The Condition of Democracy Volume 3: Postcolonial and Settler Colonial Contexts 9780367745387, 9780367745394, 9781003158387, 9780367745400

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The Condition of Democracy

Classical liberal democratic theory has provided crucial ideas for a still dominant and hegemonic discourse that rests on ideological conceptions of freedom, equality, peacefulness, inclusive democratic participation, and tolerance. While this may have held some truth for citizens in Western liberal-capitalist societies, such liberal ideals have never been realized in colonial, postcolonial, and settler colonial contexts. Liberal democracies are not simply forms of rule in domestic national contexts but also geo-political actors. As such, they have been the drivers of processes of global oppression, colonizing and occupying countries and people, appropriating indigenous land, annihilating people with eliminatory politics right up to genocides. There can be no doubt that the West – with its civilizational Judeo-Christian idea and divine mission ‘to subdue the world’ – has destroyed other civilizations, countries, trading systems, and traditional ways of life and is responsible for the death of hundreds of millions of human beings in the course of colonizing the world from its Empires of trade through colonialism to settler colonialism and today’s politics of regime change. The book discusses the settler colonial regime that Israel has established in Palestine while still claiming to be a democracy. It discusses the failures of liberal democracy to overcome the structural and racist inequalities in post-Apartheid South Africa, and it presents hopeful outlooks on new ideas and forms of democracy in social movements in the MENA region. Jürgen Mackert is Professor of Sociology and co-director of the ‘Centre for Citizenship, Social Pluralism and Religious Diversity’ at Potsdam University, Germany. His research interests include sociology of citizenship, political economy, closure theory, and collective violence. Recent publication: Social life as collective struggle: Closure theory and the problem of solidarity, SOZIALPOLITIK.CH (2021). Hannah Wolf is a Researcher and Lecturer at the Chair for General Sociology at the University of Potsdam, and associate member at the DFG-collaborative research centre ‘Re-Figuration of Spaces’. Her research interests include urban sociology, theories of space and place, and citizenship studies. Latest publication: Am Ende der Globalisierung: Über die Refiguration von Räumen (ed. with Martina Löw, Volkan Sayman and Jona Schwerer), 2021, transcript.

Bryan S. Turner is Research Professor of Sociology at the Australian Catholic University (Sydney), Emeritus Professor at the Graduate Center CUNY, Honorary Max Planck Professor at Potsdam University, Germany, and Research Fellow at the Edward Cadbury Center, University of Birmingham, UK. He holds a Cambridge Litt.D. In 2020 with Rob Stones he published ‘Successful Societies: Decision-making and the quality of attentiveness’, British Journal of Sociology, 71(1), 183–202.

The Condition of Democracy Volume 3: Postcolonial and Settler Colonial Contexts

Edited by Jürgen Mackert, Hannah Wolf and Bryan S. Turner

First published 2022 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 605 Third Avenue, New York, NY 10158 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2022 selection and editorial matter, Jürgen Mackert, Hannah Wolf and Bryan S. Turner; individual chapters, the contributors The right of Jürgen Mackert, Hannah Wolf and Bryan S. Turner to be identified as the authors of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data A catalog record has been requested for this book ISBN: 978-0-367-74538-7 (hbk) ISBN: 978-0-367-74539-4 (pbk) ISBN: 978-1-003-15838-7 (ebk) ISBN: 978-0-367-74540-0 (set) Typeset in Times New Roman by Deanta Global Publishing Services, Chennai, India

Contents

List of tables List of contributors

vii viii

Introduction: A ‘master-race democracy’: Myths and lies of Western liberal civilization 1 JÜRGEN MACKERT

PART 1

Democracy as a progressive force and the failure of liberal democracy 15   1 The Algerian hirak: Citizenship, non-violence, and the new movement for democracy 17 JESSICA AYESHA NORTHEY

  2 Stateless radical democracy and law in Autonomous Administration of North and East Syria 33 ZEYNEP KIVILCIM

  3 South Africa and the crisis of liberal democracy: Settler-colonial modernity and a dominant friend-enemy conception of politics 50 THIVEN REDDY

PART 2

Palestine: Settler colonialism and the impossibility of democracy 69   4 Israeli conception of ‘peace’ as indirect colonial rule 71 TARIQ DANA

vi Contents   5 The struggle for democratic space under violent settler colonialism and authoritarian rule 90 HELGA BAUMGARTEN

  6 Moving mountains?: Palestinian claim making from Oslo onwards 110 REBECCA BURKERT

  7 Political resistance and contested citizenship 128 SCOTT A. BOLLENS

  8 Municipal elections in occupied Jerusalem: Why do Palestinians boycott? 146 MUNIR NUESEIBAH

  9 How the Law of Return creates one legal order in Palestine 157 HASSAN JABAREEN

10 The discourse of exceptionalism: Civil and human rights in Israel 185 ILAN PAPPE

Index

199

Tables

6.1 Relationship between organizations’ geographic location and their working areas 6.2 Relationship between organizations’ founding dates and their working areas

123 124

Contributors

Helga Baumgarten is Professor em. for Political Science at Birzeit University where she taught in both the PhD programme for the Social Sciences and the MA programme Democracy and Human Rights. She has published on Palestinian nationalism, on political Islam, and on the problem of transformations in the Arab region. Scott A. Bollens is Professor and Warmington Endowed Chair of Peace and International Cooperation, University of California, Irvine. He studies urbanism and political conflict in contested cities. His recent book is Trajectories of Conflict and Peace: Jerusalem and Belfast since 1994 (2018). Rebecca Burkert is a Doctoral Candidate at Potsdam University and Project Officer at the Catholic Peace Movement pax christi. Her research areas include citizenship studies, civil society engagement, and nonviolent resistance with a regional focus on Israel/Palestine. Tariq Dana is Assistant Professor and faculty member at the Conflict and Humanitarian Studies programme at the Doha Institute of Graduate Studies. He is a policy advisor for the Palestinian Policy Network and an associate editor of Middle East Critique. His research includes areas of settler colonialism and conflict and peace studies with a particular focus on Palestine. Hassan Jabareen, PhD, is the General Director of Adalah – The Legal Center for Arab Minority Rights in Israel and an Adjunct Lecturer in the Law Faculty of Tel Aviv University. Zeynep Kıvılcım is an Associate Professor of public international law. She got her MA and PhD degrees from Université Paris II. Her work deals with the politics of legality with a gender perspective. She is currently an Einstein Foundation Senior Fellow at Humboldt-Universität zu Berlin. Jürgen Mackert is Professor of Sociology and co-director of the ‘Centre for Citizenship, Social Pluralism and Religious Diversity’ at Potsdam University, Germany. Research interests: sociology of citizenship, political economy, closure theory, collective violence.

Contributors  ix Jessica Ayesha Northey is Assistant Professor at the Centre for Trust, Peace and Social Relations at Coventry University. She is country expert for Algeria with the Bertelsmann Foundation Transformation Index and is the author of Civil Society in Algeria: Activism, Engagement and the Democratic Process (2018). Munir Nueseibah is a human rights lawyer and academic based in Al-Quds University in Jerusalem, Palestine. He is an assistant professor at Al-Quds University’s faculty of law; the director (and co-founder) of Al-Quds Human Rights Clinic, the first accredited clinical legal education programme in the Arab world; and the director of the Community Action Center in Jerusalem. Ilan Pappe is Professor of History and Director of the European Centre for Palestine Studies at the University of Exeter. He has published extensively on Palestine and the Middle East, including The Ethnic Cleansing of Palestine (2007) and two books with Noam Chomsky. His most recent book is The Biggest Prison on Earth: A History of the Israeli Occupation (2019). Thiven Reddy is an Associate Professor in the Department of Political Studies at the University of Cape Town, South Africa. He has authored Hegemony and Resistance (2000) and South Africa: Settler Colonialism and the Failures of Liberal Democracy (2015).

Introduction A ‘master-race democracy’: Myths and lies of Western liberal civilization Jürgen Mackert

In his impressive documentary HyperNormalisation, British filmmaker Adam Curtis (2016) reveals two critical aspects of Western ‘liberal civilization’ that contradict the self-image of ‘the West’, which a powerful discourse organized by the ruling classes, oligarchic economic and financial elites, and consensusgenerating corporate ‘liberal’ media in Western liberal democracies has created. While this discourse praises the promises of Western liberal civilization and liberal democracy, Curtis emphasizes that these stories are an integral part of the West’s myths and lies. Concentrating on the decades since 1970, he shows how two seemingly separate developments – the destruction of democracy in the core of Western capitalism and the continuing colonial attitude of Western civilization and geo-political strategies of liberal democracies in the Middle East – make comprehensible the disastrous state of the world and the demise of democracy on a global scale. First, Curtis shows that during the last decades in the countries of the capitalist centre, neoliberal governmentality has executed an assault on ‘liberal democracy’. While its elites still pretend it to be the best of all worlds, liberal democracy has been hollowed out and its citizens disenfranchised (Brown, 2011), wealth has been redistributed to the wealthy, and instead of being a system to give power to the citizens it has turned into nothing but a ‘realm of lesser evil’ (Michéa, [2007] 2009). Without any doubt, in the countries of the West there has been a rupture. Today we see that even in the core of the capitalist West, liberal democracy, if ever, worked for citizens only during the short period of three decades after World War II. In this period, nationally regulated ‘embedded liberalism’ (Ruggie, 1982) was the outcome of class struggles leading to the reformist compromise of the ‘social rights state’ (Block, 1994) and the expansion of citizenship rights (Marshall, 1950). This historically unique arrangement in Western societies became possible only after state and market had fundamentally discredited themselves because of their roles in Fascism and Nazism. Moreover, in the face of the system contradiction of capitalism and socialism during the Cold War the former was urged to prove to be more promising for citizens than the latter by granting not only civil and political, but also social rights and entitlements. While liberal democracy during the trente glorieuse had not been perfect, it nevertheless allowed citizens to participating in society and engage in struggles of old and new

2  Jürgen Mackert social movements defending existing rights, extending them, and fighting for new rights (Brown, 2003). These days are over. A new neoliberal rationality of governance (Foucault, [2004] (2007) has transformed liberal democracy into a power system that does not operate for the sake of its citizens but has created an entirely hypocritical oligarchic system (D’Eramo, 2013) that first and foremost aims at depriving normal citizens of power and putting corporations, the wealthy, and the greedy new financial elite in their place (Shipman, Edmunds & Turner, 2018). Second, Curtis emphasizes that there is no way to understand the political, economic, and social situation in the countries of the Middle East without taking into consideration the imperial and colonial occupation of those countries and the West’s interferences in their internal affairs as well as their ongoing destabilization by Western liberal democratic societies during the last decades. In detail the documentary shows how in the 1970s the US and the West did everything to undermine and prevent former Syrian President Hafez al-Assad’s efforts to unite Arab nations in order to establish a political counterweight to the dominance of the West in the Middle East and to put an end to the West’s excessive influence in the region. This assessment, among other events, came from the sometimes open but mostly stealth interventions of the West in the affairs of these countries. To name but a few: more than a decade before the 1970s the CIA- and UK-led coup d’état of the democratically elected government of Iranian PM Mohammad Mossadegh in 1959, who had dared to socialize the oil reserves of his country. Curtis then explicitly refers to the massacres of Palestinians that Israel, the colonial outpost of the West in the Arab world, allowed and enabled Christian-Lebanese militias to commit in the refugee camps Sabra and Shatila in Beirut in 1982 after ethnically cleansing Palestine and expelling Palestinians to Lebanon, making them and their descendants refugees and stateless persons. Further, and to look at another world region, we can also instance the West’s dishonest celebrations of the end of South African Apartheid in 1994 that for decades the liberal democracies had wholeheartedly supported and militarily stabilized but then dropped after the demise of the Soviet Union. In this historic situation Apartheid was replaced with (neo)liberal democracy that looked more civilized to the world than a settler-colonial terror regime, but did not replace its fundamental racist social inequalities. Today, in the name of liberal democracy, the West hypocritically uses its ‘values’ such as democracy, freedom, peace, or human rights to justify invasions like in Iraq, the war in Yemen where the Western Alliance daily commits and allows crimes against humanity, or the West’s role in the wars in Libya, in Kurdistan, in Syria, and so on and so on. HyperNormalisation not only reveals the destruction of liberal democracy during recent decades in the West but also shows that it has created a web of myths and lies about Western civilization – as a liberal market civilization and as a Judeo-Christian one – that are completely inconsistent with historic reality. Yet, Western governments with the help of the media are still able to maintain the hegemonic hypocrisy that ‘the West is the best’, that they are interested in substantial democracy, and that they defend human rights all around the globe. This spreading untruth works to this day, regardless of war crimes during the invasion

Introduction  3 of Iraq, to name just one example of many, for which the responsible George W. Bush and Tony Blair of course have never been sued as war criminals. However, while Curtis shows all this excellently, in order to understand what constitutively holds together these developments and understand both the deplorable condition of democracy and the sources of justifying the colonization of the world in the name of Western civilization, we need to turn to classic liberal theory.

The dark side of liberalism It might come as a surprise that we find the reasons and justifications for these two developments in the writings of classical liberals, who in the West are recognized and revered as the founding fathers of the theory of ‘liberal democracy’. Here, we come across another well-kept secret created by another hegemonic discourse that to the present day treats classic liberals exclusively as the founders of liberalism as a realm of freedom, equality, and democracy. To be sure, liberalism may have been a progressive form at some time; yet, much more important is the fact that classical liberals in their works fiercely argued against democracy at home and abroad. They established both an utterly negative discourse on democracy in the ‘civilized’ Western countries in order to deny the working classes participation in political decision-making, and a White supremacist discourse in that the enlightened liberals saw the colonized simply as savages, beasts, or barbarians that could not be treated as human beings at all. Thus, liberalism justified not only keeping the masses in the centre disenfranchised but liberal ideology also has laid the foundation of White supremacy and the West’s pretension to be civilized, thereby establishing the still effective distinction of ‘The West and the Barbarians’ (Losurdo, 2104, pp. 219–240). Liberalism as anti-democratic As early as in 1977 when the rising neoliberal and conservative revolutions were beginning to undermine liberal democracy, C.B. Macpherson published The Life and Times of Liberal Democracy, reconsidering the false promises of liberalism with regard to democracy. In this almost forgotten book, Macpherson does no less than unmask our belief that liberal philosophers such as Jeremy Bentham, James Mill, James Stuart Mill, or later Joseph Schumpeter were convinced democrats. Rather, a close reading shows that they all rejected democracy and tried to impede it as a form of rule of law that would include all citizens, regardless of their economic status. In the work by Jeremy Bentham ([1817] 1838–1843, [1820] 1838–1843) and James Mill (1820), we find the conviction that before introducing the franchise, which they saw as useful in principle, the ideologies and institutions of liberal individualism should be firmly established in society. For them the coincidence of entitlements to formal equality and the social equality of the economic reality created a dual problem: the political system should yield a government to implement and promote a free market society while at the same time protect the

4  Jürgen Mackert citizens from the government’s striving for enrichment. This kind of political theory excluded large parts of the population from the franchise and was in favour of it only because of its function of protecting private property. Bentham was in favour of a democratic right to vote only when convinced that the poor would not vote in order to achieve redistribution or to demand to abolish private property. In this conception of ‘liberal democracy’, the democratic right to vote was thought to protect the bourgeoisie and their property and to improve the government of the rich. There is no single idea of any kind of democratic equality. A generation later, John Stuart Mill ([1845] 1967, [1848] 1967, [1859] 2001) agreed in seeing the democratic right to vote as a way to protect private property against the lower classes and as a way to be protected against the government. Further, it should protect the perfection of humanity, as he saw democracy as a necessary yet not sufficient means to proceed on the path to a future society with liberty and equality. The progress he expected consisted in individual development with regard to power of judgement, civility, self-activity, or efficiency. Thus, the worth of any individual was based on developing his human capacities. Of course, Mill argued that in class society, the interests of the classes were opposed, and he was afraid that the principle ‘one man, one vote’ might allow the working class, which outnumbered the bourgeoisie, to assert itself in order to realize its interests. Mill thus suggested to weight votes differently, as education and knowledge were of utmost significance for him, which is why the educated should not share power with the uneducated. The parliament should have legislation checked by experts who had not been elected; Mill was in favour of bypassing parliamentary procedures and so forth. It is obvious that the heroes of liberal democracy were anything but in favour of democracy, yet they laid the foundation stone of a system that today we call liberal democracy. As their models of liberal democracy intended to protect private property or reduce democracy to a formal repetitive act (Schumpeter, [1942] 2008), liberal democracy from its beginnings was a concept that had no interest in overcoming the contradiction of an inequality-generating economic system and an alleged system of formal equality and the realization of the general suffrage. Great liberal minds: The men who believed in barbarism Liberal theorists’ idea that rich, influential, and White men should govern poor, normal, and uneducated people, whom they despised, tells a lot about the role that equality, participation, and a democratic ethos actually play in liberalism. Yet it gets much worse if we turn to the thoughts of great liberal minds with regard to the West’s colonies and settler colonies. In fact, it is hardly known that in the writings of the great liberal minds we find all ingredients of White supremacy – back then and until today. It is the merit of intellectuals like Mahmood Mamdani (2015) and philosophers like Charles W. Mills (1997) and Domenico Losurdo (2014) to have unmasked the ideologies that have been and still are created to present liberalism as having an elective affinity with democracy and as being the saviour of the globe, bringing

Introduction  5 civilization. Quite the contrary, it was great liberal minds, firmly standing in the Judeo-Christian tradition, who opened Pandora’s box to let all the ingredients of White racial supremacism into the world. Losurdo shows that among many other liberals ‘not even Mill had any doubts about the dominion the “European race” was called upon to exercise over the rest of the world’ (Losurdo, 2014, p. 225) at once giving it a religious dimension of the White race ‘being called’ to reign over all others. De Tocqueville in this regard added: The European race has received from heaven, or acquired by its own efforts, such incontestable superiority over the other races which compose the great human family that the man placed by us, on account of his vices and ignorance, on the bottom rung of the social scale is still first among the savages. (de Tocqueville, 1951, pp. 103, 105, quoted in Losurdo, 2014, p. 228 – emphasis added) This supremacist conviction that justified settler colonialism as a civilizational task explains the cynicism towards those to be colonized: Despotism is a legitimate mode of government in dealing with barbarians, provided the end of their improvement, and the means justified by actually affecting that end. Liberty, as a principle, has no application to any state of things anterior to the time when mankind have become capable of being improved by free and equal discussion. Until then, there is nothing for them but implicit obedience to an Akbar or a Charlemagne, if they are so fortunate as to find one. (Mill, [1859] 2001, p. 14 – quoted in Losurdo, 2014, p. 225) Despotism and slavery, seeing indigenous people as ‘born slaves’, distinguishing between ‘superior and inferior races’, and ‘Civilization and Barbarism’ allowed settlers to fulfil their civilizational task and declared Natives to be ‘uncivilized races’ (Mill), ‘beasts’, ‘wild men’, or ‘savages’ (de Tocqueville). This philosophical perception of the divine mission of Western civilization not only dehumanized the Natives but also legitimized settlers to decimate, eliminate, and extinguish them in genocides. In the French liberal’s words: ‘Once we have committed the major violence of the conquest, I believe we must not shrink from the minor forms of violence absolutely required to consolidate it’ (de Tocqueville [1846] 1984, quoted in Losurdo, 2014, p. 237). Besides the philosophical legitimation, of course genealogical myths and stories in the Bible were of fundamental significance. Settlers’ beliefs of being the ‘Chosen People’, exercising ‘the Lord’s will’ that sent them to ‘the Promised Land’, ‘regarding themselves as descendants from “Abraham’s stock”’ (Losurdo, 2014, p. 230) and as ‘the image of God’ they followed his demand ‘to subdue the earth and dominate it’. All this makes the Old Testament another source that legitimized all the convictions, crimes, and genocidal acts of the civilized White Christian race.

6  Jürgen Mackert John Stuart Mill was convinced that ‘the colonies of European race’ were fully entitled to self-government, meaning the right of White settlers to govern themselves and create a settler democracy. Yet the conception of ‘the people’ being the White settlers only has proved to be serious and catastrophic for the Natives. In his The Dark Side of Democracy, Michael Mann (2005) has developed a convincing explanation of why settler democracies have always been extremely murderous. In this situation two ethnic groups clashed over a monopolistic resource, land, and most settlers did not need native labor to work it. Economic power relations were uniquely the prime mover of colonial cleansings. Yet property rights also required settlers to claim exclusive legal sovereignty over the territory at present possessed by natives … This economic-political clash was the exacerbated by the military/ideological imbalance of power … The settlers could eliminate the out-group with little military or moral risk to themselves. (Mann, 2005, p. 109) Neither liberal minds nor settlers accepted that a land not divided private property could be declared to be populated. Thus, while de Tocqueville – disregarding the existence of Natives – declared the land to be settled as ‘wilderness’, ‘Locke and Montesquieu preferred to speak of “virgin forests”’ (Losurdo, 2014, pp. 230– 231). De Tocqueville was even more explicit: Although the vast country that I have been describing was inhabited by many indigenous tribes, it may justly be said at the time of its discovery by Europeans, to have formed one great desert. The Indians occupied without possessing it. It is by agricultural labor that man appropriates the soil, and the early inhabitants of North America lived by the produce of the chase. (de Tocqueville, ([1935–1949] 1994, p. 25 – quoted in Losurdo, 2014, p. 231 – emphasis added) Revealing only the surface of this dark core of liberalism that is widely unknown allows us to understand the sources of the real meaning and history of Western civilization. This history is one of disenfranchising poor and ‘normal’ people at home, denying them the status of citizenship and degrading them to being subjects, while the promises of liberal civilization of the Abendland (Forlenza, 2019) meant nothing but colonising other parts of the world in order to exploit other peoples’ resources and labour power. Moreover, it is a history of violently appropriating land by settling and threatening indigenous populations with elimination and genocide. From the establishment of Merchant Empires (Tracy, 1991) in the fourteenth century and the ‘Great Conquest’ (Chomsky, 1993) in the fifteenth century, through colonialism and settler colonialism to today’s doctrine of system change and military invasions covered as humanitarian intervention, European expansion has never been about ‘doux commerce’ or ‘trade and barter’. Rather, it has always

Introduction  7 been about enslavement, the exploitation of resources and human beings, about imperial authority and economic dominance – and about taking the land of others. While Western colonizers brought ‘civilization’ with ‘the bible and the sword’, today the West defends its interests called ‘values’ with ‘anti-Muslimism and drone wars’ and through the power of Western-dominated international organizations such as the UN, the World Bank, or the International Monetary Fund whose programmes and politics are designed to keep the ‘barbarians’ in their subordinated position. We can see the consequences of what settler colonialism has done to the world and the people it colonized and occupied in any of these societies. What they established were White settler democracies bringing to the fore the dark side of Western civilizations. This is no less true for Europe’s last settler-colonial project, which is Israel that for over 70 years now has illegally occupied Palestine.

Israel: A settler-colonial ‘dual state’ As early as in 1896 Theodor Herzl in The Jewish State made a generous offer to the ‘civilized’ Western nations to get their support for the foundation of a Jewish state in Palestine: We should there form a portion of a rampart of Europe against Asia, an outpost of civilization as opposed to barbarism. We should as a neutral State remain in contact with all Europe, which would have to guarantee our existence. (Herzl, [1896] 1946, p. 15 – emphasis added) From the very beginning it was obvious that Zionism saw itself as part of the tradition of Western colonization of the world (Herzl, [1896] 1946, p. 7 and passim). Thus, we should just leave aside Zionism’s – Christian or Jewish – referring to the fairytales, myths, and lies of the Bible, using religion to conceal the real interests of Zionism and Europe until today. Then we see that the civilized West’s tradition of settler colonialism, its barbarism of White supremacy, degrading other people as well as the powerful support from Christian Zionism in Europe and its settler colonies promoted the colonization and occupation of Palestine. Moreover, the West knew that the occupation of Palestine would be a violent act of terrorism and war. Edward Said ([1979] 1992, p. 69) pointed to that very clearly: ‘Zionism never spoke of itself unambiguously as a Jewish liberation movement, but rather as a Jewish movement for colonial settlement in the Orient’. Expressing this truth he took Herzl seriously, who had not left any doubt that settling in an already inhabited country would mean destroying another culture and civilization, killing and expelling millions of human beings: ‘If I wish to substitute a new building for an old one, I must demolish before I construct’ (Herzl, [1896] 1946, p. 9). This of course is a metaphorical formulation for the many methods of violent destruction when occupying the land of others. Yet, demolishing houses in the literal sense is in fact one of the many current eliminatory strategies of the Israeli

8  Jürgen Mackert occupation of Palestine. On the evening of 3 November 2020, while writing this introduction, the Israeli Defense Forces (IDF) extinguished a whole Palestinian Bedouin village in the Jordan Valley: On 3 November 2020, at around 11:00 A.M., the Civil Administration came with a military escort, two bulldozers and two diggers to the community of Khirbet Humsah in the northern Jordan Valley. The forces demolished 18 tents and sheds that housed 11 families, numbering 74 people in total, 41 of them minors. The forces also demolished 29 tents and sheds used as livestock enclosures, three storage sheds, nine tents used as kitchens, 10 portable toilets, 10 livestock pens, 23 water containers, two solar panels, and feeding and watering troughs for livestock. They also destroyed more than 30 tons of fodder for livestock and confiscated a vehicle and two tractors belonging to three residents, demolishing all houses (B’Tselem, 2020; see also Holmes, 2020). One cannot assess such an atrocity differently than an act of ethnic cleansing of the Jordan Valley and a crime against humanity. Yet while the UN was not very happy with it, neither the EU, the so-called ‘Union of Values’, nor any of its single member states stood up in order to defend not only the ‘bare life’ of Palestinians but also the alleged ‘values’ of Western civilization and the Bible against this barbarian act. The ‘civilized’ West remained silent – once again – and in doing so, Israel and the West simply confirm Claude Lévi-Strauss’s deep insight that ‘[the] barbarian is, first and foremost, the man who believes in barbarism’ (Lévi-Strauss, [1952] 1958, p. 12). Michael Mann, in his analyses of ethnic cleansings, has convincingly argued that ‘[today], colonial cleansing continues in Palestine and in the back lands of Latin America and Asia, chasing indigenous peoples from their land’ (Mann, 2005, p. 109). While Israel desperately wants to be recognized as a ‘normal’ democracy that is also ‘unique’, it shows all the features of settler colonialism that is ‘the worst form of colonialism’ (Noam Chomsky). The Zionist colonization of Palestine – the 1948 war and the eliminatory logic of the ‘Nakba’ with the destruction of hundreds of Palestinian villages, the deportation of hundreds of thousands of Palestinians, their displacement, and their being forced to flee to other countries – is the actual founding act of Israel as a typical settler-colonial state. This past is not dead – ‘it is not even past’ (William Faulkner). Every day this violence operates as the driving force of Israel’s ongoing eliminatory politics against Palestinians in uncountable variations, among them the creation of the biggest ghetto on earth in the Gaza Strip, the continuing illegal annexation of Palestinian land, the killings and the dehumanization of a whole people, and the destruction of its civilization. While its history makes Israel a very ‘normal’ settler-colonial society with all its atrocities, as such – not as a democracy – it is also ‘unique’ in a double sense. First, in contrast to other settler-colonial projects, Zionist ideology and the following colonization are a phenomenon of the nineteenth/twentieth century. Therefore,

Introduction  9 besides all the legitimising ingredients of classical liberalism and Judeo-Christian religious fervour from the Old Testament, it also carries the typical features of the historical context in which it was developed: the radical nationalism of the time propagating ‘organic societies’, and the fact that the founders of right-wing Zionism, which today is the hegemonic ideology in Israel, had been inspired by Mussolini’s Fascism (Kupfert Heller, 2017). Second, as a settler-colonial society Israel is unique in the sense that it was established against the background of an already existing and further developing body of international law that condemns the illegal and illegitimate occupation of a populated land. In settler-colonial tradition Israel claims that Palestine was an empty land (although millions of Palestinians had to be expelled from it; see Pappe, 2006) and argues that Jews were the original population and the land therefore belongs to them (although all new archaeological evidence shows that Palestinians have a much longer history and tradition there; see Masalha, 2018). By arguing in this vein, today, Israel rejects UN resolutions that condemn the illegitimate and illegal occupation of Palestine. Neither the ongoing breach of international law, Israel’s war crimes, nor the war against the civilian Palestinian population, the annexation of land, secret prisons, or systematic torture are obstacles to a hypocritical loyalty among the civilized Western ‘democracies’ to the settler-colonial state. The much-vaunted liberal democracies having pledged eternal allegiance to the last European settlercolonial project ultimately express the dark side of liberalism – its anti-democratic roots and White supremacy as one of its main driving forces. The West, instead of unreservedly supporting Israel’s claims to be a democracy and pretending to share Western values with it, should ask itself some simple questions: ··

··

··

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Can we call a country that still today is unwilling to define its territorial boundaries a democracy or is it simply an aggressive settler-colonial project, posing a threat to all its neighbouring countries and millions of human beings (see Ilan Pappe’s chapter in this volume)? Can we call a state that only in 2019 passed an explicitly racist ‘basic law’ a democratic state or has it simply declared itself an Apartheid state that treats huge parts of the population according to different laws in an arbitrary way (see Hassan Jabareen’s and Munir Nuseibah’s chapters in this volume)? Can we call a society that does not accept UN resolutions or international law and permanently violates the high values of human rights by denying a huge part of its population the ‘right to have rights’ (Hannah Arendt) a democracy? Or is it simply a typical occupation power? Can we call a society that subjugates groups of people on the basis of ethnicity and religion, reducing them to second-class citizens and/or simply subjects of colonial rule, to stateless persons or refugees, a democracy or is it just a despotic colonial regime executing typical indirect colonial rule (see Tariq Dana’s chapter in this volume)?

10  Jürgen Mackert ·· ··

Can we call a society that is fascinated with religious ‘purity’ a democracy or is it essentially an archaic religious revenge society? Can we call a country that suppresses civil society organizations, democratic processes, and political movements (see Rebecca Burkert’s chapter in this volume, and in a comparative perspective Scott Bollens’s contribution) but also imprisons their leaders, putting them in prison, torturing them, keeping them arbitrarily in administrative detention, rejecting the right of seeing a lawyer, and so forth a democracy? Or is it simply a despotic and racist regime that fails to meet with the minimal requirements of civilised behaviour (for resistance to all such practices see Helga Baumgarten’s chapter in this volume)?

Rather than being a democracy, Israel has established what Ernst Fraenkel (1941) has called a ‘dual state’ that has developed two distinct pillars of its jurisdiction – one for Jews only and the other for Palestinians and other non-Jewish groups. While Jews have full citizenship subject to the laws of a ‘Normal State’, Palestinians are subject to the laws of a ‘Prerogative State’ that arbitrarily refers to Israeli military law, Ottoman law, British colonial law, Jordanian law, the laws from Oslo I and II, and so forth to punish Palestinians. Such a state, in Fraenkel’s words, is simply a dictatorship. By definition, it cannot be a democracy. We may call it a ‘settler-colonial dual state’. Israel’s uniqueness therefore is not of any democratic nature but simply consists in its barbarian eliminatory and outright genocidal politics against Palestinians regardless of international resolutions, law, bodies, and the no less barbarian fact that Western ‘civilized liberal democracies’ applaud it and stand at its side. With regard to Palestine and the Palestinians, ‘liberal’ democracy, liberal Judeo-Christian civilization, the values of the EU, and so forth are nothing but a myth and outright lies that allow Western liberal democracies to stand firmly with Israel’s Apartheid state and defend their colonial outpost whatever it takes.

Global riots: Democracy as a progressive force To conclude this introduction, in spite of all of (neo)liberalism’s subversive impeding and preventing of democratic developments and its having established a ‘Master-race democracy on a global scale’ (Losurdo, 2014), the powerful idea of democracy is more alive than ever. In recent years, all over the world from Lebanon to Palestine, Algeria to Turkey, Brazil to Chile, the US to Canada, and all over Europe for various reasons people are taking to the streets demanding democracy. It is striking that nowhere on the banners of any of these global movements when making claims against the powerful, do we see any demands for ‘liberal democracy’ which has been discredited and has nothing to offer to them. Consequently, in their protests they challenge both original sins of liberalism – its betraying real democracy and its establishing, supporting, and justifying colonial and imperial undemocratic regimes.

Introduction  11 This becomes obvious in the case of South Africa, where ‘liberal democracy’ has proved to be utterly useless for overcoming the deep racial and economic inequalities of the centuries-long existing regime of race segregation. As a cure for overcoming an Apartheid system like in South Africa, neoliberal shock doctrines after 1994 have proved to be a lethal drug from the West for those who had suffered from race segregation. After transition, the fundamental character of a capitalist economy that under Apartheid had already promoted exploitation, eliminatory politics, the redistribution of wealth, and so forth was never called into question. The introduction of (neo)liberal democracy which stressed the significance of formal equality but defended the legitimacy of social inequality and the protection of private property simply continued history as new wine in old skins without fundamentally reorganising the economic structures of Apartheid. Thus, the new socio-economic system started from centuries-long inscribed and deeply entrenched inequalities, stabilising the given distribution of private property and wealth. As such, the new system that claimed to bring democracy stabilized and rigidified given structures of inequality, trying to make people believe that they now all start with the same opportunities. This of course was a wellknown ideological liberal claim if not an outright lie of the West’s proponents of liberal democracy and the realization of neoliberal governmentality. Liberal democracy has not tamed and dissolved inequality in South Africa but triggered a reconceptualization of politics in Schmittian terms of ‘friend and foe’ (see Thiven Reddy’s chapter in this volume). Yet, people do not stop to make claims on the powerful, demanding democracy: they demand their fundamental and inalienable rights – their ‘right to have rights’, their rights to water, food, housing, social security, health, and education – and they demand equality and justice. They defend their ideas of the common good that is more than the selfish, greedy, and senseless piling up of wealth in the pursuit of a nonsensical individualistic liberal market civilization and needs to be an antidote to White supremacism. The West no longer serves as a model for democratic struggles. As Jessica Aeysha Northey shows in her chapter on the Algerian hirak, the supposedly largest and longest lasting peaceful demonstrations in favour of democracy and against a ruthless and corrupt regime – of course supported by the West – are going back to their cultural traditions to create specific new forms of resistance. This is not only a deeply impressive sign of a democratic movement in the (Middle East and North Africa) region but no less an eventual example for other Arab societies. Further, as Zeynep Kivilcim shows in her contribution to this volume, we can also observe forms of radical democracy such as in the autonomous regions of north and east Syria. Inspired by anarchist writers, organizations are experimenting with decentralized democratic opinion formations and decision-making, women playing a critical role, like in so many other movements we see all over the globe. As many of these movements reject the presentation of one person as the leader of their movement, laying stress on collective decision-making and continually decentralising power, we see that there is no such thing as a selective affinity of liberalism and democracy. Rather, in this historical situation we see once again

12  Jürgen Mackert the progressive and liberating common ideas of both democracy and anarchism if we understand both as processes and movements to dismantle ossified structures and systems of authority to reduce the power of man over man and not as ideologies to justify power systems. In this sense, from ‘Black Lives Matter’ to ‘Palestinian Lives Matter’ to ‘Hong Kong Lives Matter’, people for different reasons rise against the threat of extinction. From women’s new struggle for reproductive rights and the global fight against femicide to the fights of indigenous people suffering from colonial exploitation or settler-colonial eliminatory politics – progressive democratic movements fight against the attacks and curtailments of individual rights, freedom of thought, and freedom of expression, religion, and the press. As ‘democracy is a threat to any power system’ (Chomsky) they fight for real democracy and a recovering of the sovereignty of the citizens in truly democratic conditions.

