Yael Berda, Hebrew University of Jerusalem (on Leave) and Harvard University (2019-2020)
The status of the “Palestinians of 1948” is central to understanding the current “one state reality” in which the Israeli government rules the undetermined political borders of Israel and the Occupied Palestinian Territories in the West Bank and Gaza. The Israeli government controls the population in this area through a sophisticated, graded and racialized matrix of political membership in which one’s political status, identity and territorial location determine their political rights, which laws will apply to them and, perhaps primarily, their possibilities for mobility. The contemporary “one state reality” is the outcome or culmination, not the repudiation, of the long process of partition from the British colonial Partition plan for Palestine that never happened but was endorsed by the international community to the failed Oslo process that was purported to be a pathway to a two state solution.
Post-independence Israel was deeply affected by the legacies of the broader British imperial context. The British imperial toolkit of emergency more broadly shaped imperial formations in Israel/Palestine by creating a sophisticated system that linked identity to mobility and exclusion from political rights. Population management practices and colonial emergency laws developed in the horizontal circuits of the British Empire as the central method of rule fundamentally shaped the realities governing citizenship and mobility.
The trajectory of political membership of the Palestinians living within the borders of 1948 and considered citizens of Israel is the key for understanding Israel’s regime of political membership and population management, which is predicated on degrees of mobility rather than rights. The Palestinians of 1948 are the remainder of the Arab population of Palestine that was not exiled during the War of Independence/Nakba. Those Palestinians that managed to remain in Israel were turned overnight from imperial subjects into a “dangerous population” under Israel’s military rule and later into suspect citizens. To demonstrate how the mechanism of citizenship as mobility shaped the contemporary “one state reality”, I focus here on the permit regime Israel’s military government over the Palestinian remainder population. However, conceptualizing citizenship as a mobility regime applies more broadly to Israel’s permit regime in the occupied West bank, as well as Israel’s visa regime that prevents entry to Palestinians from the Diaspora and the law of return.
The nascent Israeli state drew upon certain practices of emergency, the repertoire of British colonial spatial-legal practices to govern civilian population developed and deployed throughout the British Empire. The specific regime of emergency laws and military decrees established after the 1948 war used these emergency practices as a permit regime to compromise the claims on citizenship of the Palestinian population remaining in the borders of the new state of Israel. The bureaucratic structure developed in those first two decades impeded Palestinian political membership in the independent state through a mobility regime that controlled their movement rather than granting rights. The permit regime evolved as a system of documentation and surveillance technologies that enabled the military government a high level of monitoring and control of the Palestinian population.
This essay investigates the legacy of British colonial emergency laws through the bureaucratic toolkits of the Israeli permit regime. It builds upon scholarship on colonial legacies of surveillance and population control, the legal and administrative infrastructure of the military government and recent studies on the settler-colonial citizenship of the Palestinians in Israel. To contextualize this legacy, I trace these practices against the backdrop of the permit system in India between 1948-1952 to demonstrate how security laws enshrine a triple bind between national security, loyalty and classifications of identity, delineating citizenship for minority populations. Situating the colonial military government over the Palestinians in a post-imperial context underscores the way bureaucratic practices and routines of spatial – legal surveillance was formative of citizenship, as a regime of mobility, and not as citizenship might be conceived, namely as one of rights and political membership.
British colonial rule governed populations defined by racial and ethnic hierarchies through emergency laws that merged categories of loyalty and suspicion. The technologies of classification and surveillance, developed in the colonial state to monitor subject populations based on degrees of suspicion, were then used by the newly independent states to exclude minorities from political membership by administrative means. Israel’s permit regime, a main method of military rule over the Palestinians within the country’s broader post-imperial context, follows a similar logic as the use of similar bureaucratic measures in the early days of independent India following partition on the frontier with Pakistan.
During the dramatic wars of independence and partition following British decolonization, massive numbers of people fled the territories, which became Israel, India, and Pakistan. When they attempted to go back to their homes, permit regimes were enacted to block their return: a permit system on India’s Western frontier with Pakistan and a permit regime in the ”security zones” of the military government Israel established to control the remaining Palestinian population. Having transformed overnight from colonial subjects to refugees, these people were now classified by the new states as intruders, infiltrators, undesirables, and security threats. The story of the bureaucratic practices that turned refugees into intruders and how this prevented people from claiming citizenship in the homes they had left weeks or months before explains the relationship between citizenship and mobility.
While there are multiple dimensions to these practices, I focus on the regime geared to restrict and prevent movement. While prevention of movement enabled both military and civilian control over and appropriation of Palestinian territory, the institutional logic and organization of such prevention of movement is distinct from practices of settlement and dispossession of land. The restriction of mobility for the dispossession of land entails the prevention of one’s access to lands and land rights. But restriction of mobility for the sake of surveillance and control constructs an administrative paper trail that determines one’s political membership (or exclusion from it) in the state.
