceptions, and interpret rules in the context of evaluative standards. The important point I wish to make … is not that all of this should be thought of as a scandal or (even less) a structural ‘deficiency’ but that indeterminacy is an absolutely central aspect of international law's acceptability” (Koskenniemi 2005, 590–591).

8. Dweikat v. Government of Israel, HCJ 390/79, judgment, 22 October 1979.

9. The fact that—going back to the Ottoman Land Law of 1858—much of the land in Palestine was marked as state land (miri) as opposed to privately owned land (mulk) had already been exploited by Israel, through the construction of an argument that state land in occupied territory is open to civilian settlement by the occupier (the purported temporariness of belligerent occupation notwithstanding). The British Mandate authorities had, for their part, modified the Ottoman laws to extend the reach of state land, effectively liberalising the land expropriation process, as well as making it easy for the military to seize any category of land for self-prescribed “security measures”. See further Shehadeh (1993). In this case, the Israeli authorities had now moved to settling privately owned land in addition.

10. See, e.g. Abu Hilo v. Government of Israel [Rafah], HCJ 302/72, with Justice Vitkon explaining that although the seized land was designated for civilian settlement rather than military installations, the settlements “are in themselves, in this case, a security measure.” See also Abu Hilo v. Government of Israel [Beit El], HCJ 258/79, with Justice Vitkon again: “In terms of purely security-based considerations, there can be no doubt that the presence in the administered territory of settlements - even ‘civilian’ ones - of the citizens of the administering power makes a significant contribution to the security situation in that territory, and facilitates the army's performance of its tasks.”

11. Cited in B'Tselem (2002, 49).

12. It must be noted here that the Elon Moreh ruling did not have any bearing on the continued settlement of “state land” in the occupied territories, nor on prior requisition orders of private Palestinian land, which remained valid as far as Israeli law was concerned.

13. This process of expropriation of ‘uncultivated’ land through law was of course not unique to the Ottoman empire; analagous policies were implented elsewhere in different forms, for example, under British, French and Dutch colonial rule.

14. In just six years from 1979 to 1985, the cultivated land in the West Bank was reduced by 40%. Weizman (2007), 120.

15. According to Israeli organisation Peace Now's Settlement Watch team, by 2006, 38.76% of the land on which settlements and settler industrial zones in the West Bank are located was privately owned Palestinian property (Etkes and Ofran 2006, 15). In February 2017, the Israeli legislature enacted the Settlements Regularisation Law (or Validation Law) to explicitly allow the state to expropriate private Palestinian lands in occupied territory for the purposes of settlement construction. Under the legislation, settlements built on private Palestinian land in the OPT can be “legalized” and “regularized” through retroactive expropriation, planning, and zoning regulations.

16. See, e.g. Bargil v. Government of Israel, HCJ 4481/91, judgment, 25 August 1993.

17. Quoted in Ra'anan Alexandrowicz, The Law in These Parts (2011).

18. For example: Syria 1963–2011; Egypt 1981–2012; Algeria 1992–2011.

19. Shetreet (1984, 183–184), cited in Gross (2001, 754): “The Courts held that neither the provisions of the Mandate nor the language of, nor the qualifications contained in Section 11 excluded the reception of the Defense Regulations, including Regulation 11 dealing with administrative detention. The application of the Defense Regulations does not depend upon a proclamation of a state of emergency under Section 9 of the Law and Administration Ordinance 1948.”

20. See, e.g. the speech of Yacob Shimshon Shapira (later Israeli Attorney-General and Minister for Justice), Jewish Bar Association, Tel Aviv, 7 February 1946, quoted in Ha Praklit (February 1946): “The regime established in Palestine with the publication of the Emergency Regulations is quite unique for enlightened countries. Even Nazi Germany didn't have such laws, and acts such as those perpetrated at Maidanek actually ran against the letter of German law.” The Regulations were also condemned by the Jewish community in Palestine as indicative of a “police state” (Joseph 1948, 222).

21. On Britain's repeal of the Defence (Emergency) Regulations before relinquishing the Mandate in May 1948, and the subsequent legislative manoeuvring of the Knesset to profess that the regulations had not in fact been validly repealed, see, e.g. Quigley (2005, 103). Only Regulations 102 (which reinforced Britain's Immigration Ordinance 1941) and 107c dealing with illegal immigration were dropped so as to allow Jews who entered Palestine illegally under the British Mandate to remain in the new state.