References Bentham, J. [1817] (1838–1843). Plan of parliamentary reform. In The works of Jeremy Bentham. Vol. 3. Published under the superintendence of his executor, John Bowring. Edinburgh: William Tait. Retrieved from https://oll​.libertyfund​.org​/title​/bowring​-the​ -works​-of​-jeremy​-bentham​-vol​-3​#lf0872​-03​_head​_759. Bentham, J. [1820] (1838–1843). Radicalism not dangerous. In The works of Jeremy Bentham. Vol. 3. Published under the superintendence of his executor, John Bowring. Edinburgh: William Tait. Retrieved from https://oll​.libertyfund​.org​/title​/bowring​-the​ -works​-of​-jeremy​-bentham​-vol​-3​#lf0872​-03​_head​_669. Block, F. (1994). The roles of the state in the economy. In N. J. Smelser & R. Swedberg (Eds.), The handbook of economic sociology (pp. 691–710). Princeton: Princeton University Press. Brown, W. (2003). Neoliberalism and the end of liberal democracy. Theory & Event, 7(1). Retrieved from https://muse​.jhu​.edu​/article​/48659. Brown, W. (2011). Undoing the demos. Neoliberalism’s stealth revolution. New York: Zone Books. B’Tselem. (2020). With all eyes on US election, Israel demolished an entire Palestinian community in the Jordan Valley. Retrieved from https://www​.btselem​.org​/facing​ _expulsion​_blog​?nid​=213166. Video of expulsion retrieved from https://www​.youtube​ .com​/watch​?v​=0YI48mFIj8g​&feature​=emb​_title. Chomsky, N. (1993). Year 501. The conquest continues. Boston: South End Press. Curtis, D. (2016). Hypernormalisation. Are we living in a ‘fake world’? Retrieved from https://www​.youtube​.com​/watch​?v​=3J6rU3NUMM0. D’Eramo, M. (2013). Populism and the new oligarchy. New Left Review, 82 (July/August). Retrieved from https://newleftreview​.org​/issues​/II82​/articles​/marco​-d​-eramo​-populism​ -and​-the​-new​-oligarchy. De Tocqueville, A. [1835–1840] (1994). Democracy in America. Vol. 1. London: Everyman’s Library. De Tocqueville, A. [1846] (1984). Unpublished letter, in A. Jardin, Alexis de Tocqueville. Paris: Hachette. De Tocqueville, A. (1951). Œuvres complètes. Paris: Gallimard. Forlenza, R. (2019). ‘Abendland in Christian hands’. Religion and populism in contemporary European politics. In G. Fitzi, J. Mackert, & B. S. Turner (Eds.), Populism and the

Introduction  13 crisis of democracy. Volume 3. Migration, gender and religion (pp. 133–149). London: Routledge. Foucault, M. [2004] (2007). Security, territory, population: Lectures at the College de France, 1977–78. Houndmills: Palgrave Macmillan. Fraenkel, E. [1941] (2017). The dual state: A contribution to the theory of dictatorship. Oxford: Oxford University Press. Herzl, T. [1896] (1946). The Jewish State. Retrieved from https://www​.jew​ishv​irtu​allibrary​ .org​/quot​-the​-jewish​-state​-quot​-theodor​-herzl. Holmes, O. (2020). Israeli forces leave 41 children homeless after razing Palestinian village, UN says. The Guardian, 5 November. Retrieved from https://www​.theguardian​.com​/ world​/2020​/nov​/05​/israeli​-forces​-leave​-41​-children​-homeless​-after​-razing​-palestinian​ -village​-un​-says. Kupfert Heller, D. (2017). Jabotinsky’s children. Polish Jews and the rise of right-wing Zionism. Princeton: Princeton University Press. Lévi-Strauss, C. [1952] (1958). Race and history. New York: UNESCO. Losurdo, D. (2014). Liberalism. A counter-history. London: Verso Macpherson, C. B. [1977] (2012). The life and death of liberal democracy. Oxford: Oxford University Press. Mamdani, M. (2015). Settler colonialism: Then and now. Critical Inquiry, 41(3), 596–614. Mann, M. (2005). The dark side of democracy. Explaining ethnic cleansing. Cambridge: Cambridge University Press. Marshall, T. H. (1950). Citizenship and social class and other essays. Cambridge: Cambridge University Press. Masalha, N. (2018). Palestine. A four thousand year history. London: Zed Books. Michéa, J.-C. [2007] (2009). The realm of lesser evil. Cambridge: Polity. Mill, J. [1820] (1992). Government. In J. Mill (Ed.), Political writings (pp. 1–42). Cambridge: Cambridge University Press. Mill, J. S. [1845] (1965). The claims of labour. In The Collected Works of John Stuart Mill, Volume III. Toronto: University of Toronto Press. Edited by J. M. Robson. Retrieved from https://oll​.libertyfund​.org​/title​/mill​-the​-collected​-works​-of​-john​-stuart​-mill​-volume​ -iii​-principles​-of​-political​-economy​-part​-ii. Mill, J. S. [1848] (1967). Principles of political economy, Book IV. In The Collected Works of John Stuart Mill, Volume III. Edited by J. M. Robson. Toronto: University of Toronto Press. Retrieved from https://oll​.libertyfund​.org​/title​/mill​-the​-collected​ -works​-of​-john​-stuart​-mill​-volume​-iii​-principles​-of​-political​-economy​-part​-ii​#lf0223​ -03​_label​_741 Mill, J. S. [1859] (2001). On liberty. Kitchener: Ontario: Batoche Books Limited. Mills, Charles W. (1997). The racial contract. Ithaca: Cornell University Press. Pappe, I. (2006). The ethnic cleansing of Palestine. London: Oneworld Publications. Ruggie, J. G. (1982). International regime, transactions, and change: Embedded liberalism in the postwar economic order. International Organization, 36(2), 379–415. Said, E. W. [1979] (1992). The question of Palestine. New York: Vintage. Schumpeter, J. A. [1942] (2008). Capitalism, socialism, and democracy. New York: Harper. Shipman, A., Edmunds, J., & Turner, B. S. (2018). The new power elite. Inequality, politics, and greed. London: Anthem Press. Tracy, J. D. (Ed.). (1991). The political economy of merchant empires. State power and world trade 1350–1750. Cambridge: Cambridge University Press.

Part 1

Democracy as a progressive force and the failure of liberal democracy

1

The Algerian hirak Citizenship, non-violence, and the new movement for democracy Jessica Ayesha Northey

Introduction On 22 February 2019, Algeria saw the launch of a massive, peaceful movement for democracy. A revolutionary turning point in the history of the country, the social movement known as the ‘hirak’ brought ordinary people to the streets on an unprecedented scale. Mobilizing millions of Algerians in unifying, peaceful demonstrations, weekly marches resulted in President Bouteflika standing down and in the arrest and trial for corruption of business elites and senior politicians, including former prime ministers. The hirak emerged initially in response to President Bouteflika’s humiliating decision to stand for a fifth mandate, which contravened the constitution. Succeeding in their goal to remove the president, protesters went on to demand increasingly ambitious objectives, including real democracy, rule of law, and an independent justice system. Calls for true democracy found expression through slogans, songs, humour, and artwork. These drew on symbols of national unity, Algerian history, and transnational identities. Yahia Zoubir describes the hirak as a ‘stunning development’ of a ‘powerful civil society, with incredible organizational, nonviolent skills’ (Zoubir, 2019, p. 12). Young people and women played important roles in the weekly marches and in reclaiming public spaces. Equally important were key figures of the Algerian Independence struggle, students, the unemployed, and particularly young men, who had initiated many of the political messages and slogans, in the football stadiums (Amara, 2012; Dine, 2017). As well as uniting what has often been presented as a divided population (Benkhaled & Vince, 2017), particularly since the violent conflict of the 1990s, the hirak has progressively re-politicized Algerian society (Benalycherif, 2019; Zoubir, 2019). Prior to the 2019 protests, it was widely considered ‘that the national trauma of civil war made the Algerian people apolitical’ (Zeroualia, 2020, p. 2). As such, it is important to understand the significance of this year-long peaceful protest movement, in terms of citizenship, identity, and democracy, for Algeria and the wider region. In the 1990s, an extremely violent period known as the Black Decade, around 200,000 people lost their lives during a conflict that pitted Islamist insurgents against the Algerian military. At its roots were declining living standards, rising prices, high unemployment, and lack of freedom, which had led to wide-scale

18  Jessica Ayesha Northey riots in 1988. These protests initially led to the opening up of the Algerian political system in the early 1990s, including to new political parties. The concurrent rise in radical Islamist ideology in the 1980s meant the Islamist party the Front Islamique du Salut (FIS) was the only organized political movement able to challenge the ruling Front de Libération National (FLN). The second round of general elections, in January 1992, which the FIS were on track to win, was cancelled by a military coup. Many FIS politicians were interned in camps in the Sahara and the party was banned, leading to widespread insurgency and the national tragedy of a decade of violent conflict and repression that devastated the country. Assassinations and massacres touched almost all sections of society, from journalists, teachers, and artists, working women, lawyers, and state officials, to anyone classed as a traitor if they did not support the Islamist project. With often equally violent state responses, Algerians were trapped in a cycle of violence that only ended with President Bouteflika’s Reconciliation Charter in the early 2000s. This charter was also contested. Though it ended the violence, it did not bring truth or justice to the families of the victims. As Faouzia Zeraoulia (2020) notes, most Algerians abandoned politics after the traumas of the 1990s. Political life in Algeria however must also be seen in the context of its long and well-documented history of political struggle for freedom and justice, including precolonial community-based activism, politics, and decision-making (Roberts, 2014; McDougall, 2017). Whilst the brutality of French colonial rule decimated many of these original political structures, under colonialism Algerians found new ways to mobilize through everyday forms of resistance (Northey, 2018, p. 2) and ultimately in the violent struggle of the War of Independence of 1954–1962 that so powerfully shaped the independent nation. The independence period was a challenging one in which Algerians had to rebuild a country devastated by violence, exploitation, and inequalities, and reunite the population. This led to the single-party system of the FLN and the suppression of many autonomous political movements. This challenging history and struggle for justice, and the ever-present threat of political violence, make the peaceful hirak movement of 2019 all the more significant. Yet, despite the scale of the marches, involving millions and in every city of the country, the hirak demonstrations were largely unnoticed or underreported outside Algeria (Northey & Guemar, 2020). European reporters were largely absent from Algiers, and the infrequent reporting that did appear in the Western press often focused on ‘clashes,’ or ‘teargas’, even though such incidents represented a small minority in 56 weeks of marches, which only halted with the global coronavirus pandemic in March 2020. Scholars such as Yahia Zoubir (2019) and Asef Bayat (2013a, p. 3; 2013b, p. 589) point to similar oversights within scholarly analysis of internal processes of transformation by Middle East observers or transitologists in the build up to and during the Arab Spring. Bayat also argues that it is important to understand what he describes as ‘non-movements’ – that is, the everyday practices of resistance, volunteering, and online activism which led to the Arab Spring, and which were largely absent from much of the analysis (Bayat, 2013b, p. 589). Britta Hecking (2017) further argues that ‘youth non-movements’

The Algerian hirak  19 are particularly important to understand in the case of Algeria, where more subtle forms of protest have existed over some time. Across the Middle East and North Africa, and Algeria in particular, the focus however has mainly been on ‘authoritarian resilience’ rather than on civil society, activism, or the potential for change, even after the Arab Spring (Heydemann & Leenders, 2013; Josua, 2016; Hill, 2019). Bayat categorizes such analyses that focus predominantly on authoritarianism, or the impossibility of change, as the ‘exceptionalist lens’, a culturalist paradigm equating Islam with the lack of democracy in Arab Muslim states. Rentier state theories have equally been used to explain the absence of democracy in Algeria and in other oil-rich states, which, it is argued, have little need to engage with their populations (Muradova, 2016). Whilst it remains important to recognize the challenges to achieving and sustaining democracy, similarly, the dismissal of popular activism by ordinary people may simply reinforce pre-existing hypotheses, or overlook new or potential political trends towards change in the region. This chapter argues that this exceptionalist lens has prevented and continues to prevent us from fully understanding the nature of mobilization in the Arab world. The Arab-Muslim exceptionalism thesis underpins the absence of reporting and of academic analysis of the Algerian movement, and of similar trends in the region that clash with this narrative. Building on Bayat’s argument about the importance of what he describes as ‘non-movements’, the chapter uses this concept to develop his thesis around the sustainability of social movements. It aims to understand the nature and unique potential of this new Algerian democracy movement in a longer-term perspective, and it examines the process of the hirak itself as a hugely significant development in Algeria, and beyond, with implications for democracy, citizenship, political engagement, activism, and reconciliation. How have Algerians taken on such a powerful regime, without violence, despite deep frustrations and a history of violent political change? What are the implications for future democratic reform, civil society, and citizenship in Algeria? How did the absence of clearly identified leaders affect the movement’s capacity to negotiate political transformation (Dris Aït-Hamadouche & Dris, 2019)? Importantly, does the use of peaceful resistance within a social movement, such as the Algerian concept of ‘silmiya’, enhance the chances of success, in its aims to transform political life and achieve democracy, as recently argued by scholars (Chenoweth & Stephan, 2011)? In the chapter, I firstly explore theories of democratization, collective action, social movements, and non-movements, analysing how scholars apply these in Middle East and North African (MENA) contexts, and how this might affect our understanding of processes of change in the region. Secondly, I analyse the Algerian hirak movement. What were its causes and repertoires of action and how do these fit with previous understandings of how people mobilize? Thirdly, I examine questions of citizenship, unity, and organization and the implications of the symbolic reclaiming of the public sphere. Lastly, I look at the role played by peaceful resistance and reconciliation amongst Algerians throughout the hirak and what perspectives these aspects of the movement might offer for political reform and transformation in the future.

20  Jessica Ayesha Northey

Democratization and collective action Theories of democracy have long sought to explain the role of contentious politics, social movements, and civil society in democratization processes (de Tocqueville, [1840] 1994; Oberschall, 2000). With the fall of the Berlin Wall in 1989, civil society organizations and social movements were particularly important in framing the possibilities for democracy inspiring the Eastern European political transitions that followed (Glenn, 2001). In the Middle East and North African region, there was similar optimism in the early 1990s, about the potential for democracy. Scholars felt that rising numbers of civic associations in particular signified a growing civil society that could contribute to democratization (Zoubir, 1995; Ibrahim, 1998; Ben Nefissa, 2002). By the early 2000s, however, the absence of any significant political transformation led scholars to question the assumption that civil society in the Arab world was capable of such a contribution. For some, Arab civic associations simply supported the conservation of authoritarianism (Liverani, 2008; Wictorowicz, 2000) or were too weak and divided to bring about any real change (Cavatorta & Elananza, 2008). More recently, Cavatorta and Durac argued that in the absence of political parties, civil society associations did form a framework in which politics could happen, and that Arab civil society was not simply a tool of the state (Cavatorta & Durac, 2011, p. 27). Nevertheless, it could not contribute to democratization, as it operated within a context of corrupt regimes. Social movement theory, which focused on structural and institutional opportunities for protest, was seen as applicable in the Arab region, though those structures and opportunities as mainly absent. For most researchers, authoritarian regimes prevented civic organizations or movements from developing democratic practices within such controlled spaces (Jamal, 2007). Authoritarian resilience The focus of much of the academic analysis of political regimes in North Africa and the Arab world has therefore been on authoritarianism and its resilience. Even after the 2011 ‘Arab Spring’ uprisings, the tendency to view these as failures, or to focus on the absence of any successful attempts towards democratic transformation, has remained a key strand in the analyses (Hill, 2019; Del Panta, 2017). Del Panta explains the failure of the Algerian movement for democracy in 2011 as stemming from the absence of a united working-class movement, the weakness of the union movement, and distrust between groups in society – a legacy of the 1990s violence. With difficulties in securing transitions following revolutions in Tunisia and Egypt in 2011, Lafi argues that, ‘academia is concentrating on the understanding of the severe disenchantment that saw armed fanatics, foreign interventions and/or new dictatorships confiscate the struggle for democracy’ (Lafi, 2017, p. 701). This focus on authoritarian resilience arguably affects our understanding of the processes of change in the region, and in particular the more recent Algerian hirak movement. What was happening in terms of collective action, and – if this existed – why was it overlooked? With the scale of the hirak marches, involving

The Algerian hirak  21 millions of citizens across Algeria, the international underreporting does seem surprising. The ignoring of transformation processes by Middle East observers has been highlighted not only as a gap in our analytical understanding of the region (Zoubir, 2019; Bayat, 2013a) but arguably as, in itself, a process that might actually create the expectation of failure (Hirschman, 1984; Northey, 2018). The tendency to view negatively possibilities for political reform in challenging contexts is understandable. Yet, from this comes the risk of creating self-fulfilling negative prophecies, judging any political reform as unsuccessful and overlooking gradual processes of change. This can be damaging, and, as Albert Hirschman writes, ‘may itself lead to real failures’ (Hirschman, 1984, p. 55). The exceptionalist lens Asef Bayat frames these analyses as the exceptionalist lens, one focused on a static culture, often equated with Islam as the explanatory factor in the negative status quo. Benoit Challand describes how some scholars have gone as far as to suggest that there cannot be any Arab Muslim civil society, and that this absence implies that Arab society and culture is inimical to democratization (Challand, 2008, p. 400). Zoubir (2019) refers to articles such as The Reality of Muslim Exceptionalism (Lakoff, 2005), Democracy, ‘Arab Exceptionalism’, and Social Science (Harik, 2006), or Muslim Exceptionalism? Measuring the ‘Democracy Gap’ (Goldsmith, 2007), all of which focused on Islam or Arab exceptionalism as the problem for democracy. Others, rejecting this culturalist paradigm, have focused on rentier state theory to explain the lack of democracy in Arab oil-rich states (Muradova, 2016). Bayat (2013b, p. 590) challenges this theory as well, arguing that the resource-rich state can be also developmental and modernizing. The dismissal of popular activism by ordinary people (other than that by Islamists, who are rarely ignored) has been a significant feature of the analysis over many years. This exceptionalist lens has been used, ultimately, to confirm the authoritarian nature of North African and Middle Eastern polities and the unlikelihood of democratic change. Much of the recent literature has presented a sceptical view as to the autonomy of civil society organizations, social movements, and citizen activists in the region. It has denied their capacity to bring about change, or to act as a counter hegemonic force, and has largely ignored them. Non-movements However, in Life as Politics, Bayat (2013a) focuses on what he describes as ‘social non-movements’ in the Middle East and North Africa. He draws on social movement theory, which describes a movement as constituted of claims against a targeted authority, a repertoire of collective action performances and public demonstrations of worthiness, unity, numbers, and commitment to a common cause (Bayat, 2013a, p. 5; Tilly, 2004). In doing so, Bayat questions whether Westerncentric social movement theory is an appropriate framework for analysis of political change in the MENA region (Bayat, 2013a, pp. 4–5). Non-movements,

22  Jessica Ayesha Northey he claims, are equally important to study. These include everyday practices of resistance, including labour protests, civic action and volunteering, and online building of political identities – all of which formed ‘the backbone of what came to be known as the Arab Spring’. Many such developments, he argues in ‘The Arab Spring and its surprises,’ were largely dismissed from much of the scholarly analysis of the region (Bayat, 2013b, p. 589). Hecking draws on Bayat’s concept of ‘non-movements’ to understand youth mobilization in the Algerian context. Exploring the ‘arts of movement’, and how youth in Algeria have reclaimed public spaces, through street dance, capoeira, and parkour, she writes: By accessing central spaces within the Algerian capital, representing themselves globally via social media and embracing what could be seen as an ideology of self-responsibility, the young empower themselves and thus are able to resist socio-spatial exclusion as well as dominant representations. (Hecking, 2017, p. 200) Across the Middle East and North Africa, and Algeria in particular, the focus on ‘authoritarian resilience’ and the absence of social movements, rather than on civil society, activism, or the potential for change, even after the Arab Spring (Heydemann & Leenders, 2013; Josua, 2016; Hill, 2019), has arguably limited our understanding of mobilization. The persistence of this focus underpins the absence of reporting and of academic analysis of the Algerian hirak and similar movements such as those in Lebanon and Iraq in 2019. Other scholars argue that the Arab Spring did change perceptions and discourses regarding the potential for reform in the Arab world. Lafi argues that the movements in Tunisia and Egypt generated a ‘renewal of the evaluation of the potential role of social movements in political change’ (Lafi, 2017, p.702). The uprisings of 2011 were a ‘source of vitality’, not only for their political proposals, but for their capacity to create new social practices, renew the culture of civic debate, and create a new civic space vigilant against possible abuses (Lafi, 2017; Volpi, 2014). In light of this, it is important to explore in more detail what happened on the ground in Algeria throughout 2019 with the phenomenal social movement of the hirak, but also beforehand, and how Bayat’s concept of non-movements, alongside social movement theory, can allow us to understand the potential for political transformation.

The Algerian hirak After 20 years of banned demonstrations, Algerians took to the streets in the capital Algiers on 22 February 2019 and marched in their millions every week for over a year. In Kherrata, and other eastern cities, they had begun marching even earlier on 16 February 2019, and marches progressively took place in every city and region (wilaya) of the country. These demonstrations have been some of the largest and longest sustained peaceful marches for democracy in Africa, if not in the world. Whilst triggered by opposition to President Bouteflika’s proposed fifth mandate, the contestation began in the football stadiums in the years before this.

The Algerian hirak  23 Football songs eloquently expressed in clear political messages the frustration and disillusionment of young people with politics and the corruption in the regime, their loss of hope, and their desire to flee the country. In a context of limited public spheres for political debate, stadiums were one of the few spaces left for collective free speech critical of the regime and Algerian politics (Amara, 2012; Dine, 2017). At the same time, civil society associations had been mobilizing collective action at the grassroots level since Algeria opened up part of its civil society with the 1990 Law on Associations (Northey, 2018). These actions were predominantly in the social, cultural, and environmental sectors, but also in more explicitly political areas such as human rights. The initial demonstrations in 2019 occurred after Bouteflika announced his decision to stand for a fifth term, despite the constitutional reform of 2016 that limited presidential mandates to two. Now in 2019, not only was Bouteflika’s decision to stand again a constitutional infraction of the presidential limits, but the president’s poor health also meant that physically and constitutionally, he was no longer able to maintain the position of president. Article 102 of the constitution states that in the case of ill health or incapacity of the president, then the head of the senate steps in for 90 days. Furthermore, whilst ordinary Algerians often struggle to access good-quality healthcare and medicines, the president, like many high-ranking politicians, was receiving treatment abroad in Geneva. The humiliation of this situation drove Algerians to the streets in their millions in cities across Algeria to demand change. After millions of people marched on 22 February 2019, the regime at first threatened the population with the likely return of violence, with former Prime Minister Ahmed Ouyahia invoking memories of the Black Decade of the 1990s and of the Syrian conflict. Zeraoulia describes how in all ‘previous mandates, the President was presented as the architect of peace in Algeria and now the strategy changed to threatening the people that without him the violence would be back’ (Zeraoulia, 2020, p. 2). Yet, the strategy failed, and Zeraoulia notes that ‘the people developed a counter narrative’ (Zeraoulia, 2020, p. 2), one which was focused on peaceful protest or ‘silmiya’ and drew on multiple tools and strategies to challenge the regime. Frustration with corruption and the lack of governance or rule of law was at the forefront of this contestation. Algerians were tired of elite privilege. This included ‘hogra’, the Algerian word for contempt shown towards citizens by the ruling class. Signs included ‘Joumhouria machi Mamlaka’ (Algeria is a republic not a monarchy) which targeted Bouteflika’s brother, who was widely accused of monopolizing power for the clan, given the president’s incapacity. Demonstrators also questioned the role of the army in political life, the Army Chief of Staff General Gaid Salah having been the major decision-maker within the regime, with signs declaring their demands for a civil and not a military state: ‘Dawla madania, machi aaskaria’. Every Friday throughout 2019 (and every Tuesday for students) Algerians came together in the streets and public spaces and challenged the regime, progressively finding their demands accepted. These included the sacking of the prime minister and ministers, the standing down of the president,

24  Jessica Ayesha Northey the cancellation of the contested April and the postponed July elections, and the arrest of business elites and politicians, including the former Prime Minister Ouyahia, on corruption charges. In September, presidential elections were called for 12 December 2019. These were carried out, despite significant mobilization against them and with no non-regime linked candidates on the ballot paper. With a very low turnout, Algerians elected Abdelmajid Tebboune, a former minister in the Bouteflika regime, as president, and the peaceful protests for democracy continued. Repression did increase towards the end of 2019 with a number of clashes between police and protestors. Police fired rubber bullets and tear gas into the crowds, injuring civilians, and arrested significant numbers of young people, former revolutionary figures, and opposition politicians. Reasons for the arrests included threatening national unity, such as by holding the Amazigh flag. This flag represents the North African identity of Algeria’s many Berber communities, an identity and language officially recognized in the Constitution, though historically contested in the post-Independence period, which focused on uniting Algerians under a purely Arab Muslim identity (McDougall, 2006). Reasons also included offending a national institution or weakening the morale of the army (Human Rights Watch, 2020). The arrests, understood as arbitrary forms of intimidation or failed attempts to divide Algerians along ethnic lines, and the consistent huge police presence did not however appear to limit the marches. Nor did they diminish the watchfulness of an increasingly politically engaged public over all political decisions. The demonstrators continued their peaceful protest until March 2020. With the global coronavirus pandemic, protesters moved online, transforming their messages to include a focus on public health, calling on Algerians to ‘stay home to protect Algeria’.

Citizenship, unity, and organization Whilst there were no leaders in the hirak marches, collective organization was considerable. The astute political narrative of the football stadiums, and the reclaiming of public spaces, meant that the movement took multiple forms, which all have implications for Algerian identity and citizenship. Cultural activities in main squares, debates on the steps of the national theatre, and the collective cleaning of public spaces particularly by young people (Chiheb, Guemar & Northey, 2019) have reinforced the collective identity, feelings of citizenship, and the political engagement that began in the stadiums. Such everyday resistance and activism also built upon the experience of organizing that had been occurring since 1990 within associational life. Since 1990, Algerian civil society organizations through associational activism had been challenging social injustice, division, and lack of public services at the grassroots level. The absence of leaders or organizations in the hirak meant the movement could not be co-opted by the regime, but also meant there was no one to mediate in potential negotiations. Dris Aït-Hamadouche and Dris describe the hirak as ‘a movement which is organised but unstructured. Neither civil society nor political opposition parties took part’

The Algerian hirak  25 (Dris Aït-Hamadouche & Dris, 2019, p. 57). However, whilst officially registered parties and associations were absent from the demonstrations, their members marched and organized as individual Algerian citizens. Intergenerational protests The manner in which millions of Algerians collectively mobilized, without specific leaders, also draws on important historical experiences. Links to the Algerian liberation struggle, which saw similar forms of mobilization, were explicit throughout the demonstrations. Independence figures such as Djamila Bouhired, now in her 80s, marched on the streets of Algiers, alongside young people. Youth protesters referred to the Algerian liberation struggle, as well as to their current problems, on their signs and banners, framing the current struggle as a continued intergenerational fight for freedom and justice. Powerful political songs expressed the pain and frustration of young people, particularly about losing family members as harraga, those who burn their papers and flee on boats to Europe, and often lose their lives in the crossing. These messages were at the heart of the hirak, uniting protesters of all ages. Benalycherif describes the sense of empowerment felt by young people. Following the success of their actions within the hirak, he quotes one young person saying that, [with] my friends, we consider that we are in the process of a true revolution. We are doing what our elders have not finished. Older people who used to criticise us are now discovering that we are capable of making a difference. (Benalycherif, 2019) This energy of young people also bolstered the hirak’s resilience, creativity, and ideas for reform. Lafi argues that, on the wider scale, the North African movements were not just about contestation, but a movement of ideas, creating ‘new social practices’ and a ‘new civic sphere’ (Lafi, 2017, p. 702). For the duration of the marches in Algeria, committees organized first aid and local residents prepared food and left bottles of water on pavements, particularly during the hot summer months. In Ramadan, Algerians continued to demonstrate, and then laid out the longest table they could along the central street, Rue Didouche, in Algiers. They then broke the fast together in a symbolic reuniting of Algerian citizens, reclaiming the street in a new social practice and space. Challenging tropes of Algeria as divided Benkhaled and Vince describe how Algeria is often framed as disunited, with Algerians pitted against each other. They outline outdated narratives of the authoritarian ‘system’ versus the downtrodden ‘people’; the perpetual identity crisis, pitching Arabophones against Francophones, Berberophones against Arabophones, and Islamists against secularists, ‘in a zero-sum struggle to

26  Jessica Ayesha Northey define the language and culture of Algeria’ (Benkhaled & Vince, 2017, p. 243). McDougall (2006) also challenges representations of Algeria in terms of violence or fragmentation. He describes how colonial prejudices have continued to feed perceptions of Algeria as a weak and fragmented society. This is despite, as he points out, often highly resilient forces, beyond state structures, in an ‘extraordinarily robust, resilient society’ that have enabled the Algerian population to keep going despite the incredible brutality and repression they have endured (McDougall, 2017, p. 4). Algeria is often understood as ‘locked in an inevitable and interminable cycle of violence’, with the colonial conquest engendering the violence of the war of independence, in turn giving birth to the violence of the 1990s (Benkhaled & Vince, 2017, p. 244). The divisive language of perpetrators versus victims, and ‘totalizing, mutually exclusive identities’ is part of the problem, and Benkhaled and Vince argue for ‘a post-dramatic analysis of Algeria’ going beyond this perception of the country as locked in violent confrontation (Benkhaled & Vince, 2017, p. 265). The hirak has provided the opportunity to undertake such an analysis of Algerian citizenship. The unity and resilience of Algerians was the mainstay of the demonstrations, and no attempts by the regime to divide them succeeded. Powerful images of demonstrators, particularly women, dressed in different regional costume and jewellery symbolize the coming together of the population in their diversity, in shared aims of mutual respect, democracy, and justice. Zoubir describes how ‘[this] strong unity of Algerians, who have put aside their ethnic, regional, or ideological differences, which the regime had used to its own purposes in the past, is reviving values that were buried for decades, especially under Bouteflika’s rule’ (Zoubir, 2019, p. 14). Benalycherif in his photojournalism quotes one participant as recognizing the previous divisions and false divisive narratives, stating that, ‘Algerians did not speak to each other. They didn’t trust each other. This hirak has made it possible to recreate bonds, to bring people together’ (Benalycherif, 2019). Not without difficulty, by marching together, the hirak had enabled Algerians to reunite. Re-politicization and the public sphere Given the history of Algeria and the difficulties of mobilization, Zoubir, like so many commentators on the region, was surprised by the inherently political nature of the hirak, writing that ‘[no] less amazing was the progressive politicization of the movement’ (Zoubir, 2019, p. 12). Benalycherif quotes one of the participants in the marches who describes the feelings of responsibility as a citizen to play a role in the political future of the country, and how the hirak has re-politicized the population. ‘We have become more aware that we have a role to play, that we will have to seek this change through our own efforts that nothing will fall from the sky’ (Benalycherif, 2019). The desire for real grassroots democracy and participation has inspired numerous debates. After Algerians broke what has been described as the ‘wall of fear’, these debates have taken place in public spaces that were previously closed.

The Algerian hirak  27 Whilst this process has been challenging, Zoubir describes its contribution to future prospects for reform: ‘Debates are being held in universities – which had lost their role of centers of knowledge and ideas in the last twenty years – and among some respected national figures to work out transition strategies’ (Zoubir, 2019, p. 15). In cities across Algeria, artists reclaimed public spaces for concerts, and exhibitions, calling for public policies to support the arts and cultural institutions. Algerians have been vocally challenging the arrests of citizens, and standing in solidarity with detainees. In the crisis of the global pandemic, such calls and actions continue online.

Peaceful resistance, silmiya, and reconciliation What is most significant regarding the demonstrations throughout 2019, as well as their scale and longevity, has been the commitment to non-violence. The vast majority of the protestors, as well as the police and army, adopted peaceful protest for over one year of demonstrations. Protesters chanted ‘silmiya’, meaning peaceful, throughout the marches, and printed this on banners and continually repeated it on social media. All generations, including men, women, students, children, older people, marched together. Women participated within specific spaces dedicated for them, but also marched alongside men, expressing their need to be there, not only to support the cause, but to protect their sons and husbands from any potential violent backlash (Guemar, 2019). Previous repression, such as in 1988 or 2001, when many young men lost their lives due to violent police responses, was still a powerful memory. In contrast, in 2019, groups of protesters held hands to form rings around the police to protect them and prevent trouble. Chants of ‘Chaab w chorta, khawa, khawa’ (demonstrators and police are brothers) ensured that the message of silmiya and peaceful protest was understood by all sides (Northey & Guemar, 2019). Where there were incidents of police violence, there were also cases of apologies from the police. Police Officer Toufik Hassani was arrested for writing a letter to apologise to students who had suffered violence during a demonstration and as a result was imprisoned in Algiers (Gacem, 2020). Throughout 56 weeks of marching, whilst there were cases of arrests and intimidation, given the scale of the marches, there were very few cases of clashes or violence. On the contrary, there were frequent images of police, the army, and the population standing side-by-side, young people offering flowers to the police, and of all sides protecting each other from any possible harm, drawing on the principle of silmiya. Most important, however, is the question of reconciliation between Algerians, and the building of trust, across different sections of society. Marching and peacefully protesting together brought a form of reconciliation that may have contributed to healing some of the divisions caused by the 1990s conflict. Attempts by the Bouteflika regime, through the Reconciliation Charter that ended the violence of the 1990s Black Decade, had not brought Algerians together, or provided closure for the families of the victims. Benalycherif quotes one of the participants explaining how, through the hirak demonstrations:

28  Jessica Ayesha Northey We felt a new solidarity between Algerians. The government has always favoured the division of Algerians: diaspora vs. locals, Kabyles vs. Arabs, French-speaking vs. Arabic, religious vs. seculars. This revolution made the Algerians overcome these divisions and a new unity was found. There are signs saying thank you to this regime for having united us: ‘Merci de nous avoir unis’. (Benalycherif, 2019) Peaceful resistance, the reclaiming of public space, and the longevity of the movement all have implications for longer-term change in Algeria, though difficult questions of mediation and transition remain. While the coronavirus pandemic has stalled answers to such questions, it has also allowed Algerians to respond to the crisis through social solidarity and aid within and between communities. Many argue that the new president and government must be given a chance and that they will be judged on their effectiveness in responding to the crisis. This is something the Algerian state may in fact manage well. Algeria has a history of dealing with state insecurity and crisis management; the state has experience in managing difficult conflicts, including the use of curfews; the country has a professional and loyal army, with experience of dealing with ongoing terrorist threats until the early 2000s; and lastly, despite challenges, the state has a long history of socialist interventionism. From the perspective of the population, Zoubir argues, whilst the hirak demands are radical, there is recognition of a need to negotiate with some of the more progressive members of the regime (Zoubir, 2019, p. 15). That the Algerian hirak could be sustained over so many months was precisely due to its peaceful nature and the willingness of the state institutions, of the army, of the police, and of the population to try to avoid violence at all costs. Equally, the incorporation of the hirak into daily practices and routines such as marching on a Friday, displaying artwork in public, using humour, or laying out the evening Ramadan meal on the streets of Algiers meant the protests became a positive form of reconciliation and expression for all Algerians. This links to Bayat’s concept of non-movements that Hecking applies in particular to Algeria. Bayat argues that ordinary acts of resistance are important factors to consider in understanding the forces for political change in the Arab world. In combining mass mobilization with everyday acts of resistance, over such a long period, the Algerian hirak is a unique example in the region.

