1 ISRAEL’S CONTROL OF THE PALESTINIAN TERRITORY
AS A LEGAL LABORATORY
1.1 Subject Matters
Beginning on June 5 and ending six days later, the 1967 war was brief. During
these few days, Israel gained control over the West Bank of the Jordan River,
the Gaza Strip, the Sinai Peninsula, and the Golan Heights.1 Within pre-1967
Israel, East Jerusalem (located in the West Bank) has been subsumed into pre-
1967 Jerusalem. Jewish settlements began to be built in the OPT in 1967.2 Half
a century later, there are more than 586,000 Israelis living in the West Bank,
including East Jerusalem.3 Most Palestinians and Israelis know no other
reality. Law has played a significant role in the making and maintaining of
this reality. This role is the focus of The ABC of the OPT.
1 In 1967, the West Bank, including East Jerusalem, was under Jordanian control; the Gaza Strip and
the Sinai Peninsula were under Egyptian control; and the Golan Heights were under Syrian
control. The Sinai Peninsula was returned to its Egyptian sovereign pursuant to a peace treaty
signed in 1979 (Treaty of Peace Egypt-Israel, March 26, 1979, reprinted in (1979) 18 International
Legal Materials 362). The Golan Heights were fully annexed, and their residents were given Israeli
citizenship (Golan Heights Law, 1981). East Jerusalem was annexed as well, although its residents
were only given residency status, rather than citizenship (Basic Law: Jerusalem, Capital of Israel).
The rest of the West Bank, as well as the Gaza Strip, was occupied, and Jewish settlements were
established there. In 2005 Israel effected its unilateral disengagement plan, whereby it withdrew its
ground forces from the Gaza Strip, evacuated the settlements, and dismantled them.
2 The first settlement was Kfar Etzion. The territory on which the settlement had been established
was officially seized by the military commander for military purposes, following
a governmental decision to resettle the Hebron area; see CivA (Jerusalem) 2581/00 G.A.L Ltd
v. State of Israel (October 30, 2007) [Hebrew]. On the settlements, see entries J: Jewish
Settlements and R: Regularization.
3 See Central Intelligence Agency, The World Factbook – Middle East: The West Bank, https://
The acronym OPT – short for “the Occupied Palestinian Territory” – is
widely used in reference to the West Bank and Gaza Strip under Israel’s
control. In Israeli Jewish discourse, in contrast, these territories have been
designated as “administered” rather than “occupied,” and theWest Bank has
been commonly referred to by the biblical names of “Judea and Samaria,”
claiming a historical link with the Jewish people. From the perspective of
international law, however, this form of control has been framed as “belligerent
occupation,”4 and this normative framework is considered to still
apply,5 five decades later, to the West Bank, including East Jerusalem and
possibly also to the Gaza Strip.6
At the same time, Israel’s protracted and highly institutionalized rule over
the Palestinian territories, coupled with the mass Jewish settlement project,
the de facto incorporation of the West Bank (but not its Palestinian residents)
into Israel, and the broader political and legal porosity of the borders between
“Israel” and “Palestine,”7 may well indicate that the Israeli control regime has
far transgressed the normative bounds of occupation. Therefore, while the title
of this book invokes the commonly used term “OPT,” it avoids reducing
Israel’s rule over the West Bank and Gaza Strip to “occupation” by using the
broader term “control” instead. This introduction, and the book in general,
oscillates between the concepts “occupation,” “control,” and “rule,” depending
on the context under examination and the analytical approach.
Indeed, if viewed through the conceptual prism of “belligerent occupation,”
the Israeli control of the OPT is possibly the most legalized such regime
in world history. This is mainly evidenced by four interrelated factors. The first
is the extensive involvement of government lawyers in designing and carrying
out Israel’s rule over the West Bank and Gaza Strip, since its beginning.8
4 On the normative framework governing the OPT see Section B.2.2 and entry G: Geneva Law.
5 On the indeterminacy between occupation and non-occupation and between Occupied and
Administered Territories, see entries G: Geneva Law and N: Nomos. See also A. Gross,
The Writing on the Wall: Rethinking the International Law of Occupation (Cambridge:
Cambridge University Press, 2017), pp. 38–51; G. H. Fox, Humanitarian Occupation
(Cambridge: Cambridge University Press, 2008).
6 On the debate over the status of the Gaza Strip since Israel dismantled the Jewish settlements in
that territory and withdrew its ground forces, see entries Z: Zone (specifically Section Z.2.2.1)
and X: X Rays (specifically Section X.2.6). The situation in Gaza is also the focus of entry Q:
Quality of Life.
7 On this porosity, see entry O: Outside/Inside.
8 M. Shamgar, “Legal Concepts and Problems of the Israeli Military Government – The Initial
Stage,” in M. Shamgar (ed.), Military Government in the Territories Administered by Israel
1967–1980 – The Legal Aspects (Jerusalem: Sacher Institute, 1982), pp. 13, 24–25, 27, 50–51;
I. Zertal and A. Eldar, Lords of the Land, V. Eden (trans.) (New York: Nation Books, 2007), pp.
341, 343–344, 361–371.
Palestinians each year, and which has produced thousands of enactments
governing Palestinian lives.9 A third factor is the unprecedented decision of
the Israeli supreme court, operating in its capacity as a high court of justice
(HCJ),10 to open its gates to petitions emanating from the OPT,11 and to
determine such petitions in the light of international law12 as well as Israeli
law.13 Lastly, the Israeli rule over the Palestinian territories is the longest – and,
accordingly, the most entrenched and institutionalized – belligerent occupation
in modern history. Taken together, these facts have generated a profusion
of law and, concurrently, voluminous legal scholarship.14
9 See entries M: Military Courts, S: Security Prisoners.
10 Basic Law: The Judiciary, Article 15(c) provides that the supreme court of Israel may also sit
as a high court of justice, and “when so sitting, it shall hear matters in which it deems it
necessary to grant relief for the sake of justice and which are not within the jurisdiction of
11 This decision was first made in 1972. See HCJ 337/71 The Christian Society for the Holy Places
v. The Minister of Defence (1972) 26(1) PD 574 [Hebrew; an English summary is available at
(1972) 2 Israel Yearbook of Human Rights 354–357]. Note that the decision is unprecedented
within the paradigm of belligerent occupations but not within the colonial paradigm. See
S. Ben-Nathan, “The Supreme Court and the Territories: The Last Diamond in the King’s
Throne,” in I. Menuchin (ed.), 50 Concepts, Testimonies and Representations of Occupation
(Mevaseret Zion: November Books, 2017) [Hebrew].
12 International humanitarian law (hereinafter: IHL) in general; the law of belligerent occupation
in particular; and, to a lesser extent, international human rights law (hereinafter: IHRL).
While Israel’s official position has been that IHRL does not apply to the Palestinian territories,
since 2002 the HCJ has occasionally applied it as a complementary source to IHL. See HCJ
7957/04 Mara’abe v. The Prime Minister of Israel (September 15, 2005) [Hebrew; English
On the applicable law and its interpretation by the HCJ, see entry G: Geneva Law.
13 Israeli administrative law and, to the extent Jewish settlers are involved, constitutional law.
In HCJ 1661/05 Gaza Coast Regional Council v. The Israeli Knesset (2005) 59(2) PD 481, ¶¶
78–80, the court decided that the Israeli Basic Laws (which comprise the nascent Constitution
of Israel), including the Basic Law: Human Liberty and Dignity, apply in personam to Israelis
in the occupied territories, leaving open the question of the application of these laws to the
Palestinian residents of the same territories.
14 A search in online data bases supports this assessment. E.g., the term “Israeli Occupation”
currently generates some 19,000 results in the Google Scholar interdisciplinary database,
Israel’s Control of the Palestinian Territory 3
Yet, it seems that more laws, arming to the teeth trailing troops of lawyers,
legal advisors, judges, and scholars, have not operated to limit state violence.
