Nathan J. Brown, The George Washington University
The international discussion surrounding “what Israel is” has always been driven by what Israel and Palestine should be – a normative or political vision of the future (describing what it/they should be) – or by a moral or political vision of what is wrong with the present (decrying what it/they are). That is not surprising since the list of arrangements that would be preferable to the current one, whether to some of the inhabitants of the area controlled by Israel or according to various normative perspectives, is long indeed.
This is beginning to change—with Israeli leaders speaking openly of moves toward annexation and American leaders facilitating internal Israeli discussions on such matters. But almost all other public international policy discussions still center on preserving the “two state solution.” Even some of those pressing for Israeli annexation of parts of the West Bank publicly profess to support a two-state outcome.
But most private discussions have long since acknowledged not only the “one state reality” but also that existing trends suggest only its further entrenchment. In public, such international discussions often strive to avoid describing anything other than a two state solution as unstable or unsustainable, leading to decades of warnings that “the situation continues to be unsustainable.” Israelis and Palestinians are less bashful, with their internal discussions long betraying the frankness missing from American and international discussions. Those living in the Israeli-Palestinian reality are no longer so dominated by the “two-state solution”, or even focused so much about negotiating a final outcome, but instead argue far more passionately about how to move current realities in a more desirable direction.
It is not simply a desire to avoid legitimating those realities that leads analysts to focus on prescribing the future rather than describing the present. It is the fact that the alternative terms offered to capture existing reality (such as “Apartheid” or “settler colonialism”) are so discomfiting that they seem designed to shock, mobilize, or outrage as much as to describe. Indeed, such terms may sometimes be moral statements as much as analytical ones. But can they (or some alternative terms) also be useful for understanding? Or do they fall short in describing existing or emerging realities? I think the answer to both questions is yes—they are helpful and they also fall short.
What is the existing reality that international policy discussions strive to avoid describing? What names can we give it—and what are the shortcomings with various names? In this essay, I will take it as a given that there is a single state in all of the mandatory territory of Palestine and that it is called Israel. I then explore the possibilities for replacing the proper name of Israel with an analytical category. What kind of state is Israel? I will explore three possibilities: empire, dual state, and apartheid. I hope to show not only what such comparisons illuminate but also how their shortcomings are of just as much interest. Comparisons between Israel and three kinds of entities—empires, dual states, and apartheid systems—can be instructive not only for how they partially fit but also for where they do not precisely fit. Indeed, it is where the terms fall short that they can most help us understand some essential attributes of current realities. Existing realities are not simply ambiguous: ambiguity has been up to now part of their essential nature.
The empire has no throne
To describe Israel as an “empire,” is apt especially in one conception of the term: a system of political control with a dominant state ruling over a territory in a manner that admits a wide variety of simultaneous arrangements but fundamentally denies those ruled any mechanisms of accountability over their rulers. The British, Roman, Ottoman, French, Japanese, German, and other empires extended their sway through varieties of direct and indirect rule, vassal states, treaty arrangements, autonomous but not independent subunits, private sector and chartered companies, tributary arrangements, patrimonial, bureaucratic, and informal structures—and all combined many of these arrangements simultaneously.
The welter of arrangements governing different parts of Jerusalem, areas A, B, and C on the West Bank, and Gaza—and the complexity of arrangements that straddle these divides (questions of curriculum in schools in East Jerusalem; policing arrangements in areas in the West Bank where Palestinian police allowed to operate only in area A need to cross into other zones to act; enforcement of court judgments across divides) encompasses a compact geographical area. But it is still reminiscent of the ways that empires operated by accretion of diverse institutional arrangements subject to much tinkering over time but rarely to grand design. As will be seen, Israel not only shares this feature, but the ad hoc nature of arrangements is part of its essential nature.
What is missing, one might object, from the Empire of Israel, is an emperor. The state of Israel has democratically elected leaders and a republican system of government.
But of course, so did many empires. The Athenian empire was democratic at its core; the Roman Empire was built under the Republic and many Republican institutions continued to operate under an evolving imperial system. When India was placed under the British Crown in 1858, the step increased rather decreased the role of an elected parliament (elected by those fairly far from India to be sure) and of ministers accountable to that parliament. French imperial positions in Africa and Southeast Asia did not become something else when the Third Republic was founded; the Fourth Republic fought to keep them. These arrangements were imperial not because of the presence of an “emperor” or the absence of elections but because a core group (Athenian citizens, for instance, or the Senate and People of Rome) controlled territory with inhabitants whom they were not accountable to.