22. Knesset Debates 9: 1807, 12 May 1951, quoted in B'Tselem (1992, 24). See also, e.g. Peretz (1991, 92).

23. State Comptroller's Report no. 9 (1957/58) 78, quoted in Quigley (2005, 104).

24. “Address by Prime Minister Ben Gurion” (New York Times, 52–53, 8 January 1961).

25. Knesset Debates 36: 1217, 20 February 1963, quoted in Quigley (2005, 109).

26. Government of Palestine, 1945. The Defence (Emergency) Regulations, Palestine Gazette no. 1442, Supplement no. 2, 27 September 1945, Regulation 125.

27. Committee of Displaced Persons from Iqrit, Rama and Others v. Government of Israel, HCJ 141/81.

28. For a number of examples, see Quigley (2005, 133–134).

29. Here, Said refers us to Jiryis (1976), al-Asmar (1978) and Zureik (1979).

30. Originally Article 49; now Article 38.

31. Adalah, “Information Sheet #1: State of Emergency”, submitted to the UN Human Rights Committee, 22 July 2003.

32. Emergency Land Requisition (Regulation) Law 1949, Article 3(a).

33. Emergency Regulations (Cultivation of Waste Lands) (Extension of Validity) Ordinance 1949, Schedule: Emergency Regulations Concerning the Cultivation of Waste Lands and the Use of Unexploited Water Resources, Article 17(a).

34. See further, e.g. Lustick (1980, 178): “Typically the process works in the following way: An area encompassing Arab-owned agricultural lands is declared a ‘closed area.’ The owners of the lands are then denied permission by the security authorities to enter the area for any purpose whatsoever, including cultivation. After three years pass, the Ministry of Agriculture issues certificates which classify the lands as uncultivated. The owners are notified that unless cultivation is renewed immediately the lands will be subject to expropriation. The owners, still barred by the security authorities from entering the ‘closed area’ within which their lands are located, cannot resume cultivation. The lands are then expropriated and become part of the general land reserve for Jewish settlement.”

35. A series of plans and guidelines were drawn up from 1944 by the Haganah, the pre-state Jewish militia in Palestine, designed to take control of territory for the Jewish state. This process culminated in Plan Dalet in early 1948, described as a “master plan for the conquest of Palestine” by Palestinian historian Walid Khalidi (1988) and a “blueprint for ethnic cleansing” by Israeli historian Ilan Pappé (2006, 86). In contrast, Israeli military historian David Tal (2004, 87) argues that while the plan did provide for the deportation of Palestinian residents and the destruction of their villages, this was not its raison d’être – rather, the primary purpose of establishing Jewish-Israeli territorial control was as a defensive safeguard in the event of invasion.

36. Sheikh Ra'ed Salah v. Minister of Interior, HCJ 4706/02, judgment, 17 July 2002.

37. ‘Multilateral Treaties Deposited with the Secretary-General: Status as at 31 December 1991’ UN Doc. ST/LEG/SER.E/10 (1992) 149.

38. See, e.g. UN Human Rights Committee, ‘Concluding Observations: Israel’, UN Doc. CCPR/C/79/Add.93, 18 August 1998, §4,11. Some international lawyers, such as John Quigley (1994), however, do question the procedural and substantive validity of Israel's derogation.

39. UN Human Rights Committee, “Concluding Observations: Israel”, UN Doc. CCPR/C/79/Add.93, 18 August 1998, §11.

40. UN Human Rights Committee, “Concluding Observations: Israel”, UN Doc. CCPR/CO/78/ISR, 21 August 2003, §12.

41. Government of Israel, “Second Periodic Report to the Human Rights Committee”, 20 November 2001, Addendum to UN Doc. CCPR/C/ISR/2011/2, 4 December 2001.

42. UN Human Rights Committee, “Concluding Observations: Israel”, UN Doc. CCPR/C/ISR/CO/4, 21 November 2014, §10; UN Human Rights Committee, “Concluding Observations: Israel”, UN Doc. CCPR/C/ISR/CO/3, 29 July 2010, §5,7.