Governing through emergency laws was a central and essential feature of British colonial rule. From the mid-19th century, states of emergency were used in British colonies as an elastic repertoire of rule aimed mainly to ensure the preservation of colonial power including the crushing of strikes, riots and insurgencies. Eventually emergency was used in “situations of danger that can never be exhaustively anticipated or codified in advance”.
During the 19th century, as security became an organizing principle of the colonial state, legal emergency was institutionalized and became the practical foundation of colonial government. Emergency laws allowed colonial bureaucrats, police officers and military commanders to suspend rights, promulgate decrees, restrict movement in closed military zones, and grant impunity to military personnel operating within the civil population in “dangerous” and “disturbed” areas. The justification for using emergency powers drew on the rule of colonial difference: drastic measures were necessary “where a handful of white people need to maintain themselves against lawless, sometimes violent people,” that is: when confronting subject populations perceived as hostile. In addition, technologies of surveillance were formed during these perceived states of emergency” in the colonies, e.g., wars, uprising and economic crises. At first, temporary restrictions on movement were enacted through ad hoc practices and emergency decrees. Those restrictions gradually solidified into an apparatus to control movement across frontiers and within restricted areas.
Emergency laws rarely specified the identity of the people for which they were intended; instead, they were worded to endow government officials with universal authority. In effect, emergency legal tools were mostly used to control minorities, and since the laws specified the conditions neither of their use nor their target populations, administrative classification of target populations was imperative for implementation. This necessity for regulation granted bureaucrats full discretion in defining dangerous and risky individuals or entire populations.
British colonial rule classified populations according to what I call an “axis of suspicion”; constituted by administrative and internal regulations, departmental directives, official recommendation forms, home department circulars, and intelligence reports. The axis of suspicion formed a classification matrix conflating a person’s race, religion, region, or caste with the potential security threat they posed to the state. Persons or communities were defined by degree of loyalty, on a continuum that included loyal subjects, subjects of doubtful loyalty, suspicious subjects, minor security threats, threats to the state, and enemy agents. These were classifications by state officials, and they were fluid and changeable, applied mostly to individuals, but gradually classifying families or groups. Coupled with colonial classification according to demographic characteristics, this axis of suspicion led to the application of differential administrative practices to individuals and communities, which, in turn, led to disparities in access to rights guaranteed by the state. The axis of suspicion, the process of defining and classifying people based on the degree of their loyalty was a prominent feature of British colonial bureaucracy that shaped and defined the boundaries of citizenship.
The military government’s permit regime aimed to achieve surveillance over population movement and to prevent changes in residency from one area of the regime into another. A further objective was to maintain the exclusion of Arabs from their lands, for instance preventing internal refugees from returning to abandoned villages, or preventing return of land that had been declared Absentee Land, now in custody of the state. Some of these practices were aimed to control the flooding of the employment market in Jewish areas, or to prevent Arabs from working in areas declared security zones. This objective, combining economic considerations with practices of segregation and the maintenance of suspicion, required procedures to prevent those named by the colonial government as involved in incitement or rebellious activities from moving outside their place of residency.
The Ministries of Interior, Minorities, and Immigration were all involved in the effort to impede returning refugees who had left the country and were now classified as infiltrators and intruders. In practice, soldiers and border police prevented people from returning, expelled many internally displaced persons, monitored the movement of the population, and prepared the conditions for excluding people from future citizenship laws by bureaucratic means.
The organizational vantage point that traces the institutional logic of emergency laws and administrative practices provides a distinctively different account of the ways in which the “managed mobilities” of colonial rule are deeply intertwined with post-colonial citizenship. In such a regime, bureaucratic routines structure political policies, rather than just reflecting and achieving them. Security emergency laws structured citizenship, rather than simply being tools for the suppression for the rights of citizens.
The military government was formative to Israeli state making, setting clear boundaries of belonging based on race, and constituting what Shira Robinson describes as a “Settler colonial liberal state”. The agglomeration of methods of colonial control, surveillance, monitoring and coercion for collaboration, as well as the criminalization of political participation, formed multiple relationships between citizens and the state based on their racial/ethnic belonging. The contents of Palestinian citizenship have been described as nominal, formal in an ethnocratic regime, second-class, conditional or settler colonial citizenship, assuming a categorical effect on all Palestinians citizens of Israel.
A closer look at the practices of the military government and its permit regime in the context of its colonial legacies highlights the ways which the control of movement meant that citizenship became first and foremost, a form of non-deportability. Rather than a categorical type of citizenship based on ethnicity or nationality, securing mobility based on a graded scale of suspicion, captures the practicality of the political status of Palestinians that granted mobility, and not necessarily rights linked to belonging to the nation state for those excluded from its self-determination. Of particular interest for the analysis of Palestinian citizenship in Israel is Rouhana and Sabbagh-Khoury’s claim that the settler-colonial structure of the state is the central analytical framework for understanding citizenship in Israel and the shaping of citizenship through emergency rule, as distinct from colonial practices of surveillance and control.