Many empires are thought of as defined by the reach of law: where Roman law prevailed was where the Roman Empire ruled; the French Empire was sometimes conceived in similar ways. But a more appropriate conception for the Empire of Israel is a place where members of the core group carry the full protection of their state with them wherever they travel within the imperial domain. Just as a British citizen could expect some measure of imperial protection when she entered one of the Trucial States, or a French citizen had imperial backing and did not lose any status by residing in Algiers, Jewish Israeli citizens (and some non-Jewish ones) retain all their citizenship rights and state protection wherever they venture imperial domains.
But the objection that empire requires an emperor should not be dismissed so quickly. The existence of an empire with republican features and without an emperor is not unique but is still noteworthy. The tension between republic and empire has always attracted attention. Can republic and empire co-exist, with the first based on liberty, public spiritedness, and citizenship and the second based on domination, subjecthood, and more martial virtues? That question is one that vexed those who gave us many of the names we now used for political systems in the classical world. And it is arising in Israel today. We will return to it in the conclusion.
A Dual State?
A similar question arises from a very different analytical tradition—one that considers “dual states.” While the phrase initially seems far tamer than the alternatives examined here—empire and apartheid—those aware of its genealogy may consider it infinitely more noxious. It was coined by Ernst Fraenkel to refer to Nazi Germany and the way in which Germany’s pre-existing highly legalistic state operated alongside post-1933 mechanisms that gave some structures and individuals absolute discretion to deploy violence beyond the control of any legal norms. It is arguable that Fraenkel gave too much credence to the judiciary that, in the view of others, was far more complicit in the actions of the Nazi state.
And indeed, recent scholarship has tried to divest the idea of a “dual state” of its origins and cast it far more broadly to encompass a wide range of authoritarian regimes that allow for some operation of a rule of law (understood as a part of the state apparatus that is governed according to clearly enunciated legal norms) alongside one that is governed by violence and discretion. Specifically, Jens Meierhenrich has attempted to rescue the concept for comparative use by defining dual states as divided between “normative” and “discretionary” parts; they are “instances of authoritarian rule in which a legal way of doing things co-exists with an alternative mode of behavior: a violent way of doing things; life in dual states is perched on the precipice between the norm and the exception.” Seen that way, dual states might describe Singapore, Chile, Egypt, and Korea at various points. Does it describe Israel too?
Hoping that I do not sound flippant, I will confess that my own experience with an automobile in Israel would seem to resonate with the idea of a dual state. When registering the automobile, parking it (and having it towed), and being pulled over for using a cell phone, I encountered parts of the state apparatus very much operating in accordance with clear rules. And when driving through a checkpoint, I am struck by the discretion, the apparently shifting and unknown instructions, and the inexplicable procedures of the discretionary state.
The obvious objection that might be expected is that the concept of a dual state has been applied only to authoritarian orders. Neither part of the dual state is democratic. And one side appears dominant in any matter that becomes critical. In such systems, it is the discretionary state, controlled by autocratic rulers, that defines the borders of where the normative state may operate. Israel does not seem to fit that pattern to date; the normative and discretionary aspects interact in confusing ways but it may be that it is the normative aspects of the Israeli state that set the border with the discretionary parts. Israeli citizens elect leaders who allow security officials discretion to do what they wish.
But that leads to a different version of the question we just posed for empire—can such a system be stable? Is it stable now—or can the complaints of growing illiberalism in Israeli political life be taken to suggest that a dual state is one that has a natural tendency in an illiberal direction in which the discretionary state gradually gains the upper hand?
Even if such a dark prognosis is avoided, the concept of a dual state helps lead us to some interesting inquiries: How is the border between the two ways of governing drawn? What happens when the two parts of the dual state interact? And, above all, how does the border move over time?
When I first heard the comparison between Israel and apartheid South Africa, it struck me as polemical rather than analytical in nature. What the analogy might capture in moral outrage it seemed to lose in scholarly usefulness by obscuring of the difference in ideology: what was a matter of official doctrine in the Republic of South Africa was a set of interim arrangements in Israel.
I am now persuaded that I was partially correct: yes, the analogy was born in moral outrage. And yes, it continues to miss some core ideological distinctions. But those distinctions are less severe than might initially appear. And the difference in ideology should be the starting point for exploration rather than the end of consideration of the apartheid analogy.