Instead, more often than not, law has enabled this violence, cloaking the use of
force required to sustain the Israeli regime with a mantle of legitimacy.15
Judicial review exercised by the HCJ, for example, has rejected the overwhelming
majority of the petitions challenging the legality of various decisions
and actions of the occupying power.16 The very few (though highly
publicized) rulings in favor of petitioners have had no significant long-run
impact on Israel’s conduct in the OPT, other than, in some cases, “legalizing”
oppressive state practices or propelling Israel to pursue alternative legal
justifications.17 Scholarly work, in the main, has followed the footsteps of the
judiciary and other state agents, engaging in an assessment of the legality of
specific decisions and institutional practices rather than analyzing, in their
light, the role of law in structuring and sustaining the regime. Such an analysis
is at the heart of this study.
1.2 The Aims of the Study
This study is designed to accomplish several objectives. First, it sets out to
offer a detailed account of the ways in which international and domestic law
has been implicated in the multitude of measures taken by the Israeli
authorities to establish and maintain their control over the OPT. The first
15 See, e.g., Judge A. Kozinski: “In the end, we do not believe that more law makes for better law,”
in Hart v. Massanari 266 F 3d 1155, 1180 (9th Cir 2001). This notion can be traced to Cicero’s
dictum “The more law, the less justice” (Cicero, De officiis I (44 BC; Oxford: Oxford
University Press, 1994), pp. 10, 33). On the unbridgeable gap between law and justice see
16 R. Shamir, “‘Landmark Cases’ and the Reproduction of Legitimacy: The Case of Israel’s High
Court of Justice” (1990) 24 Law & Society Review 781, 783, provides data on judgments
rendered by the HCJ between the years 1967–1986, indicating that 99 percent of Palestinian
petitions were rejected. Y. Dotan, “Judicial Rhetoric, Government Lawyers, and Human
Rights The Case of the Israeli High Court of Justice during the Intifada” (1999) 33 Law &
Society Review 319, 334, provides data according to which in the years 1986–1995, 98.5 percent
of Palestinian petitions were wholly rejected, and some additional 3 percent were partly
accepted. He further notes that during the first Oslo Accord negotiations (1991–1993), the
Israeli military attorney general’s office tended to treat Palestinians differently according to
their factional affiliation: those affiliated with factions supporting the negotiations were treated
relatively leniently, while those affiliated with factions actively trying to undermine the
negotiations were handled as harshly as possible. Throughout the 1990s, the Israeli military
continued arresting and prosecuting Palestinians for actions committed during the Intifada.
L. Hajjar, Courting Conflict: The Israeli Military Court System in the West Bank and Gaza
(London:UCPress, 2005), pp. 124–126. Our own data up to 2014 indicates that some 99 percent
of Palestinian petitions were rejected.
17 Shamir, “Landmark Cases,” p. 797.
concept of “belligerent occupation,” with the 2003 military occupation of
Iraq by the US-led coalition forces, the Ugandan occupation of parts of the
Congo, Ethiopia’s 2006 occupation of parts of Somalia, Nicaragua’s occupation
of Isla Calero in 2010, and Russia’s occupation of certain areas of
Georgia in 2008 and Crimea in 2014. There have also been similar regimes,
even if labeled with ostensibly less disturbing names, such as “transformative/
humanitarian occupations” or “post-bellum regimes.”18 Against the
backdrop of these developments, a careful scrutiny of the experiments
carried out in Israel’s legal laboratory may well generate lessons that are
relevant to other situations, and indeed to the course of the development of
international law itself.
Second, the study seeks to highlight the nexus between the normative legal
text and the narrative context within which it is written and that endows it with
meaning. While decisions on the legality of a specific measure affecting the
occupied population often accept the normative relevance of international
law, they are neither made in abstracto nor by abstracted decision-makers.
The legal text is written in a national context by domestic decision-makers
(judges, legal advisors, and legislators) and, in most cases, its argumentation is
directed primarily at the national constituency.19 The interaction between an
international legal norm and a national narrative is among the key factors
determining the nomos of the regime. Insofar as “[n]o set of legal institutions
exists apart from the narratives that locate it and give it meaning,”20 it is
necessary to elucidate this nomos in order to understand the role international
law has played in instituting and maintaining Israel’s rule over the West Bank
and Gaza Strip.21
18 On the allegedly changing faces of foreign control/occupation reflected, inter alia, in their
different names, see e.g., Gross, The Writing on the Wall, pp. 38–51; Fox, Humanitarian
Occupation; S. Ratner, “Foreign Occupation and International Territorial Administration:
The Challenges of Convergence” (2005) 16 European Journal of International Law 695;
R. Wilde, International Territorial Administration: How Trusteeship and the Civilizing
Mission Never Went Away (Oxford: Oxford University Press, 2008).
19 As a general rule, judgments of the HCJ are written and published in Hebrew. Some landmark
decisions – notably those that are based on a sophisticated application of international law
coupled with an evocative narrative about the subjection of the executive to legal restraints
even in the face of terrorism – are published in English as well as Hebrew. It is interesting to
note that while Arabic, not English, is both an official language in Israel and the petitioners’
language, the judgments are not translated into Arabic.
20 R. M. Cover, “The Supreme Court 1982 term – Foreword: Nomos and Narrative” (1983) 97
Harvard Law Review 4.
21 See entry N: Nomos.
Israel’s Control of the Palestinian Territory 5
Third, by analyzing specific cases, measures, institutions, and legal concepts,
this study aims to provide insights into the immensely convoluted legal
architecture of the Israeli control regime. The book thus offers not merely
a comprehensive but also a detailed study of law’s role in constructing and
maintaining this regime, tracing the Ariadne’s thread woven by legal dentelie'rs
into the fabric of the regime.
Finally, the study delves into the relationship between the rule, the
norm, and the exception, as well as the ways in which this relationship
informs and is affected by Israel’s control of the West Bank and Gaza Strip.
This issue, the relevance of which exceeds well beyond the Israel/Palestine
context, is discussed in detail in Section 2. This jurisprudential discussion
includes an expose´ of the main methodologies used in the various entries
comprising this volume to explore the law–rule–exception relationship.
Section 3 focuses on the structure of this book and explains the methodological
choice to opt for the format of a lexicon for the study of law’s role in
the making and shaping of Israel’s rule over the Palestinian territories
conquered in 1967.
2 THE LAW–RULE–EXCEPTION RELATIONSHIP
2.1 General Overview
The law–rule–exception triad has been at the core of a rich jurisprudential
literature. Carl Schmitt conceptualized an exceptional situation as one that
poses a threat to the existence or survival of the state. Legal norms cannot fully
foresee every exceptional situation, nor can such situations, which are never
self-evident, be simply grounded in fact. Therefore, according to Schmitt, in
order to enable the state to overcome the exception, the sovereign must be
entrusted with deciding on the existence of an exception, and, subsequently,
with suspending the law previously in force.22 Many have drawn on this
formulation of the law–exception relationship (while rejecting Schmitt’s
authoritarian prescription), to examine various situations that either constitute,
or are comparable to, a state of emergency.23 This section touches upon
central themes of the jurisprudential discourse on the exception, including
reference to Walter Benjamin and Giorgio Agamben, whose highly influential
22 C. Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, G. Schwab
(trans.) (Chicago: University of Chicago Press, 1988).
23 However, in Schmitt’s own writing, the state of exception (Ausnahmezeustand in German) is
not simply equivalent to a state of emergency. S. Weber, “Taking Exception to Decision:
Walter Benjamin and Carl Schmitt” (1992) 22 Diacritics 5, 9.
In particular, this book sheds light on law’s role in shaping or transforming
distinctions between the rule and the exception in relation to the occupied
territories, as well as on the architecture and effects of specific rules and
exceptions deployed by the Israeli authorities. Two overarching lines of
critique, via which the book’s entries address these themes, will now be
The first, which enshrines concepts such as “the rule of law” and “legal
normalcy,” largely comports with a mode of thinking and operating that
Patricia Ewick and Susan Silbey have labeled “before the law.”25 This
approach generally tends to treat legal norms (here, especially international
legal norms) as “distinctive, yet authoritative and predictable,” as “a formally
ordered, rational, and hierarchical system of known rules and procedures.”