Conclusion Though many commentators predicted its ending in failure, throughout the yearlong hirak movement Algerians paid little heed. Yet there was always, and remains at the time of writing, significant anxiety and deep concern about how the process will move forward. A presidential election was conducted with low turnout, and no violence. Ahead of that election, national figures and activists called on Algerians to maintain their commitment to peaceful protest, silmiya, and to play the long game, to consider democracy as a process, not an event

The Algerian hirak  29 (Ichalalene, 2019). Through the yearlong process of marching, drawing on their historical experiences of democratic struggle, Algerians have already challenged the tropes of division. Through intergenerational mobilization and the hard work of young people, they have celebrated their differences, re-politicized society, and reclaimed their public spaces. International actors, for their part, have had a limited understanding of this Algerian movement for democracy. This is partly due to their absence from Algiers, but also due to their focus on authoritarianism and the Arab-exceptionalist lens that Bayat describes, and the general rejection of European interference in Algerian affairs, by Algerians themselves, given the history of the country (Darbouche, 2008; Roberts, 2002). Algerians still feel that, as Hugh Roberts wrote two decades earlier, European interference is generally unhelpful, and that they need to ‘discover their own way through the wood to the lawful republic to which most of them certainly aspire’ (Roberts, 2002, p. 129). The activism of recent decades, encapsulated in Bayat’s term of ‘non-movements’, has arguably prepared Algerians well for the post-revolutionary phase. Bayat argues that there are still ‘real possibilities for a profoundly emancipatory transformation’ (Bayat, 2013b, p. 600) in North Africa, and the gradual achievement of ‘freedom, dignity and social justice’ (Bayat, 2013b, p. 600). To achieve this, he argues that activities must continue with ‘incessant mobilization in civil society, the streets, communities and in the private realm’ (Bayat, 2013b, p. 600). The combination of everyday practices and the positive reclaiming of the public space throughout the hirak resulted in a mass movement that mobilized huge sections of the population. Even in the global crisis, elements of the hirak continue in the constant acts of social solidarity and civic duty, such as the cleaning and disinfecting of public spaces in the time of corona. The focus on citizenship and reconciliation and the rejection of exclusionary forces imply there may be a strong chance for the transformation process that Bayat alludes to. Furthermore, many recognize that reform is needed not just at the top, but requires a far more holistic approach, uniting the population and reflecting on multiple questions of identity and citizenship in twenty-first-century Algeria. The stakes are high, but there are many actors, including new ones, such as universities, involved in widening the debate, despite the difficult conditions of confinement during the COVID-19 pandemic. New lenses through which to understand such complex processes of transformation are also needed. As Zoubir writes: ‘Should Algeria succeed in this transition, it would certainly disprove the transitologists who have focused on the so called “Arab exceptionalism”’ (Zoubir, 2019, p. 15). If Algerians can maintain their focus, in the longer, more challenging, and difficult process of reform, then Zoubir’s prediction, that Algeria might challenge the transitologists, may prove to be true. Algeria may be well equipped to engage in the ‘profoundly emancipatory transformation’ as Bayat says, referring to the progressive achievement of ‘freedom, dignity and social justice’ to which all Algerians, and their neighbours, certainly aspire (Bayat, 2013b, p. 600).

30  Jessica Ayesha Northey

Acknowledgements I would like to Julie Northey for carefully editing and proofreading this chapter. I would also like to acknowledge the generous support of the Ferguson Trust-funded project on ‘Youth, Violence and Conflict Transformation’ led by Dr Bahar Baser at the Centre for Trust, Peace and Social Relations for which Algeria is a case study. Finally, I would like to thank the British Academy for their generous support to me as principal investigator on the ‘Youth Futures’ programme.

References Amara, M. (2012). Football sub-culture and youth politics in Algeria. Mediterranean Politics, 17(1), 41–58. Bayat, A. (2013a). Life as politics: How ordinary people change the Middle East. Stanford: Stanford University Press. Bayat, A. (2013b). The Arab spring and its surprises. Development and Change, 44(3), 587–601. Benalycherif, S. (2019). ‘Nothing will fall from the sky’: Algeria’s revolution marches on – Photo Essay. 18 December 2019. Retrieved from https://africanarguments​.org​ /2019​/12​/18​/nothing​-will​-fall​-from​-the​-sky​-algeria​-revolution​-hirak​-marches​-on​ -photo​-essay/. Benkhaled, W., & Vince, N. (2017). Performing Algerianness: The national and transnational construction of Algeria’s ‘Culture Wars’. In P. Crowley (Ed.), Algeria: Nation, culture and transnationalism (pp. 243–269). Liverpool: Liverpool University Press. Ben Nefissa, S. (2002). Pouvoirs et associations dans le monde Arabe. Paris: CNRS Editions. Cavatorta, F., & Durac, V. (2011). Civil society and democratisation in the Arab world: The dynamics of activism. Oxford: Routledge. Cavatorta, F., & Elananza, A. (2008). Political opposition in civil society: An analysis of the interactions of secular and religious associations in Algeria and Jordan. Government and Opposition, 43(4), 561–578. Challand, B. (2008). The evolution of western aid for Palestinian civil society: Bypassing local knowledge and resources. Middle Eastern Studies, 44(3), 397–417. Chenoweth, E., & Stephan, M. (2011). Why civil resistance works: The strategic logic of nonviolent conflict. New York: Columbia University Press. Chiheb, A., Guemar, N., & Northey, J. (2019). The Algerian hirak: Young people and nonviolent revolution. Open Democracy. Retrieved from https://www​.opendemocracy​.net​ /en​/north​-africa​-west​-asia​/algerian​-hirak​-young​-people​-and​-non​-violent​-revolution/. Darbouche, H. (2008). Decoding Algeria’s ENP policy: Differentiation by other means? Mediterranean Politics, 13(3), 371–389. De Tocqueville, A. [1840] (1994). Democracy in America. London: Everyman’s Library. Del Panta, G. (2017). Weathering the storm: Why was there no Arab uprising in Algeria? Democratization, 24(6), 1085–1102. Dine, P. (2017). Sport in Algeria – From national self-assertion to anti-state contestation. In P. Crowley (Ed.), Algeria: Nation, culture and transnationalism (pp. 203–221). Liverpool: Liverpool University Press.

The Algerian hirak  31 Dris Aït-Hamadouche, L., & Dris, C. (2019). Le face à face hirak-pouvoir: La crise de la représentation. L’Année Du Maghreb, 21. 57–68. Retrieved from https://journals​ .openedition​.org​/anneemaghreb​/5129. Gacem, M. (2020). Kadour Chouicha et le policier Toufik Hassani interpellés à Oran. L’Avant Garde. Retrieved from https://www​.lavantgarde​-algerie​.com​/article​/la​-lutte​/ kadour​-chouicha​-et​-le​-policier​-toufik​-hassani​-interpelles​-oran. Glenn, J. K. III. (2001). Framing democracy, civil society and civic movements in Eastern Europe. Stanford: Stanford University Press. Goldsmith A. A. (2007). Muslim exceptionalism? Measuring the ‘democracy gap’. Middle East Policy, 14(3), 86–96. Guemar, L. (2019). Arts as a powerful tool in the Algerian hirak. CTPSR Seminar Series talk, Coventry University, 4 December 2019. Harik, I. (2006). Democracy, ‘Arab exceptionalism,’ and social science. The Middle East Journal, 60(4), 664–684. Hecking, B. (2017). Algerian youth on the move. Capoeira, street dance and parkour: Between integration and contestation. In P. Crowley (Ed.), Algeria: Nation, culture and transnationalism (pp. 243–269). Liverpool: Liverpool University Press. Heydemann, S., & Leenders, R. (2013). Middle East authoritarianisms: Governance, contestation, and regime resilience in Syria and Iran. Stanford: Stanford University Press. Hill, J. (2019). The evolution of authoritarian rule in Algeria: Linkage versus organizational power. Democratization, 26(8), 1382–1398. Hirschman, A. (1984). Getting ahead collectively. Grassroots experiences in Latin America. Arlington: Inter-American Foundation. Human Rights Watch. (2020). World report. Algeria country report, January 2020. Retrieved from https://www​.hrw​.org​/world​-report​/2020​/country​-chapters​/algeria. Ibrahim, S. (1998). The troubled triangle: Populism, Islam and civil society in the Arab world. International Political Science Review, 19(4), 373–385. Ichalalene, B. (2019). Bouchachi: ‘Le Hirak n’est pas lié à la date du 12 décembre’. Interlignes. Retrieved from https://www​.inter​-lignes​.com​/bouchachi​-le​-hirak​-nest​-pas​ -lie​-a​-la​-date​-du​-12​-decembre/. Jamal, A. (2007). Barriers to democracy. The other side of social capital in Palestine and the Arab world. Princeton: Princeton University Press. Josua, M. (2016). If you can’t include them, exclude them: Countering the Arab uprisings in Algeria and Jordan (May 16, 2016). GIGA. Retrieved from http://dx​.doi​.org​/10​.2139​ /ssrn​.2796474. Lafi, N. (2017). The ‘Arab Spring’ in global perspective: Social movements, changing contexts and political transitions in the Arab world (2010–2014). In S. Berger & H. Nehring (Eds.), The history of social movements in global perspective (pp. 677–702). Palgrave Studies in the History of Social Movements. London: Palgrave Macmillan. Lakoff, S. (2005). The reality of Muslim exceptionalism. Journal of Democracy, 15(4), 133–139. Liverani, A. (2008). Civil society in Algeria. The functional politics of associational life. London: Routledge. McDougall, J. (2006). History and the culture of nationalism in Algeria. Cambridge: Cambridge University Press. McDougall, J. (2017). A history of Algeria. Cambridge: Cambridge University Press. Muradova, L. (2016). Oil wealth and authoritarianism: Algeria in the Arab Spring. Revista Española De Ciencia Política, 40(1), 63–89.

32  Jessica Ayesha Northey Northey, J. (2018). Civil society in Algeria. Activism, identity and the democratic process. London: I. B. Tauris. Northey, J., & Guemar, L. (2019). Algeria breaks the wall of fear. Open Democracy. Retrieved from https://www​.opendemocracy​.net​/en​/north​-africa​-west​-asia​/algeria​ -breaks​-wall​-of​-fear/. Northey, J., & Guemar, L. (2020). The Algerian hirak: Youth mobilisation, elections and prospects for reform, Orient. German Journal for Politics, Economics and Culture of the Middle East, II, 14–21. Oberschall, A. (2000). Social movements and the transition to democracy. Democratization, 7(3), 25–45. Roberts, H. (2002). Dancing in the dark: The European Union and the Algerian drama. Democratization, 9(1), 106–134. Roberts, H. (2014). Berber government: The Kabyle polity in pre-colonial Algeria. London: I. B. Tauris. Tilly, C. (2004). Social movements, 1768–2004. Boulder: Paradigm Publications. Volpi, F. (2014). Framing political revolutions in the aftermath of the Arab Uprisings. Mediterranean Politics, 19(1), 153–156. Wiktorowicz, Q. (2000). Civil society as social control. Comparative Politics, 33(1), 43–61. Zeraoulia, F. (2020). The memory of the civil war in Algeria: Lessons from the past with reference to the Algerian hirak. Contemporary Review of the Middle East, 7(1) 1–29. Zoubir, Y. H. (1995). The stalled democratisation of an authoritarian regime: The case of Algeria. Democratization, 2(2), 109–139. Zoubir, Y. H. (2019). The Algerian crisis: Origins and prospects for a ‘Second Republic’. 21 May 2019. Aljazeera Centre for Studies Report. Retrieved from https:// studies​.aljazeera​.net​/en​/reports​/2019​/05​/algerian​-crisis​-origins​-prospects​-republic​ -190520100257161​.html.

2

Stateless radical democracy and law in Autonomous Administration of North and East Syria Zeynep Kivilcim

Introduction During the Syrian civil war, the Democratic Union Party (PYD) emerged as the main political actor in the Kurdish-inhabited areas of the country and declared the autonomy of the three cantons in northern Syria vis-à-vis the Syrian state.1 The interim constitution was adopted in 2014 (Social Contract, 2014), and the Democratic Federation of Rojava2 was declared in 2016. The Social Contract of the Democratic Federation of Northern Syria was adopted on 29 December 2016 at the second conference of the Constituent Assembly of Northern Syria (Social Contract, 2016).3 The structures and principles of the political system are outlined in the Social Contract, which serves as a constitution. Since September 2018, the Syrian Democratic Council has adopted a new name: the Autonomous Administration of North and East Syria (AANES). AANES includes seven regions: Jazeera (consisting of the cantons of Qamishli and Hasakah), Euphrates (consisting of Kobanê and Tel Abyad cantons), Afrin, Manbij, Tabqa, Raqqa, and Deir ez-Zor.4 The overall population of AANES is difficult to determine, though estimates place it between four and five million (Rojava Information Center, 2019a, p. 13). The Autonomous Administration developed an imposing bureaucratic apparatus and avoids conflict with the Syrian state.5 Commentators characterize its relations with the Assad government as ‘pragmatic’ and ‘ambiguous’ (Sary, 2016, pp. 15–19). There is limited international recognition of AANES, and it has opened up a limited number of offices representing it in some European capitals. This chapter aims to investigate the modes of democracy and citizenship in AANES. Commentators situate the Autonomous Administration among a wide range of radical forms of democracy and note that radical democracy in AANES has established a new model of self-determination and citizenship while transcending the concept of the nation-state (Akkaya & Jongerden, 2012). I focus here mainly on the legal texts and practices that tend to decentralize hierarchical sovereignty and lead towards the self-government of stateless citizens. Using a gendered perspective, the chapter examines the new modes in which democracy is embodied in AANES.

34  Zeynep Kivilcim It must be noted that one of challenges in discussing the non-statist democratic forms of organization in AANES is the embracement of the state in social, legal, and political theory and in the relevant academic literature. A second challenge is the scarcity of studies on the political and legal organization of AANES. Although this revolution is nine years old, the nascent academic literature on its legal features is extremely limited. The information available largely consists of non-academic documentation produced by various groups and organizations, and it is difficult to determine the veracity and impartiality of this information. For this study, I used reports by the Rojava Information Center6 that provide up-to-date information on the legal and political system of AANES, as well as valuable analyses based on fieldwork studies. A second source was the reports and work produced by academics, journalists, and jurists who visited Rojava and examined the operation of the political and legal system of AANES and the functioning of its institutions. The chapter is organized in three sections. For the analysis of the experience of stateless democracy in AANES, I start with a brief description of ‘democratic autonomy’ as a radical and grassroots reconceptualization of democracy. I then discuss the gendered aspects of radical democracy and women’s democratic autonomy. The third section deals with the legal reconceptualization of participatory democracy and the role of the law in AANES.

Democratic autonomy: A reconceptualization of participatory democracy and active citizenship In AANES the governance rests on the model of ‘democratic autonomy’. The attempt to reconceptualize democracy and citizenship without a state was advanced by the imprisoned leader of the PKK, inspired by libertarian thinker Murray Bookchin.7 Bookchin makes the argument for radicalizing democracy at the grassroots level. He suggests that the municipal level acts as a brake upon the centralization of the state and ultimately leads to the abolition of the centralized state in a free municipal confederation of towns and cities and villages structured in a libertarian form (Bookchin, 1985). According to his radical democratic model, grassroots democracy is created and institutionalized through local institutions, that is, neighbourhood assemblies and councils that, in dynamic opposition to the centralized state, can counteract the centralization of power cooperatively and politically (Bookchin, 1985). Following this model of democratic autonomy, the radical democracy implemented in Rojava has three dimensions: direct self-government by the communes, equal participation for all religious and ethnic groups in all areas of decision-making, and the strengthening of women’s position. Jongerden notes that ‘democratic autonomy concerns the ability and capacity to have (or regain) control over political, economic and cultural institutions’ (Jongerden, 2015a, p. 2). Through the democratic autonomy project, citizens themselves are agents of self-government, and active citizenship in a radical democracy offers a new definition of the right to self-determination (Jongerden, 2015b, pp. 175–176).

Stateless radical democracy and law  35 The political system is made up of three major structures: the Movement for a Democratic Society (TEV-DEM), AANES (that consists of the system of communes and elected councils throughout northern and eastern Syria), and the Syrian Democratic Council, which represents political parties. Individuals may engage with the political system through all three bodies, which contain both mixed-gender institutions and a parallel and organizationally autonomous women’s system. The Autonomous Administration is split into the General Council (Meclîsa Giştî), the Executive Council (Meclîsa Cîbicîkar), and the Justice Council (Meclîsa Edalet) at both the highest level and regional levels. Those councils have legislative, executive, and judicial functions (Rojava Information Center, 2019a, p. 30). Article 7 of the Social Contract states that the ‘Democratic Federalism of Northern Syria consists of cantons based on democratic self-administration, which depend on the democratic organisations of ideological, ethnic, female, cultural groups, and all social segments’. According to the Social Contract, the commune is the essential and basic organizational form of direct democracy; it works as an independent body in all the stages of decision-making. The communes are made up of 30 to 500 households in a city, or a whole village in the countryside (Knapp, Ayboğa & Flach, 2016, p. 76). The three core pillars of the communes are self-defence, education, and conflict resolution or consensus building (Rojava Information Center, 2019a, p. 22). All representatives can be recalled by the membership of the commune, and a male and female co-chair must fill every post. The communes confederate at higher levels as necessary, all the while preserving the autonomy and decision-making power of the most local levels (Rojava Information Center, 2019a, p. 15). The councils are the societal units that represent the people, discuss, and decide its affairs, and formulate policies beginning with villages, neighbourhoods, towns, and districts. According to the Social Contract, they organize society through direct democracy and using set rules and principles related to a free and democratic life. Councils exist at each level of the Autonomous Administration, except for the commune level, because communes are based on direct participation.8 The board of each commune in Rojava sends delegates to the neighbourhood or village council; a body is made up of 7–30 communes (Knapp, Ayboğa & Flach, 2016, p. 77). The neighbourhood or village council elects a board that represents them at the third level, the district level. The peoples’ assembly in the canton is a representative assembly for the people and groups in each canton; it legislates, monitors, and shape general policies over an electoral term of four years and its mechanism of work is regulated by law.9 The Social Contract provides that the democratic peoples’ conference includes Kurds, Arabs, Syriacs, Assyrians, Armenians, Turkmen, Circassians, and Chechens and shall ensure the right of the peoples and groups to establish democratic self-administrations. The first communal elections were held on 22 September 2017 for around 3,700 communal positions.10 Council elections took place on 1 December 2017.11 The third and final round of elections, the Peoples’ Conference elections in northern Syria, and the Democratic Peoples’ Conference elections have been postponed, and no new date has been scheduled.12

36  Zeynep Kivilcim Refugees and internally displaced people (IDP) constitute an important part of the population living in AANES territory. Prior to the Turkish offensive on north and east Syria in October 2019, up to 130,000 IDPs were living in 12 long-stay camps or large informal settlements across north-east Syria (United Nations Office for the Coordination of Humanitarian Affairs, 2019). Turkish military intervention has led to the displacement of between 200,000 and 300,000 civilians, including those who were already living in IDP camps (Lang, 2019; Rojava Information Center, 2019b). The largest refugee camp in the Autonomous Administration is Al-Hol (Al Hawl) Camp. According to the official statistics of the Autonomous Administration, the camp hosts more than 70,000 displaced persons and refugees from 62 different countries.13 There are few fieldwork studies that have investigated the problems in the implementation of the political and legal system of AANES. Some commentators have drawn attention to the fact that, despite leaning towards a stateless postnational model, some accounts of the political representatives of Autonomous Administration display nationalist elements that prioritize Kurdish national identity (Dinc, 2020, pp. 54–57). Critics assert that opposition parties have been excluded from the newly established administrative structure (Ekman, 2017). Other studies indicate that while some residents continue to criticize the executives of the Kurdish movement for their dominance of the Autonomous Administration, they are nonetheless increasingly using these institutions and taking an active part in their operations.14 It is difficult to assess evidence of the consent by different segments of the population living in Rojava to the governance of the Autonomous Administration in the turbulent and constantly changing situation in the region. However, observers have drawn attention to the low level of mobilization against the Administration, despite destabilization attempts emanating from pro-Damascus regime networks and Syrian opposition circles (Haenni & Quesnay, 2020, p. 10). The fact that most of the people displaced by the Turkish military offensive have remained in the territory managed by the Administration instead of taking refuge in other parts of the country or in Iraq could also be interpreted as a sign that the consent of the population to the Autonomous Administration is not only ‘by default’.15 Studies from the field indicate that the most important challenges faced by the communes are the inadequate understanding and engagement of the people in the new direct democracy system (Rojava Information Center, 2019a, p. 26). The ethnic and cultural differences among the regions that maintain decision-making autonomy create challenges and tensions when they implement some of the principles of the Social Charter, in particular, in matters relating to gender justice and equality (Rojava Information Center, 2019a, p. 27).

Gendering radical democracy: Women’s democratic autonomy in Rojava As it builds radical democratic processes from the bottom-up and provides the mechanisms for the direct participation and intervention of women, the model of

Stateless radical democracy and law  37 democratic autonomy provides the means and spaces for the gendered deconstruction of male-biased liberal democratic frameworks. The Social Contract (2016) provides that ‘the democratic federal system of northern Syria adopts the ecological and democratic system and women’s freedom’ (Article 2). It stipulates that ‘women’s freedom and rights and gender equality shall be guaranteed in society’ and ‘women shall enjoy free will in the democratic family’ (Articles 13 and 14). Women are entitled to equal participation in political, social, cultural, economic, and administrative areas and make decisions about their affairs (Article 26). Gender equality and gender justice are forging the legitimacy of the governing authorities. The Social Contract stipulates that AANES must adopt the copresidency system in all political, social, and administrative systems and makes a main principle of the equal representation of both genders. Only women have the right to elect the female co-president, while women and men may elect the male co-president. The testimonies of the various delegations that have visited Rojava indicate that self-determination is gendered, concerning its conceptual content, as well as the mechanisms of its realization. Women are not subordinated to the revolution: they lead it. They are not only engaged in armed combat; they are working for a political, legal, and social transformation to remove gender inequality (Krajeski, 2015, p. 86). The Social Contract commits to punishing all kinds of gender-based discrimination and violence (Article 25). The Women’s Law was adopted in 2014 in Jazeera Canton. The law provides that sexism is a crime and states that the fight against patriarchal logic is everyone’s responsibility. It provides for equality in all areas of life, including access to political power, employment, and wages, as well as rights before the law, inheritance, and citizenship. It prohibits forced marriage, underage marriage, and polygamy with the sanction of prison sentences for both the parties concerned and religious matchmakers. Traditional types of forced marriage are specifically prohibited and sanctioned with heavy prison sentences.16 The Women’s Law applies fully in the regions of Afrin, Kobanê, and Jazeera, but it has not yet been adopted in Manbij, Tabqa, Raqqa, or Deir-ez-Zor (Rojava Information Center, 2019a, p. 42). In Article 68, the Social Contract provides that women’s organizations and the equal representation of women are at the root of the field of justice and its institutional activities. The judicial system includes a women’s justice council that deals with all issues and cases related to women and the family, and monitors and acts in coordination with the judicial councils of the cantons. Women’s centres for science and education (women’s houses or mala jin) are part of the women’s justice system. They have a paralegal task of resolving conflicts that affect women. They also function as reception and accommodation centres for women in difficulty, and they organize training for women on various aspects of their life, their rights, sexual health, and also on ‘jineology’17 (Alternatives International Journal, 2016; Zengin, 2014, pp. 76–80). They make links between politics, the law, and society during their activities. Conflict resolution through the direct intervention of women in the mala jin has the potential

38  Zeynep Kivilcim to empower women to take control of their lives using the strength they derive from their collective struggle (Üstündağ, 2016, pp. 206–207). The cases submitted to dozens of women’s houses active in different cities and some refugee camps relate to violence against women, divorce, and early or forced marriage (Rojava Information Center, 2019a, pp. 45–46). Cases that cannot be resolved by the women’s houses are transferred to people’s courts (Magpie, 2016). Recruitment to the internal security force (Asayish) is based on gender equality. Asayish is co-chaired by a man and a woman; women make up about 40 per cent of the Asayish. Aside from the general Asayish, autonomous women’s brigades (Asayisha jin) have been established in each city (Biehl, 2016, pp. 99–100). These brigades are composed exclusively of women and have exclusive competence to intervene in all cases concerning women: such as domestic violence and the protection of women during demonstrations or early marriage (Bateson et al., 2016, pp. 57–58). The Women’s Council of North and East Syria was founded in 2019 (Hawar News Agency, 2019a). The Council is an umbrella for political, social, and cultural rights. It aims to include all women’s organizations, political parties, representatives of councils, and civil society organizations interested in women’s issues and independent women (Hawar News Agency, 2019b). Commentators have noted various important difficulties that prevent the full implementation of these gender equality rules. The challenges are posed by the male-biased Syrian state law that operates in parallel in the region, as well as by the deep-rooted structural gender discrimination of the social, political, and legal cultures of the populations that are currently governed by AANES. According to observers, these difficulties are manifold. The decisions and sometimes the very existence of women’s houses are contested in some regions. Members are sometimes threatened (Üstündağ, 2016, p. 207), and some women’s houses have been targets of armed violence, while locals who are critical of the system call women’s houses ‘divorce houses’ (Rojava Information Center, 2019a, p. 46). The practice of polygamy is an example that demonstrates these challenges. The Women’s Law prohibits the practice of polygamy, but this practice is still legal under Syrian government law, which is still the regulating body for issuing marriage certificates (Rojava Information Center, 2019a, p. 27). Some sectors of society in the Autonomous Administration – such as Arab groups in Deir-ez-Zor – are also opposed to attempts to forbid polygamy. The Rojava Information Center report explains that in these circumstances the ‘Autonomous Administration adopts a more diplomatic approach’ by engaging in a dialogue and seeking change from below by empowering women within the existing social context (Rojava Information Center, 2019a, p. 27).

Role of the law: Combining justice and democracy In his examination of AANES as a rebel regime Ginsburg reminds us that the functions of the law and courts for rebel regimes can depend on their ideological

Stateless radical democracy and law  39 commitments, their competition with the state on the quality of justice provision, their search for legitimacy among local populations and on the international level, as well the population’s expectations of legal governance (Ginsburg, 2019, pp. 496, 502). Courts can also be useful for actively displacing prior institutions and transforming society (Ginsburg, 2019, p. 498). In the Social Contract, the judicial system is established as a mechanism that promotes social transformation according to the democratic autonomy model. It states that the judicial system ‘aims at building a society which adopts a democratic approach and vision and ecology that believes in the freedom of women and societal life and organizes itself on the basis of a democratic society’ (Article 67). The Social Contract stipulates that services of justice must be conducted through social participation and the organization of democratically formed local units and that peoples, groups, and social segments have the right to form justice mechanisms and develop special methods to solve problems provided that they do not contradict the Social Contract or basic human rights set out in international human rights treaties and charters (Article 68/4).18 Üstündağ points out that Rojava’s judicial system aims at the ‘democratization of the means of justice’ and the ‘democratization and profanation of judgment through conversation, argumentation, and negotiation, making decisions on a case by case basis and involving the community in the decision-making processes’ (Üstündağ, 2016, p. 206). The system promotes the concept of social justice and peaceful reconciliation, so that citizens are directly involved in the establishment of justice as members of reconciliation committees, people’s courts, and justice platforms. The judicial system in Rojava is composed of different committees and courts: the reconciliation committees at the lowest level and people’s courts or district courts (dadgeha gel), then appellate courts (dadgeha istinaf) at the higher levels (Stigall, 2020, p. 63). The People’s Defence Court was established in 2014 on the decision of the Legislative Council and hears cases of crimes against the people of northern and eastern Syria (ANF News, 2019b). A parallel system of courts operated by the Syrian government continues to function in the enclaves that they control. The government’s and Autonomous Administration’s court systems coexist but do not cooperate with each other (Ekman, 2017, p. 119). According to the Social Contract, reconciliation committees must organize themselves everywhere and at all levels as needed from commune to canton to solve conflicts and achieve social peace. Their members are volunteer citizens. A reconciliation committee consists of five to nine people, of whom 40 per cent must be women (Knapp, Ayboğa & Flach, 2016, p. 129). The fact that they solve cases based on consensual decisions and not on the law is considered one of the striking features of the Rojava system.19 It has been argued that the success of the reconciliation committees is an important source of motivation for the majority of the people in taking political and economic actions in solidarity and in cooperation (Knapp, Ayboğa & Flach, 2016, p. 130). The next level above the reconciliation committee is the people’s court. The judges elected at the people’s court need not have a juridical background.

40  Zeynep Kivilcim However, judges on the appeal court must be jurists; they are chosen by the people’s court at the canton level. The Asayish brigades (paramilitary security force) enforce the judgements of the people’s courts (Ekman, 2017, p. 115). They provide internal security and consist of an intelligence service, anti-terror units, and prison guard and traffic control units (Rojava Information Center, 2019a, p. 50). The justice council that organizes and supervises the institutions of justice in the cantons is the highest level of the judicial system.20 The people’s assembly of each canton chooses the members of the justice council. It seems to fulfil the functions of both social control and law-making. Observers have indicated that the justice councils are responsible for ensuring that the judicial system meets the needs of this fast-changing and democratizing society, but they face huge challenges in instituting new legal foundations based on the Social Contract (Ayboğa, Flach & Knapp, 2019, p. 170). At the same time, they scrutinize existing Syrian laws, regulations, and guidelines in order to incorporate parts of them that do not contradict the Social Contract. The justice councils organize and supervise the justice institutions in their canton (Article 69/4). They provide reports, spell out projects, and draft resolutions on justice activities to present to the democratic people’s conference (Article 69/5). The women’s justice council deals with all the issues and affairs related to women and the family (Article 69/6). Some of the challenges and problems in the establishment and functioning of the judicial system have been noted. The people’s courts seem to be the most frequently criticized component of the system (Knapp, Ayboğa & Flach, 2016, p. 130). Some authors report testimonies by lawyers from the region arguing that systemic gender bias persists in the people’s courts, whose decisions are also coloured by political pressures or are personally biased and consequently lack consistency.21 In light of such criticisms, justice platforms were established. The platform can be convened when the peace committee at the commune or neighbourhood level cannot solve a case that relates to a serious crime. It is made up of around hundred people, including women, youth, and neighbourhood organizations, and aims to solve the case, preferably during a single session (Ayboğa, Flach & Knapp, 2019). About 11,000 individuals, including 1,000 foreigners from 50 different countries (United Nations Human Rights Council [UNHCR], 2020, para. 64), are held by the Kurdish authorities in ad hoc detention facilities, which are often old and dilapidated industrial facilities or parts of university buildings that have been transformed into arrest and detention centres (Christou, 2019). Particular concern has been expressed on the situation of children who are detained on the accusation of being involved in the activities of foreign fighters or kept in camps because they are family members accompanying a foreign fighter (OHCHR, 2018, para. 50–54; UNICEF, 2019b). Many states, including EU member states, refuse to assume their obligations under international law towards their own nationals suspected of being either foreign fighters themselves or family members of such fighters. They do not ensure such nationals have effective access to consular services, or that they are

Stateless radical democracy and law  41 repatriated, prosecuted, rehabilitated, and reintegrated in their country of nationality (UN, 2019b). Despite the fact that international human rights law provides the right of everyone to a nationality and prohibits the arbitrary deprivation of a person’s nationality, UN reports warn that it has become increasingly common to strip foreign fighters, both dual nationals and naturalized mono-nationals, of their citizenship, leaving some of them stateless (OHCHR, 2018, para. 40). Some states have cited national security considerations to justify their reluctance to repatriate their nationals (UN, 2019b) or they have invoked legal difficulties that prevent the lawful transfer of foreign fighters from the custody of a non-state entity to government authorities for prosecution and rehabilitation (Stigall, 2020, p. 104). However, UN reports and decisions make it clear that international law does not prevent, but on the contrary, compels the repatriation of the nationals and their prosecution by their nation-states in accordance with due process (United Nations High Commissioner for Human Rights, 2019). Detaining and providing services for so many detainees has proved to be a weighty economic and political burden for the Autonomous Administration. The people’s defence courts in Rojava are heavily burdened by having to try thousands accused of an affiliation with ISIS from more than 50 countries, including EU member states (Arraf, 2019; Sarya & Çoban, 2020). Human Rights Watch alleges that the proceedings against those people in the people’s defence courts ‘are deeply flawed’ as ‘there are no defence lawyers to represent suspects and no appeals process’ (Houry, 2019). Commentators note that the rudimentary criminal legal structures of Rojava face significant operational impediments, limited institutional capacity, and challenges associated with the lack of an established legal framework (Stigall, 2020).