Indeed, the ideological difference turns out to be critical indeed but it is not unlimited. And exploring it turns out to be quite instructive. The ways in which the Israeli system shares attributes with apartheid need not detain us (in some ways they are similar to those that make it resemble an empire). But it is the differences—and an appropriate understanding of their extent and nature—that make the analogy useful.
Let us begin with the objections to the analogy that may bespeak indignation but that are still based on the insistence of analytical differences. A recent powerful article in the New York Times by a South African emigrant to Israel under the title “Why Israel Is Nothing Like Apartheid South Africa” insisted on two critical distinctions. First, Palestinian citizens of Israel suffer discrimination but still “vote and have full citizenship rights.” Second, “there is none of the institutionalized racism, the intentionality, that underpinned apartheid in South Africa.”
The first distinction strikes me as a reason to explore the analogy, not run from it. Nonwhite South Africans were not deprived of all citizenship or voting rights. In comparing Israel and South Africa in the twentieth century, the networks of institutions, gradations of citizenship, ties between ethnicity and legal residence, ties between location of legal residence and rights, systems for parliamentary representation, and governance more broadly certainly have both similarities and differences. I make no judgement on those but certainly do not immediately reject the view that the former outweigh the latter.
It is the second distinction that I wish to focus on: to what extent is “intentionality” a critical difference? Or, to put it differently, to what extent do Israeli realities resemble apartheid as an ideological system, as a set of arrangements designed to act a specific way?
It is here that the analogy points us in some illuminating directions. First, it is true that apartheid was an ideology of South Africa’s governing party from 1948 until it agreed to negotiate with the African National Congress four decades later. But the system known as “apartheid” included arrangements about citizenship, property, and residence that pre-dated 1948; the proclamation of a system came in the already sharply racialized system of rights, privilege, control, and domination.
In that sense “apartheid” as an ideology was as much a product of “apartheid” in practice as it produced those practices. For reasons partly having to do with politics among South African whites, the National Party—with its roots in a portion of that population—asserted a need to deepen, systematize, and name prevailing arrangements that were already based on profound racial discrimination. And it sketched out a future path. There was a racialized system before 1948 that might be termed apartheid in effect and in mentality; after 1948, apartheid was a formal system that was always in the process of becoming until those building the system saw the need to sue for peace in the late 1980s.
And in Israel, one might assert some elements of a similar ideology even in the birth of the Zionist movement. Some argue that the Zionist movement was indeed based on discriminatory practices that resemble those in South Africa. But I withhold historical judgment to focus on the present—and to insist instead on stressing the extent Israel today resembles South Africa before 1948 in an ideological sense. Both had systems regulating citizenship and privilege without a formal supremacist ideology–or at least one officially codified and articulated. But both still rested on a network of discrimination very much encoded in practice and accepted as desirable by its enforcers. Juan Linz memorably describes authoritarianism as systems “without elaborate and guiding ideology, but with distinctive mentalities.” It is such mentalities that underlay apartheid before it came to call itself apartheid—and that seem to inform some practices in Israel today. So the insistence that intentionality mark an absolute bar to comparison seems less persuasive.
Moreover, the analytical question that suggests itself from this comparison at present is whether Israel is approaching a 1948 moment (in a South African sense)—one in which a faction of the core group seeks to systematize, entrench, and render explicit the arrangements that have arisen out of such a distinctive mentality but without an ideology, name or formal program. That is one way to understand some projects underway by actors on the right side of the Israeli political spectrum, supported by elements of the Trump Administration.
My inclination is to say that Israel is approaching such a moment but it is hesitating. There are those who wish to cross the bridge into formalization and legalization. There is hardly another way to understand annexation of large swaths of territory with boundaries drawn in an explicit effort to guarantee a Jewish majority and Israel’s identity as a state belonging to one national group but not another one that it still rules. Those in the Israeli leadership who resist annexation wish to avoid adopting a formal apartheid ideology–though without reversing policy. For them, ambiguity is essential to Israel’s nature as a state. The lack of explicit ideology, of declared intention, is strategically too powerful to abandon. In that sense, the fact that Israeli apartheid, to the extent it exists, is undeclared has actually been part of its essential nature.
Will annexation change that?
A Hazy System with Hard Edges
There is a very powerful strategic logic in avoiding declaring what Israel is. Of course, such declarations do exist—most obviously in the country’s Declaration of Independence—but those statements sidestep difficult questions, make commitments that are ambiguous, hedged, or in tension with each other, and wind up being far more Delphic than definitive.