In this critique, legality appears, more often than not, “as something relatively
fixed,” if not in practice then in principle. In so doing, and in investigating
law’s operation in light of the premises of the dominant international legal
discourse, this critique tells international “law’s story of its own awesome
grandeur . . . Objective rather than subjective,” international legal norms are
“defined by . . . [their] impartiality.”26
The second line of critique amalgamates two other modes of thinking and
acting. The first, toward which this critique primarily leans, can be termed,
following Ewick and Silbey, “critiquing against the law.” It includes what they
have described as “exploit[ing] the interstices of conventional social practices
to forge moments of respite” – ideationally and concretely – “from the power
of law. . . . [P]art of the resistance inheres in . . . passing the message that
legality can be opposed, if just a little.” The second mode, which on the
basis of Ewick and Silbey’s terminology can be called “critiquing with the
law,” involves “playing” law “as a game . . . in which pre-existing rules can be
deployed and new rules invented to serve the widest range of interests and
values.” The concern is less with protecting or respecting (international) “law’s
24 On the dialogue (actual and ideational) between Benjamin and Schmitt, see Weber, “Taking
Exception to Decision.” Agamben’s writing refers to Schmitt and Benjamin extensively, as
discussed, e.g., in D. McLoughlin, “The Fiction of Sovereignty and the Real State of
Exception: Giorgio Agamben’s Critique of Carl Schmitt” (2016) 12 Law Culture and the
25 This use of this phrase clearly differs from its use in F. Kafka “Before the Law,” in Wedding
Preparations in the Country and Other Stories, W. Muir and E. Muir (trans.) (Longon:
Penguin Books, 1978), p. 127.
26 P. Ewick and S. S. Silbey, “The Social Construction of Legality,” in The Common Place of
Law: Stories from Everyday Life (Chicago: University of Chicago Press, 1998), p. 47.
The Law–Rule–Exception Relationship 7
power than . . . [with] the power . . . to successfully deploy and engage with the
By juxtaposing and/or combining these critiques, this study aims to produce
a multilayered analysis, richer than would have been possible through a single
2.2 Critiquing Before the Law
The normative point of departure for this line of critique is the foundational
principle of the Westphalian international order: namely, a presumption of
sovereign equality between states, each exercising effective control over its
territory, and people.28 Under current international law, while said sovereignty
is still attached mostly to states, it is increasingly understood as vested in the
people, giving expression to their right to self-determination.29 The latter is
conceived as the sine qua non for realizing freedom in its negative (freedom
from coercion) and positive (freedom of choice) senses.30 From this normative
perspective, a situation of belligerent occupation is the exception that suspends
the norm: it consists of a foreign military force exercising effective
control over a territory, despite having no sovereign title over that territory
and without the sovereign’s volition.31 In this manner, the link between
sovereignty and effective control is severed and the normal order concerning
27 Ibid., pp. 48–49. 28 Article 2(1) of the UN Charter.
29 On the right to self-determination, see generally, e.g., A. Cassese, Self Determination of
Peoples: A Legal Reappraisal (Cambridge: Cambridge University Press, 1995); S. Oeter,
“Self Determination,” in B. Simma et al. (eds.), The Charter of the United Nations:
A Commentary, Volume 1, 3rd edn. (Oxford: Oxford University Press, 2012), p. 313. In the
Palestinian context, see, e.g., M. Halberstam, “Nationalism and the Right to
Self-Determination: The Arab-Israeli Conflict” (1993–1994) 26 NYU Journal of International
Law and Politics 573; R. J. Tyner, “Wars of National Liberation in Africa and Palestine:
Self-Determination for Peoples or for Territories” (1978–1979) 5 Yale Studies in World Public
Order 234; J. Quigley, The Statehood of Palestine: International Law in the Middle East
Conflict (Cambridge: Cambridge University Press, 2010).
30 The expose´ of the normative framework provided here reproduces, mutatis mutandis,
pp. 543–546 of O. Ben-Naftali, “Belligerent Occupation: A Plea for the Establishment of
an International Supervisory Mechanism,” in A. Cassese (ed.), Realizing Utopia:
The Future of International Law (Oxford: Oxford University Press, 2012). It is noteworthy
that the common distinction between so-called “negative” and “positive” rights (or
duties), invoked by the present line of critique, is highly problematic. For criticism
see, e.g., H. Shue, Basic Rights: Subsistence, Affluence, and US Foreign Policy
(Princeton: Princeton University Press, 1980); J. P. Sterba, “The Welfare Rights of
Distant Peoples and Future Generations: Moral Side-Constraints on Social Policy”
(1981) 7 Social Theory and Practice 99.
31 E. Benvenisti, The International Law of Occupation, 2nd edn. (Princeton: Princeton
University Press, 2004), p. 4.
the occupied territory is suspended.32 Once the suspension of the norm
loses its temporariness, the exception becomes normalized. The normalization
of the exception severely affects the occupied population’s fabric of life,
the occupying power’s legitimacy, and, indeed, the very notion of the rule
As Giorgio Agamben has observed, the space where the temporary suspension
of the rule is indistinguishable from the rule has generated the conditions
of possibility for the concentration camp,33 but is not limited to Nazi
Lagers. It is paradigmatic of every situation where the political machinery of
the modern nation state finds itself in a continuous crisis and decides to take
it upon itself to defend the nation’s biological life, collapsing human rights
into citizens’ rights,34 subsuming humanity into citizenry and making the
former the “exceptionless exception.”35 In such a situation, the enemy,
stripped of human rights, is also stripped of her/his humanity. Having been
excluded from the body politic, s/he has only her/his own body as a political
tool and it is through this political body that s/he interacts with the body
politic that has thus reified her/him.36
The reason for the indeterminacy of the state of exception – Agamben has
argued, adapting Schmitt – is the absence of any necessary relation between
the decision on the state of exception and its factual existence. This allows for
an indefinite suspension of the norm, explains how the Nazis produced an
32 This notion of suspension was already recognized in the first attempt to codify the law of
belligerent occupation in the Brussels Declaration. See Final Protocol and Project of an
International Declaration Concerning the Laws and Customs of War (Brussels, 27.8.1874)
reprinted in D. Schindler and J. Toman (eds.), The Laws of Armed Conflict. A Collection of
Conventions, Resolutions and Other Documents (The Hague: Brill, 1988), p. 25.
33 G. Agamben, Homo Sacer: Sovereign Power and Bare Life, D. Heller-Roazen (trans.)
(Stanford: Stanford University Press, 1988), pp. 166–168.
34 Ibid., pp. 126–131, 174–176. Agamben, noting the very ambiguity of the title Declaration des
droits de l’Homme et du Citoyen, refers in this context to Arendt’s discussion of the paradox
wherein “The Conception of human rights, based upon the assumed existence of a human
being as such, broke down at the very moment when those who professed to believe in it were
for the first time confronted with people who had indeed lost all other qualities and specific
relationships – except that they were still human.” See H. Arendt, The Origins of
Totalitarianism (San Diego: Harcourt Brace, 1973), p. 299. Thus, says Agamben, in the nationstate
system, human rights that are considered inalienable have become meaningless once
they cannot be attached to the citizens of a nation-state. The refugee, the person who was
supposed to be the “human rights” person par excellence, has thus become the paradigm of
35 A term coined by Gross in his analysis of Schmitt’s theory of the exception. See O. Gross,
“Exception and Emergency Powers: The Normless and Exceptionless Exception: Carl
Schmitt’s Theory of Emergency Powers and the ‘Norm-Exception’ Dichotomy” (2000) 21
Cardozo Law Review 1825.