The military government and its permit system that monitored and controlled the movement of Palestinians defined the necessary documents crucial for claiming citizenship. This colonial military bureaucracy, based on emergency decrees, also transformed political membership in the new Israeli state into a settler colonial citizenship, but one in which a person’s classification, in degrees of loyalty and suspicion, determined one’s range of mobility. For Jews, citizenship entailed access to rights, affected and scaled by ethnic classifications. For Palestinians, citizenship was a mobility regime that granted non-deportability and protection for exile, though not from displacement. It was not a “right to have rights” as Hannah Arendt famously articulated. The promise of non-deportability was a way to rope in Palestinians as legal subjects of Israeli law, and for government organizations to define their relationship to the state on a scale of suspicion.
Similar to India in the very first years following the violence of independence, the British colonial toolkit of population management was adapted into a new set of colonial practices, this time of the majority ruling the minority, which remained within the boundaries of the independent state following the Nakba. As control of suspicious and dangerous populations became institutionalized, the temporary classifications and practices created during the emergency transformed into permanent practices of the Ministry of Interior and Ministry of Home Affairs.
The Israeli permit regime transformed colonial practices of population management originating in the emergency laws forged between the two world wars, into a method of administrative exclusion, reducing the number of Palestinians entitled to claim citizenship once the statutory laws were enacted. The similarity between the Israeli case and the permit system in India underscores how ad hoc measures first justified by security reasons and emergency following population influx and movement became institutionalized into administrative routines. The organizational vantage point into the bureaucratic routines illuminates the practical experience of dispossessed remainder populations, that became a minority after partition, in which security laws, and perceptions of suspicion and threat, carve out one’s ability to move within the state, and prevent deportation from it. The disparity between the institutional logics of the security forces that prevented people from returning to their land and homes, and the practices aiming at political exclusion through control of movement, suggests a flexible scale of control through political status defined by loyalty and suspicion, that determine mobility, not rights.
The one state reality is the result of expansion and de facto annexation during the quarter of the century dominated by the Oslo accords. Yet, the visible results of settler colonial expansion must be viewed in tandem with Israel’s regime of political membership as a graded mobility regime based on suspicion that conflates “security risk” with political risk. The political risk includes the perceived demographic threat of democratic participation of all subjects ruled by the contemporary Israeli government.
Annexation de facto is the result of an indeterminate occupation, prevalent for over half a century, the expansion and normalization of settlements, and the permit regime in the West Bank and East Jerusalem, that has become over the past two decades, the most sophisticated surveillance and population management system on the planet. The threat of annexation de jure, highlights Israeli citizenship as a mobility regime – the way that Israeli citizenship provides freedom of movement, juxtaposed with the severe mobility restrictions that permeate every aspect of civilian life of those that are both stateless and have no political membership – Palestinians in the West Bank and in the form of total siege and blockade in Gaza. Annexation, which resulted from the failures of the Oslo process and the territorial, economic and legal expansion of Israel’s control over every aspect of Palestinian life, has not only left a vacuum of rights. It has also generated an excess of control, mostly through restrictions on movement: Palestinians are actively governed by the Israeli state apparatuses and markets yet are denied political participation in decision making.
“The one state reality” has implications for every aspect of daily life. As harsh, sophisticated and violent as military occupation can be, annexation de facto is different. It means that the organizations and apparatus of the state and its markets deeply penetrate the occupied (Palestinian) society. Annexation de facto is not only a direct result of the settlement expansion project, but also of the economic dependencies and massive surveillance system that governs Palestinian mobility. If one accepts the perspective of citizenship as a mobility regime, two of the most important aspects of any political solution entail not only full equality of political rights, but also, not less critical, freedom of movement for all inhabitants.
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 The state of emergency was central to colonial states, in which the colonial power rules without sovereignty. I am referring here to declarations of states of emergency by officials, which formed the legal and administrative environment for innovation of surveillance and monitoring practices, peaking between the two world wars.
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British imperial officials used the term race fluidly and frequently, lumping together an array of population characteristics. Classifications according to nationality emerge later, even in colonies marked by intercommunal conflict, where classification according to nationality emerges closer to partition/independence. See Christopher, Anthony J. “Race and the Census in the Commonwealth.” Population, Space and Place 11.2 (2005): 103-118. on the fluidity of the term race see also Gilroy, P. (2005). Postcolonial melancholia. Columbia University Press.
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 See note 9 in Saban, Ilan. 2013 “the Legal Dimensions of a Control Framework
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