To define what Israel is—to adopt a specific ideology and clear program for determining issues of citizenship, rights, privileges, identity, and membership—might guide decisions but it would also impose real costs. Avoiding such a definition has not been an accident or an incidence of absent mindedness but a product of a set of political processes and incentives that make a formal definition unlikely.
There is, of course, tremendous tactical flexibility that arises when strategy is left undeclared—so much so that absence of a declaratory strategy may be part of the strategy. But something even deeper may be at work.
Israel’s political system distributes vetoes quite liberally and critical decisions are made by understanding them as incremental, imposed by necessity, or provisional. The country’s constituent assembly, elected to create the structures of the state, transformed itself into a parliamentary body with oversight and legislative authority and nothing else—Israel’s written constitution consists of a series of basic laws passed when momentary coalitions arose supporting specific arrangements.
But having Israel be what it is without announcing itself as such not only avoids placing demands on Israeli political processes than they have been historically able to bear. It also avoids any international cost. Ambiguity, absence of declaratory policy, and failure to define boundaries all have the tremendous benefit of avoiding provoking any international reaction (especially from Europe, though from some other international actors as well).
Indeed, if there is one common element to all the analysis presented here, it is that the unspoken, complex, and constantly shifting nature of Israel has been part of its essential nature. Social and political realities are always more complex than neat analytical categories, but Israel does more than spill over among categories. The system that dares not speak its name is stable so long as it is can continue to shift and avoid being pinned down.
The proponents of annexation vary in their programs and their motivations but motivating all of them seems to be a sense of opportunity—that Israeli domestic politics, regional politics, and the support of the Trump Administration and the Republican Party in the United States are briefly aligned in a way to remove vetoes and reduce costs of moving to a formal creation of a one-state reality (one that excludes Palestinians in the West Bank and Gaza and the areas where they live in a series of—well, “Bantustans” is not misleading word).
But if the annexationists fail—or if they leave it a bit hazy or incomplete in everything but its general outlines—the current ambiguity will survive. But if it remains hard to see many of the details of the ambiguous realities, it has never been hard to bump into the hard edges. Ambiguity and haziness in words is not fuzzy in action.
There are three apparent hard edges—none declared but all quite sharp—that defines the parameters of the single state. And those hard edges will remain even if annexation is eschewed.
First, participation in democratic mechanisms is restricted. When it comes to citizenship and voting rights, the Israeli political system will have a Jewish majority.
Second, the non-citizens that it rules will not be given any tools to hold the authority of the one state accountable to any standards, procedures, or laws in any systematic way.
Finally, any internationalization of the territory—whether in a modest form such as use of international law or a more robust one like trusteeship or foreign military presence—will be avoided.
If any of these hard boundaries is violated in any but nominal ways, the political system will no longer be the Israel we know. We will have to find a new name for it that avoids terms like empire, dual state, or apartheid. And the borders will be defended fiercely and forcefully for that very reason.
 See, for example, “Economic and social repercussions of the Israeli occupation on the living conditions of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem, and the Arab population in the occupied Syrian Golan,” Note by the Secretary-General, Economic and Social Council, 8 May 2013, https://unispal.un.org/UNISPAL.NSF/5bJNa47a5c6cef541b802563e000493b8c/373870616ffc038185257b8e004b2ec4?OpenDocument, accessed 6 July 2020.
 Nathan J. Brown, “The Palestinians’ Receding Dream of Statehood,” Current History (2011) 110 (740): 345–351.
 Interestingly, the Ottoman Empire is the one entity on this list that generally eschewed the term empire; the more common term was “dawla” or “devla,” originally suggesting “dynasty” but in the nineteenth century coming to mean “state.” Rome also avoided much but not all imperial vocabulary.
 Ernst Fraenkel, The Dual State: A Contribution to the Theory of Dictatorship, translated by Jens Meierhenrich. Oxford: Oxford University Press, 2017.
 Ingo Müller,. Hitler’s justice : the courts of the Th.ird Reich, translated by Deborah Lucas Schneider. Cambridge: Harvard University Press, 1991.
 Jens Meierhenrich, The Remnants of the Rechtsstaat: An Ethnography of Nazi Law. Oxford: Oxford University Press, 2018, p. 243.
 Benjamin Pogrund, “Why Israel Is Nothing Like Apartheid South Africa,”New York Times, 31 March 2017.
 Juan J Linz,Totalitarian and Authoritarian Regimes. Boulder: Lynne Rienner Publishers, 2000, p. 159.