Conclusion The civil war raging in Syria is considered the biggest international crisis since the Second World War. However, this war is also a very important centre of resistance where women and men in the Middle East, who are peripheral subjects of international law and international politics, are reinventing democracy, citizenship, and the law through their daily practices. AANES is currently a laboratory for the progressive deconstruction and renegotiation of the concepts and legal foundations of liberal democracy that are marked by both eurocentrism and male domination. These radical democratic forms of governance and democratization of the means of justice in AANES problematize state–society relations and mainly aim at the development of gender-sensitive self-governing capacities beyond the reach of representative democracy. Liberal democracy confines the idea of politics to the formal political processes of the state and limits the application of democracy. This conceptualization of democracy and politics reinforces the duality of the public and private spheres. In AANES the radical democratic model of politics and democracy is not limited to government processes but extended to all segments of social life so as to remove the border between the public and private spheres. Effective

42  Zeynep Kivilcim control, a constituent element of sovereignty, could no longer mean effective control of the state over its territory and its population, but the almost direct control of the population, including women, over their own lives and over all segments of life. Nevertheless, AANES confronts several challenges. The most difficult of these are imposed by the realities of the on-going civil war. The Autonomous Administration has to respect local and traditional communal autonomy, in which new areas within a democratic confederation are included only after voluntary agreements between cantons. Yet at the same time, it has to pursue the strong military goal of maintaining its existing territories or gaining new ones in competition with several other state and non-state actors militarily involved in the Syrian civil war (Gerber & Brincat, 2018, pp. 17–20). The commitment made by the Autonomous Administration in the Social Contract to respect fundamental rights and freedoms is also fragile. International human rights organizations are critical of its conduct towards dissidents and critical journalists and denounce its military operations, which affect large non-Kurdish communities in northern Syria. Amnesty International and Human Rights Watch have released reports accusing the PYD of serious violations of international human rights and humanitarian law. They report the arbitrary detention of civilians, who are seen as supporters or suspected members of ISIS by the PYD, the unfair trials they undergo, and the deliberate displacement of thousands of civilians, together with the demolition of whole villages as collective punishment of civilians in villages that had previously been in the hands of the Islamic State, where a minority had been suspected of supporting the armed group (Amnesty International, 2015a, 2015b; Human Rights Watch, 2014, 2017). On the other hand, in March 2017, the UN Independent International Commission of Inquiry on Syria stated that it found no evidence to substantiate claims that YPG or SDF forces ever targeted Arab communities on the basis of ethnicity, nor that YPG cantonal authorities systematically sought to change the demographic composition of territories under their control through the commission of violations directed against any particular ethnic group. (United Nations Human Rights Council, 2017, para. 93) The PYD was also criticized for recruiting children under the age of 18 years. In June 2019 they signed an action plan with the UN to end and prevent the enlistment of child soldiers in the force’s ranks.22 However, UN reports warn that notwithstanding the signing of the action plan ‘children aged 16 and 17 continued to be recruited by the Kurdish People’s Protection Units’ (United Nations Human Rights Council, 2020, para. 65). AANES retains its governance structures, despite the constantly changing territory and the populations it controls. Nevertheless, its fate is politically extremely fragile. Talks with the Damascus government on the de facto autonomy of north and east Syria have reached an impasse. The Autonomous Administration, which

Stateless radical democracy and law  43 is the second largest territory holder after the Syrian government in Syria, is also excluded from work in drafting the Syrian constitution initiated by the UN.23 In terms of the gendered aspects of radical democracy in Rojava, international observers report that even PYD dissidents recognize the impact of the new administration on women (Krajeski, 2015). Commentators, including critics of some aspects of governance in AANES, recognize the emancipatory effects of radical democracy on women’s lives and say that empowering women in Rojava has irreversible effects (Leezenberg, 2016, p. 685). The Rojava experience deserves the attention of legal scholars and political theorists. It is an important example of gendered deconstruction of the Eurocentric liberal framework of democracy. It is building revolutionary forms of radical democratic processes with the direct intervention of women, and it has been in existence since 2013 despite the bloody turmoil caused by the Syrian war.

Notes 1 The original territories of the three non-contiguous cantons which first declared their autonomy, Afrin, Kobanê, and Jazeera, have majority Kurdish populations, but the expanded territory now encompasses regions that became part of AANES more recently – Manbij, Tabqa, Raqqa, and Deir ez-Zor – that are largely Arab. 2 Rojava means ‘west’ in Kurdish and indicates one of the four parts of Kurdistan. 3 The adoption of the Social Contract under the name of the ‘Democratic Federation of North-Eastern Syria’ without the term ‘Rojava’ was done to be inclusive of the Arabmajority areas. The revised Social Contract in 2018 has not yet been published; Rojava Information Center, 2019a. 4 Most of Afrin has been under Turkish occupation since March 2018 but continues to be represented in the political system through the area of Shahba, which is populated by Afrin’s displaced population. Parts of the Euphrates and Jazeera regions have been under Turkish occupation since October 2019, and their displaced administrations are now operating from different cities; Rojava Information Center, 2019a, p. 22. 5 According to the Social Contract, the relationship between the Democratic Federalism of Northern Syria and the Democratic Federation of Syria must be identified at all levels, according to a consensual democratic constitution (Article 71). 6 Rojava Information Center is an organization based in north-east Syria, staffed by volunteers assisted by reporters and researchers from international newspapers and news sources. 7 With its focus on the community as the constituted political power, the model can be situated within the autonomist strand of radical democracy (Bookchin, 1991). Some authors draw attention to the differences between the anarchist elements of Bookchin’s theory and the fact that the PYD, which dominates many levels of political organization in Rojava, is a strictly hierarchical organization (Leezenberg, 2016, pp. 672–678). Commentators also note the differences between Bookchin’s theory and the system in place in Rojava, but argue that ‘this Kurdish praxis is a vital addendum to Bookchin’s thought that should continue to qualify communalist political theory in the future’ (Gerber & Brincat, 2018, p. 20). 8 Councils are elected and work through the committees. There are quota requirements for women and ethnic and religious minorities; Rojava Information Center, 2019a, p. 24. 9 Altogether 40 per cent of the canton’s assembly members are formed from directly and democratically elected representatives within the ethnic, religious, doctrinal, and cultural components; this is regulated by law. A total of 60 per cent of the people’s representatives are elected in general elections (Article 55).

44  Zeynep Kivilcim 10 Some 728,450 votes were cast, representing around 70 per cent of all eligible voters. In the Cezîre region (Qamishli and Hasakah cantons), people elected co-chairs for 2,669 communes from over 12,000 candidates, while in the Euphrates region (Kobanê and Tel Abyad cantons) people elected co-chairs for 843 communes from over 3,100 candidates, and in the Afrin region (Afrin and Shehba cantons), co-chairs for 435 communes were elected from over 1,550 candidates. 11 The communal and council elections were boycotted by the pro-Barzani parties in the Kurdistan National Council, claiming they had been deliberately arranged to draw attention away from the independence referendum in Iraqi Kurdistan (Jongerden, 2019, p. 32). For the election results see Rudaw, 2017 and ANF News, 2017. 12 Autonomous Administration authorities stated that postponing the third round of elections is due to the restricted preparation time; ANF News, 2018; Ibrahim & Edwards, 2018; Rudaw, 2018. 13 More than 90 per cent of the inhabitants of the Al-Hol camp are women and children (UNICEF, 2019a). Refugees and IDPs include the ISIS members and their families who surrendered to the Syrian democratic forces and civilians displaced from various regions of Iraq and Syria. According to a statement by the Social Affairs and Work Body of the Autonomous Administration of Northern and Eastern Syria and the Office of the Displaced, Refugees and Migrants Affairs of the Autonomous Administration, 30,890 people are Iraqi refugees, 30,314 are displaced Syrians, and 10,454 are from other countries around the world; ANF News, 2019a. 14 Haenni and Quesnay argue that the reason for this is the absence of any other political alternative or the ability of the Administration to ‘clientelize society by involving it in its governance structures’ (Haenni & Quesnay, 2020, pp. 10–11). 15 Media reports indicate that refugees in some camps located outside AANES territory want to be relocated in parts of northern Syria held by the Syrian democratic forces, fearing arrest, torture, or execution by the Damascus regime, or forced conscription into the regime’s army; The New Arab, 2019. 16 Article 16 of the Women’s Law prohibits heyirandin (the exchange of daughters between two families as brides for the sons of each family), berdêlî (the right of the son of a woman’s paternal uncle to claim this woman as a bride, and if she refuses he can forbid her from ever marrying), and zewaca ji ber kuştinê (giving a woman as a ‘gift of consolation’ in the case of a blood feud between two families). See President of the Women’s Committee, 2014. 17 ‘Jineology’, translated as ‘the science of women’, aims to be a new theory in the field of social sciences and to build an original feminist theory, adapted to the context of the Middle East. Jineology is fusion of feminism (with many references to the different trends of western feminism) with all the cultural and mythological specificities of the Middle East. One of the most important activities in the constituting the theory of Jineology was the quarterly theoretical journal Jineoloji, published since April 2016. See also Özgür Kadın Akademisi, 2015 and Jineoloji Akademisi, 2015. 18 Article 54/4. The General Council coordinates legislative matters and unifies laws between regions. Justice councils administer tribunals and coordinate the justice systems and guideline sentences between regions. Members from all seven regions of the Autonomous Administration sit on both councils; Rojava Information Center, 2019a, p. 20. 19 The reconciliation committees were first formed in the 1990s by Kurdish political activists in northern Syrian cities with Kurdish majorities and they operated underground and often parallel to the existing justice system. Starting from 2012, existing peace and consensus committees rapidly began to handle local justice issues; Ekman, 2017, p. 113. 20 The justice council ensures fair and democratic representation of peoples, groups, and social segments based on quota for justice institutions (Social Contract, 2016, Article 68/4).

Stateless radical democracy and law  45 21 The problems in the functioning of the people’s court raise even bigger concerns if they are coupled with the shortcomings at the appeal stage. Ekman report testimonies of some critical lawyers from the region who assert that the right of appeal exists in theory, but is often absent in practice (Ekman, 2017, pp. 115, 121, 125). 22 According to the Agreement, the Syrian democratic forces have pledged not only to end and prevent the recruitment of children, but also to identify and separate boys and girls currently within their ranks and to put in place preventative and disciplinary measures related to the use of minors (UN, 2019c). 23 The composition of the constitutional committee initiated by the UN has already triggered heated debate between the government and various opposition platforms and also within the ranks of the opposition. Damascus, for its part, does not hide its intention to secure a governmental majority in the Committee. The more than year-long effort to form a 150-member constitutional committee has been dogged by objections from Syria’s government over the 50-member list representing experts, independents, tribal leaders, and women. There is already agreement on 50-member lists from the government and the opposition. The constitutional committee has been convened twice in Geneva, but the situation was in deadlock at the second meeting at the end of 2019 (UN, 2019a).

References Akkaya, A. H., & Jongerden, J. (2012). Reassembling the political: The PKK and the project of radical democracy. European Journal of Turkish Studies, 14. Retrieved from https://journals​.openedition​.org​/ejts​/4615. Alternatives International Journal. (2016). Beyond female soldiers: The feminism of Rojava. Retrieved from www​.alterinter​.org/​?Beyond​-Female​-Soldiers​-The​-Feminism​-of​-Rojava. Amnesty International. (2015a). Syria. Arbitrary detentions and blatantly unfair trials mar the PYD fight against terrorism. Retrieved from www​.amnesty​.org​/en​/latest​/news​/2015​ /09​/syria​-abuses​-mar​-pyd​-fight​-against​-terrorism/. Amnesty International. (2015b). Syria: ‘We had nowhere to go’ – Forced displacement and demolitions in northern Syria. Retrieved from www​.amnesty​.org​/en​/documents​/ mde24​/2503​/2015​/en/. ANF News. (2017). Northern Syria election results announced. ANF News, December 5. Retrieved from https://anfenglish​.com​/rojava​/northern​-syria​-election​-results​ -announced​-23501. ANF News. (2018). Northern Syrian democratic federation elections postponed. ANF News, January 5. Retrieved from https://anfenglish​.com​/human​-rights​/northern​-syrian​ -democratic​-federation​-elections​-postponed​-24031. ANF News. (2019a). Autonomous administration warns of danger of ISIS reorganizing. ANF News, October 7. Retrieved from https://anfenglishmobile​.com​/rojava​-syria​/ autonomous​-administration​-warns​-of​-danger​-of​-isis​-reorganising​-38118. ANF News. (2019b). Trial of ISIS jihadists begins in northeast Syria. ANF News, October 2. Retrieved from https://anfenglish​.com​/rojava​-syria​/trial​-of​-isis​-jihadists​-begins​-in​ -northeast​-syria​-38020. Arraf, J. (2019). ‘Revenge is for the weak’: Kurdish courts in northeastern Syria take on ISIS cases. Npr News, May 29. Retrieved from www​.npr​.org​/2019​/05​/29​/727511632​ /revenge​-is​-for​-the​-weak​-kurdish​-courts​-in​-northeastern​-syria​-take​-on​-isis​-cases​?t​ =1584973895250. Ayboğa, E., Flach, A., & Knapp, M. (2019). Rojava devrimi – Komünalizm ve kadın özgürlüğü savaş ve ambargo kıskacında. Retrieved from https://we​.riseup​.net​/assets​ /571697​/RojavaDevrimi​+full​+75dpi​.pdf.

46  Zeynep Kivilcim Bateson, F., Dirkx, T., Frerks, G., Middelkoop, D., & Tukker, N. (2016). Gendered alternatives: Exploring women’s role in peace and security in the self-administered areas of Northern Syria. Den Haag/Utrecht: Netherlands Organisation for Scientific Research/Utrecht University. Retrieved from www​.kpsrl​.org​/sites​/default​/files​/ publications​/files​/gendered​_alternatives​_policy​_report​_1​.pdf. Biehl, J. (2016). Le système judiciaire au Rojava. Refractions, 37, 89–106. Bookchin, M. (1985). Radicalizing democracy. Interview with Murray Bookchin. Anarchy Archives. Retrieved from dwardmac​.pitzer​.edu​/Anarchist​_Archives​/bookchin​ /raddemocrac​y​.html. Bookchin, M. (1991). Libertarian municipalism: An overview. Green Perspectives, 24, 1–6. Christou, W. (2019). The ‘Autonomous Administration’ struggles under weight of IS detainees as insurgency evolves. Syria Direct, September 17. Retrieved from https:// syriadirect ​ . org ​ / news ​ / the- ​ % e2 ​ % 80 ​ % 98autonomous​ - administration​ % e2​ % 80​ % 99​ -struggles​-under​-weight​-of​-is​-detainees​-as​-insurgency​-evolves/. Dinc, P. (2020). The Kurdish movement and the democratic federation of Northern Syria: An alternative to the (nation-)state model? Journal of Balkan and Near Eastern Studies, 22(1), 54–57. Ekman, M. (2017). Report Syria 2017. ILAC rule of law assessment report. Retrieved from https://issat​.dcaf​.ch​/download​/114807​/2087593​/Syria2017​.pdf. Gerber, D., & Brincat, S. (2018). When Öcalan met Bookchin: The Kurdish freedom movement and the political theory of democratic confederalism. Geopolitics, October 16. Retrieved from www​.tandfonline​.com​/doi​/full​/10​.1080​/14650045​.2018​.1508016. Ginsburg, T. (2019). Rebel use of law and courts. Annual Review of Law and Social Science, 15, 495–507. Haenni, P., & Quesnay, A. (2020). Surviving the aftermath of Islamic State: The Syrian Kurdish movement’s resilience strategy. Florence: European University Institute. Hawar News Agency. (2019a). Founding conference of women’s council launched. Hawar News Agency, June 14. Retrieved from www​.hawarnews​.com​/en​/haber​/founding​ -conference​-of​-womens​-council​-launched​-h9643​.html. Hawar News Agency. (2019b). Women’s council is cornerstone for all women in northern, eastern Syria. Hawar New s Agency, June 17. Retrieved from www​.hawarnews​.com​/en​ /haber​/womens​-council​-is​-cornerstone​-for​-all​-women​-in​-northern​-eastern​-syria​-h9701​ .html. Houry, N. (2019). Bringing ISIS to justice: Running out of time? Human Rights Watch, February 5. Retrieved from https://www​.hrw​.org​/news​/2019​/02​/05​/bringing​-isis​ -justice​-running​-out​-time. Human Rights Watch. (2014). Under Kurdish rule: Abuses in PYD-run enclaves of Syria. Human Rights Watch, June 19. Retrieved from www​.hrw​.org​/report​/2014​/06​/19​/under​ -kurdish​-rule​/abuses​-pyd​-run​-enclaves​-syria. Human Rights Watch. (2017). World report 2017. Retrieved from www​.hrw​.org​/world​ -report​/2017#:~​:text​=World​%20Report​%202017​%20summarizes​%20key​,in​%20the​ %20country​%20in​%20focus. Ibrahim, A. M., & Edwards, M. (2018). Elections in Kurdish-held northern Syria postponed with no date set. Syria Direct, January 8. Retrieved from https://syriadirect​.org​/news​/ elections​-in​-kurdish​-held​-northern​-syria​-postponed​-with​-no​-date​-set/. Jineoloji Akademisi. (2015). Jineolojiye Giriş. Istanbul: Aram Yayınları. Jongerden, J. (2015a). Radicalising democracy: Power, politics, people and the PKK. Research Turkey, 4(3), 64–78.

Stateless radical democracy and law  47 Jongerden, J. (2015b). PKK, Radikal Demokrasi ve Ulus-Devletin Ötesinde Kendi Kaderini Tayin Hakkı. In J. Jongerden, A. H. Akkaya, & B. Şimşek. (Eds.), İsyandan inşaya Kürdistan özgürlük hareketi (pp. 175–176). Ankara: Dipnot Yayınları. Jongerden, J. (2019). Governing Kurdistan: Self-administration in the Kurdistan regional government in Iraq and the democratic federation of Northern Syria. Ethnopolitics, 18(1), 61–75. Knapp, M., Ayboğa, E., & Flach, A. (2016). Revolution in Rojava: Democratic autonomy and women's liberation in Syrian Kurdistan. London: Pluto Press. Krajeski, J. (2015). What the Kurds want: Syrian Kurds are trying to build a leftist revolution in the midst of a civil war. Is it a new Middle East, or just another fracture? Virginia Quarterly Review, 91(4), 86–105. Lang, H. (2019). Report: Displacement and despair: The Turkish invasion of northeast Syria. Refugees International, November 12. Retrieved from www​.ref​ugee​sint​erna​ tional ​ . org ​ / reports​ / 2019​ / 11​ / 12​ / displacement​ - and​ - despair​ - the​ - turkish​ - invasion​ - of​ -northeast​-syria. Leezenberg, M. (2016). The ambiguities of democratic autonomy: The Kurdish movement in Turkey and Rojava. Southeast European and Black Sea Studies, 16(4), 671–690. Magpie, J. (2016). Regaining hope in Rojava. Open Democracy, June 6. Retrieved from www​.opendemocracy​.net​/en​/north​-africa​-west​-asia​/regaining​-hope​-in​-rojava/. OHCHR – Office of the United Nations High Commissioner for Human Rights. (2018). Guidance to states on human rights-compliant responses to the threat posed by foreign fighters. United Nations counter-terrorism implementation task force – working group on promoting and protecting human rights and the rule of law while countering terrorism. Retrieved from www​.un​.org​/sc​/ctc​/wp​-content​/uploads​/2018​/08​/Human​ -Rights​-Responses​-to​-Foreign​-Fighters​-web​-final​.pdf. Özgür Kadın Akademisi. (2015). Jineoloji Tartışmaları. Istanbul: Aram Yayınları. President of the Women’s Committee. (2014). Women’s law. Basic principles and general principles for women. The Autonomous Administration of Jazeera Canton of Rojava. Retrieved from https://roj​avai​nfor​mati​oncenter​.com​/storage​/2019​/12​/2014​-Womens​ -Law​-Basic​-Principles​-and​-General​-Principles​-for​-Women​.pdf. Rojava Information Center. (2019a). Report. Beyond the frontlines: The building of the democratic system in north and east Syria. Retrieved from https://roj​avai​nfor​mati​ oncenter​.com​/storage​/2019​/12​/Beyond​-the​-frontlines​-The​-building​-of​-the​-democratic​ -system​-in​-North​-and​-East​-Syria​-Report​-Rojava​-Information​-Center​-December​-2019​ -V4​.pdf. Rojava Information Center. (2019b). North and east Syria: Displaced populations and refugee camps update, 4th November 2019. Retrieved from https://roj​avai​nfor​mati​ oncenter ​ . com ​ / storage​ / 2019​ / 11​ / Displaced​ - Populations ​ - and ​ - Refugee ​ - Camps ​ - 4th​ -November​-update​.pdf. Rudaw. (2017). Rojava ruling party’s list sweeps local council elections. Rudaw, December 5. Retrieved from www​.rudaw​.net​/english​/middleeast​/syria​/05122017​-amp. Rudaw. (2018). Rojava postpones final round of elections. Rudaw, May 1. Retrieved from www​.rudaw​.net​/english​/middleeast​/syria​/05012018. Sary, G. (2016). Kurdish self-governance in Syria: Survival and ambition. London: Chatham House. Sarya, B., & Çoban, M. (2020). Northern Syria: Thousands of ISIS jihadists await trial. ANF News, March 21. Retrieved from https://anfenglish​.com​/features​/northern​-syria​ -thousands​-of​-isis​-jihadists​-await​-trial​-42444.

48  Zeynep Kivilcim Social Contract. (2014). Social contract of the autonomous regions of Afrin, Jazeera, and Kobanê. Rojava Information Center. Retrieved from https://roj​avai​nfor​mati​oncenter​ .com​/storage​/2019​/12​/2014​-Social​-Contract​-of​-the​-Autonomous​-Regions​-of​-Afrin​ -Jazeera​-and​-Kobane​.pdf. Social Contract. (2016). Social contract of the democratic federation of North and East Syria. Rojava Information Center. Retrieved from https://roj​avai​nfor​mati​oncenter​.com​/storage​ /2019​/12​/2016​-Social​-Contract​-of​-the​-Democratic​-Federation​-of​-Northern​-Syria​.pdf. Stigall, D. E. (2020). The Syrian detention conundrum: International and comparative legal complexities. Harvard National Security Journal, 11(1), 54–105. The New Arab. (2019). Hundreds of Syrian refugees arrested by Assad regime despite leaving Rukban camp with UN guarantees. The New Arab, December 10. Retrieved from https://english​.alaraby​.co​.uk​/english​/news​/2019​/12​/10​/syrian​-regime​-arrests​ -hundreds​-leaving​-rukban​-refugee​-camp. UN. (2019a). Briefing to the Security Council by UN Special Envoy for Syria, Geir O. Pedersen, S/PV.8696. UN Special Envoy for Syria. Retrieved from https://reliefweb​ .int​/report​/syrian​-arab​-republic​/briefing​-security​-council​-un​-special​-envoy​-syria​-geir​ -o​-pedersen​-20. UN. (2019b). Protecting human rights and fundamental freedoms while countering terrorism, A/74/270. Report of UN Secretary-General. Retrieved from https:// digitallibrary​.un​.org​/record​/3825580​?ln​=en​#record​-files​-collapse​-header. UN. (2019c). Syrian democratic forces sign action plan to end and prevent the recruitment and use of children. Office of the Special Representative of the Secretary-General for Children and Armed Conflict. Retrieved from https://chi​ldre​nand​arme​dconflict​.un​.org​ /syrian​-democratic​-forces​-sign​-action​-plan​-to​-end​-and​-prevent​-the​-recruitment​-and​ -use​-of​-children/. UNICEF. (2019a). Unwanted, exploited and abused: Tens of thousands of children in Al-Hol camp and several parts of Syria in limbo amid dire humanitarian needs. UNICEF Press Releases, July 17. Retrieved from www​.unicef​.org​.uk​/press​-releases​/unwanted​ -exploited​-and​-abused​-tens​-of​-thousands​-of​-children​-in​-al​-hol​-camp​-and​-several​-parts​ -of​-syria​-in​-limbo​-amid​-dire​-humanitarian​-needs/. UNICEF. (2019b). Protect the rights of children of foreign fighters stranded in Syria and Iraq – Statement by UNICEF Executive Director Henrietta Fore. UNICEF Press Releases, May 20. Retrieved from www​.unicef​.org​/press​-releases​/protect​-rights​-children​-foreign​ -fighters​-stranded​-syria​-and​-iraq. United Nations High Commissioner for Human Rights. (2019). 41st session of the Human Rights Council – Opening statement by UN High Commissioner for Human Rights Michelle Bachelet. Retrieved from https://www​.ohchr​.org​/EN​/NewsEvents​/Pages​/ DisplayNews​.aspx​?NewsID​=24724​&LangID​=E. United Nations Human Rights Council. (2017). Human rights abuses and international humanitarian law violations in the Syrian Arab Republic, A/HRC/34/CRP.3. Conference room paper of Independent International Commission of Inquiry on the Syrian Arab Republic. Retrieved from https://www​.ohchr​.org​/en​/HRBodies​/HRC​/IICISyria​/Pages​/ Documentation​.aspx. United Nations Human Rights Council. (2020). Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, A/HRC/43/57. Commission of Inquiry on the Syrian Arab Republic. Retrieved from https://www​.ohchr​.org​/en​/ HRBodies​/HRC​/IICISyria​/Pages​/Documentation​.aspx. United Nations Office for the Coordination of Humanitarian Affairs. (2019). Camp and informal site profiles northeast Syria, April–May 2019. Retrieved from https://reliefweb​

Stateless radical democracy and law  49 .int​/sites​/reliefweb​.int​/files​/resources​/reach​_syr​_factsheet​_northeastsyria​_cam​pand​ info​rmal​site​prof​iles​round5​_allprofiles​_jul2019​-compressed​.pdf. Üstündağ, N. (2016). Self-defense as a revolutionary practice in Rojava, or how to unmake the state. South Atlantic Quarterly, 115(1), 197–210. Zengin, A. (2014). Devrimin Rojava hali. Istanbul: Ceylan Yayınları.

3

South Africa and the crisis of liberal democracy Settler-colonial modernity and a dominant friend-enemy conception of politics Thiven Reddy

Introduction As a new liberal democracy, South Africa can cast some rather unconventional light on how to analyze democracy in ‘dark times’. Two points initially stand out in pursuing analysis along this path: the first is the weighted influence of the historical context in a place like South Africa. It was the last of many countries to throw off the yoke of legislated racism, having imposed racist practices with colonial conquest from 1652. This history makes a liberal conception of politics, as consensus-producing because dialogical, a challenge. Second, given its history of racialized capitalism and deeply embedded violence, a friend-enemy conception of politics will necessarily compete with the consensus-seeking liberal democratic culture required of the new constitutional order. This chapter draws on a particular interpretation of liberal democracy in South Africa through the paradigmatic lens of a settler-colonial society. It will argue that approaching it as an exception allows us to analyze the challenge to liberal democratic politics. Because generated from a violent history of a relationship of a colonizer and colonized, a Schmittian conception of politics dominates. However, in material and practical terms, in the concrete situation, this situation applies to the pre-1994 nationalist struggle against Apartheid racism where recognition and personal sacrifice were prime values (exemplified by Steve Biko and many others). This conception of the political splits in two directions in the post-1994 period, between the political elite and subaltern masses. In the democratic period, the political elite instrumentally draws upon a ‘friend-enemy’ discourse for electoral mobilizational politics, while the subaltern continues (under different conditions) with the ‘pre-1994 struggle’ to obtain citizen recognition and access to material goods. This bifurcated conception of the political allows, in unexpected ways and especially ideologically during elections, for the re-assertion of the historical contradictions that reproduce the dominant racial identities expressed as the majoritarian-minority representation of South African parliamentary politics. Hence, even though its record of enhancing the quality of subaltern citizen democracy remains dismal, the nationalist elite retains control of state power.

South Africa and liberal democracy  51

The pervasive disillusion of a promise A major newspaper, the Cape Times, published a photograph of ANC leaders, arguably from one faction, cutting a gigantic ‘birthday cake’ (Mavuso, 2020, p.7). The cake, the size of an average office table, was baked in ANC colours – green, yellow, and black. The occasion was 8 January 2020, to celebrate the 108th year of the party, and the venue was a small coastal town in rural Kwa-Zulu Natal, Port Shepstone. The smiles and celebratory laughter of the ANC leaders fly in the face of the reality and broader background of misrule and grotesque dishonesty. The town of Port Shepstone, similar to many towns and cities of post-Apartheid South Africa, is in a state of disrepair and decline, directly attributable to the incompetence and moral decay of political leadership. Port Shepstone is unable to keep up with the mounting numbers of young people who search for jobs, wanting to improve the lives of themselves and their rural families. The citizens expect to stand in long lines for hours or days in any building providing a government ‘service’. The streets are pot-holed, uncleaned, and groups of unemployed youth pass days without any prospects of a job, mired in boredom suffocating their youthful spirit. Nevertheless, the ANC celebrates its 108 years of existence with a lavish party. Faced by cheering supporters, leaders Peggy Nkonyane, Bathabile Dlamini, Mike Mabuyakhulu, and Sihle Zikalaza surround national secretary, Ace Magashule, with broad smiles as they cut the massive cake to celebrate. The photograph is a text of multiple contradictions. One such is that the subjects of the photograph, the leaders, would all claim glorious ‘struggle histories’ of bravery and sacrifice, even though in the ‘post-struggle’ democratic period, stories of ethical and moral weakness haunt them and their organization because of rampant corruption of public resources. Over the past decade, not a day goes by without media reports of some news of corruption. A rich source of the disillusion with post-Apartheid democratic politics lies in its comparison with the pre-1994 struggle culture and politics. It is claimed that without radical economic re-distribution democracy will be superficial, limited because legalistic, and fails to substantively meet what subaltern citizens expected against the backdrop of deeply rooted racial inequality, past state repression and a closed society (Alexander, 2010; Alexander, 2002; Eliseev, 2014). Subaltern citizens arrive at stark contrasts between the ‘good and the bad’, the increased reporting of corrupt activity of the ruling group perhaps promoting such a trend. The critical contrast revolves around the ethical-political terrain. The difference emphasizes the ‘sacrifice’ exemplified by a Nelson Mandela or a Steve Biko during the struggle to overcome black oppression, and values promoting self-interest and greed in the democratic order. Citizens ask, “where have those struggle values’ gone?” How is it possible that this or that person is known for multiple detentions by Apartheid state security police, acts of bravery, and courage under torture, and today, upon assuming an office in the ANC government s/he steals taxes to satisfy expensive private lifestyles? ‘I did not struggle to be poor’, ANC spokesperson

52  Thiven Reddy Smuts Ngonyama controversially once claimed. He responded to accusations that he directly benefitted from a government Black Economic Empowerment (BEE) deal in which a state-owned company (Telkom) sold a significant stake to a black consortium, led by the director-general of the Communications department (IOL Online, 2020). Also troubling is the difficulty in easily distinguishing the upright public practice of politicians when the latter mix struggle and democratic discourses to justify opportunist practice. Another layer of politics post-1994 is the system of ‘hiding behind the law’, of ‘going through the motions’, highlighting tension between pretending ‘innocence’ before the law and pursuing self-serving interests in practice, with public trust undermined as a result. We can interpret post-Apartheid politics from many different perspectives 25 years after the end of official state-imposed racism. Among those who ideologically disagree on several issues, they agree that the celebratory mood associated with the ‘end of Apartheid’ has died. Political analysis of the country features words such as ‘failure’, ‘disillusion’, and ‘corruption’ as pronounced themes. Some have blamed this deterioration of South African politics on the ANC as an organization, others more narrowly on the administration of Jacob Zuma, while still others, more broadly, to the political class as a whole supported by the primary economic beneficiaries of the democratic form of government, the growing black and established white middle class. After three centuries of settler-colonial politics, the economic, political, and cultural elite – especially the nationalist elite at the head of the post-Apartheid project – we can conclude has demonstrated its inability to rise to the challenges faced by a democratic society, after Apartheid (Fanon, 1963). How could we explain this outcome? The contradictions of settler-colonial society as it historically evolved in South Africa, the undemocratic ethos of ANC exile politics, and its subsequent control of sovereign state power moulded through the lens of an Afrikaner nationalist-white supremacist enemy and dependence on state patronage arguably contribute to the outcomes we witness and collectively condemn. Nevertheless, still it remains an incomplete answer. As a group, the black nationalist elite, the new political class of the democratic period, is likened more to the dying aristocracy of French feudalism than an innovative, self-sacrificing leadership of new state-society-builders. Perhaps this is something that more critical analysis should have warned against amidst the dying days, the crisis period of Apartheid, but instead, intellectual strata heroically romanticized future democratic rule. However, the celebratory mood surrounding the ending of Apartheid and hoped-for political possibilities made almost ‘unthinkable’ any critical analysis of the emerging nationalist leadership, the ANC, or embryonic cancerous trends in civil society.