43. Dr. Herzl Cook v. Defense Minister of the Provisional Government of the State of Israel, et al.; Ziborah Wienerski v. The Minister of Defense, et al., HCJ 1/48; 2/48, HaMishpat vol. 3, 1948; quoted in Jiryis (1976, 13–14).

44. Al-Karbutli v. Minister of Defence at al., HCJ 7/48, judgment, 3 January 1949.

45. Zeev v. The Acting District Commissioner of the Urban Area of Tel Aviv (Gubernik), HCJ 10/48; Leon v. Acting District Commissioner of Tel Aviv, HCJ 5/48.

46. El-Ard v. Commissioner of the Northern District, HCJ 39/64.

47. Al-Assad v. Minister of Interior, HCJ 2/1979.

48. Makhoul v. Jerusalem District Commissioner, HCJ 322/81.

49. The Association for Civil Rights in Israel (ACRI) v. The Knesset and the Government of Israel, HCJ 3091/99, judgment, 8 May 2012, paras. 7, 9, 11.

50. ACRI v. Israel, interim decision, 1 August 2006.

51. ACRI v. Israel, interim decision, 1 August 2006.

52. ACRI v. Israel, interim decision, 7 December 2011.

53. ACRI v. Israel, judgment, 8 May 2012, para. 11.

54. ACRI v. Israel, judgment, 8 May 2012, para. 11.

55. Kahana v. The Minister of Defence, HCJ 1/80, PD 35(2), 253, 257.

56. ACRI v. Israel, judgment, 8 May 2012, para. 19.

57. ACRI v. Israel, judgment, 8 May 2012, para. 17.

58. For example, parts of Israel's 1973 emergency regulations relating to naval vessels were simply renamed and consolidated in permanent legislation in the form of the Shipping Law (Foreign Naval Vessel Under Israeli Control) 2005 and the Shipping Law (Violations Against the Security of International Sailing and Maritime Facilities) 2008.

59. Shany and Rosenzweig (2012), citing the 2008 Incarceration of Unlawful Combatants Law (Temporary Order and Amendment) enacted in anticipation of Operation Cast Lead.

60. The Association for Civil Rights in Israel, “Counter-Terrorism Bill: Undemocratic Emergency Regulations Could Become Permanent Law”, 4 August 2011.

61. Quoted in Lis, Jonathan. “Knesset Passes Sweeping Anti-terrorism Law” (Ha'aretz, 15 June 2016).

62. Adalah, “Israel's New Anti-Terror Law Violates Arab Citizens’ Human Rights” (19 June 2016).

63. Within 24 hours of the legislation passing parliamentary approval, Israel's Minister for Public Security, Strategic Affairs and Information, Gilad Erdan, stated that “a price must be paid” by activists who support the Palestinian civil society call for boycott, divestment and sanctions (BDS) against Israel. Erdan said he has put together “a legal team that is working with the Israeli Justice Ministry to ensure that there is a price for boycott”, implying that this team would seek to find connections between BDS activism and support for terrorism. Schaeffer Omer-Man, Michael. “Senior Israeli Minister: Make BDS Activists in Israel ‘pay a price’” (+972 Magazine, 16 June 2016).

64. Following the 2009 elections in Israel and the formation of a series of increasingly right-wing coalition governments under Benjamin Netanyahu – spanning the 18th Knesset from 2009–2013, the 19th Knesset from 2013–2015, and the 20th Knesset from 2015 on – “a flood of discriminatory legislation” was initiated which seek to dispossess and discriminate in various ways against Palestinian citizens of Israel. See Adalah's “Discriminatory Law Database” at http://www.adalah.org/en/law/index, which documents dozens of pieces of Israeli legislation already in force or at different stages in the legislative process.

65. Harkov, Lahav. “Terror Bill Passes into Law” (The Jerusalem Post, 15 June 2016).

66. “Israel's Knesset Passes ‘Draconian’ Anti-terrorism Law” (Ma'an News, 15 June 2016).

67. ACRI v. Israel, judgment, 8 May 2012, separate opinion of Chief Justice (Retired) D. Beinisch.