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The One-State Condition

Stanford University Press

Contents

Acknowledgments.....................................................viiPrologue: The First Year of the Occupation..........................1Introduction........................................................111 The First Decade..................................................252 The Second Decade.................................................613 Uprisings, Separations, and Subjugations..........................734 The Order of Violence.............................................1275 Abandoning Gaza...................................................1636 The Conceptual Scheme.............................................1837 Structural Divisions and State Projects...........................2038 Civil Recruitment.................................................225Conclusion: Toward a New Regime.....................................249Notes...............................................................275References..........................................................291Index...............................................................311

Chapter One

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. It consists of two basic principles: ruling Palestinians as noncitizens and separating the handling of the territories from that of their inhabitants. 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. 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. 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. 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; and adding a special judiciary arm in the Occupied Territories in form of...