36 Agamben, Homo Sacer, pp. 187–188.
The Law–Rule–Exception Relationship 9
of the emergency situation, and also explains why the sovereign
cannot distinguish between the norm and the exception, thus failing to meet
the task Schmitt’s Political Theology assigned to it.37 In Schmittian terms, the
result may be conceptualized as blurring the line between law and fact: the
law continues to operate despite its suspension but no longer signifies “the rule
of law”: those subject to the state of exception are stripped of the legal rights
that would protect them, yet are still subject to law’s violence: “insofar as law is
maintained as pure form in a state of virtual exception, it lets bare life . . .
subsist before it.”38 The Goldstone Report captured this problem when noting,
in one of its concluding observations, that “a line has been crossed, what is
fallaciously considered acceptable ‘wartime’ behavior has become the
International law has contributed significantly to the blurring of this line.
And so has Israel’s use of this law over the years, with regard to a wide range of
measures designed to sustain, expand, and deepen Israeli control over the
OPT (while simultaneously perpetuating Israel’s self-perception and external
image as a law-abiding “defensive democracy” fighting “with one hand tied
behind its back”).40 Against this backdrop, the central proposition this line of
critique advances is that once law becomes implicated in obfuscating the
rule–exception relationship, it becomes itself infected and its legitimacy is
jeopardized. This proposition rests on several observations this critique seeks
to substantiate. First, the application of law to individual cases would typically
resort to various sophisticated interpretative techniques and methodologies
designed to advance the occupying power’s interests at the occupied people’s
expense. More often than not the result would frustrate the original purpose of
the rule at hand and would operate as a legitimizing device, encouraging
a discourse of various specific violations of human rights carried out in the
name of security to be perceived as exceptional, thereby concealing the reality
wherein said violations have become the rule, not the exception. Second, such
application of the law would contribute to and facilitate the formation of an
37 G. Agamben, State of Exception, K. Attell (trans.) (Chicago: University of Chicago Press,
2005), p. 58.
38 Agamben, Homo Sacer, p. 55 (and the discussion pp. 50–55).
39 UN Human Right Council, Report of the United Nations Fact-Finding Mission on the Gaza
Conflict, “Human Rights in Palestine and other Arab Occupied Territories,” September 25,
2009, A/HRC/12/48, ¶ 1433.
40 This is a recurrent narrative in the judgments of the HCJ pertaining to the OPT. See, e.g.,
HCJ 7015/02 Ajuri v. IDF Commander in the West Bank (2002) 56(6) PD 352 [Hebrew;
of human rights and the institutionalization of a culture of impunity.41
Third, over time, the resulting chain of specific anomalies would generate the
perception among the occupied population that the justice system itself is an
instrument not merely of power but of unpredictable violence, of arbitrariness,
where the absence of law is carried out under the name of law. Constant
exposure to law’s violence would engender violence.42
International law seeks to regulate the interruption created by belligerent
occupation. Such regulation signifies the need to distinguish both order from
chaos and the rule from the exception. In distinguishing between order and
chaos, its functio'n is to govern the situation; to prevent anarchy by entrusting
the occupying power with governing the occupied territory. In distinguishing
between the rule and the exception, its funct'ion is to establish the conditions
that would enable as swift as possible a return to the normal order of the
This, according to the present line of critique, is the role of the law of
belligerent occupation, a body of law that bears strong structural resemblance
to the normative framework applicable to an emergency regime. This regime,
the roots of which date back to the Roman-Commissarial model, rests on three
precepts: exceptionality, limited scope of powers, and temporary duration.43
The assumption on which this model is based is that a situation of emergency
is exceptional, hence separated from the ordinary state of affairs. For this
reason, its duration must be limited and it must not generate permanent
effects. This is also the reason for regarding the norm as superior to the
exception: the existing legal order defines the terms under which it is suspended,
and the powers granted in such a situation are to be used for the
purpose of an expeditious re-establishment of normalcy.44 Indeed, as modern
studies of emergency situations concerned with the derogation from human
rights law thereby occasioned have concluded, “[a]bove and beyond the
rules . . . one principle, namely, the principle of provisional status, dominates
all others. The right of derogation (of human rights) can be justified solely by
the concern to return to normalcy.”45
41 See, e.g., entry W: War Crimes. 42 See, e.g., entry V: Violence.
43 See T. E. Mommsen, The History of Rome (New York: Meridian Books, 1958), pp. 325–326;
For later references to this classical model, see, e.g., N. Machiavelli, The Discourses,
L. J. Walker (trans.) (London: Penguin Books, 1970), pp. 194, 198; J. J. Rousseau, The Social
Contract and Discourse, G. D. H. Cole (trans.) (London: Everyman, 1993), pp. 293–296.
44 For the essential features of the traditional model of emergency powers, see Gross, “Exception
and Emergency Powers,” pp. 1836–1839.
45 N. Questiaux, Study of the Implications for Human Rights of Recent Development
Concerning Situations Known as State of Siege or Emergency (1982) UN ESCOR 35th
The Law–Rule–Exception Relationship 11
this constitutional model, transporting it to the international arena: the normal
order is based on the principle of sovereign equality between states that
are, at least to some extent, presumed to be founded on the ideas of selfgovernment
and self-determination. The severance of the link between sovereignty
and effective control, and life under foreign rule – both features of
occupation – constitute an exceptional situation. The law of occupation
recognizes it as an exception to be managed so as to ensure expeditious return
to normalcy. This is why the occupant has only limited powers in terms of both
scope and time, and is not permitted to act in a manner designed to generate
As noted earlier, this mode of critique takes as its normative framework
the law of belligerent occupation, consisting of the 1907 Hague Regulations
Respecting the Laws and Customs of War on Land,46 the Fourth Geneva
Convention Relative to the Protection of Civilian Persons in Times of
War,47 and the Additional Protocol I of 1977.48 Over the past decades it
has been accepted that IHL provides the specific – though not exclusive –
law governing occupation (lex specialis), and that it is complemented by
IHRL.49 Three basic tenets, extractable from this body of law, will now be
Session, Agenda item 10, 69 UN Doc E/CN.4/Sub.2/1982/15, p. 20. Also see O. Gross and
F. Nı´Aola´in, “To Know Where We Are Going, We Need To Know Where We Are: Revisiting
States of Emergency,” in A. Hegarty and S. Leonard (eds.), Human Rights: An Agenda for the
21st Century (London: Cavendish Publishing, 1999), p. 79.
46 The Hague Convention (IV) Respecting the Laws and Customs of War on Land and its annex:
Regulations concerning the Laws and Customs of War on Land, The Hague, October 18,
1907, 205 CTS 277; 36 Stat 2277 [hereinafter: the Hague Regulations].
47 Geneva Convention Relative to the Protection of Civilian Persons in the Time of War,
Geneva, August 12, 1949, 75 UNTS 287 [hereinafter: GC IV].
48 Protocol Additional to the Geneva Conventions of August 12, 1949, and relating to the
Protection of Victims of International Armed Conflicts (Additional Protocol I), Geneva,
June 8, 1977, 1125 UNTS 3 [hereinafter: AP I].
49 See, e.g., Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ 226, ¶
25; Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion, 2004 ICJ 136, ¶ 106; Armed Activities on the Territory of the Congo
(Democratic Republic of the Congo v. Uganda), Judgment, 2005 ICJ 168, ¶¶ 216–217. See
generally, O. Ben-Naftali (ed.), International Human Rights and Humanitarian Law (Oxford:
Oxford University Press, 2011). For the position that the application of IHRL together with IHL
may not necessarily achieve its purpose and may indeed harm more than ameliorate the
human rights of “protected people,” see A. Gross, The Writing in the Wall, pp. 338–396.
50 For a comprehensive expose´ of these basic tenets, see O. Ben-Naftali, A.M. Gross, and
K. Michaeli, “Illegal Occupation: The Framing of the Occupied Palestinian Territory”
(2005) 23 Berkeley Journal of International Law 551.
Effective control by foreign military forces suspends, but does not transfer
sovereignty. The prohibition on annexing an occupied territory is the normative
consequence of this principle.51 Under current international law, and in
view of the principle of self-determination, sovereignty remains vested in the
occupied people. This principle is currently undisputed. Its development
merits attention primarily because history – that is, change over time – is
hardly ever a linear process of progression; regression to imperial domination
remains an ever-present possibility. It is thus worthwhile to take account, albeit
briefly, of this development.