The genealogy of the liberal democratic promise in South Africa Dutch settlers colonized the country in 1652. As a colony, the relationship between colonizer and colonized expressed itself as a clash and structural contradiction of collective identities – white and black – that assumed the role of

South Africa and liberal democracy  53 the primary source of conflict in its politics. After almost 300 years of a racially divided and oppressive society based on state control and national legislation, the end of Apartheid in 1994 promised a liberal democratic constitution and a new era. Somewhat expectedly, the nationalist movement and struggle of oppressed blacks manifested in the most influential, comparatively most organized of the anti-Apartheid organizations (Lodge, 1983), the party of Mandela, the ANC, becoming the governing party. It won the most votes in 1994 and in every election in the past two decades. Comparativist political scientists describe the multiparty electoral system as a dominant party system, similar to periods in the electoral politics of Malaysia, Taiwan, Japan, Mexico, and India (De Jager & Du Toit, 2013; Duverger, 1954; Giliomee & Simkins, 1999; Arian, 1974). This dominant party outcome persists despite the negotiated design of the political system encouraging the dispersal of power. The disappointment, a puzzle in South Africa, is that the new political dispensation, irrespective of rampant corruption and poor service delivery to the majority black poor, leaves the liberal democratic promise unrealized as the political class remains securely in power (Johnson, 2009; Friedman, 1999; Alexander, 2010; Bond, 2010). The nationalist elite is almost guaranteed electoral victory, an outcome that cannot be isolated nor disconnected from the history of settler-colonial modernity and a ‘friend-enemy’ conception of politics (Schmitt, [1932] 1996). The National Party (NP) Afrikaans leadership decided to negotiate an end to Apartheid racism because of resistance, in particular, the domestic protests from the 1970s onwards (Murray, 1987). After the 1976 Soweto student-inspired community revolt, the Afrikaner National Party leaders embraced negotiations and political reform to stall further radicalization in a revolutionary direction. In 1990, led by F.W. De Klerk, the Apartheid regime set the new tone: it released Nelson Mandela and other political prisoners, unbanned the anti-Apartheid organizations, and allowed exiles to return (Sisk, 1995). These actions responded to the general breakdown in the social order, traceable to structural failings of Apartheid. It manifested in significant declines in production and profit rates, increased unemployment and strike action, a split in the ruling group between ‘hardliners’ and ‘reformers’, and the impressive capacity of the anti-Apartheid movement to mobilize in black areas (Murray, 1987). This domestic resistance went back to the early 1970s’ emergence of black consciousness ideology among urban youth. This development created an ‘intifada-like’ protest movement, which led to increased international pressure on the Apartheid government through calls for different kinds of sanctions (Murray, 1987; Fatton Jr., 1986; Gerhart, 1978). The most significant undoubtedly was economic disinvestment. By this stage, North American and European publics had arrived at the point where Apartheid racism could no longer be justified; the developed world had moved on and exploitation had discovered other ideological foundations. The release of Mandela prompted several formal and informal negotiating forums. In these, the major political parties, the NP and ANC, entered into a series of compromises. After some unpredictable setbacks and the uncertainty surrounding the negotiations between 1990 and 1994, the negotiators announced ‘success’,

54  Thiven Reddy releasing a democratic constitution containing majoritarian and consensus features (Koeble, 1998; Sparks, 1994). It was the most ‘progressive liberal constitution in the world’, they claimed. A constitutional assembly (the national parliament constituted itself as a Constituent Assembly after the first elections in 1994) wrote a constitution compatible with 34 negotiated constitutional principles. The most important were the separation of powers between different branches of government – the executive, legislative, and judicial; regular elections, recognition of the diversity of the population; a multiparty political system; three levels of government, national, provincial, and local; both exclusive and concurrent powers for the provincial government; the establishment of independent democracy-enhancing commissions; and a proportional representation electoral system (Faure & Lane, 1996). In essence, the ANC negotiators agreed to a compromise of universal adult franchise (one-person-one vote) in exchange for a complex system of checks and balances, the preference of the old government; in crude terms Blacks assume control of the state and whites retain control of the capitalist economy. The constitutional checks included the protection of private property rights, cultural recognition of minorities, and promises from the ANC to form a coalition government and preserve the white civil service for five years after the founding election (Welsh, 2009; Maharaj, 2008; Waldmeir, 1997; Rantete & Giliomee, 1992). On paper, Koelble (1998) characterizes this liberal democratic system as a qualified majoritarian system. The negotiations intended the proportional representation electoral system, weak federalism, a written constitution, and watchdog agencies to avoid the centralization of power. However, there is no formal separation of powers between the parliament and the executive. The national government must obtain support from the majority of representatives in the legislature, and this makes South Africa a parliamentary rather than a presidential system. The parliamentary seat majority of the ANC places the executive power exclusively under ANC control. Nelson Mandela and Thabo Mbeki, more sensitive than other ANC leaders to the negotiated transition and its legitimating possibilities for the ‘nation-building’ project, offered a couple of cabinet posts to one or two opposition party leaders (Mandela, 1994; Southall, 2001). At local government levels, electoral outcomes have made forced coalitions more frequent, although among the 278 local councils, the ANC controls the overwhelming number (IEC, 2016). The ANC electoral dominance nationally, in nine of the ten provinces, in addition to the majority of local councils, has undermined the ‘federal features’ and the hoped-for possibilities for the dispersal of power. Between 1999 and 2004, coalition arrangements at the provincial level only occurred in the Kwa-Zulu Natal province, and in the Western Cape with different party combinations, until 2009 when the main opposition party, the Democratic Alliance (DA), assumed control of this province (Schulz-Herzenberg, 2009). The proportional representative electoral system rules have allowed many small parties minimum seat representation which they use to meekly oppose ANC preferences because dwarfed by the ANC majority. In the six elections since 1994, the ANC has won resounding victories, each time with fewer eligible voters going to the polls. In 1994 it won 62.6 per cent of the vote (a full 42 per cent) ahead of its

South Africa and liberal democracy  55 nearest rivals; in 1999 it increased this to 66.5 per cent, winning another 14 seats, controlling 266 seats of the 400-seat national assembly. In 2004 it won a further four seats, bringing its total to 279 (after the 2007 floor crossings of members from other parties to the ANC). The ANC vote has since declined in the 2009, 2014, and 2019 elections, still far ahead of its nearest competitor, the DA (Africa, 2019). The PR-party-list system gives ‘party bosses’ firm control over ordinary members and party representatives. Party leaders select members who will qualify for public office, and members who fall foul of leadership will lose their seats, a severe setback in a grossly unequal society where politics functions as the only source of potential income for many. These outcomes leave ordinary members ‘powerless’ and weaken internal party democracy. Add this to an exile ANC culture developing out of its fight against a formidable Apartheid enemy, providing compelling reasons to suppress internal dissent and depend on internal unity for survival (Adam, Slabbert & Moodley, 1998). Unity was a ‘life or death’ matter. The ANC though has selected some struggle values over others, and therefore the utility of ‘sacrifice for the collective’ can so easily be modified to protect ‘wrongdoing’ under democratic conditions, as it could be among criminal gangs. It all depends on the definition of collective goals; and in the post1994 period, the goal was not to threaten the party control of the state. Illustrative of this party unity (or sometimes labelled ‘comradeship’) was the case of Thabo Mbeki’s morally indefensible views on HIV/AIDS when so many of the ANC’s own supporters were dying of the disease. Another is the absence of internal opposition throughout the Jacob Zuma years when state enterprises were habitually looted of capital and assets by ANC members working with influential business people. Since the 1999 elections, the ANC and Democratic Alliance (DA) have represented the two largest parliamentary political parties. These occupy the centre position in the political party spectrum and indicate voter support away from the ideological extremes. The opposition parties, divided and weak, include the Democratic Party (it became the DA after an alliance with the New National Party in 1998; the latter eventually merged into the ANC in 2004), representative of the white South African ‘liberal tradition’. In 1994 it won only 1.75 per cent of the vote (just seven seats), 9.5 per cent in 1999, and 11 per cent in 2004 with 52 parliamentary seats, and has hovered around 20 per cent support from 2009 to 2019, to become the only opposition party with some long-term viability (Africa, 2019). Left or right of the ANC except for the ‘populist’ EFF, no party poses any serious challenge to the ANC. The black political parties with deep roots in the anti-Apartheid struggle – the Pan-Africanist Congress, Azanian People’s Organization, the Socialist Party of Azania – and, since 2014, the Economic Freedom Fighters (EFF) have surprisingly failed to mobilize post-Apartheid disenchantment at the ballot box. The EFF and its charismatic leader, Julius Malema, increased its vote from 6 per cent in 2014 (its first election) to 11 per cent in 2019 mainly among the youth, exposing the radical potential to chart a different path. The parties on the white far right made claims against the democratic order for ‘selling out’ Afrikaner interests, which have not materialized as yet. The Freedom Front-Plus campaigned for an Afrikaner ‘homeland’, with limited

56  Thiven Reddy support in all elections since 1994, but since the last election gravitatingly increasingly towards exposing ANC corruption, ‘racism’ subsumed in Affirmative Action policies, and government delivery failures at local government levels. The majority vote appeal of the ANC and its stable pattern of party dominance have been explained in terms of the party’s especially symbolic relation to South African political history (Giliomee & Simkins, 1999). As its main theme in every election, it reminds the black majority, its historical constituency, about its role and credibility in ‘leading’ the struggle against Apartheid (from 1912 to 1990). Moreover, it has a credible (perhaps not entirely accurate) claim that it was the party that brought about the end of Apartheid and ushered in the new democracy. During election seasons this mix between a struggle discourse of liberation and a party of post-Apartheid development allows the ANC to draw on friend-enemy conceptions of politics, Mouffe’s notion of agonistic politics, and liberal ‘competitive’ notions (Mouffe, 2005). Unique to the ANC in the party-political spectrum, this range of approaches to politics is not available to its rivals. It provides the ANC with a richer (because more historically grounded) discursive toolbox for the political mobilization of a majority constituency, who are already constituted historically as subjects desiring recognition. After two decades of constitutional politics in South Africa, how should we revisit its politics, or explain its failure to realize the expected liberal notions of a non-antagonistic, but competitive, electoral politics? We should not ignore that being historically marked by settler-colonial modernity, in other words, a racialized capitalism and authoritarian state, left racialized subject identities a central feature of the country’s politics. In the post-1994 democratic period, two different modes of politics emerge, interacting in various and complex ways. These two conceptions of ‘the political’ manifest in everyday political behaviour: the first, more expressive of the historical and emergent middle class, embraces the institutional and constitutional ‘democratic rules of the game’ yet remains sensitive to a ‘mobilisation politics’ at least at the level of discourse; the second, rooted in mass-subaltern politics, desires to re-distribute power so that subalterns obtain symbolic recognition and material redress through collective action, and approaches politics through a ‘friend-enemy’ conception drawn from experience. The frustrations surrounding the un-realization of expectations that a postApartheid liberal order promised have not translated into a generalized violent revolt against the state over persistent poverty, systemic unemployment, Gramscian ‘common-sense’ racial inequality, high crime, and a political language of inauthenticity. The Apartheid backlog in housing, community development, education, and health care has persisted or increased, and the hundreds of daily ‘service delivery’ protests have not produced a significant change in electoral patterns. The puzzling challenge is how to understand the slow pace to address Apartheid legacies in the two-decade post-Apartheid period in relation to the persistent distinctive feature of the electoral dominance of the African National Congress (ANC) and weak opposition parties. This pattern of ANC party dominance has perverted the procedural legalism assumed of the liberal democratic political system, leaving life under conditions of democratic citizenship of the

South Africa and liberal democracy  57 historically colonized majority approaching Hobbesian properties as ‘solitary, poor, nasty, brutish, and short’. Giorgio Agamben referred to this as ‘bare life’ (Agamben, 1998).

The Marikana massacre: A nationalist political elite shows its true colours Let us remind ourselves of a tragic event in which the vision of liberal democracy broke down completely. In the single event of the killing of 34 miners by the police, the Marikana massacre of 2012 tells us about the failures of liberal democracy. We could have chosen any number of examples, such as the ‘land invasion’ struggles before and during the Covid-19 pandemic or the hundreds of social delivery protests, to demonstrate the ambiguous distinction between the legal and illegal and the continuation of state violence towards subalterns under democratic conditions. These concrete cases illustrate why mainstream understandings of democracy as modern progress are problematic. The political significance of the Marikana massacre allows us to focus on the lingering tensions of a history of settler-colonial rule in a liberal democracy in South Africa. A democracy cannot be considered more in trouble, and more distant from its original idea – the people govern and those who govern do so based on the ‘will of the people’ – if the state is openly responsible for killing citizens exercising their right to protest, without any negative consequences for those responsible or even slight changes in the dominant political culture. The massacre occurred in August 2012, 18 years after the formal end of Apartheid. We can trace the origins of the mining industry in South Africa to the discovery in large quantities of diamonds and gold in the late nineteenth century, a find that propelled a marginal agricultural-based backwater community into an expanding global imperialist chain. The most recent desired mineral resource, platinum, is located primarily in the so-called Platinum Belt, in the North West province. The Association of Mineworkers and Construction (AMCU), a new union, led a series of wildcat strikes, which quickly grew in membership. Mineworkers had abandoned the ANC-aligned National Union of Mineworkers (NUM). They complained of the NUM’s ‘closeness’ to the mine bosses and its poor record fighting for their wage demands. The strikers demanded an increase of three times more than current wages, wanting them to match the equally enormous profits accrued from the massive rise in global market prices of platinum (Alexander, 2013). The workers of the Platinum Belt were ‘migrants’ from the rural Eastern Cape. The ‘pass laws’ labour legislation of the earliest days of the colonial state, more rigorously administered under Apartheid, created the bedrock of coerced black labour. Although now without the restrictions of the law, this basic structure and the patterns of labour recruitment, movement, and wages continue unchanged. Provided they secure their own housing, wives and children could now accompany the working menfolk. The result is that, abandoned by capital and the democratic state, sprawling informal ‘squatter camps’ surround the platinum mines. With the worsening of the living conditions of their families, the failed promises

58  Thiven Reddy of the mines to provide better and alternative housing, and an unresponsive state, the desperate miners felt strike action for higher wages was their last option. The strikers congregated on a nearby hill. They used this location, performing many different traditional rituals to empower them, sang ‘struggle songs’, and listened to speeches of their strike leaders, believing themselves to have God, justice, cultural symbolism, and a democratic constitution on their side. Violent clashes between AMCU and NUM members, especially over who had the right to the union office which remained occupied by NUM officials despite its small and declining membership, compounded the complexity of the tense confrontation between workers and company security (Alexander, 2013; Alexander et al., 2013). The role of ANC officials, mine management, and the police – united behind a discourse of ‘law and order’ – pitted them against the striking workers demanding a just wage (Patel, 2014). The shooting at Marikana opened the door for many longstanding failings of democracy that were identified but not fully exposed because these manifested in separate fragments. Now brought together, a crisis of democracy was presented for all to see, exposing three consequences: first, the racial division of centuries and the sedimented culture of violence, where the Apartheid state relied only on the repression of the black subaltern, created conditions of solidarity along racial lines. In the democratic period, this racial solidarity allowed the greedy political elite to hide behind the history of systematic racism and racial suffering. For once, a line of tension, or at the very least suspicion, opened up among blacks between a political class, its middle-class support base, and the everyday lives of marginality experienced by the black subaltern majority. Second, the subaltern, familiar with the stark demarcation between the ‘dark days’ of Apartheid and the democratic constitution, questioned this easy distinction and replaced it with a critical ambiguity towards past and present. Those citizens who believed that the democratic state was qualitatively different and would never exercise unwarranted violence against the citizenry and civil society had to doubt this assumption and increasingly emphasized continuities with the past rather than only differences. The now common state aggression experienced on a daily, regular basis by poor subalterns was now glaringly exposed to the politically duplicitous established white middle class and its new black middleclass sidekicks. Third, another ‘eye-opener’ unleashed by Marikana is to put to bed the unquestioning belief in the sanctity of the law, constitution, and rights of the new legal order in its relation to power and politics. What this shift accomplishes is to enhance scepticism towards the legitimating practices of ‘the law’ by emphasizing the rampant corruption and multiple kinds of self-interested behaviour at the expense of the masses of the political class. That a democratically elected blackmajority government fired (because encouraged by elements of the ruling elite, senior members of the ANC) live ammunition at black mineworkers, from whom it derived so much of its historical legitimacy, ultimately contributed to a change of consciousness based on this experience, amounting to a valuable lesson in subaltern consciousness.

South Africa and liberal democracy  59 In the next section, in order to understand the deep problems of South African liberal democracy, I clarify in more detail how the Schmittian conception of the ‘friend-enemy’ relation as primary in constituting the political is applicable. I will also identify some areas where it falls short of describing the modes of politics in South Africa, requiring minor revision.

Crisis of democracy and the friend-enemy conception Postcolonial theory contributes in its challenge to the established assumption in mainstream approaches that see the historically colonized part of the world as ‘out there’, easily separable and ‘compartmentalised’ from an equally separate and compartmentalized Europe (Cooper, 2002). Despite efforts to keep it isolated from broader world history and global connections, a big part of the ‘crisis of democracy’ in Europe is the colonial question coming back to haunt the idea of an entirely internally generated ethnocentric history. Malcolm X popularized the phrase ‘chickens coming home to roost’ (louisproyect, 2011), a phrase that also captures the experience of slave history and colonialism in contemporary Europe. The idea of a crisis of democracy (in Europe or elsewhere) should be approached from this lens because populism and ‘right-wing’ politics identify with the notion of an isolated Europe, urging a European response to the latest interaction with Third World peoples, now presented as a threat of ‘migrants’ or economic refugees. Today, analyses discussing the state of democracy and citizenship cannot ignore the countries outside Europe. The current and rigid ‘walling up’ of Europe from the poor societies of the globe is a relatively recent development. Soon after the Second World War, in a letter correspondence about colonialism, two key political theorists, Alexandre Kojève and Carl Schmitt (De Vries, 2001), concerned themselves with imagining a different world and post-war global trajectory without colonialism. The correspondence takes place against the background of a post-war world that was deciding on who was a friend/ally and who was the enemy. The US, in instituting its European Recovery Program (the Marshall Plan), identified its ‘friends’ when it decided to re-build war-torn Western Europe and Japan with direct transfers of money and technology. It excluded those it considered its ‘enemies’, deciding to keep its capital and technology away from Eastern Europe and the formerly colonized countries – Latin America, Asia, Middle East, and Africa. This decision serves as an essential source of the central division of the world into rich and poor countries, ‘developed and developing’ areas, and politically, ‘friends and enemies’. Kojève and Schmitt located their interpretation of these developments around Hegel. Hegel’s main contribution, according to Kojève, is his understanding of the meaning of history through the lens of the master-slave dialectic and the battle of recognition. In this correspondence, they agree we should read Hegel’s ([1807] 2017) Phenomenology of Spirit within ‘the anthropogenic battle of recognition’, which allowed us to appreciate the human capacity to ‘risk life for purely nonbiological reasons’ (De Vries, 2001, p. 92). The historical and political worlds

60  Thiven Reddy could not be reduced to the mere ‘universal satisfaction of biological desires’ (De Vries, 2001, p. 92). Therefore, our understanding of politics had to be more complex to see beyond the procedural and to accommodate the passions associated with identity. Schmitt is the theorist who moves our thinking about politics in this direction. In his The Concept of the Political (Schmitt, [1932] 1996), he identifies how the political with its distinct features is different and separable from other key spheres of human thought and action such as religion, morality, economics, and aesthetics. The ‘ultimate distinction’ of the political, ‘to which political action and motives can be reduced’, is the friend-enemy relation (Schmitt, [1932] 1996, p. 26). This relation is independent of the contrasts found in the other spheres. He takes the competing spheres – the aesthetic, moral, and economic – and in each he identifies their determining criteria, presenting these as contrasts or antithetical opposite values. In the aesthetic, we contrast the ugly and beautiful, in the moral good and evil, and in the economic profit and loss. He relates the antitheses of these areas to the political, concluding that it is irrelevant whether one finds the enemy beautiful or ugly, good or evil. Though it is conceivable for the friend-enemy relation to draw emotional support from these other distinctions, the political is distinctive, yet still not an entirely separate domain. The friend-enemy antagonism gives politics the unique feature that subjects demonstrate a will to die or kill for it. In understanding politics, the ‘intensity’ of the ‘union or separation’ of the ‘association’ or ‘disassociation’ tells us about the ‘friend-enemy’ contrast (Schmitt, [1932] 1996, p. 26). The denser the association, the more the relationship approaches friendship; the more the difference and disassociation, the more the relationship approaches that of enemies (Schmitt, [1932] 1996, p. 26). The enemy is ‘the Other, the stranger … something different and alien, so that in the extreme case, conflicts with him are possible’ (Schmitt, [1932] 1996, p. 27). Further, ‘only the actual participants can correctly recognise, understand, and judge the concrete situation and settle the extreme case of conflict’ (Schmitt, [1932] 1996, p. 27). In politics, the enemy is more than just a ‘competitor’. It goes deeper and implicates identity. The friend-enemy antagonism does not express an individual difference, because in a concrete situation the key participants engage with each other conscious of their collective identities, referring to ‘one’s own people’ (Schmitt, [1932] 1996, p. 29) or my people’s enemy. The polemical side of politics, even though it seeks to keep ‘hidden’ aspects of the friend-enemy antagonism, cannot entirely succeed. In those democratic conditions where the ‘extreme case [of antagonism] is entirely lost’ in ‘daily speech’ (Schmitt, [1932] 1996, p. 30), ultimately, the friend-enemy antagonism still emerges and becomes traceable in a concrete situation. Concepts such as ‘class, Republic, constitutional state’ have no meaning ‘if one does not know exactly who is to be affected, combated, refuted or negated by such a term’ (Schmitt, [1932] 1996, p. 31). The friend-enemy relation is rarely hidden in international politics. Here military confrontation is always on the agenda, whereas in domestic politics political parties hide this relation. The actors seek to pretend that they and even their rivals are non-political as they pursue the primary goal of domestic

South Africa and liberal democracy  61 politics, the ‘scramble for office and the politics of patronage’ (Schmitt, [1932] 1996, p. 32). However, the friend-enemy antagonism constituting politics still prevails with the difference that ‘If one wants to speak of politics in the context of the primacy of internal politics, then this conflict no longer refers to the war between organised nations but to civil war’ (Schmitt, [1932] 1996, p. 32). Ultimately regardless of the international or domestic domains, politics is about a decision on who is the enemy and is most evident in the extreme case of conflicts such as war or revolution. This ‘meaningful antithesis’, the friend-enemy relation in combat, requires a high commitment, ‘whereby men could be required to sacrifice life, authorised to shed blood, and kill other human beings’ (Schmitt [1932] 1996, p. 35). Schmitt is aware of the ‘charge of romanticising conflict’, of glorifying war and killing. He insists though that when it comes to the political, an ‘ever-present possibility’ of the friend-enemy grouping exists regardless of what it implies ‘for morality, aesthetics, and economics’ (Schmitt, [1932] 1996, p. 35). These other domains can elevate and increase the intensity of the friend-enemy relation, but it does not matter what the substance or reasons for the conflict are, because once friend-enemy groupings form, the conflict expresses the political. Schmitt criticizes the failing of the liberal constitutional state for liberalism’s tendency to depoliticize and neutralize politics and to read politics off other antagonisms, a point directly relevant to contemporary South African politics. Liberalism denies the friend-enemy relation and substitutes it with a lesser antagonism open to rational compromise and negotiation. Chantal Mouffe, strongly influenced by Schmitt’s friend-enemy conception of politics, develops her critique of the 1990s liberal project on Schmittian foundations (Mouffe, 2005). Liberalism is limited because it is unable to capture the powerful attraction of identity politics or even acknowledge the negative consequences of a procedurally driven individualism in the political world. Although Mouffe rejects liberalism for ‘advocating a neutral politics’ and avoiding antagonism in politics, she also distances herself from Schmitt’s ‘extreme position’ as it could lead to the very undermining of the democratic polity. Instead, for Mouffe, the key is how to draw ‘the we/they distinction in a way which is compatible with the recognition of the pluralism which is constitutive of modern democracy’, replacing enemies with milder adversaries (Mouffe, 2005, p. 21). The attraction of Schmitt’s writing on ‘the political’ lies in contrast to shallow proceduralism, dependent on a superficial legalism (Castoriadis, 1997). This proceduralism displaces a political ethic that allows for the decline of values essential for resistance and a substantive political practice. From our brief reading of Schmitt, we can appreciate how violent conquest, settler-colonial racism, and racial capitalist exploitation constitute ideal-typical conditions promoting the friend-enemy antagonism of politics. These conditions ideally reflect Schmitt’s ‘most intense and extreme antagonism’ (Schmitt, [1932] 1996, p. 29), in that groups form on either side of the conquest situation. While Schmitt sees the state as the ‘organised political entity’ (Schmitt, [1932] 1996, p. 29) that decides on the friend-enemy relation, some assumptions he makes sit

62  Thiven Reddy uncomfortably with the settler-colonial situation: the first is that he universalizes the historical process of the European state which does not resemble state formation in South Africa. In South Africa, the colonial state emerges as integral to conquest and thus functions more like a garrison or fortress to police the conquered blacks. Second, he assumes the existence of a nation or a people associated with a state, a situation that does not fit the South African colonial situation. In South Africa, the content of the nation is a crucial source of contestation (between colonizer and colonized and also within nationalist elites). The idea of ‘what constitutes the nation’ and ‘who belongs to the nation’ is a source of conflict, defining politics. The character of the nation is strongly related to and potentially takes shape in the struggle against settler conquest. A superficial analysis will deny this settler-colonial specificity. Third, he assumes the friend-enemy antagonism will express itself along one dimension (between two entities) in the empirical-concrete situation. Though the first two conditions prevail in South Africa, the third does so differently to Schmitt’s expectations. In an analysis of the ‘friend-enemy’ antagonism of politics in South Africa we need to distinguish between the preand post-Apartheid periods and, in the period of the latter, between elites (who express this antagonism discursively for electoral outcomes) and the subaltern mass who continue with ‘struggle politics’ for recognition and material access to a better-quality everyday life.

An understanding of settler-colonial modernity and liberal democracy The relationship between settler colonialism and democracy is a relationship between a historical-structural and a particular mode of domination. The historical practice of colonial power and its lingering nature, specifics, and effects proliferate deep into state-society relations, complicating the democratic promise. We see this evident in contemporary South Africa. In what ways can settler-colonialism in Southern Africa contribute to our understanding of ‘today’s crises of democracy and citizenship’, an emerging phenomenon globally and especially in Europe? From the standpoint of South Africa, we should view settler colonialism and democracy as an ‘extreme case’ (the colonial modern), in the sense of a SchmittAgamben-type exception that tells us more about the ‘rule’, the workings of democracy in ‘normal times’. The settler-colonial societies of South and Southern Africa share a few elements in three areas that point to the ‘extreme case’ designation: first, the birth of national entities/territories came out of colonial wars of conquest and the states that emerged were built upon the denial of citizenship to the black, and in particular the African indigenous majority. The polity relied on radical Othering (‘the non-human Other’) and a permanent state of violence to maintain order and sustain a productive system based on coerced labour. Robinson (1983) labels this a racial capitalist system. Second, in the political sphere, we can speak of a parallel politics, one with ‘democratic features’ of elections and rights exclusively for white citizens, and the denial of citizenship rights to blacks. This

South Africa and liberal democracy  63 has been labelled a bifurcated or dual polity of ‘false-democracy’ and totalitarianism, sitting side by side. Third, the ideological edifice was built upon a devaluing of the black body, conceived of as less than human, so that violence assumes a ‘legitimacy’ it would not otherwise have. Now we can concretely propose that when it comes to democracy and citizenship, settler-colonial modernity presents politics more as the exception than the norm. The South African experience of settler-colonial modernity includes the process of destroying the old social tissues of native, indigenous societies, using violence to fashion integration into colonized society, constituting different identities, and producing new indigenous elites reliant on a different language of rights, obligations, and relationships. In the 1970s and 1980s, at the height of the anti-Apartheid struggle, the prevailing view was that democracy would wash away the long history of settler colonialism, a view built on generations of hope and expectation. This view is no longer taken for granted. The dominant party democracy has not guaranteed governing elites would genuinely respect a subaltern voice. Every day, continuing legacies of a robust identity politics have become visibly evident in life and its different representative modes. And more questions are asked about liberal democracy and its relationship to established relations of domination. To make sense of these legacies of violence associated with settler colonialism and the elusive promise of liberal democracy – to uphold fundamental rights of subaltern dignity – a historical-structural focus and sensitivity to the difficulties that settler-colonial modernity imposed on liberal democratic political projects become necessary. Karl Polanyi in The Great Transformation once asked in a different context, ‘what “satanic mill” ground men (and women) into masses?’ (Polanyi, [1944] 1957, p. 33). This emphasis on structure resonates even more when we shift the traditional Marxist focus away from Europe and the older democracies (Robinson, 1983), and follow Kojève, to the masses in the ‘developing world’. In other words, this is a statement about a type of social-political structure making subjects, and following Schmitt, it is a structure making political subjects of friends and enemies. The relationship between democracy and settlercolonialism is the extent to which democracy can suppress and replace subjects of friends and enemies in the Schmittian sense with equal citizens in conflict, in Mouffe’s sense. This transformation is what the experiment of South African liberal democracy can allow us to think and analyze. To study settler-colonial society is to study ‘race’ and power or, in other words, the ‘power of race’ as an idea implicated into dominant practice, institutions, and everyday common sense. In such societies even ‘democracy’, upon which so much is promised, is unable to withstand the attractiveness of this idea; it certainly is unable to destroy it fundamentally. Should we be surprised? Cedric Robinson in his classic yet largely under-appreciated manuscript, Black Marxism (1983), observes that even the shift in 18th century and 19th century Western thought from a basis of a religious and philosophical epistemology to that of modern science had

64  Thiven Reddy made little difference. In point of fact, it had merely served to extend the terms and rationales for the fantasy of racial inferiority (for the Jews, Irish, Slavs and Asians as well as for Blacks). (Robinson, 1983, p. 100) Therefore, while historical-structure matters, it does not translate into an entirely impossible project; there is the requirement of a deliberate agency to make a difference. The challenge imposed by the deep-seated basis of race identities constituted by settler colonialism encourages awareness and a deliberate response to an important distinction made by Hannah Arendt. When it comes to democracy, she reminds us, we need to make ourselves aware of the difference between mobilizing the people to bring the old order down and institutionalizing protest into the new constitutional order that encourages both institutional stability and maximum civil freedom (Arendt, 1963, pp. 154–167). The negotiators of the new liberal democracy in South Africa paid no or little attention to this difference, and history and the ANC have shifted the emphasis towards superficial stability. Arendt speaks about constituted power and constituent power or popular sovereignty (Arendt, 1963, p. 154). The constituted power refers to an already established government ruling through laws. It refers to the stability and endurance of institutions, the liberal democratic system the negotiations intended and designed for the new South Africa. However, the constituent power deals with the people and revolt. It is the regular novelty, creativity, and innovativeness of citizens submitting to a revolutionary spirit. Revolts present opportunities that keep a revolutionary spirit alive (Arendt, 1963, pp. 213–216). They are integral to her conception of freedom in practising democracy, retaining novelty and new beginnings. In the everyday input creating the new form of body politic, we should expect a necessary paradox to exist between the stability of institutions and the spirit of the public. It is the failure to embrace subaltern resistance, to want to control and direct it in a caricatured form once the constituted authority is established, that reminds us that this resistance is an ‘age-old treasure’ (Arendt, 1954, p. 5). By revolutionary spirit, Arendt means citizens actively participating in the public space. Citizens engage with fellow citizens on common concerns, a cultural-political practice that inspires thinking and consciousness beyond the individual (Arendt, 1963, p. 213). Only revolutionaries seriously embrace this idea of public or revolutionary morality. Rousseau equated domineering particular wills of individual citizens to a foreign enemy attacking the nation. He saw selflessness as an essential virtue and self-interest, the particular will, putting the self before the people’s interest, as the enemy (Arendt, 1963, pp. 66–71). In drawing out Rousseau’s tension between the general and particular wills, Arendt highlights political ethics holding leaders and broader society to account to the best traditions of revolutionary struggle (Arendt, 1963, p. 69) which, all too often, she rightly believes successful revolutions fail to promote. In South Africa (and no one considers it a case of ‘successful revolution’ in Arendt’s terms) ending settler-colonial society is separated from the constitutional legalism of its democracy and the stark continuities are only reluctantly

South Africa and liberal democracy  65 acknowledged. How can we comprehend the relationship between the values of ‘the struggle’, public consciousness and commitment, and Arendt’s revolutionary spirit with those currently dominant in society, values that encourage private gain, individual interest, and the promotion of particular wills at the expense of the general polity? In writing about the changing dominant values of politics, how do we make sense of the shift from Biko’s praxis concept of ‘self-sacrifice’ and death (Biko, 2005, p. 173) to the current politics of self-promotion and individual opportunism? In other words, the politics over Hegel’s death struggle for recognition and Schmitt’s description of domestic party politics ostensibly as about money, office, and patronage? Such questions direct us to the ethical-political terrain, an area ignored or only passively assumed by subaltern blacks, but openly abandoned by the nationalist political elite in the liberal democratic period. The ruling ANC killed the revolutionary spirit that in the first place produced the change of regime form. It accomplished this by deliberately failing to institute this spirit into the democratic body politic, and by emphasizing a ‘friend-enemy’ discourse during periods of elections, because it is so constitutive of subaltern politics under settler-colonial conditions, enabling the political class to engage in between elections in the politics for office and patronage.

Conclusion Anti-colonial struggle discourse valued ‘sacrifice’, to win recognition. The politics of resisting the old political form would have been unthinkable and impossible without it. The colonized elite and masses joined hands in this collective struggle. After the political change, the close combat characteristic of historical settler-colonial situations, and the pre-eminence given to Self-Other identities of colonial and colonized subjects, the liberal assumptions of rational-inspired legalistic politics were unlikely to prevail genuinely. Constitutional legalism cannot substitute for politics or ethics. In societies like South Africa, for the subaltern everyday political conflict approaches Arendt’s conception of ‘revolution and revolt’ and Schmitt’s extreme case of the ‘friend-enemy antagonism’, and for the middle class and political elite a politics of money, office, and patronage. These conditions of democratic transition caused a new political class and elite to emerge. We can say that the leaders did come from different classes of the colonized oppressed, but still, mostly from the educated middle class. However, despite coming from the masses, the rulers retained their ‘conspicuous difference’ from the masses. The more the political elite and especially the ANC acknowledges this difference, the more it emphasizes, in hollow terms, its identification with the masses. An identification the ANC shares arguably with the entire (white and black) middle class is Fanon’s hollow version of nationalism, without the corresponding genuine compassion with the masses mired in misery and a politics of necessity. This living in misery is the ongoing basis for the hundreds of community protests and civil revolts that take place in South Africa regularly. Increasingly the heroes of the negotiation’s strategy are tainted as today’s villains. There are broader categories of grouped variables that complicate these

66  Thiven Reddy changes: the atrocious governance record of the ruling party for the past 25 years, the patience of the masses coming to an end as the substantial quality of their material lives shows more continuity than change, and the increasing tension between democratic values and the eroding moral legitimacy of leaders and elites. To appreciate such continuities and change, we cannot ignore South Africa’s history, its creation, the history of dominant institutions, and its political culture to conclude that two decades later, the democratic project is in trouble. The expectations of the future of the majority of subalterns have not been met, political institutions continue to fail regularly to enhance citizen rights, and the social question is left substantially un-addressed, as the privileged groups wall themselves away from the poor and those living in daily misery. Nevertheless, in this new politics of lies and masks, of pretence, Foucault’s ‘system of feints’ (Foucault, 1994, p.1) that he argued is found in all representation, the ruling ANC government ‘celebrates’ its mere existence and not what it has achieved for its historically oppressed constituency.

References Adam, H., van Zyl Slabbert, F., & Moodley, K. (1998). Comrades in business: Postliberation politics in South Africa. Utrecht: International Blooks. Africa, C. (2019). Do election campaigns matter in South Africa? An examination of fluctuations in support for the ANC, DA, IFP and NNP 1994–2019′. Politikon, 46(4), 371–389. Agamben, G. (1998). Homo sacer: Sovereign power and bare life. Stanford: Stanford University Press. Alexander, N. (2002). An ordinary country: Issues in transition from Apartheid to democracy in South Africa. Oxford: Berghahn Books. Alexander, P. (2010). Rebellion of the poor: South Africa’s service delivery protests – A preliminary analysis. Review of African Political Economy, 37(123), 25–40. Alexander, P. (2013). Marikana, turning point in South African History. Review of African Political Economy, 40(138), 605–609. Alexander, P., Lekgowa,T., Mmope, B., Sinwell,L., & Xezwi, B. (2013). Marikana: Voices from South Africa’s Mining Massacre. Athens: Ohio University Press. Arendt, H. (1954). Between past and future. New York: Penguin. Arendt, H. (1963). On revolution. New York: Penguin. Arian, A. (1974). The dominant party system: A neglected model of democratic stability. The Journal of Politics, 36(3), 592–614. Biko, S. (2005). I write what I like. Johannesburg: Picador. Bond, P. (2010). South Africa’s bubble meets boiling urban social protest. Monthly Review, 62(2). Retrieved from https://monthlyreview​.org​/2010​/06​/01​/south​-africas​ -bubble​-meets​-boiling​-urban​-social​-protest/. Castoriadis, C. (1997). Democracy as procedure and democracy as regime. Constellations, 4(1), 1–18. Cooper, F. (2002). Decolonising situations: The rise, fall, and rise of colonial studies, 1951–2001. French Politics, Culture & Society, 20(2), 47–76.