The roots of the principle of the inalienability of sovereignty date back to
the post-Napoleonic wars and the restoration of a European order, designed
to protect the ruler’s sovereignty from intervention by another state. Given
that the political legitimacy of European rulers at the time was based on
either dynastic monarchy or popular democracy, the principle was designed
to accommodate both systems and minimize disruption by preventing one
from overthrowing the other.52 In the relationship between the European
and the non-European world, conquest remained a legally valid way to
acquire sovereignty until the twentieth century.53 The international community’s
gradual renunciation of the use of force as an acceptable policy,
coupled with decolonization processes and the ensuing right to selfdetermination,
have internationalized this hitherto exclusively European
order. Accordingly, the prohibition on annexation of territory, differentiating
between occupation and sovereignty, coheres with the corpus of general
international law core principles of sovereign equality, self-determination,
Given, however, that such principles have not been inscribed on a tabula
rasa, it is little wonder that the very occurrence of an occupation echoes the
sorry story of the “civilizing mission,” and that “alien occupation” of whatever
type has been grouped together with colonial domination, racist
regimes,55 and related practices of subjugation, domination, and
51 S. P. Sharma, Territorial Acquisition, Disputes and International Law (Leiden: Kluwer Law
International, 1997), p. 148.
52 E. Benvenisti, “The Origins of the Concept of Belligerent Occupation” (2008) 26 Law and
History Review 621. N. Bhuta, “The Antinomies of Transformative Occupation” (2005) 16
European Journal of International Law 721.
53 S. Korman, The Right of Conquest: The Acquisition of Territory by Force in International Law
and Practice (Oxford: Oxford University Press, 1996), p. 9.
54 See Articles (2), 2(1), 2(4), 2(7) and 55 of the UN Charter. 55 Article 4 of AP I.
The Law–Rule–Exception Relationship 13
and foreign occupation, and implies that the very phenomenon of occupation
is viewed with suspicion and is likely to generate resentment and
resistance. This is a fortiori the case with prolonged occupations and with
“transformative occupations” – that is, occupations that purport to replace
the sociopolitical system of the occupied territory with a system akin to that
of the occupying power. The association between such attempts and imperialism
may well explain why the various international interventions of the
1990s shied away from either describing themselves as occupations or
indeed from referring to the law of belligerent occupation. From this
perspective, former president George W. Bush’s admission that the
American and British troops occupying Iraq were “welcomed, but it was
not a peaceful welcome” should not have come as a surprise,57 nor should
the subsequent resurgence. Foreign occupation connotes subjugation, not
liberation. Reflecting this understanding are the distinction between sovereignty
and occupation (as discussed in Section 2.2.2) and the consequential
limits placed on the occupant’s governmental authority (as discussed in
2.2.2 An Occupation Is a Form of Trust Precluding the Introduction
of Major Systemic Change
The basic rule regulating the occupant’s governmental authority is articulated
in Article 43 of the Hague Regulation. Under this rule, the occupant is vested
with the authority “to take all the measures in his power to restore, and ensure,
as far as possible, public order and safety/civil life, while respecting, unless
absolutely prevented, the laws in force in the country.”58 This rule, thus,
imposes two categories of obligations on the occupant: (a) to protect the
56 See Declaration on Principles of International Law Concerning Friendly Relations and Cooperation
among States in Accordance with the Charter of the United Nations, UN General
Assembly, October 24, 1970, A/RES/2625(XXV).
57 In an interview with Brian Williams, NBC News (December 12, 2005), cited in A. Roberts,
“Transformative Military Occupation: Applying the Laws of War and Human Rights” (2006)
100 American Journal of International Law 580, 616.
58 The authoritative French version uses the phrase “l’ordre et la vie publics.” The English
translation reads: “public order and safety.” Since the authoritative text of the Hague
Regulations is in the French language, the English text has no legal standing. For the
discussion of the difference between the French and the English versions of Article 43 of
the Hague Regulations, see Y. Dinstein, “Legislation under Article 43 of the Hague
Regulations: Belligerent Occupation and Peace-Building” Harvard Program on
Humanitarian Policy and Conflict Research, Occasional Paper No.1 (2004), pp. 2–4.
economic, and sociopolitical institutions in the territory.
The first category reflects humanitarian concerns.59 It has evolved over time
to incorporate the concept of trusteeship, the beneficiaries of which are the
inhabitants of the territory.60 Admittedly, this is a sui generis form of trust
insofar as it carries with it a potential conflict of interests between the occupant’s
security needs and the inhabitants’ welfare. In the nineteenth century,
this framework produced two primary rules: the occupant was mainly incumbent
with the negative duty of refraining from infringing on the inhabitants’
most basic rights, while the latter were incumbent with a duty of obedience to
the occupant.61 Over time, the scale began to tip to the inhabitants’ side: the
GC IV seems to reject the idea that the occupied population was under any
obligation to obey the occupant.62 In parallel, it has considerably expanded
the protection due to the inhabitants, in respect of both negative and positive
duties. This process has culminated in the coapplication of IHL and IHRL to
occupied territories. Nevertheless, the GC IV explicitly subjects some of the
guarantees afforded to the population to military necessity and conditions63
and empowers the occupant to take various measures against “protected
persons.”64 It is thus clear that situations where the occupation either is met
with strong resistance in general (such as the occupation of Iraq), or produces
such resistance (the occupation of the Palestinian Territory being the quintessential
example), threaten the viability of this precarious balance.
The second category of obligations, which prohibits the occupant from
instituting major changes in the occupied territory, has its origins in the abovediscussed
preservation of the sovereignty (inclusive of the domestic governmental
system) of the ousted rulers in Europe. This limitation on the
59 Originating in the principle of distinction between civilians and combatants, see Benvenisti,
“Origins of the Concept of Belligerent Occupation,” pp. 624–627.
60 Construction of a Wall, ¶ 88; Separate Opinion of Judge Koroma, ¶ 2, explicitly stated that
occupied territories “constitute . . . a sacred trust, which must be administered as a whole in
the interests both of the inhabitants and the legitimate sovereign or the duly constituted
successor in title”; cf. Separate opinion of Judge Higgins, ¶ 2; Separate opinion of Judge
Kooijmans, ¶ 33.
61 R. R. Baxter, “The Duty of Obedience to the Belligerent Occupant” (1950) 27 British Yearbook
of International Law 235.
62 E.g., the terms “war rebellion” and “war treason” were not incorporated in the Convention.
Furthermore, while providing the occupant with the right to take measures against “protected
persons” who carry out acts detrimental to the occupant’s security (GC IV, Articles 27, 64), it
nevertheless preserves most of their rights under the Convention (ibid., Articles 5, 68).
63 E.g., ibid., Articles 27, 49, 51, 53.
64 Promulgating penal laws (ibid., Article 64); assigning residence (ibid., Article 78); and internment
(ibid., Article 42).
The Law–Rule–Exception Relationship 15
Currently known as the “conservation principle,” it highlights the distinction
between temporary occupation and sovereignty.66 Given that the latter is
attached to the occupied people, the principle protects local selfdetermination.
In this context too, both transformative and prolonged occupations
threaten the viability of this principle: the former because the objective
of redesigning the existing system stands in direct conflict with its
conservation;67 the latter because maintaining the status quo may well
become a mandate for stagnation and defy the obligation to promote the
inhabitants’ welfare.68 This point invites a discussion of the third tenet of the
law of belligerent occupation.
2.2.3 An Occupation is a Temporary Form of Control
The idea that an occupation is a temporary form of control that may not
generate permanent results is undisputed. Indeed, it is implicit in both the
principle that occupation does not confer title and in the conservation principle.
The notion of limited duration further coheres with the exceptionality
of the regime and highlights the need to resume, as quickly as possible, the
normal international order of sovereign equality.
65 Ibid., Article 64.
66 J. L. Cohen, “The Role of International Law in Post-Conflict Constitution-Making: Toward
a Jus Post Bellum for ‘Interim Occupations’” (2006–2007) 51 New York Law School Law
Review 496, 498–499.
67 Viewed from the perspective of the conservation principle, a “transformative occupation”
mocks the law. When measured against the idea that an occupation is distinct from sovereignty
and that, therefore, it is necessary to preserve the sovereign’s decision-making capacity
in matters pertaining to its sociopolitical and economic profile, that is, its right to selfdetermination,
the very concept of “transformative occupation” is an oxymoron which
challenges the basic assumptions of the law of belligerent occupation. See Bhuta,
“Antinomies of Transformative Occupation”; N. Bhuta, “New Modes and Orders:
The Difficulties of a Jus Post-Bellum of Constitutional Transformations” (2010) 60
University of Toronto Law Journal 799.
68 Viewed from the perspective of human rights, however, “transformative occupations,”
designed to substitute a democratic for a despotic form of government, arguably create the
conditions of possibility for self-determination. From this perspective, the argument has been
made that a law that fails to advance this objective is anachronistic and should be updated.
See, e.g., G. H. Fox, “The Occupation of Iraq” (2004–2005) 36 Georgetown Journal of
International Law 195. A somewhat less radical variation of this view holds that resort to
dynamic interpretations, which reads broadly the “unless absolutely prevented” proviso,
allows for the reconciliation of transformative objectives with the conservation principle
without a legislative reform. See, e.g., Roberts, “Transformative Military Occupation,”
The greatest challenge to this principle comes not only from reality, but
from law itself: the law of occupation, while providing for the provisional
status of the occupation regime, does not set time limits on its duration. In this
particular regard, the present critique departs from its overall location “before
the law,” as described in Section 2.2. This absence of time limits has been
construed to mean that an occupation can continue indefinitely.69 This
construction obfuscates the crucial distinction between the “temporary” and
the “indefinite”: a temporary situation definitely has an end; an indefinite
situation may or may not have an end. Indeed, if an occupation could
continue indefinitely, the interests it is designed to protect would all become
meaningless: (i) the inhabitants’ interest in regaining control over their life
and exercising their right to self-determination; (ii) the interest of the international
system in resuming the normal order of sovereign equality between
states; and (iii) the interest of the international rule of law in maintaining the
distinction between the norm (the principle of sovereign equality) and the
2.3 Critiquing Against/With the Law
Another critical approach, interwoven throughout some of this book’s entries,
presents various challenges to dominant legal frameworks, while refraining
(unlike the former approach) from committing itself to any totalizing normative
agenda.71 This critique differs from the former one in at least five respects.
While these differences raise complex theoretical questions, a succinct overview
suffices for the purpose of this introduction.
69 Shamgar, “Legal Concepts and Problems of the Israeli Military Government,” p. 43.
70 GC IV, Article 6, is the only provision that tackles directly the issue of the duration of an
occupation. It does so, alas, in an implausible manner, providing for the continued applicability
of only some of the Convention’s provisions. This may well be construed by occupying
powers as limiting their obligations toward the inhabitants precisely in situations where
greater protection is needed. Indeed, the text indicates the drafters’ assumption that occupations
would normally be of short duration. Once it became clear that this assumption was
defied by reality and that it may generate counterproductive results, the provision was
abrogated: AP I, Article 3(b), provides for the application of the law of belligerent occupation
until the termination of the occupation. It does not, however, provide for time limits for its
duration. See Construction of a Wall, Separate Opinion of Judge Elaraby, ¶ 3.1; Separate
Opinion of Judge Koroma, ¶ 2. See entry T: Temporary/Indefinite.
71 This position is also influenced by the post-structuralist skepticism toward totalizing grandnarratives.
See, e.g., J.F. Lyotard, The Postmodern Condition: A Report on Knowledge,
G. Bennington and B. Massumi (trans.) (Minneapolis: University of Minnesota Press, 1984).
On post-structuralism generally see, e.g., I. Buchanan, A Dictionary of Critical Theory
(Oxford: Oxford University Press, 2010), p. 381.
The Law–Rule–Exception Relationship 17
and their counters, “illegal” and “exception” (or “fact”) – are not self-evident
givens from which conclusions can be deduced, but are complex, elusive, and
contestable products of legal discourse and action.72 Consequently, the
rule–exception distinction is treated as an object of inquiry rather than as
a point of departure. The task therefore becomes to carefully scrutinize the
construction, deployment, and interplay of the (so-designated) “rule” and
“exception,” and the effects thereof.
Second, a conceptual distinction between “the exception” and “the rule”
can be maintained while acknowledging, at the very least, that these terms are
neither historically nor structurally antithetical. Historically, as Walter
Benjamin famously observed, “the tradition of the oppressed teaches us that
the state of emergency in which we live is not the exception but the rule.”73
Indeed, for at least a century now, the apparent exception has been anything
but exceptional. Across the globe, emergency powers have drastically
increased in scope, and the definition of “emergency” has been broadened
far beyond military conflicts to justify routine governmental powers serving the
interests of socioeconomic elites.74 The fact that Israel has been in a declared
state of exception since its establishment underscores the point.75 Structurally,
the state of exception is powerfully tied to the legal rule. For Carl Schmitt (and
72 On meaning as the product of use, see, e.g., J. L. Austin, How to Do Things with Words, 2nd
edition (Cambridge, MA: Harvard University Press, 1975); J. Derrida, Writing and Difference,
A. Bass (trans.) (Chicago: University of Chicago Press, 1980); L. Wittgenstein, Philosophical
Investigation, P. M. S. Hacker and J. Schulte (eds.), G. E. M. Anscombe et al. (trans.) (4th
edn., Hoboken: Wiley-Blackwell, 2009). On international law as a realm of practices and
discourses producing distinctions between, for example, “compliance” with and “violation” of
international law, or between “wartime” and “peacetime,” see D. Kennedy, Of War and Law
(Princeton: Princeton University Press, 2006). On law (generally) as revolving around the
production of such distinctions, see N. Luhmann, “Operational Closure and Structural
Coupling: The Differentiation of the Legal System” (1988) 15 Journal of Law and Society
153. Though a relevant source of reference in this regard, Luhman’s writing has important
limitations in other regards. For criticism see, e.g., M. Valverde, Law’s Dream of a Common
Knowledge (Princeton: Princeton University Press, 2003), pp. 6–7. On law as subject to an
endless deference of meaning see J. Derrida, “Before the Law,” in J. Derrida and D. Attridge
(eds.), Acts of Literature (London: Routledge, 1991). See also text and note 91.
73 W. Benjamin, “Theses on the Philosophy of History,” in H. Arendt (ed.), Illuminations: Essays
and Reflections, H. Zohn (trans.) (Berlin: Schoken, 1969), p. 257.
74 See, e.g., M. Neocleus, “The Problem with Normality: Taking Exception to ‘Permanent
Exception’” (2006) 31 Alternatives 191.
75 See HCJ 3091/99 The Association for Civil Rights in Israel v. The Knesset (May 8, 2012)
[Hebrew]. An international legal manifestation of this constant state of emergency, which
will not be discussed in this book, is Israel’s declaration to the UN upon ratifying the
International Convent on Civil and Political Rights in 1991. The declaration states that
Israel does not see itself bound to Article 9 of the Convent, which forbids arbitrary detention,
legal order by establishing the conditions for its reapplication after its suspension,
thereby maintaining law’s authority.76 A critique “against/with the law,”
however, construes this link as even stronger, in two interrelated respects: first,
far from being a lawless or extralegal space, the state of exception brims with
law – with legal texts, procedures, mechanisms, and discourses;77 second, to
a large extent, many of the oppressive practices and policies associated with the
(assumed) exception actually reproduce or originate from practices and policies
in the supposedly normal legal order.78
A third difference is that the present critique, rather than regarding international
law (and law generally) as its normative basis, treats it as inherently
violent. Put explicitly, violence is viewed as integral to the so-called “normal”
legal order, not as an aberration from this order.79 It is in line with this
violence, and also due to law’s malleability to diverse (and often competing)
interpretations, that law provides a framework not only for engaging with the
limits of belligerent control, but also for continuing war and state violence by
in light of Article 4, which reads: “In time of public emergency . . . the States Parties to the
present Covenant may take measures derogating from their obligations,” International
Convent on Civil and Political Rights, opened for signature December 19, 1966, 999 UNTS
171 (entered into force March 23, 1976). For a discussion of this issue, see J. Quigley, “Israel’s
Forty-Five Year Emergency: Are There Time Limits to Derogations from Human Rights
Obligations?” (1994) 15 Michigan Journal of International Law 491.