South Africa and liberal democracy  67 De Jager, N., & Du Toit, P. (2013). Friend or foe? Dominant party systems in Southern Africa : Insights from the developing world. Tokyo: United Nations University Press. De Vries, E. (Ed.). (2001). Discussion: Alexandre Kojève–Carl Schmitt correspondence and Alexandre Kojève, ‘Colonialism from a European Perspective’. Interpretation, 29(1): 91–130. Duverger, M. (1954). Political parties. London: Methuen and Co. Eliseev, A. (2014). Analysis: Bonfires of discontent, in horrifying numbers. Daily Maverick, 5 February. Retrieved from http://www​.dailymaverick​.co​.za​/article​/2014​-02​ -05​-analysis​-bonfires​-of​-discontent​-in​-horrifying​-numbers/#​.UvN​_y7RqP​_Q. Fanon, F. (1963). The pitfalls of national consciousness. In F. Fanon (Ed.), The wretched of the earth (pp. 148–205). New York: Grove Press. Fatton, Jr., R. (1986). Black consciousness in South Africa: The dialectic of ideological resistance to white supremacy. New York: SUNY Press. Faure, M., & Lane, J. E. (1996). South Africa: Designing new political institutions. London: SAGE. Foucault, M. (1994). The order of things: An archaeology of the human sciences. New York: Vintage Books. Friedman, S. (1999). No easy stroll to dominance: Party dominance, opposition and civil society in South Africa. In H. Giliomee & C. Simkins (Eds.), The awkward embrace one party domination and democracy (pp. 97–126). Cape Town: Tafelberg. Gerhart, G. (1978). Black power in South Africa: The evolution of an ideology. Berkeley: University of California Press. Giliomee, H., & Simkins, C. (Eds.). (1999). The awkward embrace: One party domination and democracy. Cape Town: Tafelberg. Hegel, G. W. F. [1807] (2017). The phenomenology of spirit. Cambridge: Cambridge University Press. IEC (Electoral Commission of South Africa). (2016). 2016 Municipal Elections Report. Retrieved from https://www​.elections​.org​.za​/pw​/Downloads​/Documents​-Library​ -Annual​-Reports​-IEC. IOL Online. (2020). Many cadres are living testimony of Smuts Ngonyama’s “I Did Not Struggle to Be Poor Statement”. August 5th 2020. Editorial. Retrieved from https:// www​.iol​.co​.za​/the​-star​/opinion​-analysis​/many​-cadres​-today​-are​-living​-testimony​-of​ -smuts​-ngonyamas​-i​-did​-not​-struggle​-to​-be​-poor​-statement-​-310fac49​-8b7e​-4e9d​ -b504​-b9416e6c388f. Johnson, R. W. (2009). False start in South Africa. New Left Review, 58(July–August), 61–74. Koeble, T. (1998). The global economy and democracy in South Africa. New Brunswick, NJ: Rutgers University Press. Lodge, T. (1983). Black politics in South Africa since 1945. New York: Longman. Maharaj, M. (2008). The ANC and South Africa’s negotiated transition to democracy and peace. Berghof Transitions Series 2. Berlin: Berghof-Forschungszentrum für Konstruktive Konfliktbearbeitung. Mandela, N. (1994). Long walk to freedom: The autobiography of Nelson Mandela. New York: Random House. Mavuso,M. (2020). Magashule lambasts Moboweni. Cape Times, 27 January, p. 7. Retrieved from https://www. https://www​.pressreader​.com​/south​-africa​/cape​-times​ /20200127​/textview. Mouffe, C. (2005). On the political. London: Routledge.

68  Thiven Reddy Murray, M. (1987). South Africa: Time of agony, time of destiny: The upsurge of popular protest. London: Verso. Patel, K. (2014). Marikana massacre: Ramaphosa’s statement, revisited. Daily Maverick, 12 March. Retrieved from http://www​.dailymaverick​.co​.za​/article​/2013​-10​-25​ -marikana​-massacre​-ramaphosas​-statement​-revisited/#​.UyAuEV5KiUZ. Polanyi, K. [1944] (1957). The great transformation. The political and economic origins of our time. Boston: Beacon Press. Proyect, L. (2011). Malcolm X and chickens coming home to roost. 8 April. Retrieved from https://louisproyect​.org​/2011​/04​/08​/malcolm​-x​-and​-chickens​-coming​-home​-to​ -roost/. Rantete, J., & Giliomee, H. (1992). Transition to democracy through transaction? Bilateral negotiations between the ANC and the NP in South Africa. African Affairs, 91(365), 515–542. Robinson, C. J. (1983). Black Marxism: The making of the black radical tradition. London: Zed Books. Schmitt, C. [1932] (1996). The concept of the political. Chicago: University of Chicago Press. Schulz-Herzenberg, C. (2009). Trends in party support and voter behaviour 1994–2009. In R. Southall & J. Daniel (Eds.), Zunami! The 2009 South African elections (pp. 23–46). Johannesburg: Jacana. Sisk, T. (1995). Democratisation in South Africa. Princeton: Princeton University Press. Southall, R. (2001). Opposition in South Africa: Issues and problems. Democratization, 8(1), 1–24. Sparks, A. (1994). Tomorrow is another country: The inside story of South Africa’s negotiated revolution. Sandton: Struik. Waldmeir, P. (1997). Anatomy of a miracle: The end of Apartheid and the birth of the New South Africa. London: Viking. Welsh, D. (2009). The rise and fall of Apartheid. Johannesburg: Jonathan Ball.

Part 2

Palestine Settler colonialism and the impossibility of democracy

4

Israeli conception of ‘peace’ as indirect colonial rule Tariq Dana

Introduction In the immediate aftermath of the 1967 Arab-Israeli war and the occupation of the West Bank, East Jerusalem, and the Gaza Strip (hereafter the ‘Occupied Palestinian Territories’ – OPT), the then Israeli Prime Minister Levi Eshkol described the situation which Israel encountered: ‘[We] won the war and received a nice dowry of territory, but the dowry came with a bride whom we don’t like’ (quoted in Shafir, 2017, p. 34). Eshkol’s perception of the post-war dilemma is rooted in the Zionist doctrine of ‘maximum land with minimum Arabs’, which regards the Palestinian inhabitants as a ‘demographic burden’ hindering full colonization of the land from the Jordan River to the Mediterranean Sea (Dana & Jarbawi, 2017, p. 206). This doctrine constituted the driving force for the Zionist ethnic cleansing of Palestine, which ultimately ensured Jewish demographic dominance and facilitated the formation of Israel as an ethnonational Jewish state in 1948 (Pappe, 2007). However, the context of the 1967 war and the subsequent occupation was a considerably different context to that of 1948. The regional and international circumstances imposed multiple constraints on Israel’s capacity to conduct a widespread depopulation of the OPT. For this reason, Israel has developed alternative colonial strategies of population management. Almost all of the strategies adopted by the subsequent Israeli governments, regardless of minor policy differences between proponents of maximalist/minimalist and left/right tendencies, have tended to focus on three primary objectives: (1) to neutralize the Palestinian demographic threat; (2) to maintain a defensible strategic position; and (3) to enforce Jewish quantitative and qualitative supremacy over historic Palestine. These strategies have combined to produce a complex set of political, economic, legal, spatial, and psychological pressures to render the emergence of an independent Palestinian polity virtually impossible. They have served to severely restrict and control the lives of Palestinians, and to create the conditions for a gradual transfer of population (Masalha, 1992). The land, which lies at the heart of these strategies, has been manipulated through remapping, division, expropriation, and fragmentation to favour Israeli expansion through the construction of settlements, military bases, and economic projects while consolidating the besiegement of the Palestinian populated areas.

72  Tariq Dana Given Israel’s settler-colonial character, these strategies have primarily been influenced by and built on methods of population management and control that were developed in historical colonial contexts, including Israel’s own experience of ruling the Palestinian involuntary minority in Israel through martial law and the military government (1948–1966) (Zureik, 2016). This chapter argues that at the core of Israeli strategies lies a logic analogous to the system of indirect colonial rule that was implanted and enforced in large parts of the colonized world in the late colonial era. Israel’s reinvention of a system of indirect colonial rule required the manufacturing of a particular form of ‘governance’, that was intended to be practiced within a strictly limited ‘autonomy’, consisting of densely populated areas and subjected to higher Israeli authority. In the pre-Oslo era, the enforcement of these strategies largely failed and often backfired against the Israeli state. This failure is mainly attributable to the upsurge of Palestinian organized resistance, which challenged and exposed the impracticality of Israeli indirect rule models, despite Israel’s heavy-handed coercion in suppressing and polarizing the Palestinian national fabric. However, it was the signing of the Oslo Accords between the State of Israel and the Palestinian Liberation Organisation (PLO) in 1993 that paved the way for Israel to enforce a sophisticated version of indirect colonial rule, which, through its varied mechanisms of control, has repurposed the PLO to perform vital functions on behalf of the Israeli colonial rule. As the institutional pillar of the Oslo process, the Palestinian Authority (PA) is often depicted as a ‘self-governing autonomy’ undergoing a state-building process in the hope of the eventual establishment of an independent Palestinian state living side-by-side with Israel. The persistence for more than 27 years of this dominant view of the Oslo process has proved misleading. It has obscured the changing dynamics in the OPT, mainly defined by the expansion of the Israeli settler-colonial project, the cantonization of Palestinian cities and towns, and the actual demise of the two-state solution. This dramatic reality validates critical scholarships that tended to deconstruct the very meaning of ‘peace’ in the context of Oslo. In his farsighted critique in 1993, the late Palestinian scholar Edward Said aptly saw in the Oslo compromise ‘an instrument of Palestinian surrender, a Palestinian Versailles’ that subordinated the PLO into a position of perpetual subservience to play the role of Israel’s enforcer (Said, 1993). Sara Roy notes that the Oslo process ‘did not represent the end of Israeli occupation but its continuation, albeit in a less direct form’ (Roy, 2006, p. 236). This form of indirect occupation was facilitated by the creation of the PA as a ‘client-state’ subjected to a process of ‘asymmetric containment’, whereby the PA survival and continuity are conditioned by perpetual compliance to accommodate Israeli policies (Khan, 2004, p. 10). The context of the Oslo framework further increased Israel’s eagerness to outsource the responsibility for the population to the PA through performing a variety of subcontracting roles to relieve Israel of the burden of managing the daily life of the Palestinians. The Oslo Accords allowed Israel to reorganize its apparatus of control in a way that maintains the ‘continuation of the occupation by other means’ (Gordon, 2008, p. 170). From the lens of security, a fundamental pillar of the Oslo framework, Alaa Tartir uses the term ‘subcontracting

Israeli conception of ‘peace’  73 repression’ to refer to a contractual arrangement between the PA and Israel that promises to secure Israeli colonial interests, including the safety of Israeli settlers and soldiers, by the PA security forces (Tartir, 2019). In considering the role of external actors in sustaining the Oslo framework, Mandy Turner concludes that the PA was specifically designed as a mechanism of ‘counterinsurgency’, operating in the realms of security, development, and governance to ensure the pacification of the Palestinians and the stabilization of the Oslo status quo while disregarding Israel’s ongoing settler-colonial expansion on the ground (Turner, 2015). This chapter takes the investigation further by unpacking the often-obscured relations of indirect colonial rule between the PA and Israel and underlining the motives for its persistence. It argues that the Israeli model of indirect rule is novel in that it functioned through adapting the PA, comprised of elements formerly part of a liberation movement, to serve as part of a powerful and subtle formula for a system of indirect rule. Analyzing this relationship requires particular attention to the evolution and development of a doctrine of indirect rule, both as policy practice and analytical concept, in Israel’s strategies toward the OPT since 1967. The first section offers historical/theoretical insights into the concept and practice of indirect colonial rule during the late colonial era. The second section analyses selected Israeli strategies through the lens of indirect colonial rule in the period between the aftermath of the 1967 occupation and the first Palestinian Intifada, taking into account the Allon Plan, the Open Bridges, the Civil Administration, and the Village Leagues. The last section discusses the peculiarities of the Oslo framework as a mechanism of indirect rule by showing similarities and differences with previous Israeli strategies as well as conventional forms of indirect rule.

Indirect colonial rule The late colonial era witnessed a large-scale restructuring of colonial governmentality through decentralizing some administrative functions to indigenous political authorities across large swathes of the colonized world in Asia and Africa. Known as indirect colonial rule, this system was invented and pioneered by the British and was practiced to a lesser extent by other European colonial powers from the mid-nineteenth century until the decolonization of the global South in mid-twentieth century. Indirect colonial rule was devised as a response to the crisis of Empire and the increasing incapability of colonial powers to maintain the colonial project through conventional direct rule (Mamdani, 2012, p. 8). The basic idea of the indirect rule system is based on utilizing the native centres of power and local institutions as instruments to enable the endurance and stability of colonial governance over the colonies and colonized nations. Indirect rule, therefore, represented a fundamental realm in which local political authority and colonial governance were intermingled in the administration of everyday life for the colonized subjects. Indirect colonial rule acquired distinctive features that made it strategically superior and economically more beneficial to the colonial power than conventional

74  Tariq Dana direct rule. In the first instance, this system is theoretically based upon the consent of the colonized to take part in the colonial governance arrangement, which is typically expressed in official agreements as well as informal understandings (Gerring et al., 2011). This arrangement entails delegating day-to-day governance to indigenous administrative structures run by local powerholders such as tribal chiefs, hereditary elites, domestic middlemen, functionaries, experts in customary law, the indigenous justice system, and native political institutions to administer the colonies on behalf of the colonial power. The indirect rule system is a cost-benefit calculus strategy. It serves to maintain colonies and expand colonial spheres of influence beyond the metropoles’ military capacity and economic resources. Central to the indirect rule arrangement is reorganizing the colonial power’s presence on the ground without harming its interests or losing the colonies. It was intended to help tighten the colonial control over colonies without the need to deploy vast bureaucracies and militaries. This system was made possible by the acceptance of the local ruling elite to mediate between the colonial power and the colonized communities through local institutions governing a colonial-sponsored ‘autonomy’ (Lawrence, 2017). Despite the apparent autonomy of the local leaders in exercising authority over constituents, colonial officers effectively constituted the highest authority, issuing orders, formulating policies, and dictating the political decisions of the local leaders (Bertram, 1930, p. 61). Thus, it can be observed that the local elite and institutions became somewhat informally integrated into the colonial administrative hierarchy and thus served as an extension to colonialism. In the context of indirect rule, power relations between the colonial power and local intermediaries are described by Mamdani (2012, p. 1) as ‘decentralized despotism’. This points to the colonial enforcement of autocratic and repressive authority in the name of traditions and costumes, coupled with the blocking of progressive patterns of social change that would pose a real challenge to the indirect colonial structure. Mamdani notes that: Indirect rule differed from modes of rule in previous Western empires – including Roman and British ‘direct’ rule before the mid-nineteenth century, and French ‘assimilation’ before the early twentieth century turn to ‘association’ – in two important ways. First, previous empires focused on conquered elites rather than the mass of the colonized. Second, they aimed to eradicate differences through a policy of cultural and sometimes political assimilation of colonized elites, whereas indirect rule claimed not just to acknowledge difference but also to shape it. (Mamdani, 2012, p. 1) In return for their submission to the colonial master, the local elite received special privileges and protection. Where they did not comply, local leaders would be removed from positions of power and replaced by ‘manufactured’ loyal leadership by the colonial administrators (Myers, 2008, p. 4). In remote rural areas that lacked socially recognizable leadership, or where the native political authority

Israeli conception of ‘peace’  75 was not considered mature institutionally, colonial powers would artificially invent a local authority and leadership that were tied to, and directed by, the colonial masters (Crowder, 1964, p. 199). One significant feature of the indirect rule system stems from the question of the legitimacy of the local authority, which shifted from the historically acquired legitimacy through traditions and customary hierarchies in the pre-colonial era to colonial-sponsored legitimacy predicated on the compliance of the local elite and local institutions. However, the colonial power pursued a variety of approaches to legitimize the colonial rule in the eyes of the subject population through the preservation of the traditional socio-political order. On the one hand, colonial authorities nurtured the system of patronage in order to maintain the stability of the social order and encouraged the traditional elite to use a combination of coercive and cooperative methods to discipline the colonized subjects (Killingray, 1986). On the other hand, the low visibility of colonial troops on the ground helped minimize the levels of tension that could arise from the direct encounter between the colonizer and colonized. Therefore, indirect rule appeared to deter anti-colonial rebellion since subjects were expected to be less likely to rebel against their leaders than against foreign rulers (Lawrence, 2017, p. 2). Instead, matters of public order were maintained by local security forces, equipped and trained to perform internal policing to protect the elite and suppress opposition and resistance. In his analysis of the legacy of indirect colonial rule, Mahmood Mamdani concludes that ‘the form of rule shaped the form of revolt against it’ (Mamdani, 2012, p. 24). In the first half of the twentieth century, the system of indirect rule underwent profound institutional reconfiguration to accommodate the increasing demand for labour and shifting administrative and policy requirements (Lechler & McNamee, 2017). In Apartheid South Africa, for example, this process was accompanied by brutal social engineering that sought to consolidate the dominance of the white ruling elite and settlers, who enforced a modified version of indirect rule to legitimize the ideological strategy of segregation and Apartheid, which also served to disguise the true nature of racial discrimination (Myers, 2008). However, planners of Apartheid pursued disorderly and contradictory measures of segregation and modernization, unintentionally causing structural transformation and generating new forms of political consciousness that fed the ANC’s national revolutionary movement (Hickel, 2012). In other contexts, such as in Ghana, Kenya, and Central Africa, the post-war colonial policy reforms exposed the deep-seated contradictions of indirect rule and the colonial project as a whole (Babou, 2010). Besides direct resistance to colonial powers, national liberation movements had increasingly challenged the traditional authorities that underpinned indirect colonial rule, and after decolonization and the formation of the post-colonial state, these local structures were largely dissolved and became an infamous part of the colonial memory.

Pre-Oslo models of indirect rule Two months after the 1967 war, the then-Labour Minister of Education, Yigal Allon, presented a long-term strategic vision entitled ‘The Future of the Territories

76  Tariq Dana and of the Refugees’, known as the ‘Allon Plan’. The Allon Plan became a central reference in understanding various aspects of the Israeli operative logic in the OPT, such as Jewish settlements, demography, territorial division, security, borders, and the overall Israeli apparatus of control. Although the Israeli government did not formally adopt the Allon Plan at the time, the plan played a defining role in guiding Israel’s half-a-century-long grand strategy toward the OPT – albeit with minor alterations determined by the shifting circumstances on the ground. The ultimate objective of the plan was, as Allon said, ‘to ensure the fusion of the vision of Greater Israel from the strategic viewpoint with a Jewish state from a demographic viewpoint’ (Tzur, 1982, p. 8). Allon’s practical vision for colonizing the OPT was shaped by a combination of security and ideological motives to reconcile between the maximalist and minimalist tendencies within the Israeli state (Achcar, 2011). The plan, therefore, attempted to manipulate the full annexation of the West Bank and Gaza by advocating the enforcement of sovereign control over major areas of strategic importance, rich in natural resources such as water and arable lands, and thinly inhabited by the Palestinians. This approach instituted two fundamental pillars of the Israeli colonial order in the OPT. Firstly, the demographic dimension of this approach would provide the legal justification to disqualify the Palestinian population from Israeli citizenship, and therefore to eliminate the demographic threat to the Jewish character of the Israeli state. Secondly, the desire for territorial expansion was expressed in the extensive remapping of the OPT through the enforcement of ‘irreversible’ and ‘irremovable’ facts on the ground to draw new borderlines that would secure demographic segregation and territorial integration. The Allon Plan envisaged a resolution to the Palestinian ‘demographic burden’ by negotiating a limited territorial compromise with Jordan, which ruled the West Bank in the period between 1948 and 1967. Known in Israeli circles as the ‘Jordanian option’, the Allon Plan sought to grant some sort of autonomy in populous areas in the West Bank under the Jordanian rule (Khalifa, 1981). This arrangement would form the basis for a comprehensive peace agreement with Jordan. However, the plan did not, in any way, promise to relinquish Israel’s control of the envisaged autonomy. In an article published in Foreign Affairs in 1976, Yigal Allon affirmed that the applicability of the plan would depend on two conditions: ‘absolute Israeli control’ and ‘effective demilitarization’ (Allon, 1976). In the same article, Allon overlooked the existence of a distinct Palestinian national identity, which he regarded as a ‘problem’ that could ‘find its expression in a single Jordanian-Palestinian state’ (Allon, 1976). In 1969, Allon proposed amendments to his settlement strategy under the guise of security. The amendments entailed that Israel would officially integrate over 40 per cent of the OPT, including East Jerusalem, the Jordan Valley, the Dead Sea, and large areas within and around Hebron district, turning the remaining densely populated areas into fragmented enclaves (Raz, 2012, p. 44). In order to impose new ‘facts on the ground’ to accommodate Allon’s territorial framework, Israel embarked on a systematic dispossession of the population in these areas, especially along the eastern borders, the Jordan Valley, and

Israeli conception of ‘peace’  77 several villages in Hebron in the years during and after 1967 war (Note by the UN Secretary-General, 1970). These areas would serve as a point of departure for redrawing Israel’s borders, to be fortified by a chain of Jewish-only settlements concentrated in the Jordan Valley and around Palestinian population centres. In the Jordan Valley, the construction of large settlement blocs, agroindustrial zones, and military bases would effectively disturb the territorial continuity between the West Bank and Jordan, leaving the town of Jericho as the only corridor connecting the two banks of the Jordan River (Matar, 1981, p. 94). Moreover, the construction of settlements on high ground encircling the Palestinian centres in the West Bank would effectively preclude the territorial contiguity, natural demographic growth, and the expansion of Palestinian towns and cities. While this would accommodate Israeli security prerequisites by asserting strategic depth and military control over the territories as well as the imposition of ‘defensible borders’, it would also partially and transitorily accommodate ultranationalist and messianic settler movements seeking to capture the entirety of the OPT. This logic implicitly implies the manufacturing of a system of indirect rule, backed by Israeli-devised mechanisms of control, mainly by turning the Palestinian-inhabited centres into fragmented enclaves, besieged by Israeli military bases and Jewish settlements, lacking meaningful autonomy and territorial contiguity. The Gaza Strip would comprise a part of the Jordanian-ruled West Bank enclaves through a fully controlled land route designed according to Israeli security standards. Although the Allon Plan was driven by security concerns to create defensible borderlines, Allon did not hide the core ideological ambition underpinning his strategy, which, in his own words, aimed at seizing ‘maximum territory for Israel with a minimum number of Arabs’ (Gordon, 2008, p. 49). In parallel with the Allon Plan, the Israeli government adopted the ‘Open Bridges’ strategy, designed by the Israeli Minister of Defence during the 1967 war, Moshe Dayan, who is widely viewed as the architect of the early stage of the Israeli occupation of the OPT. The Open Bridges strategy implied a clearer articulation of indirect rule. It was developed as a strategy of counterinsurgency that deployed political-economic approaches to promote the pacification of the population through economic normalization and self-management. From Dayan’s perspective, the objective of the ‘Open Bridges’ was to make the ‘occupation invisible’ (Gordon, 2008, p. 49). Azmi Bishara notes that Dayan wanted to impose a ‘functional compromise’ that would maintain Israel’s seizure of the OPT while fostering a certain degree of Palestinian self-governance (Bishara, 2020, p. 23). Dayan’s strategy can be summed up in four policies: 1) Encouraging indirect rule through keeping in place the pre-occupation local institutions that administered the lives of the Palestinians during the Jordanian rule – albeit under the umbrella of the Israeli military rule (Shafir 2017, p. 85). To support these institutions, the Military Governorate established contacts with the traditional elite who typically exercised political power over the population. The Military Governorate supported this elite because of their

78  Tariq Dana moderate political position and willingness to cooperate with the occupation authorities 2) Minimizing military presence in densely populated areas in order to decrease the levels of tension between the Palestinians and the Israeli soldiers, and therefore to avoid escalation and clashes 3) Facilitating trade and economic exchange between the Palestinians and Jordan to sustain mutual ties and to pave the way for the ‘Jordanian option’ 4) Enforcing economic normalization through integrating the Palestinian economic resources and the labour force into the Israeli economy, and fostering specific agricultural and light industrial projects that directly benefited the Israeli economy (Hever, 2010). The immediate effect of this policy made the Palestinian economy structurally dependent on Israel. It also served as an economic pacification instrument aimed to undercut political radicalization by generating higher income for the Palestinian labour force and improving the socio-economic standards of living The Open Bridges resulted in two contrasting outcomes. The first outcome proved beneficial to Israel. The pacification approach constituted a key factor for stabilizing the initial phase of colonization through reshaping the socioeconomic conditions that govern the lives of the population (Abed, 1988, p. 8). Until the late 1970s, the Open Bridges introduced considerable growth in the per capita income in the OPT. At the same time, this policy led to the disintegration of the Palestinian economic base, coupled with the dramatic decline of agricultural production due to Israel’s massive land confiscation to construct settlements (Farsakh, 2005). As a result, Israel destroyed the Palestinian capacity for independent economic development and fostered the formation of local compradors, whose profit lies in mediating between Israeli manufacturers and the local Palestinian market. Consequently, this situation has subjected both the Palestinian labour force and businesses to a state of structural dependency on Israel. The second outcome appeared to run against the long-term Israeli objective of instituting a system of indirect rule. Since Israel embarked on extensive land confiscation to construct settlements, it had dramatically, yet unwittingly, weakened the traditional elite and caused an accelerated transformation of Palestinian social and class structures (Hilal, 1977; Hiltermann, 1993, p. 9). The demise of the traditional elite was exacerbated by the rapid shift in the employment pattern from the declining agricultural sector into the Israeli marketplace and employment abroad. This dynamic had radically altered the structure of leadership in the OPT in favour of the PLO nationalists, mainly comprised of the educated middle class and unprivileged groups such as refugees and labourers. By the late 1970s, the PLO in exile possessed a significant politicized national base in the OPT. As a way to undercut the PLO influence, and to advance the possibility for a peace arrangement with Jordan through which the ‘Jordanian option’ could be realized, the then-Minister of Defence, Yitzhak Rabin, ordered the Military Governorate to hold municipal elections in the West Bank in 1976. Rabin hoped that the elections would empower and legitimize the traditional

Israeli conception of ‘peace’  79 pro-Jordanian elite, forming a counterweight to the PLO’s ever-expanding influence. Rabin also envisioned a form of indirect rule that would be administrated by the traditional elite to help maintain the security of Israeli settlements and military forces (Lukacs, 1999, p. 141). However, the elections resulted in the overwhelming victory of the pro-PLO representatives, which reflected the rising nationalist consciousness among the Palestinians in the OPT. The disappointment of the Israeli policymakers was expressed in a series of policy changes and repressive measures; the military authorities expelled three elected mayors in 1980, and by 1982 eight mayors were removed and replaced with military officers to administer Palestinian municipalities. While the spatial and demographic dimensions of the Allon Plan continued as a guiding policy framework, Israel invented a hybrid approach to reinstitute unchallenged control, combining direct and indirect methods of governance, which brought about some fundamental changes to the previous strategies of indirect rule. These changes were embodied in the creation of two new political institutions, that will be examined below: the Civil Administration (direct rule), and the Village Leagues (indirect rule), which together dominated much of Israel’s policy toward the OPT in the 1980s. In 1981, the former Israeli Defence Minister, Ariel Sharon, proposed to transfer all civilian and non-security matters from the Military Governorate that had governed the OPT since 1967 to a new bureaucratic entity called the Civil Administration. The establishment of the Civil Administration aimed to facilitate the implementation of the Israeli Prime Minister Menahem Begin’s plan to establish a Palestinian ‘self-governing administrative council’ to manage a geographically limited autonomy consisting of densely populated areas in the OPT. Begin’s vision of indirect rule constituted the core of the so-called ‘26-point document’ that was discussed as part of the Israeli-Egyptian Camp David negotiations in 1977 (Anziska, 2018). The plan suggested an elected ‘11-member administrative council’ that would be responsible for social and civil services, yet without executive and legislative functions. Similar to previous plans and policies of the 1970s, Begin’s plan also required the redeployment of Israeli military forces from populated towns to new strategic areas within Israeli settlements and in other positions between and around Palestinian towns. As the highest authority that oversees Palestinian autonomy, the Israeli military authority would create mechanisms to coordinate security and public order with the council to maintain ‘security’ and ‘public order’. In 1979, the Washington Post revealed that the Palestinian administrative council would ‘derive its authority solely from the Israeli government … and could be dissolved by Israel if it failed to adhere to the principles laid down in its charter’ (Claiborne, 1979). The Civil Administration assumed responsibility for virtually every aspect of daily life, ranging from the municipal planning of civilian infrastructure, water supply and distribution, electrification, and telecommunication, to individuals’ basic needs such as job appointments, car licensing, economic activity, and travel permits. It was initially headed by an Israeli academic and adviser on Arab affairs to the Military Governorate, Menachem Milson, who was aided

80  Tariq Dana by a group of academics and experts on Arab society and culture. The selection of the Civil Administration’s administrators was consciously made by Sharon to utilize knowledge to deepen control over the population. Although the Civil Administration was ostensibly depicted as a civil institution concerned with governance and services, it was, in effect, subordinated to the Israeli Ministry of Defence and the internal intelligence service, the Shen Bit. This was evident in the decision-making and the hierarchical structure of the Civil Administration which firmly followed the military chain of command, where ‘the executive, legislative and judicial powers were concentrated in the person of the Military Governor and his deputies who reported directly to the Israeli Minister of Defence’ (Shahwan, 2004, p. 55). Therefore, the Civil Administration constituted an institutional offshoot of the military, as all civilian affairs were regulated by military orders. From the beginning, the Palestinians identified the Civil Administration as a deceptive representation of the military occupation. In most instances, when the Civil Administration’s orders were met with defiance and protests, the military forces would impose collective punishment measures against noncompliant communities, including practices of extended curfews, house demolitions, night raids, and mass incarceration. These measures aimed to control and influence people’s perception and to undermine popular support for the Palestinian national movement. The Civil Administration repressed every local social and economic initiative and banned representative groups and civil society organizations (Hunter, 1991, p. 146). Before the establishment of the Civil Administration, and based on advice from Menachem Milson, the Military Governorate founded the Village Leagues as local proxy forces to operate under the direct auspices of the Israeli authorities. The Village Leagues were formed from local collaborationist groups, often originating from ultraconservative and reactionary backgrounds. They were mainly concentrated in remote rural areas where the combined system of tribal and semifeudal patronage was key to social organization, and where high levels of illiteracy predominated. According to the US Department of State, the purpose of Village Leagues ‘was to transfer patronage and authority from elected and established Palestinian nationalist leaders whom Israel objects to as being supporters of the Palestinian Liberation organization’ (Quigley, 1990, p. 180). The first league was founded in Dura, a village near Hebron, followed by a network of Village Leagues in many regional districts. These leagues represented themselves as ‘the vanguard of the peace forces in the West Bank and Gaza – whose historic task is to mobilise the Palestinian people in a peace movement against bigotry and [Palestinian] terrorism’ (Tamari, 1983, p. 43). However, while most rural areas refused to collaborate with this initiative, the Military Governorate, and later the Civil Administration replaced many rural Mukhtars – heads of villages – with other acquiescent personalities willing to collaborate with the occupation authorities. Israel empowered and sustained these networks in a variety of ways to achieve multiple objectives. Firstly, the league and its leaders were manufactured by Israel as a counterweight to the PLO and to thwart the growing power of nationalist

Israeli conception of ‘peace’  81 leaders in the OPT. Secondly, Israel sought to tie the largest possible segment of the population into the patronage system of the Village Leagues and, by extension, to the Israeli occupation authorities (Taraki, 2006, p. 99). Having a considerable social base would provide the Village Leagues with the necessary legitimacy to negotiate on behalf of the Palestinians and to establish limited self-rule conditioned with Israeli terms. Thirdly, as part of the ‘divide and rule’ policy, the Leagues were instrumentalized to incite intra-Palestinian violence between the PLO forces and the Village Leagues’ loyalists, and more broadly to fuel tensions between the urban and the rural populations. The Military Governorate issued a series of military orders that granted the Village Leagues extensive extra-legal powers and allowed them to institute local armed militias and to acquire vehicles, arms, advanced means of communications and interrogation centres, and prison cells. Also, the Village Leagues issued and distributed a newspaper, Al-Mi’aa (the Mirror), which published reports opposed to the PLO and called for peaceful coexistence with Israeli soldiers and settlers (Tamari, 1983). The Civil Administration used the Village Leagues as a channel to distribute services, such as family reunion permits for relatives residing abroad; travel permits for crossing the bridge to Jordan; public and private jobs; construction and business permits; the termination of military orders of house demolitions; the reduction of prison terms; and permits to acquire driving licenses. The Village Leagues used their intermediary position as service providers to punish or reward the population according to their compliance. Nevertheless, despite Israel’s extensive investment in the Village Leagues, the Palestinians staunchly refused to collaborate and resisted the attempt to impose an illegitimate authority. At best, the Village Leagues built a narrow social base and remained of limited influence and failed to infiltrate the social and national fabric. The ways in which the Israeli authorities used the Civil Administration and the Village Leagues to superimpose draconian control on Palestinian life had resulted in unbearable repression that affected all segments of the population regardless of their class base and political and ideological affiliations, which enabled the formation of a broad class alliance against the occupation (Hiltermann, 1993). In 1987 the First Palestinian Intifada erupted as a large-scale popular uprising against the Israeli colonial structure and instruments, including the Village Leagues, which inevitably dissolved in 1988.