76 Schmitt, Political Theology, pp. 12–15; Agamben, State of Exception, p. 58. It is also
a significant element of the inclusive exclusion characteristic of the Israeli occupation. See
the aptly titled A. Ophir et al. (eds.), The Power of Inclusive Exclusion: Anatomy of Israeli Rule
in the Occupied Palestinian Territories (New York: Zone Books, 2009).
77 See, e.g., P. Fitzpatrick and R. Joyce, “The Normality of the Exception in Democracy’s
Empire” (2007) 34 Journal of Law and Society 65; N. Hussain, “Beyond Norm and
Exception: Guanta´namo” (2007) 33 Critical Inquiry 734, 737–750; F. Johns, “Guanta´namo
Bay and the Annihilation of the Exception” (2005) 16 European Journal of International
78 See entry O: Outside/Inside. For discussion beyond the Israeli–Palestinian context, see, e.g.,
J. Forman, Jr., “Exporting Harshness: How the War on Crime Helped Make the War on
Terror Possible” (2009) 33 NYU Review of Law and Social Change 331; E. Herna´ndez-Lo´ pez,
“Guanta´namo as Outside and Inside the US: Why is a Base a Legal Anomaly?” (2010) 18
Journal of Gender, Social Policy and Law 471; J. T. Parry, “Torture Nation, Torture Law”
(2009) 97 Georgetown Law Journal 1001; W. R. Levi, “Interrogation’s Law” (2009) 118 Yale Law
Journal 1434; N. T. Saito, “Colonial Presumptions: The War on Terror and the Roots of
American Exceptionalism” (2009) 1 Georgetown Journal of Law and Modern Critical Race
Perspectives 67; A. Anghie, “The Evolution of International Law: Colonial and Postcolonial
Realities” (2006) 27(5) Third World Quarterly, 739–753; C. Jochnick and
R. Normand,“The Legitimation of Violence: A Critical History of the Laws of War” (1994)
35(1) Harvard International Law Journal 49–95.
79 See especially entries L: Lawfare and V: Violence.
The Law–Rule–Exception Relationship 19
law to shape and legitimize their violent actions.80
Fourth, in this account, the so-called “normal” political order is no less
perilous than the “normal” legal order to which it is inextricably tied.
Therefore, this critique does not share the previous critique’s lament over
the purported suspension of the international order by the prolonged belligerent
occupation. Nor does it share the tendency of legalistic approaches to
fetishize the principle of state sovereignty,81 upon which the international
order is based. In short, from this critical perspective, neither state-centrism
nor a reversion to the dominant international order should be extolled as an
ideal solution to the ills of belligerent control.
Lastly, just as legal and political norms are not necessarily praiseworthy, so
the exception is not, by definition, deplorable. Moreover, in certain circumstances,
the exception can open a space for justice. This insight follows Walter
Benjamin’s assertion that in normal situations, the state employs oppressive
“law-preserving violence” to protect its monopoly on violence, whereas in the
state of exception the bell tolls for the oppressed: “pure violence” erupts,
destroying or suspending the law. An example of such “pure violence,”
Benjamin claimed, is the proletarian general strike, which – unlike the
instrumental violence of partial and political general strikes – demands radical
transformation of the state-enforced capitalist labor system.82 Giorgio
Agamben and Jacques Derrida have each developed this notion in different,
but potentially related, directions. Agamben advocated a “real” state of exception,
neither statal nor juridical, which would obliterate, or at least undermine,
the normalized (and in this regard “fictitious”) state of exception that
has been imposed on humanity.83 Derrida, in comparison, defined responsibility
as, among other things, “the experience of absolute decisions made
outside of . . . given norms, made therefore through the very ordeal of the
undecidable.”84 “[F]or a decision to be just and responsible,” maintained
Derrida, “it must . . . conserve the law and also destroy it or suspend it enough
80 See, e.g., Kennedy, Of Law and War; Jochnick and Normand, “The Legitimation of
81 For criticism of this tendency, see K. McEvoy, “Beyond Legalism: Towards a Thicker
Understanding of Transnational Justice” (2007) 34 Journal of Law & Society 411, 421–424.
82 W. Benjamin, “Critique of Violence,” in P. Demetz (ed.), Reflections: Essays, Aphorisms and
Autobiographical Writings (Berlin: Schoken, 1986), pp. 277, 290–292, 300.
83 Agamben, Homo Sacer; Agamben, State of Exception, p. 59. For discussion of this aspect of
Agamben’s writing see McLoughlin, “Fiction of Sovereignty.”
84 J. Derrida, The Gift of Death, D. Wills (trans.) (Chicago: University of Chicago Press, 1995), p.
5. For discussion of the US detention facility at Guanta´namo Bay through the prism of
Derrida’s notion of responsibility, see Johns, “Guanta´namo Bay,” pp. 615, 633–634.
different and requires an absolutely unique interpretation, which no existing,
coded rule can or ought to guarantee absolutely.”85
This critical approach aims to pursue this perhaps-impossible yet imperative
ideal of simultaneously conserving and destroying the law.
2.4 Convergence and Divergence
The question of how these two lines of critique relate to each other is open to
interpretation. On the one hand, given the different angles from which they
address the Israeli control regime, some may regard them as mutually exclusive,
at least in some senses. On the other hand, in many respects, they can be
viewed as potentially complementary, and in some cases seemingly contrasting
views are merely differences of emphasis. This book leaves room for these
different interpretations, with some entries endeavoring to tie these lines of
critique together, whereas others lean exclusively toward one or the other.
Whichever way one interprets the interrelation of these critiques, their important
commonalities are undeniable, including the realization, discussed earlier,
that Israel’s rule over the West Bank and Gaza Strip, far from being
a space of lawlessness, is in fact filled to the brim with legalism.
Neither of these lines of critique – it is important to stress – is simply
“internal” or “external” to law, especially considering the porosity, elasticity,
and contestability of law’s (imagined) boundaries.86 Instead, these critiques
exemplify different types of “legal consciousness” – “before,” “with,” and
“against” the law – as defined in Ewick and Silbey’s insightful, if inevitably
schematic, writing on the subject. Ewick and Silbey explain:
Legality is not inserted into situations; rather, through repeated invocations of
the law and legal concepts and terminology, as well as through imaginative
and unusual associations between legality and other social structures, legality
is constituted . . . We use the phrase “legal consciousness” to name participation
in the process of constructing legality. . . . The production [of legality]
85 J. Derrida, “Force of Law: The Mystical Foundations of Authority” (1990) 11 Cardozo Law
Review 919, 961. For discussion see, e.g., P. Goodrich, “Postmodern Justice,” in A. Sarat,
M. Anderson, and C. O. Frank (eds.), Law and the Humanities: An Introduction (Cambridge:
Cambridge University Press, 2009).
86 See, e.g., P. Schlag, “The Dedifferentiation Problem” (2009) 42 Continental Philosophy
Review 35. Characterizing law’s boundaries as “imagined” does not diminish the “realness”
of their consequences. For a similar claim in relation to the category “nationality” see
B. Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism
(New York: Verso, 1983).
The Law–Rule–Exception Relationship 21
not merely a state of mind. Legal consciousness is produced and revealed in
what people do as well as what they say.87
Seeing law and legality as ever-changing products of discourse, imagination,
and practice – a view long shared by prominent jurists88 – also sheds light
on the nature of law in Israel’s control of the West Bank and Gaza Strip.
In addition to Israel’s formal legal institutions and texts, there are also, no less
importantly, Israeli soldiers on the ground. While not professionally lawyers,
they too engage in the sort of activity Ewick and Silbey would characterize as
“legal consciousness.” Among other things, soldiers produce various, and at
time concurrent, narratives of legality and illegality in the OPT, narratives that
largely revolve around the question of the ability, or the authority, to locate
and identify the rule and the exception. Thus, in testimonies of Israeli exsoldiers,
the OPT is sometimes described as a space of lawlessness, where
“there is no law, only Jewish interests.” According to another narrative, the
OPT is in fact replete with law, but since soldiers “only follow orders” they are
somewhat distinguishable and remote from that law. In yet another narrative,
soldiers not only perform but actually embody the law, a dynamic that finds its
ultimate manifestation whenever a soldier asserts: “I am the law.”89
Thus, Israel’s control of the West Bank and Gaza Strip, on the one hand,
and this study, on the other hand, engage in and produce different legal
formations. To reflect the particular legal patchwork of the Israeli control
regime, this book is organized in the form of a legal lexicon, as explained in the
3 THE LEXICON FORMAT
The book is structured in a lexical format, comprising 26 alphabetically
ordered entries. Each entry, from A: Assigned Residence to Z: Zones, focuses
on a legal, administrative, and/or military term/concept that is central to the
modus operandi of Israel’s rule over the West Bank and Gaza Strip. Each entry
begins descriptively, with a definition, description, or presentation of the legal
doctrine relative to the term/concept as a terminus a quo for the ensuing
discussion. The latter focuses on the actual use, or role, of the term/concept
87 Ewick and Silbey, “Social Construction of Legality,” pp. 43–46.
88 See, e.g., Cover, “Nomos and Narrative”; R. M. Cover, “Violence and the Word” (1986) 95
Yale Law Journal 1601.
89 M. Zagor, “‘I am the Law!’ – Perspectives of Legality and Illegality in the Israeli Army” (2010)
43 Israel Law Review 551. See entry W: War Crimes.
thus encompasses both the traditional func'tion of a lexicon, as an instrument
for the organization of knowledge, and the fun'ction of reflecting on this
knowledge in a critical manner that challenges and redefines it.
These analytical and deconstructive moves take place at both the level of
each separate entry and also, through abundant cross-references, at the level of
their interaction. Indeed, to a large degree, the meaning of each term or
concept is to be found in its relation to the other terms and concepts discussed
in this book. This conception of meaning as relational is inspired in part by
Ludwig Wittgenstein’s “family resemblance” theory, and in part by Derrida’s
writing on “diffe´rance.” According to Wittgenstein, certain words acquire
their meaning not by standing for certain objects, but by the relationship
between their different uses.90 Derrida’s argument is more far reaching: that
meaning always entails an endless movement/play of differences, in which
words are defined by appealing to their (ever unstable) differences from other
words that have been, or will be, used.91
A lexical format has been adopted in, and adapted to, a wide variety of
genres, covering the whole gamut from autobiographies92 to televised
documentaries,93 literary criticism,94 journals of political philosophy,95
and international human rights law,96 to name a few. This format was also
used in the 1980s, to provide information on facts, agencies, and institutions
affecting life in the West Bank.97
90 Wittgenstein, Philosophical Investigation.
91 J. Derrida, “Diffe´rance,” in Margins of Philosophy, A. Bass (trans.) (Chicago: University of
Chicago Press, 1982); Derrida, Writing and Difference. Derrida was not the first to argue that
terms acquire meaning through their relation to other terms, but one of the differences
between him and, for example, structuralist linguist Ferdinand de Saussure, is his emphasis
on the inherent instability of conceptual differences, distinctions, and oppositions. Cf F. de
Saussure, Course in General Linguistics, W. Baskin (trans.) (New York: Philosophical Library,
92 E.g., C. Milosz, Milosz’s ABC, M. Levine (trans.) (New York: Farrar, Straus and Giroux,
93 L’Abe´ce´daire de Gilles Deleuze, avec Claire Parnet (1996) (A French documentary television
program produced in 1988–1989, consisting of an eight hours series of interviews with
Deleuze, organized from Animal to Zigzag).
94 R. Barthes, The Pleasure of the Text, R. Miller (trans.) (New York: Hill & Wang, 1975) (literary
criticism from “Affirmation” to “Voice”).
96 S. Marks and A. Clapham, International Human Rights Lexicon (Oxford: Oxford University
97 M. Benvenisti et al., The West Bank Handbook: A Political Lexicon (Boulder: Westview Press,
The Lexicon Format 23
law’s role in the making and shaping of the Israeli control regime rests
primarily on the centrality of language to law and, more specifically, on the
performative nature of legal language.98 Legal language does more than
merely describe reality, and even more than enable or limit action: it creates
reality, and shapes both experience and consciousness.99 The alphabetical
order that serves as the organizing principle of this book underscores both the
centrality of language to law and the performativity of a (local) dialect of the
(international) legal language, in two nuanced ways.
First, the Israeli control regime itself maintains an order that at times may
seem arbitrary and at times carefully designed. To an extent, the lexicon
reflects and responds to this highly complex order: its alphabetical structure
is somewhat arbitrary, but the terms and concepts under examination have
been carefully selected and interlinked. At the same time, as Michel Foucault
has shown generally,100 and as this book demonstrates in relation to the Israeli
regime, an apparently arbitrary order, if closely inspected, can be highly
valuable for revealing the dominant epistemic forces at play.
Second, the lexicon allows for attention to detail: its formality may be
analogized to a fisherman’s net, which yields definitive shapes from what
98 Austin, How to Do Things with Words; J. R. Searle, Speech Acts: An Essay in the Philosophy of
Language (Cambridge: Cambridge University Press, 1969); J. R. Searle, “A Taxonomy of
Illocutionary Acts,” in K. Gu¨ nderson (ed.), Language, Mind and Knowledge, volume VII
(Minneapolis: University of Minneapolis Press, 1975); P. F. Strawson, “Intention and
Convention in Speech Acts” (1964) 73 Philosophical Review 439; K. Bach and M. Harnish,
Linguistic Communication and Speech Acts (Cambridge, MA: MIT Press, 1979).
The concept of performative speech has had an enormous impact on social theory; see,
e.g., M. Foucault, The Archaeology of Knowledge, A. M. Sheridan Smith (trans.) (London:
Routledge, 2002); J. Butler, Excitable Speech: a Politics of the Performative (London:
Rutledge, 1997). International legal scholarship has also been thus influenced; see, e.g.,
W. G. Werner and J. H. de Wilde, “The Endurance of Sovereignty” (2001) 7 European
Journal of International Relations 28.
99 It is little wonder that such discursive practices characterize the world of law: performative
speech acts are made, for the most part, by reference to a law or a convention (i.e., in
conventionally designated circumstances), by authorized people exercising their authority in
conformity with the relevant conventions. See K. Bach, “Speech Acts,” in Concise Routledge
Encyclopaedia of Philosophy (London: Routledge, 1999).
100 M. Foucault, “Preface,” in The Order of Things: An Archaeology of the Human Sciences
(New York: Pantheon Books, 1970), p. xvi (using the example of the seemingly arbitrary,
fantastic, and fictitious taxonomy of animals depicted by Jorge Luis Borges in his
The Analytical Language of John Wilkins as a point of departure for discussing the epistemic
structures of the human sciences). For a critique of the postmodern mistrust of structural
classifications in reference to Foucault’s example, see A. Peters and H. Schwenke,
“Comparative Law Beyond Post-modernism’” (2000) 49 International and Comparative
Law Quarterly 800, 825–826.
fish and other treasures caught in the net do come from the same river,
opening the possibility to learn about the environment in which they were
bred and cultivated. The lexicon format does just that: focusing on specific
terms and concepts and pointing to their interconnectedness, it offers an
opportunity to consider the nomos of the regime – that is, law’s interrelation
to the vocabularies that constitute and traverse it in the OPT.
101 A metaphor used by Israeli novelist, Dan Tsalka, in the introduction to his alphabetically
structured autobiography; see D. Tsalka, Sefer Ha’Alef-Beit [Book of ABC] (Tel Aviv: Hargol,
The Lexicon Format 25