Oslo as a successful model of indirect rule By the late 1980s and early 1990s, regional and international transformations provided Israeli policymakers with advantageous options that were not attainable in previous decades. The end of the Cold War and the geopolitical consequences of the 1990–1991 Gulf War affected the PLO’s alliances and threatened its organizational and financial sustainability. Moreover, the legitimacy of the dominant PLO leadership in exile was increasingly challenged inside the OPT. On the one hand, the PLO status as ‘the only legitimate representative of the Palestinian people’ was increasingly contested by the rising popularity of Islamic movements, such as

82  Tariq Dana Hamas and the Islamic Jihad, which operated outside the PLO chain of command. On the other hand, the PLO leadership’s influence on the ground was gradually side-lined by a rising generation of local leaders who led the first Palestinian Intifada (Dana, 2019b). Thus, the PLO leadership’s rush towards the Oslo negotiations was primarily driven by a combination of organizational crisis and a selfserving agenda, which aimed to secure a new centre of power in order to regain its monopoly over the Palestinian political field. With the dramatically weakened status of the PLO, Israel came to believe that a political compromise underpinned by a huge asymmetry in power with the PLO would legitimize a variety of shortand long-term objectives. The urgent short-term objective was to put an end to the first Intifada, to contain the Palestinian national movement under Israel’s strict control, and to enforce political stability. The achievement of this objective would pave the way to achieve the long-term objective, that is to accelerate the colonization process and consolidate the ‘enclavement’ of the Palestinians under the false impression of self-rule/state-building. Thus, one could argue that the signing of the Oslo Accords in 1993 marked a convergence of interest between Israel and the PLO. However, the contradiction between the PLO’s aspiration to statehood and the Israeli thrust for indirect rule was decisively settled in favour of the latter. The signing of the Oslo Accords in 1993 marks an unprecedented encounter in the history of anti-colonial struggle between a national liberation movement and a settler-colonial enterprise. In sharp contrast to the past trajectories of national liberation movements, which consistently applied the principle of self-determination through decolonization, the PLO made major concessions that facilitated the restructuring and outsourcing of several of Israel’s colonial instruments. In particular, the establishment of the PA in 1994 replaced vital structures and functions associated with an anti-colonial liberation movement with a fragile entity characterized by territorial discontinuity, economic dependence, institutional weakness, and social fragmentation (Dana, 2019b). Such a highly restrictive context has exposed the PA in particular, and the national movement in general, to multiple vulnerabilities and pressures to conform to the Israeli conditions. In this context, Israel repackaged and brought together central aspects of previous strategies of indirect rule that it sought to implement in the pre-Oslo era. In the first instance, the post-Oslo territorial division reflected an upgraded version of the Allon Plan, especially with regard to the complex and fragmentary remapping of the OPT. Key components of the Allon Plan, such as the extensive construction of large settlement blocs in strategic locations, the annexation of East Jerusalem, the colonization of the Jordan Valley, and the ‘enclavation’ of Palestinian populated areas came to fruition. These realities, or ‘facts on the ground’, ensured Israel’s full control over the OPT while physically and legally excluding the Palestinian population from either independent nationality or the Israeli system of citizenship, leaving them stateless. While the Allon Plan initially proposed the annexation of one-third of the West Bank territories, the Oslo territorial division granted Israel full control of more than 60 per cent of the land, known as Area C, an area characterized by arable lands and abundant natural resources. The PA was granted civil and security responsibilities in densely populated areas, constituting

Israeli conception of ‘peace’  83 around 18 per cent of the West Bank. The rest, designated Area B, is controlled by the Israeli security forces while the civilian control was left to the PA. Area A and B are non-contiguous, entirely encircled by area C, and are racially separated by the Israeli ‘matrix of control’, comprised of myriad forms of barriers such as Jewish-only settlements, bypass roads, checkpoints, the separation wall, and closed military areas (Halper, 2009). To dispossess the Palestinian residents in Area C (home to an estimated 300,000 people living in 532 residential areas), Israel has continuously employed techniques such as the large-scale demolition of houses, forced evictions from entire villages, and systematic settler violence. All this has been accompanied by the ‘bantustanization’ of Palestinian towns and cities, which became ‘a collection of isolated areas and enclaves separated from one another’ heavily controlled by Israeli military forces and high-tech security surveillance (More, 2005, p. 283). The intensity of these policies and practices has transformed the Israeli settler-colonial regime into a full-fledged system of Apartheid (Soske & Jacobs, 2015). Many Palestinians believe that the PA has developed into ‘a revamped version of the Village Leagues’ (Baroud, 2015). This depiction is justified by the PA subordination to Israel, which is translated into effective collaboration at multiple levels. A core practice of the PA’s subordination is ‘security coordination’, which has been the foremost functional collaboration that survived almost every political crisis throughout the Oslo process. The PA security role provides Israel with much-needed strategic services to ensure its own security, enforce stability, and disband Palestinian resistance (Tartir, 2019). For this reason, much of the US and EU investment in the OPT has focused on reshaping the doctrinal, operational, and technical composition of the PA security and policing sector, providing infrastructural support to build prisons, police stations, interrogation centres, and security colleges. After the Second Intifada (2000–2005), the PA security sector underwent internationally backed reform, which resulted in the creation of what the US Security Coordinator for Israel and the PA (USSC), General Keith W. Dayton, called ‘the new Palestinian men’. The term ‘new Palestinian men’ refers to disciplined security forces whose mind-set and loyalty are framed by the US-Israeli vision for Palestinian self-policing. An Israeli governmental report explains how the reform of the PA security sector has been central to the preservation of the Israeli desired status quo: ‘[The] higher the level of security reached on the ground, and the capabilities developed, the less Israel will need to act on the ground’ (AHLC, 2010, p. 4). The PA security forces serve as an instrument to coordinate and implement ‘counterterrorism’ and ‘counterinsurgency’ operations under the direct supervision of the USSC and Israel, and on behalf of Israeli military forces (Turner, 2015). The subordination of the PA’s security force to Israel is manifested, for example, in the ‘revolving door’ policy, which entails coordinated policies and practices such as the exchange of intelligence information about Palestinian individuals and groups, the arrest of Palestinian dissenters, and the frequent withdrawal of PA security forces from Area A to facilitate Israeli military operations inside areas under PA jurisdiction. For the PA ruling elite, security collaboration is vital for protection and survival. Firstly, it secures Israeli

84  Tariq Dana consent and donor support; and secondly, it protects the PA elite and suppresses anti-PA protests. The significance of the security realm to the PA is evident in terms of spending and employment. As the largest element of the public sector, security consumes around one-third of the PA annual budget and employs around 45 per cent of the PA functionaries. As a consequence, the overemphasis on security made the OPT one of the most highly securitized areas in the world, with the ratio of security personnel to the population as high as 1–48 (Tartir, 2019). Another critical aspect of the system of indirect rule framed by the Oslo process is that it allowed the Israeli Civil Administration to outsource key civil responsibilities to the PA. While the outsourcing of social, educational, health, and other civil functions relieved the occupation authorities from the heavy financial and legal burden of overseeing the populations, it provided the PA with a vital mechanism for internal stabilization through the formation of vast bureaucracies. The structuring of the inflated public sector served to absorb the largest possible segment of the population into the PA patron-client system through distributive rents, financial awards, and salaries (Dana, 2019a). The forging of this patronclient relationship across the PA institutions is key to buying loyalties and ensuring acquiescent constituents whose interest becomes tied to the PA. When the PA was established in 1994, it hired 39,000 employees. Three years later, by 1997, the public sector has grown unchecked, employing around 86,000 people largely on a basis of favouritism, cronyism, and political considerations. Even in times of acute crisis, such as in the Second Intifada and the resulting financial hardship caused by Israeli restrictions, the chaotic appointments continued unrestricted, with the number of public sector employees growing to 150,000 by 2005. Despite the PA institutional and financial reform after the Second Intifada, public sector employment in recent years has reached around 180,000. Also distinct in the Oslo-framed system of indirect rule is the legitimacy accorded by the legal underpinning of the agreements and the recognition by the international community of the Oslo process as a ‘peace process’. This misleading depiction encourages significant misconceptions about the actual realities and trajectories of the process. This situation has not only sustained the asymmetric power relations in favour of Israel’s colonial project but also provided Israel with the necessary means to mask its strategy of indirect rule at three fundamental levels. Firstly, the Oslo framework effectively reduced international pressure on Israel as an occupying power to dismantle its settlements and withdraw from the OPT. The persistence of the Oslo framework as the main point of reference for Palestinian-Israeli relations meant that any Israeli partial or full withdrawal is subject to the outcomes of bilateral Palestinian-Israeli negotiations and final agreement, rather than recognizing the Palestinian right to self-determination. Moreover, international pressure is unequally exerted to extract further concessions from the PA, which are generally consistent with the Israeli requirements. For example, in 2002, the ‘Quartet on the Middle East’ (comprised of the UN, US, EU, and Russia) proposed the ‘Road Map for Peace’ to oblige the PA to undergo multi-level reform of its governance and institutions, including its financial,

Israeli conception of ‘peace’  85 security, media, and educational sectors. Under the banner of peace and stability, donors’ sponsored reform has systemically supported selected elite who are willing to meet donors’ conditions, and by extension, support the Israeli position. As noted by Turner (2011), donors tend to support and impose those they regard as the ‘right’ type of elite ready to ‘make peace’ with Israel despite the absence of ‘peace process’ and the continued expansion of Israeli settler-colonial project. An illuminating example of this is seen in the consequences of the 2006 PA general elections, which saw Hamas winning the majority of the seats in the Palestinian Legislative Council and forming the government. Based on the Israeli rejection of the electoral results, donors responded by halting international aid to the democratic Hamas-formed government, favouring the PA president Mahmoud Abbas and his party Fatah as ‘partners for peace’. These interventions from donors exacerbated intra-Palestinian tensions, leading to the violent and dramatic division between the Fatah-ruled PA in the West Bank and the de facto-Hamas government in the Gaza Strip in 2007. Secondly, the international community’s uncritical support of the Oslo process has not only entrenched colonial relations but also led to criminalizing Palestinian resistance to Israel’s colonial domination. This is particularly evident in how notions of ‘conflict’ and ‘peace’ are systemically manipulated in a way that disregards the vast power asymmetry between the Palestinian and Israeli positions, representing them as equivalent. This allowed Israel and its international backers to represent Palestinian resistance as ‘terrorism’, in order to justify Israeli violence and impose further restrictions on the Palestinians (Gregory, 2004). As noted by Rashid Khalidi, ‘violence employed by Palestinians is “terrorism”; violence employed by Israel, usually producing approximately ten times [the number of] of casualties, is “self-defense”’ (Khalidi, 2014, p. 273). Efforts to link Palestinian resistance with terrorism have intensified since the rise of the US-led global war on terror in 2001, in which Israel is a key player, and has led to further restrictions on various aspects of Palestinian life. For example, in 2004, the US, followed by the EU in 2019, imposed the so-called ‘Anti-Terror Waiver’ on Palestinian civil society as a precondition to qualify for the fund. Applying these restrictive conditions implied the imposition of the Western definition of ‘terrorism’ on Palestinian organizations, which is equivalent to the Israeli representation of Palestinian resistance. As such, former prisoners, political activists, and their relatives were denied access, employment, and services by organizations in receipt of US and EU funds. Finally, with the pouring of international aid to the PA, Israel secured an external mechanism to mitigate the harmful consequences of its colonial policies on the ground. International aid has been instrumental in the pacification approach embedded in the Oslo framework: it founded and sustained the PA; it provides humanitarian aid to the affected communities; it provides social services and welfare to the populations; and it rebuilds infrastructure destroyed by Israel and provides critical support to the PA security forces (Turner, 2015). From 1993 through 2020, donors allocated more than $40 billion in the OPT, thus making the OPT among the highest recipients of aid per capita in the world.

86  Tariq Dana Although international aid to the PA has been primarily driven by donor states’ varying political stances toward the management of the conflict, international aid has persistently been committed to the Oslo framework. For example, financial assistance from the US has been strategically consistent with Israel’s strategic position; while other major donors such as the EU and Japan avoid openly challenging Israeli colonial dynamics and prefer to keep functional the PA institutions, economy, and security regardless of the political outcomes. International aid, therefore, has played vital subtle roles in consolidating the Oslo model of indirect colonial rule.

Conclusion On 28 January 2020, US President Donald Trump unveiled his much-awaited Middle East plan, or the ‘Deal of the Century’, which envisaged a final solution to the Israeli-Palestinian conflict, grounded in Israel’s historic ambition to legitimize its settler colonialism in the OPT. The plan proposes Palestinian self-government (misleadingly referred to as the Palestinian State), but explicitly stripped of basic sovereign powers, fully demilitarized, and with its primary mission being to accommodate Israel’s security needs. The plan redraws the boundaries of the internationally backed two-state formula, and expands on the Allon Plan annexation proposal by incorporating the vast majority of illegal Jewish-only settlements and the Jordan Valley into Israel ‘proper’. Moreover, the plan recognizes Jerusalem as the ‘undivided capital’ of Israel and negates Palestinian refugees’ right to return. In line with the ‘Deal of the Century’, the Israeli Prime Minister, Benjamin Netanyahu, officially annexed East Jerusalem, the Golan Heights, and is expected to annex large parts of the West Bank in due course. The ‘Deal of the Century’ paves the way for an advanced stage of indirect colonial rule, one that builds on the Israeli expansion during the Oslo process and many elements of previous Israeli plans. For many observers, the plan shares striking similarities with the Bantustan model that prevailed during the era of Apartheid in South Africa. The model advanced by the ‘Deal of the Century’, and the potential implementation of the annexation scenario, will inevitably require a collaborative entity on the ground. While the PA opposed the Trump–Netanyahu coordinated move, declaring in response a cessation of all agreements with Israel and the US, the PA is unlikely to go beyond rhetorical expressions of discontent. The PA’s credibility in the eyes of the people has faded long ago, as the PA made similar announcements on multiple occasions with no practical consequences. This is because the PA elite and its patronage base have been trapped into a complex set of interests and privileges and as such seek not to risk jeopardizing the PA project. At best, they will continue to rhetorically oppose the US-Israeli move yet without taking serious actions on the ground. This amounts to tacit complicity. Thus, if this reading of the PA’s complicity proves true in in the face of these new arrangements, then one should expect the refashioning of the indirect rule model along a new parameter, one that is informed by a highly developed and sophisticated Apartheid regime.

Israeli conception of ‘peace’  87

References Abed, G. (1988). The Palestinian economy: Studies in development under prolonged occupation. London: Routledge. Achcar, G. (2011). The Allon plan and the impediments to Palestinian statehood. In H. Krieger (Ed.), Perspectives beyond war and crisis III: What kind of Palestinian state for what kind of peace? (pp. 73–91). Vienna: Vienna Institute for International Dialogue and Cooperation (VIDC). AHLC. (2010). Measures taken by Israel in support of developing the Palestinian economy, the socio-economic structure, and the security reforms. Madrid: Report of the Government of Israel to the Ad Hoc Liaison Committee (AHLC). Allon, Y. (1976). October. Retrieved from https://www​.foreignaffairs​.com​/articles​/israel​ /1976​-10​-01​/israel​-case​-defensible​-borders. Anziska, S. (2018). Preventing Palestine: A political history from Camp David to Oslo. Princeton: Princeton University Press. Babou, C. A. (2010). Decolonization or national liberation: Debating the end of British colonial rule in Africa. The ANNALS of the American Academy of Political and Social Science, 632(1), 41–54. Baroud, R. (2015). Abbas’s village leagues and Palestinian silence. CounterPunch. 5 September 2015. Retrieved from https://www​.counterpunch​.org​/2013​/09​/05​/abbass​ -village​-leagues​-and​-palestinian​-silence/. Bertram, A. (1930). The colonial service. Cambridge: Cambridge University Press. Bishara, A. (2020). The Trump-Netanyahu deal: The path that led to the ‘peace’ plan and what is to be done. Beirut: The Arab Center for Research and Policy Studies. Claiborne, W. (1979). Begin presents Palestinian autonomy plan to cabinet group. The Washington Post. 4 May 1979. Retrieved from https://www​.washingtonpost​.com​/ archive​/politics​/1979​/05​/04​/begin​-presents​-palestinian​-autonomy​-plan​-to​-cabinet​ -group​/57bd15c6​-07f2​-4035​-aee7​-762706b2d09b/. Crowder, M. (1964). Indirect rule – French and British style. Africa: the Journal of the International African Institute, XXXIV(3), 197–205. Dana, T. (2019a). Crony capitalism in the Palestinian authority: A deal among friends. Third World Quarterly, 41(2), 247–263. Dana, T. (2019b). The prolonged decay of the Palestinian national movement. National Identities, 21(1), 39–55. Dana, T., & Jarbawi, A. (2017). A century of settler colonialism in Palestine: Zionism’s entangled project. Brown Journal of World Affairs, 24(1), 197–219. Farsakh, L. (2005). Palestinian labour migration to Israel: Labour, land and occupation. New York: Routledge. Gerring, J., Ziblatt, D., van Gorp, J., & Arevalo, J. (2011). An institutional theory of direct and indirect rule. World Politics, 63(3), 377–433. Gordon, N. (2008). Israel’s occupation. Berkeley and Los Angeles: University of California Press. Gregory, D. (2004). Palestine and the ‘war on terror’. Comparative Studies of South Asia, Africa and the Middle East, 24(1), 183–195. Halper, J. (2009). Dismantling the matrix of control. 11 September 2009. Retrieved from https://merip​.org​/2009​/09​/dismantling​-the​-matrix​-of​-control/. Hever, S. (2010). The political economy of Israel’s occupation. London: Pluto Press. Hickel, J. (2012). Social engineering and revolutionary consciousness: Domestic transformations in colonial South Africa. History and Anthropology, 23(3), 301–322.

88  Tariq Dana Hilal, J. (1977). Class transformation in the West Bank and Gaza. Journal of Palestine Studies, 6(2), 167–175. Hiltermann, J. (1993). Behind the intifada: Labor and women’s movements in the occupied territories. Princeton: Princeton University Press. Hunter, R. (1991). The Palestinian uprising: A war by other means. Berkeley: University of California Press. Khalidi, R. (2014). Brokers of deceit: How the U.S. has undermined peace in the Middle East. Boston: Beacon Press. Khalifa, A. (1981). The ‘Jordanian option’ through Israeli eyes. Journal of Palestine Studies, 10(3), 153–159. Khan, M. (2004). State formation in Palestine. In M. Khan, G. Giacaman, & I. Amundsen (Eds.), State formation in Palestine: Viability and governance during a social transformation (pp. 1–12). London: Routledge Curzon. Killingray, D. (1986). The maintenance of law and order in British colonial Africa. African Affairs, 85(340), 411–437. Lawrence, A. (2017). Colonial approaches to governance in the periphery: Direct and indirect rule in French Algeria. Comparative Politics Workshop. Chicago: University of Chicago Press. Lechler, M., & McNamee, L. (2017). Decentralised despotism? Indirect colonial rule undermines contemporary democratic attitudes. Munich Discussion Paper No. 2017-7, University of Munich. Lukacs, Y. (1999). Israel, Jordan, and peace process. Syracuse: Syracuse University Press. Mamdani, M. (2012). Define and rule: Mative as political identity. Harvard: Harvard University Press. Masalha, N. (1992). Expulsion of the Palestinians: The concept of ‘transfer’ in Zionist political thought, 1882–1948. Washington: Institute for Palestine Studies. Matar, I. (1981). Israeli settlements in the West Bank and Gaza Strip. Journal of Palestine Studies, 11(1), 93–110. More, A. L. (2005). Killing with kindness: Funding the demise of a Palestinian state. International Affairs, 81(5), 981–999. Myers, J. C. (2008). Indirect rule in South Africa: Tradition, modernity, and the costuming of political power. Rochester: University of Rochester Press. Note by the UN Secretary-General. (1970). Report of the special committee to investigate Israeli practices affecting the human rights of the population of the occupied territories. 15 December 1979. Retireved from https://web​.archive​.org​/web​/20140203074258​/ http:​/unispal​.un​.org​/UNISPAL​.NSF​/0​/858​C88E​B973​847F​4802​564B​5003D1083. Pappe, I. (2007). The ethnic cleansing of Palestine. Oxford: Oneworld Publications. Quigley, J. (1990). Palestine and Israel: A challenge to justice. Durham: Duke University Press. Raz, A. (2012). The bride and the dowry: Israel, Jordan, and the Palestinians in the aftermath of the June 1967 war. New Haven: Yale University Press. Roy, S. (2006). Failing peace: Gaza and the Palestinian-Israeli conflict. London: Pluto Press. Said, E. (1993). The morning after. London Review of Books. 21 October 1993. Retrieved from https://www​.lrb​.co​.uk​/the​-paper​/v15​/n20​/edward​-said​/the​-morning​-after. Shafir, G. (2017). A half century of occupation: Israel, Palestine, and the world’s most intractable conflict. Oakland: University of California Press. Shahwan, U. (2004). Public administration in Palestine: Past and present. Lanham: University Press of America.

Israeli conception of ‘peace’  89 Soske, J., & Jacobs, S. (2015). Apartheid Israel: The politics of an analogy. Chicago: Haymarket Books. Tamari, S. (1983). In league with Zion: Israel’s search for a native pillar. Journal of Palestine Studies, 12(4), 41–56. Taraki, L. (Ed.). (2006). Living Palestine: Family survival, resistance, and mobility under occupation. Syracuse: Syracuse University Press. Tartir, A. (2019). Outsourcing repression: Israeli-Palestinian security coordination. Johannesburg: Afro-Middle East Centre. Turner, M. (2011). Creating ‘partners for peace’: The Palestinian authority and the international statebuilding agenda. Journal of Intervention and Statebuilding, 5(1), 1–21. Turner, M. (2015). Peacebuilding as counterinsurgency in the occupied Palestinian territory. Review of International Studies, 41(1), 73–98. Tzur, Z. (1982). From the partition dispute to the Allon plan. Ramat Ephal: Tabenkin Institute. Zureik, E. (2016). Israel’s colonial project in Palestine: Brutal pursuit. London: Routledge.

5

The struggle for democratic space under violent settler colonialism and authoritarian rule Helga Baumgarten

Introduction My students in Birzeit, together with me, raised the questions which this contribution tries to answer. What happened to the Palestinians’ hope for democratic transition, which was so high after the elections of 2006? When struggling for their freedom as human beings and as citizens, how have they fared in their resistance against settler colonialism and their opposition against authoritarian rule? What is realistically possible for young people engaged in a struggle for democratic space, confronting an authoritarian government (cooperating on the security level with the occupation regime)? What are their motives, and why would they run the risks involved? We decided to search for concrete experiences of this struggle in the West Bank, with a focus on agency. We therefore departed from the dominant focus of research over the last years on structural conditions, which is Israeli settler colonialism and Palestinian authoritarian rule. This chapter begins with a sketch of the structural context of the struggle for democratic space. A short section follows on the underlying theoretical approach as well as the methodology I apply. The case studies based on recent empirical research form the main part of this paper. All cases combine three essential features: the demand for democracy, the taking up of grievances of the people, and the readiness to engage in a long-term struggle for change. In the conclusion I present the major findings.

Structural context for the Palestinian struggle for democratic space Palestinians have been living for many decades under a system of violent settler colonialism (Khalidi, 2020, Salamanca et al., 2012) which has been threatening their very survival on their homeland. As among other historians and theoreticians Fayez Sayigh (1965), Maxime Rodinson (1973), and Patrick Wolfe (2006) have argued, settler colonialism threatens to take over the land, marginalizing the indigenous population while trying to ‘do away with them’ with whatever means available. Since the beginning of the Israeli occupation of the West Bank with East Jerusalem and the Gaza Strip in 1967, international law has been marginalized. The occupying

The struggle for democratic space  91 power Israel and its main supporter, the United States of America, have consistently refused to take international law even into consideration (Khalidi, 2020). There was considerable hope among Palestinians in the West Bank and in Gaza that the Oslo Accords of 1993 would enable them to not only end the occupation and establish an independent Palestinian state, but also to build a political system based on freedom, democratic participation, and the rule of law. This hope increased after the parliamentary elections of 2006, when Palestinians in their majority voted the incumbent Fatah out, giving the Hamas opposition the chance to change matters for the better. The United States and Europe, as well as Israel, refused to accept the results of the elections. They tried to impose on Hamas political conditions before recognizing them. The incumbent party, which had seemed ready to accept its defeat, was encouraged by the US to engage in a violent power struggle with Hamas. This struggle ended in a territorial and political split between the two political forces. Hamas have since ruled Gaza, while the West Bank is under the control of Fatah. A system of authoritarian rule developed in both the West Bank and Gaza, frustrating any hope held by the people to start a process of democratic transition (Baumgarten, 2015). Moreover, this split often produced violent conflict between the competing parties. Opinion polls throughout the Oslo years clearly reflect the ongoing struggle for democratic space. People have consistently raised demands for the implementation of democracy. They have criticized their government for the lack of freedom of press, of opinion, and of the possibility to criticize government without fear. More than 80 per cent of the population are convinced there is corruption in the institutions of government. They have objected to the increasing power of Palestinian security services, which they consider illegitimate. Finally, yet importantly, they consider the dissolution of parliament in December 2018, which Palestinian President Mahmud Abbas put in motion, illegal and unconstitutional. They have always insisted on free elections, both parliamentary and presidential. Palestinians obviously possess a good sense of democratic legitimacy and a clear awareness of the problems affecting the Palestinian system of rule. They want change on all levels, but do not seem to have the strength and the power to bring it about. The NGO AMAN (Coalition for Accountability and Integrity in Palestine), in its report on 2018, presented to the public in mid-April 2019, criticized the government in Ramallah: Citizens finance approximately 85% of the State’s revenues. However, the absence of the PLC … in approving, monitoring and controlling spending of the budget allowed the Minister of Finance to solely have control over the management of public funds with no representation of the citizens or their civil institutions. (AMAN, 2019) The report uncovers examples of rampant corruption, lack of accountability of the executive authority, nepotism, and appointments in clear violation of

92  Helga Baumgarten law. Despite settler colonialism and authoritarian rule, Palestinian society has been criticizing this unbearable state of affairs on social media, inside universities, with its very strong civil society, through union strikes, and inside local government.

Choice of samples The cases chosen are taken from local politics, with initiatives and struggle from above and from below. Two examples of union strikes will be analysed, followed by an examination of the struggle by individuals and NGOs. The reasons for these choices are above all empirical. They constitute excellent cases to test the argument advanced, and the experiences made have hardly ever been analyzed. The relevance of local government is self-evident as here citizens can work directly for change in conditions affecting their daily lives. Strike action is equally concerned with problems unbearable for the strikers. People get involved and opt for strike in order to bring about change. NGOs just like activist individuals also focus on change. They take up problems considered essential by society. Intellectuals seem to have played an important role through their engagement. The choice was made based on available data and access to the activists, their readiness to give long, in-depth, open-ended, and narrative interviews, and finally their agreement to meet frequently over an extended period. In addition, the theoretical approach suggested focusing on this kind of cases.

Theory and methodology Democratic transformation theory has demonstrated, based on examples from Latin America and Southern Europe, that transformation to democracy is in general most successful when initiated on the elite level through pacts. Transformation from below, in particular if violence is involved, does not seem to succeed in the long run. Transformation theoreticians stress that there are no preconditions for transformation, refuting earlier claims in modernization theory. They consider it important, however, that in the democratic consolidation period citizens accept democratic procedures and rules and act accordingly (Schmitter & Karl, 1991). This obviously necessitates prior experiences with democratic modes of action and, above all, trust in democratically elected political leaders. My case studies presented below are very relevant in this context. They present people engaged in participatory and democratic action, who act based on democratic rules as developed by them, in particular from below. Analysing the empirical material follows the ‘historical turn in democratization studies’ (Capoccia & Ziblatt, 2010, p. 931), since the cases are presented as historical and process-oriented studies, with a clear focus on the building of historical legacies, which means to ‘go back and investigate the moments when fights over democratic openings took place’ (Ahmad & Capoccia, 2014, p. 8). I did not choose political parties, but cases of local government, unions, NGOs, and individuals. I tried to exclude NGOs exclusively funded through international

The struggle for democratic space  93 donors and depending on them, in particular NGOs thriving in what I would call the ‘democratization industry’ (see Carothers 2010, p. 114). I argue that accumulated experiences of contestation can lead to transformations under suitable circumstances, based on the historical approach to democratic transformation. Secondly, under authoritarian rule, overlaid by a system of settler colonialism, initiatives for change will primarily come from citizens at the margins of the control of state power or comparatively low on the list of its priorities (local level, unions, NGOs), rather than from political parties directly involved in the political struggle for power and control. The study is based on secondary literature, on primary sources, and on a series of in-depth and open narrative interviews.1

Local government Local elections in Nablus In spring 2017, the Palestinian Authority (PA) in Ramallah under President Mahmud Abbas decided to hold local elections in the West Bank. There was no strong support in society, and therefore voter participation was very low. Hamas, while boycotting the elections in general, did ask its supporters to participate in the elections and vote for the ‘best and most trusted individuals’. Fatah tried to prevent the formation of different lists and take over the councils by acclamation. They succeeded in many villages and towns. Things took a different turn in Nablus. There, a local businessman and member of Hamas, Adly Ya’ish, who had been elected mayor in Nablus in the first local elections under the Palestinian Authority in 2005, decided to form a unique list made up of Hamas, Fatah, and Independents, the United List Nablus.2 While the individuals on the list were not identified by their party affiliation, the public knew who belonged to which party. Interestingly enough, the formation of the list was contested neither by the Hamas leadership nor by the Fatah leadership in Ramallah and in Nablus. The list won a clear majority in the municipal council, and provided the mayor, but voter participation, at 21 per cent, was extremely low. Why did so many people refrain from voting? According to Adli Ya’ish (Interview October 5, 2020), some voters did not want a united list, but rather clearly identifiable party lists. Others chose not to vote as they expected the list to achieve a decisive victory in any case. In the Nablus municipal council, the United List Nablus is represented by five members which are identified as Hamas or close to Hamas, three as Fatah (headed by Sameeh Tubaileh, who is close to Fatah, but not a member), and finally three as independent (headed by Mohammad Shunnar). Adly Ya’ish, the head of the ‘Hamas’ group in the council which represents the majority in the common list, was voted in as mayor. An agreement (a copy is in my possession) was set up in writing, which postulated that after two years, Ya’ish’s ‘Fatah’ counterpart, engineer Sameeh Tubeileh, would take over as mayor. The experiment worked out. In summer 2019 (two months after the original date for the change, because of illness of Sameeh Tubeileh), Ya’ish handed over to Tubeileh. The list, set up upon

94  Helga Baumgarten the initiative of Ya’ish, who is very popular in Nablus, attempted to be very close to society, in particular to the demands and wishes of the citizens. Ya’ish, when he was mayor, announced that the municipality was open to citizens. He encouraged people to meet with the mayor and with council members in order to present their grievances. During several visits to the municipality, both on my own and together with my students, I was able to verify this. Problems arose in particular in a low-level power struggle between Sameeh Tubeileh supported by Fatah, and Hamas with the Independents. A particular case in December 2019 was the appointment of two employees in the municipal bureaucracy through the Fatah mayor. The legal advisor to the municipality had raised legal reservations against the appointments and the city council rejected the appointments. After the approval of the protocol of the city council meeting (with the refusal to appoint the two persons concerned), and after the Hamas members had left, the Fatah mayor and the council members who supported him overrode this decision (they constituted a majority at this moment), and then wrote a new protocol. A major crisis erupted after Adly Ya’ish discovered this. I happened to be in Nablus at the time and everything shifted into crisis mode. In the middle of this crisis and in my hour-long meeting with the current mayor, Sameeh Tubeileh, he projected, however, a picture of excellent cooperation inside the council. In the end, Adli Ya’ish chose a very diplomatic approach to ‘solve’ the issue. The next council meeting adjusted the protocol and all approved the appointments that had been made. Obviously, there are problems, but until the time of writing, there seems to be readiness to try to solve them whenever and wherever they arise. According to my own assessment, which different interviews with local politicians confirmed, there are two major reasons for the success of this extraordinary experiment in Nablus: ·· ··

Close personal relations between the members of the United List, past experience of cooperation, in addition to family relations across party lines The unique personality of Adli Ya’ish. As head of the official Mercedes representation in Nablus and all over the West Bank, he is financially independent (he did not even take a salary when he served as mayor), very well-known, and highly respected all over Nablus. Above all, he is open to experiments, to exceptional initiatives, and always motivated by his close attachment to Nablus

Adli Ya’ish’s own assessment of the period after the elections in 2017 is rather critical (Zoom interview 5 October 2020). He focused on structural-political problems, above all the lack of money, which the Corona crisis made even worse. He referred to the conflict between Fatah and Hamas, in addition to the overriding ‘problem’ of the occupation. Finally, he mentioned the question of a successor to the aging Palestinian president Mahmud Abbas and tensions related to it. Ya’ish also had difficulties with the members of the municipal council, all of them ‘technocrats’, not party people. He criticized their stubborn insistence that they

The struggle for democratic space  95 were the only ones to understand and solve any problem at hand. The cooperation with Sameeh Tubeileh seems to be quite problematic. Tubeileh has apparently not continued the approach of Ya’ish who valued close relations with society in Nablus and therefore kept the municipality and the mayor’s office open to all citizens. Tubeileh rather prefers to keep citizens at a distance and insists on appointments (difficult to get), even for the members of the municipal council. Moreover, Tubeileh chose several times to override decisions by the council, insisting on his authority as mayor. There are ongoing rumours in Nablus about rampant corruption on a bureaucratic level, especially in the public municipal companies in Nablus (electricity, garbage, land registration, and building permits), with some Fatah members clinging to their very lucrative positions, based on payments for all kinds of favours (Interview Council Member, December 12, 2019). Social media in Nablus are full of criticism of the municipality, the mayor, and the municipal council. There are almost no attempts to set straight wrong perceptions. Only the Facebook page of the municipality is trying to give a more positive picture of their work. To summarize, the main problem of the municipality in Nablus seems to be the lack of money. Only routine work has been done since 2017, no new projects were taken up, and even payment of salaries has become difficult after several months of the Corona crisis. However, and despite these difficulties, Nablus has been an extraordinary local success story, because the ‘warring’ parties Fatah and Hamas managed to form a common list for elections, and won the elections. Obviously, the municipal council made no revolution in Nablus, and citizens still have many demands for change – after all, the occupation has not ended, and the authoritarian government in Ramallah encroaches on Nablus, too. It remains to be seen if this experience can be repeated somewhere else in the West Bank. What we can observe in other municipalities, however, is a lack of readiness to cooperate, compounded by tight control from the authoritarian rule in Ramallah, and the lack of strong personalities like Adli Ya’ish, ready to run an independent course, irrespective of party affiliation. Local elections in the village of Yasuf (south of Nablus) An experiment of a different kind was made in the small village of Yasuf (Interviews Abdelfattah, 2018 and 2020). Local tradition has it that the elders of the village stand for elections and take over as head of the village council. In addition, these elders would be either members of Fatah or closely attached and loyal to Fatah. In the elections of 2017, however, young people decided to enter local politics. They achieved the unthinkable: they won the elections and Nashaat Abdelfattah, a graduate of Birzeit University with a Master’s Degree in Democracy and Human Rights, became Head of the Village Council. The young people achieved their goals. They prevented Fatah from nominating people and taking over by acclamation. They made a clean break with tradition and became the new local leaders – Nashaat Abdelfattah became the youngest ever mayor in Yasuf. Further, they started to develop their small town in a

96  Helga Baumgarten democratic and transparent manner, firmly based on the rule of law. The results of their work are impressive: ·· ·· ·· ·· ··

A public meeting room was built to enable the whole village to meet and discuss their affairs Roads were opened and paved The electricity and water networks were expanded A joint project with two neighbouring villages was started to produce clean energy A modest sports stadium was built

Finally, in terms of increased participation of citizens, the village council formed an advisory board in order to involve as many people as possible in deliberations and decision-making. Obviously, there are still problems that the village has to confront, from the centralization of decision making and funding through the Ministry of Local Government, to … and this is a central problem of the village because of its location, surrounded by Israeli colonial settlements … the Israeli occupation with its army raids and attacks by settlers (Interviews Abdelfattah, 2018 and 2020). Similar to the experiment in Nablus, Nashaat Abdelfattah served as head of the village council for two years and then handed over his position to another member of the winning list. In contrast to Nablus, relations between the former and the new mayor are excellent, and they cooperate closely. Above all, relations between village and council, inside the council, and between the two heads of the council are based on trust. The reason for this remarkable achievement is, similar to Nablus, the exceptional personality of Nashaat Abdelfattah. However, unlike Nablus, and probably because Yasuf is a small village, relations between the elected village council, the heads of the council, and the citizens are much closer. The remarkable fund-raising skills of Abdelfattah brought a number of very important projects to the village and earned him the respect of all in the village.

Local government and change from below The women of Jubbet al-Thi’b (southeast of Bethlehem) The amazing story of the struggle of the women of Jubbet al-Thi’b starts in 2014 (Ahituv, 2019; Interview al-Wahsh, 2019 and 2020; Hass, 2017). Women there became exasperated with their unbearable situation: no running water, no electricity, and only a dirt road leading to the village. What forced them to act was the health of their children, especially when one of the children developed serious lung problems because of the use of petroleum heaters. Another push factor was also related to children: their schoolmates in the neighbouring village laughed at them when they arrived dirty and dishevelled at school after a long march on the dirt road. Finally, daily living conditions, above all for women, proved to

The struggle for democratic space  97 be unbearable, especially when settlers cut off the old water pipes and left them without running water. Their first protest-action was directed at the village head of the neighbouring village of Beit Ta’amir. This village was connected both to the Palestinian electricity grid and to the water grid. The demand of the women was simple: hook us up to electricity and water. The way these women took their fate in their own hands and dealt with the various representatives of the Palestinian Authority, both in Beit Ta’amir and with the governor in Bethlehem, was remarkable. As reported in the press, by Palestinian-Israeli NGOs, and in interviews with me during visits to Jubbet al-Thi’b, the women always made clear demands; they never gave up and persisted against all odds. At the same time, they displayed extraordinary skills in mobilizing help on all possible levels: local and international press, NGOs, both Palestinian (Medical Relief Committees) and Palestinian-Israeli (Bimkom and Comet-ME), and even the diplomatic community (primarily the Netherlands). Their mode of action was very ingenuous: a tightly closed group of women worked together and organized everything in new ways. Together, they made their problems known with the relevant authorities, they cooperated with all possible support groups, and they kept the pressure going. The achievements they made in a relatively short time are extraordinary. With international help and through a local Palestinian-Israeli NGO, Comet-ME, they got a first rudimentary electrical system (hybrid, based on sun collectors and diesel). Comet-ME installed the solar panels at the end of 2016. In June 2017, the army confiscated the solar panels with the argument that they lacked the necessary permit of the Israeli Civil Administration (ICA), which is responsible, as the village is located in Area C.3 With the help of another Palestinian-Israeli NGO, Bimkom, the village went to the Supreme Court, represented by two Israeli human rights lawyers. Bimkom provided an expert opinion on the rights of the village (which had existed since 1929) to plan and build without interference by the Israeli Civil Administration. Before the petition was dealt with, however, the Head of the ICA ‘decided to immediately release the seized objects’ (Hass, 2017). The Dutch government took extraordinary action in order to get the solar panels that they had funded back to the village. Parliament in Holland held two sessions dealing with the issue, and was finally informed, in June 2017, that Prime Minister Mark Rutte had received a promise from Prime Minister Netanyahu that the solar panels would be returned (Hass, 2017, Interview Cohen-Lifshitz, 2020). In 2019, and after five years of continuous struggle and insistence on their demands, these were the achievements by the women (Interview al-Wahsh, 2019 and 2020): ·· ·· ·· ··

They established the ‘Women’s Association of Jubbet al-Thi’b’, officially registered with the Palestinian Authority A primary school was built The dirt road was paved The village was connected to the water grid

98  Helga Baumgarten What is still missing at the time of writing (October 2020) is a connection to the Palestinian electricity grid. Apparently, there has been a permit from the ICA for several years, but for unclear reasons, the PA has not gone ahead with establishing this connection (Interviews Cohen-Lifshitz, 2020, and Mardi, 2020). What are the reasons for the success of the women of Jubbet al-Thi’b? Obviously, all the women involved, but in particular Fadia al-Wahsh, elected head of the Women’s Association, are exceptional personalities. The women came up with ideas of mobilization which we know only from political parties and social movements, and they were able, on the small scale of the village, to implement these ideas and keep up the mobilization for several years, and until the time of writing. They showed an extraordinary amount of initiative coupled with a high degree of openness to generate support from all possible sources: Palestinian, Israeli, and international, official, diplomatic, and from NGOs. They showed a keen understanding of the crucial role of the press in eliciting support for their demands. At the same time, and in contrast to many other initiatives, they were successful in escaping the danger of corruption, both personal and institutional. As Fadia al-Wahsh stressed: ‘We do not accept any cash money. What we ask for is work input or the delivery and installation of hardware like sun collectors’. She proudly stated that the Women’s Association had not one single penny in its account (Interview al-Wahsh, 2019). Thus, they also avoided having to pay taxes to the Authority. It remains an open question if this initiative is also, partly at least, an outcome of the empowerment and capacity-building workshops given to the women by Medical Relief Committees since 2013 (Interview Amra, 2020). Despite their success, the women of Jubbet al-Thi’b remain sceptical about the possibility of applying their experience not only to the neighbouring villages in Area C, but also to Palestinian society at large. Their experiment – we observed this during our fieldwork trips – has rather been met with jealousy and outlandish rumours about corruption and the accumulation of wealth in Jubbet al-Thi’b. People in neighbouring villages could not imagine that these women were exclusively interested in the public good. The experience of Jubbet al-Thi’b with their sun collectors is unique. Never, to my knowledge, has the Israeli army been ready to return confiscated sun collectors to their rightful owners. The ingenuous approach chosen by the women, in cooperation with Bimkom and their lawyers, and not least the determined support by the Netherlands, made this possible. The social change in the village, which the women brought about with their initiatives, is exceptional. The whole village, the men (their husbands) in particular, see the women (their spouses) in a positive light, and they encourage them in their newly assumed role. Last but not least, the children in the village are not only proud of their mothers, but also proud of being children from Jubbet al-Thi’b. In conjunction with all these developments, as stressed by the women, is a remarkable decrease of interpersonal violence (men against women, women against children). Violence was replaced by respect and appreciation.

The struggle for democratic space  99 What can we conclude from these cases on the level of local government in Nablus, Yasuf (both 2017–2020), and Jubbet al-Thi’b (2014–2020)? It would seem that exceptional personalities did play a central role, be it the women in Jubbet al-Thi’b, the head of the village council in Yasuf, Nashaat Abdelfattah, as well as his successor, or Adli Ya’ish from Nablus. They were exceptional in terms of their initiatives, their readiness to embark on new ways of action, their persistence, their ability to cooperate with others (people, institutions, etc.), and their ingenuity. Finally, yet importantly, these were people not interested in financial gain, but first and foremost in the public good. While Adli Ya’ish was not in need of money, the women realized that they could only be successful if they put the public good in the centre of their work. The same can be observed in Yasuf, in the village council, and in particular on the part of Nashaat Abdelfattah. Union struggles: The teachers’ strike 2016 In February 2016, Palestinian teachers spontaneously started a strike which soon had 35,000 teachers (out of 42,000 teachers overall) on the streets involved in strike action across the West Bank (Abu Moghli & Qato, 2018). The strike was not organized by the official General Union of Palestinian Teachers, because the teachers felt they were no longer represented by the union. They criticized the union because of its kowtowing to the government, and demanded the resignation of the head of the union, who had been appointed by the PA, dominated by Fatah, the ‘ruling party’. The reason for the strike was simple: the government had not implemented its promises of January 2013 (after the strike of 2012), and salaries had not been increased. Moreover, negotiations with the government, led by the official union, did not produce any tangible results (Noonan, 2017). Lack of space does not allow a detailed analysis of the strike. However, a number of features of the strike are relevant for the argument of the paper. ‘The teachers’ movement started spontaneously’, and this ‘spontaneity of collective action’ avoided the problem of factionalism that in many cases of popular action in the West Bank prevents effective mobilization of countrywide support. Amira Hass reports that ‘old and young, women and men, religious and secular, left wingers and conservatives, Fatah and Hamas supporters, marched together, representing all walks of Palestinian life’ (Hass, 2016). In particular, many Fatah members supported the strike. Two of them deserve to be mentioned here. Bassam Zakarneh, who is a member of Fatah’s Revolutionary Council, and who headed the Civil Servants’ Union, which used to represent the teachers before it was dismantled on the order of President Mahmud Abbas, came out in strong support of the strike. In order to avoid arrest by the security services who had started to look for him, he chose to go ‘underground’, but was arrested after all, and not just once (Deger, 2016). Najaat Abu Baker, deputy in the Palestinian Legislative Council and part of the Fatah faction, was very outspoken in support of the strike and in her criticism of the government’s crackdown on the strikers. Her Facebook page during February

100  Helga Baumgarten and March 2016 is full of critical posts against the government and supportive posts for the teachers. She says that the government targeted her through security services precisely for this support (Interview Abu Baker, 2020). During the same period, in February 2016, ‘she requested an investigation into transactions by the Minister of Local Government in light of corruption allegations’ (Vautmans, 2018). The presidency, through the security services, reacted with vengeance. Her parliamentary immunity was lifted in December 2016 (Melhem, 2016), and since then she has received no salary for her parliamentary work. In February 2017, she was prevented from leaving the West Bank and going to Jordan. Further, she has been prevented from resuming her teaching position as a professor of sociology at an-Najah University in Nablus. There are rumours that she is a supporter of ousted Fatah member Mohammad Dahlan (she too was ousted from Fatah), and that all the sanctions against her are primarily related to this fact. While this cannot be confirmed, it is very concerning that not only she personally, but her whole family, is being sanctioned by the PA, for example through being prevented from working in any official Palestinian institution. She is, however, not ready to give in. During the last years, she has established and worked with Kanaaniyat, a women’s association in Nablus, supporting women in need. Personally, she comes across as a very strong and determined woman. Her interest is, again like in Jubbet al-Thi’b, the public good. For this, she is ready to fight on all levels, and like the women in Jubbet al-Thi’b, giving up or giving in to those in power is not an option (Interview Abu Baker, 2020). When Abu Baker was summoned to the Prosecutor General’s office, she protested at this ‘violation of her parliamentary immunity’ (Al-Haq, 2016). She chose to take shelter in the headquarters of the Legislative Council in Ramallah and stayed there for several weeks. Support for Zakarneh and Abu Baker came from across all political factions. ‘An endless stream of visitors has come to support (Abu Baker), and all the factions, including Hamas, have demonstrated in the yard (of the Legislative Council) on her behalf’ (Hass, 2016). There were some other parliamentarians, like Jamal Abu Rub from Qabatiya, as well as Muhib Awad from Ain Ariq, who came out in strong support for the teachers’ strike. They proceeded differently, however. While Abu Baker articulated her support in a very militant way, the other two tried to mediate between strikers and government in order to achieve a solution. The whole Legislative Council did hold a meeting with the teachers and expressed their sympathy/ empathy, trying to find a solution through mediation, like Abu Rub and Awad (Interview Sabella, 2020). The population at large stood firmly behind the strike, although schools remained closed for several weeks. According to a poll by PSR in Ramallah, 73 per cent of the population believed, that the teachers’ wages were not fair (PSR, 2016). Amira Hass (2016) gave a striking comparative example: a teacher from Ramallah, holder of a BA, with 27 years of experience, earns 2400 Shekel basic salary. With seniority increments, he reaches the sum of 3600 Shekel per month. His brother, who does not have a university degree, works for the Palestinian Security (Preventive Security Service) and earns 4700 Shekel a month.

The struggle for democratic space  101 The response of the Palestinian Authority to the strike was authoritarian on all levels. The reaction of then-Prime Minister Rami Hamdallah to the first sit-ins of the teachers at the Council of Ministers in Ramallah (every Tuesday) was very condescending: ‘I don’t talk to these other teachers’, I will only talk to GUPT. The demands to finally implement the agreements made in 2013 was answered by him in a clearly insulting way: I will only increase salaries once I ‘find an oil field’ (Abu Moghli & Qato, 2018). When the strike moved into its second week, the PA recklessly intervened with its security apparatus: teachers on their way to the strike in Ramallah were held up at PA checkpoints for hours, often their IDs were confiscated, people were forced out of their service taxis, taxi drivers who drove teachers to Ramallah had their licenses confiscated … the list could be continued. Eyewitnesses report that all of Ramallah turned into one single military compound (Deger, 2016; Noonan, 2017). In the Balata refugee camp near Nablus, masked men held a press conference (under the name of Fatah Hawks and Martyrs of al-Aqsa). They called the strike ‘conspiracies hatched by the enemies of the Palestinian people’ and called the strikers ‘traitors’ and ‘collaborators’ which would be struck by the PA (Hass, 2016; Deger, 2016). The reaction of the public was very critical of this authoritarian and violent crackdown on the strike. In the above-quoted poll (PSR, 2016), 84 per cent said that they considered the behaviour of the PA security services to be unacceptable. After all, the teachers demands were very similar to the demands of the 2011 protests all over the Arab world (in particular Tahrir Square in Cairo), ‘dignity for all teachers … our dignity and our rights. We refuse to be humiliated’ (Abu Moghli & Qato, 2018). In addition to the demand for an increase in their basic salary, the strikers asked for equal retirement conditions for women and men. Last but not least they demanded democratic elections to the Teachers’ Union. They refused to accept a union which actually represented the government. They wanted ‘a real union that cares about teachers’ (Abu Moghli & Qato, 2018). The refusal to heed the official union and its empty promises, together with the spontaneity of the strike that received overwhelming support from teachers all over, put up a huge challenge to the strike organizers. They responded with very original organizational innovations. They set up coordination committees all over the West Bank. Each school in each district sent two teachers to these committees. Fourteen teachers were elected for the Core Demands Committee in each of the 18 districts in the West Bank. This committee in turn elected a sub-group of three in order to regularly meet in Ramallah. They would give continuous feedback to the Core Demands Committees. One teacher was chosen to speak on behalf of the movement, however only once authorized by the Core Demands Committees. This institutional ingenuity was obviously based on the accumulated historicalpolitical experiences of the first Intifada 1987/1988 (Abu Moghli & Qato, 2018; Noonan, 2017; Hass, 2016). According to the teachers involved in the strike, they learned important lessons for future strike action. This largest teachers’ strike in Palestinian history

102  Helga Baumgarten was the ‘largest show of force by any public sector in Palestine since Land Day (1976)’ and it proved to them their ‘capacity to sustain the strike for a long time’ (Abu Moghli & Qato, 2018). Also, or so they argued, the PA leadership was not ready – and actually not capable – to deal with ‘any sustained social movement’ (Abu Moghli & Qato, 2018). Still, the end of the strike without the immediate and full attainment of the goals of the strike showed the teachers the limits of their action and the challenges for the future. They realized that they needed more support than the 35,000 teachers could give. All the 42,000 teachers in the West Bank were needed, plus countrywide support from civil society. ‘We will not make any change unless everyone goes out on the street … 35,000 is not enough … Our only option is civil disobedience’ (Abu Moghli & Qato, 2018). Another problem confronted was the role of the occupation forces, over and above the oppression by the PA and its security forces. On the one hand, the teachers experienced that the Occupation opened and shut all lines of communication at will. Moreover, they learned the hard lesson, that through their security cooperation with the Israeli army, the ‘PA considers itself a body protected by the occupation’. An officer of the Palestinian security put this in one single sentence when he told the strikers quite coldly: ‘[We] are here to protect the PA, not the people’ (Abu Moghli & Qato, 2018). What were the results of the strike? On the negative side, payments and payment increases were postponed. There were very effective threats by the PA security apparatus against the teachers, coupled with the threat of imprisonment. This worked above all with married female teachers. The leaders of the strike were singled out, and they were either re-assigned to other areas, fired, or at least given a tremendously increased workload (Interview anonymous teacher, 2018). However, interviews with strike-leaders showed them quite determined and optimistic in the long-run: ‘We have not given up … [We] want to revive the Coordination and Core Demands Committee … stay decentralized and with a low profile … want to be ready for the right moment’ (Abu Moghli & Qato, 2018). To summarize, the strike was characterized by widespread mass action from below. It built on the experiences of the First Intifada, especially 1987–1988, and implemented the lessons learned in these years (Hiltermann, 1991). The teachers used democratic and horizontal sector mobilization; they developed independent organizing mechanisms (outside the PA hierarchy), and thus succeeded in bringing about institutional change, if only for several weeks (Noonan, 2017). The strikers realized and learned, just like before in the First Intifada, that they could only achieve change through mass mobilization all over the West Bank (al Masri, 2016). While the teachers’ strike in 2016, as impressive as it was, did not succeed in the short run, the next countrywide strike in 2018 against the social security law of Rami Hamdallah’s government achieved its goals. The huge strike movement with its wide popular mobilization led to the withdrawal of the law and, in the end, the replacement of the prime minister. Mohammed Shtayyeh succeeded him in April 2019. The crucial difference between the teachers’ strike and the strike against the social security law was the participation of all of society, not

The struggle for democratic space  103 only employees and workers, but also of the whole business sector, and above all influential Palestinian capitalists whose voice the President could not neglect.

Individual activists and NGOs Basel al-Araj A very remarkable, but also very distressing case is the one of Basel al-Araj. Al-Araj started his political struggles as a youth activist from the village of alWalaja, close to Bethlehem. In 2016, the PA in Ramallah jailed him on charges of planning armed attacks against Israel. These charges, however, were never substantiated. In prison, he went on a nine-day hunger strike, because he was tortured. Popular support for him was extremely strong and the PA had to release him (Gostoli, 2017). Then, or so it seems, the Israeli army/security services took over. They searched for al-Araj, probably supported by the PA security services. In March 2017, they located him in Qaddurah Refugee Camp (el-Bireh) and killed him. They claimed he had attacked the army with his gun, which did not leave them any alternative but to shoot and kill him (Hammad & Hastings, 2017). However, this was never substantiated – quite the contrary. Mustafa al-Barghuti, a medical doctor and a member of the Legislative Council for al-Mubadara, visited the house where al- al-Araj had been killed. He found the place riddled by Israeli bullets, but did not find any clear evidence that Basel had fired any shots or that he had been armed. ‘They said there was a fight and clash, but what I found was that the only side that was shooting was the Israelis’. He concluded that alAraj’s death was ‘nothing but an act of extrajudicial killing and assassination’ (Al-Jazeera, 2017; Murphy, 2017). Who was Basel al-Araj? He was a young leftist intellectual activist and community organizer. The African American Freedom Riders of 1960s and their nonviolent struggle inspired him. With a group of young activists, he once got on a settler bus in West Bank. They were, however, forced out very quickly and got arrested (Murphy, 2017). While this kind of struggle turned into a long-term strategic struggle in the US, it seems that in the West Bank it was possible only as a one-time provocation. The settlers and the army effectively prevented any repetition of similar protests. Al-Araj tried to mobilize young people, especially young intellectuals, both through his lectures and his writings (Al-Araj, 2018). An intellectual for him could only be an engaged intellectual, who was ready to confront oppression (Abu Al-Tarabeesh, 2017; Hassan, 2017). He demanded that theories of resistance had to be put into practice. He was influenced in particular by Gramsci and by the Lebanese Marxist Mahdi Amel, who was assassinated in Beirut in the 1980s (Hassan, 2017). In order to mobilize Palestinian youth, he organized oral history tours all over West Bank. He gave lectures on the history of the revolt in Palestine in the 1930s, on the Algerian War of Independence, as well as on the liberation movement in Vietnam (Hassan, 2017). His main goal was to make knowledge accessible to all. He played a central role in the Palestinian Leftist Popular University, and in particular the Suleiman al-Halabi Department for Colonial Studies. Al-Halabi

104  Helga Baumgarten had been a fighter against French colonial forces in eighteenth-century Egypt (Hammad & Hastings, 2017). A close friend of al-Araj characterizes him as ‘a model of resistance that Palestinians can look up to and learn from’ (Hassan, 2017). Today, Al-Araj has a substantial following among young intellectuals in Palestine. For the time being, however, they try to avoid any publicity. They rather work on ‘laying the ground for the next generation. If we fail to do that, history will never forgive us’. After all, or so they maintain, al-Araj ‘always maintained that … our generation might not liberate Palestine’ (Hassan, 2017). Obviously, there are many other cases of young Palestinians who do not accept authoritarian rule in Ramallah, in particular its cooperation with the Occupation Regime. One of them is Kifah Quzmar, a Birzeit student active in the Leftist bloc ‘Democratic Progressive Pole’, who made this scathing criticism in a Facebook post in 2016: ‘Do you know why the mukhabarat (the secret service) is a rotten agency? Because the entire PA is rotten’ (Samidoun, 2017). The PA promptly arrested him. Other names which must be mentioned and analyzed in detail (this cannot be done here for lack of space) are Ahed al-Tamimi, and her whole family of activists from Nabi Saleh (Amnesty International, 2018, Holmes & Taha, 2018). There was also my colleague, Abdel Sattar Qassem, a professor of political science at an-Najah National University in Nablus who died from Covid 19 in February 2021 (Newman, 2009). He has criticized the PA since its establishment. In February 2016, upon one of his many arrests, his wife scathingly commented: ‘The PA targets my husband because he has repeatedly described security coordination and collaboration with Israel as grand treason … There is no democracy under the PA. Security forces arrest anyone who freely expresses his opposition to authority policies’ (Hassan, 2016). The NGO AMAN AMAN, the Coalition for Accountability and Integrity, is an NGO consortium, established in 2000 with the goal to ‘combat corruption and promote integrity, transparency and accountability’. Members in this consortium are the NGO Miftah in Ramallah, Muwatin Institute in Birzeit, and al-Mezan Center in Gaza. Since 2006, it is accredited as the Palestinian national chapter of Transparency International (AMAN, 2019). While Najaat Abu Baker focused on the problem of corruption as an individual parliamentarian, AMAN as a think tank tries to deal with corruption through critical reports and studies. Like Basel al-Araj, it also sees the education and mobilization of youth as one of its central tasks. They want youth to value and practice critical attitudes and democratic thinking and behaviour. They organize summer camps and do regular programmes in Palestinian schools, grudgingly allowed by the PA (Interview Al-Husaini, 2019). Every year, AMAN publishes an ‘Integrity and Anti-Corruption Report’. Here I want to focus on AMAN’s report on 2018, presented to the public in a press conference in Ramallah on April 17, 2019 under the motto: ‘Listen to the people and do not oppress … Fight corruption and do not panic’, a popular Arab dictum (AMAN, 2019). The message addressed to those in power was clear. They were asked to guarantee freedom of speech and were

The struggle for democratic space  105 remanded to fight corruption. The report was presented by the head of AMAN, Abdel Qader al-Husaini (son of the late Jerusalem leader Faisal al-Husaini and grandson of the Palestinian military leader of 1948, Abdel Qader al-Husaini, killed in the battle of al-Qastal in April 1948). Al-Husaini demanded from the new Palestinian prime minister, Mohammad Shtayyeh, to ‘prioritize the fight against corruption, promote the rule of law, as well as separation of powers, respect for the legal system and openness toward the public’ (Interview Al-Husaini, 2019). The report is highly critical of the Minister of Finance, but above all of Palestinian President Mahmud Abbas (Hass, 2019). The finance minister is criticized because of his absolute control of the budget with no control through the – paralyzed – Legislative Council. The report points out that, after all, the revenues of the state are financed by the people (donor contributions and the responsibility of the donors are not addressed). Interestingly enough, when Mohammed Shtayyeh formed his new government, he could not appoint a new Finance Minister, although the old one had been severely criticized over the past years. The president insisted on keeping him in office. The harshest criticism is reserved for President Abbas: ·· ·· ··

In a clear breach of the Palestinian Basic Law, Abbas makes appointments in the government bureaucracy on all levels directly and personally, in an appalling display of nepotism and of rewarding loyalties Abbas promised to reform the judiciary when he took the place of Yasir Arafat in 2005. However, things have not improved, but rather deteriorated markedly. Today, Palestinian courts do not have any independence whatsoever The deliberate paralysis of the Legislative Council since 2007 and its dissolution in December 2018 by Abbas gave him a free hand as the executive power to act without accountability and transparency. The case of Najaat Abu Baker is only one small example

To sum up, Abbas with his centralized reckless rule by executive power destroyed parliamentary life, marginalized the judiciary, and left no freedom for political parties, for the opposition, or for society to work for change (Hass, 2019). A copy of the yearly corruption report of AMAN is regularly sent to the president and to the prime minister. It seems that the current Prime Minister, Mohammed Shtayyeh, is more open to criticism than his predecessor Rami Hamdallah. Upon publication of AMAN’s report in April 2019, he formed a committee tasked to follow up on the problems referred to (email Shtayyeh, 2019). Abdel Qader al-Husaini stressed to me Shtayyeh’s positive response and a lot of interest in AMAN’s work (Interview al-Husaini, 2019). In September 2020, AMAN communicated to me that some changes had already been implemented: ‘The prime minister requested that each ministry make the needed changes immediately according to AMAN’s recommendations’ (email Abu Zaid, 2020).

Conclusion This paper tried to show how Palestinians of all walks of life, individuals, women’s associations, unions, representatives of local government, both from below

106  Helga Baumgarten and from the elite, have tried to increase participatory space, to criticize the authoritarian government, including the repressive occupation, and to attempt and introduce basic democratic practices. They did so with a lot of imagination, often combined with institutional ingenuity. They succeeded in overcoming factionalism, so rampant in Palestinian society and politics. They were not afraid to name corrupt bureaucrats, ministers, and individuals from among the governing elite and demand accountability. Never ready to give in, they took action to increase their freedom, freedom of speech, freedom to criticize, and freedom to demonstrate, insisting on their dignity as human beings and as citizens, irrespective of the unbearable conditions of repression, created by the Palestinian Authority, but above all by the Israeli settler-colonial system. They thus laid an important groundwork for future openings for action against oppression and for democratic transformation. Still, there are clear limits for any protest, like direct struggle against occupation (Ahed at-Tamimi and Basel al-Araj), direct critique of the president without strong social backup (Najaat Abu Baker, Abdel Sattar Qassem), and strikes without support all across society, especially from the middle and upper classes, as with the teachers’ strike in 2016. Palestinian experience has shown that only strong social support can extend these limits.

Acknowledgements I should like to thank my students at Birzeit University for many fascinating discussions and inspiring research papers that encouraged me to take up the research presented here. Thanks also to my interview partners in Nablus, Yasuf and Jubbet al-Thi’b, as well as in Ramallah and Jerusalem for their interest in my questions and for the time they gave me.

Notes 1 For this research, I conducted the following interviews: Abdelfattah, Nashaat. October 11, 2020. April 18, 2018; Abu Baker, Najaat: October 13, 2020; Al-Husaini, AbdelQader. May 12, 2019; Al-Wahsh, Fadia. December 10, 2019 and October 14, 2020; Amra, Bahia. October 13, 2020; Anonymous teacher. March 17, 2018; Cohen-Lifshitz, Alon. October 13, 2020; Mardi, Diana (Bimkom). October 3, 2020; Sabella, Bernard. October 7, 2020; Shaheen, Hafez (Municipal Council Member), Nablus, December 12, 2019 and October 5, 2020; Shunnar, Mohammad. December 12, 2019; Tubeileh, Sameeh: December 12, 2019; Ya’ish, Adli. December 12, 2019, October 5, 2020. Further, I had email exchange with: Abdelfattah, Nashaat: October 7, 2020; Abu Zaid, Majdi (AMAN). September 12 and October 8, 2020; Barghuti, Mustafa: October 10, 2020; Mardi, Diana (Bitkom). October 6, 2020; Shtayyeh, Mohammad: June 11, 2020. 2 The programme of the list is in my possession. 3 Under the Oslo Accords, in particular Oslo II (signed in Taba in 1995), the West Bank was subdivided into three different areas. Area A, in principle all Palestinian cities, was to be under full and exclusive Palestinian control, civil as well as security (approximately 18 per cent of the West Bank). Area B, most Palestinian villages, was to be under Palestinian civil control, while security control was to be in the hands of the Israeli army (and, or so it stipulated: jointly with Palestinian control): approximately

The struggle for democratic space  107 12 per cent of the West Bank. Area C, the largest and only contiguous part of the West Bank, constituting more than 60 per cent of the land, is under full and exclusive Israeli control. Settlements are all built in these areas. Life for the approximately 150,000 Palestinians living there has increasingly become more difficult.

References Abu Al-Tarabeesh, H. (2017). Basel al-Araj, revolutionary icon. Mondoweiss. April 6. Retrieved from https://mondoweiss​.net​/2017​/04​/basel​-araj​-revolutionary/. Abu Moghli, M., & Qato, M. (2018). A brief history of a teacher’s strike. Middle East Report Online. June 5. Retrieved from https://merip​.org​/2018​/06​/a​-brief​-history​-of​-a​ -teachers​-strike/. Ahituv, N. (2019). What happened when Palestinian women took charge of their village. Haaretz. May 17. Retrieved from https://www​.haaretz​.com​/israel​-news/​.premium​ .MAGAZINE​-what​-happened​-when​-palestinian​-women​-took​-charge​-of​-their​-village​ -1​.7212592. Ahmad, A., & Capoccia, G. (2014). The study of democratization and the Arab Spring. Middle East Law and Governance, 6(1), 1–31. Al-Araj, B. (2018). Thus speaks Basel al-Araj (book in Arabic with all his writings, published post-humously). Jerusalem: Dar Ri’bal. Al-Haq. (2016). Transparency in action: The unlawful path to lifting parliamentary immunity and undermining the independence of the judiciary. Alhaq. December 21. Retrieved from http://www​.alhaq​.org​/advocacy​/6367​.html. Al-Jazeera. (2017). Palestinians protest against Basil Al-Araj’s killing. Al-Jazeera. March 6. Retrieved from https://www​.aljazeera​.com​/news​/2017​/3​/6​/palestinians​-protest​ -against​-basil​-al​-arajs​-killing. Al-Masri, H. (2016). Lessons from the Palestinian teachers’ strike. Middle East Monitor. March 24. Retrieved from https://www​.middleeastmonitor​.com​/20160324​-lessons​ -from​-the​-palestinian​-teachers​-strike/. AMAN. (2019). Annual report on state of integrity and combating corruption. Aman. Retrieved from https://www​.aman​-palestine​.org​/en​/reports​-and​-studies​/9007​.html. Amnesty International. (2018). Urgent: Release 16 year old Palestinian activist Ahed Tamimi. Retrieved from https://www​.amnesty​.org​/en​/get​-involved​/take​-action​/release​ -16​-year​-old​-palestinian​-activist​-ahed​-tamimi/. Baumgarten, H. (2015). Das “System Oslo” und der Krieg gegen Gaza. INAMO, 79, 34–38. Capoccia, G., & Ziblatt, D. (2010). The historical turn in democratization studies: a new research agenda for Europe and beyond. Comparative Political Studies, 43(8–9), 931–968. Carothers, T. (2010). A quarter century of promoting democracy. Journal of Democracy, 18(4), 112–126. Deger, A. (2016). PA continues crackdown on West Bank teachers’ strike. Mondoweiss. March 2. Retrieved from https://mondoweiss​.net​/2016​/03​/pa​-continues​-crackdown​ -on​-west​-bank​-teachers​-strike​-as​-anger​-with​-anti​-democratic​-palestinian​-leadership​ -spreads/. Gostoli, Y. (2017). Basil al-Araj, Palestine activist, buried in the West Bank. Al Jazeera. March 18. Retrieved from https://www​.aljazeera​.com​/news​/2017​/3​/18​/basil​-al​-araj​ -palestine​-activist​-buried​-in​-west​-bank. Hammad, N., & Hastings, T. (2017). On Basel al-Araj’s assassination. End security coordination between the Palestinian Authority and Israel. Jadaliyya. April 17. Retrieved from https://www​.jadaliyya​.com​/Details​/34204.

108  Helga Baumgarten Hass, A. (2016). Teachers tutoring Palestinians on democracy and cooperation as strike enters fourth week. Haaretz. March 16. Retrieved from https://www​.haaretz​.com​/israel​ -news/​.premium​-teachers​-tutoring​-palestinians​-on​-democracy​-as​-strike​-enters​-4th​ -week​-1​.5413569. Hass, A. (2017). Electricity return to Palestinian village, three months after Israel confiscates power system. Haaretz. October 20. Retrieved from https://www​.haaretz​ .com​/israel​-news/​.premium​.MAGAZINE​-palestinians​-get​-electricity​-back​-3​-months​ -after​-israel​-confiscates​-power​-system​-1​.5459212. Hass, A. (2019). The new Palestinian prime minister hopes to regain the public’s trust. Haaretz. April 26. Retrieved from https://www​.haaretz​.com​/middle​-east​-news​/ palestinians/​.premium​-the​-new​-palestinian​-pm​-hopes​-to​-regain​-the​-public​-s​-trust​-if​-it​ -s​-not​-too​-late​-1​.7166822. Hassan, B. Y. (2016). Palestinian Authority arrests dissident professor. Electronic Intifada. February 5. Retrieved from https://electronicintifada​.net​/content​/palestinian​-authority​ -arrests​-dissident​-professor​/15526 5. Hassan, B. Y. (2017). Never obey the occupation: The legacy of Basel al-Araj. Electronic Intifada. March 14. Retrieved from https://electronicintifada​.net​/content​/never​-obey​ -occupation​-legacy​-bassel​-al​-araj​/19851. Hiltermann, J. R. (1991). Behind the Intifada. Labor and women’s movements in the occupied territories. Princeton: Princeton University Press. Holmes, O., & Taha, S. (2018). Ahed Tamimi: “I am a freedom fighter. I will not be the victim”. The Guardian. July 30. Retrieved from https://www​.theguardian​.com​/world​ /2018​/jul​/30​/ahed​-tamimi​-i​-am​-a​-freedom​-fighter​-i​-will​-not​-be​-the​-victim​-palestinian​ -israel. Khalidi, R. (2020). The hundred year war on Palestine: A history of settler colonial conquest and resistance, 1917–2017. New York: Metropolitan Books. Melhem, A. (2016). Is Abbas revoking Palestinian MP’s immunity legal? Al Monitor. December 21. Retrieved from https://www​.al​-monitor​.com​/pulse​/originals​/2016​/12​/ palestine​-abbas​-lifts​-immunity​-five​-mps​-dahlan​-motives​.html. Murphy, M. C. (2017). Prominent Palestinian activist killed in Israeli raid. Electronic Intifada. March 6. Retrieved from https://electronicintifada​.net​/blogs​/maureen​-clare​ -murphy​/prominent​-palestinian​-activist​-killed​-israeli​-raid. Newman, M. (2009). Interview with PA dissident: “I cannot just stay silent”. Electronic Intifada. November 26. Retrieved from https://electronicintifada​.net​/content​/interview​ -pa​-dissident​-i​-cannot​-just​-stay​-silent​/8551. Noonan, M. (2017). Self-organization in the 2016 Palestinian Teachers’ Strike. New Politics, XVI(3). Retrieved from https://newpol​.org​/issue​_post​/selforganization​-2016​ -palestinian​-teachers​-strike/. PSR (Policy and Survey Research). (2016). Palestinian public opinion poll 59. March 21. Retrieved from https://www​.pcpsr​.org​/en​/node​/636. Rodinson, M. (1973). Israel. A colonial-settler state. London: Pathfinder Press. Salamanca, O. J., Qato, M., Rabie, K., & Samour, S. (2012). Past is present: settler colonialism in Palestine (special issue on settler colonialism in Palestine). Settler Colonial Studies, 2(1), 1–8. Samidoun. (2017). Palestinian student activist detained by Palestinian authority. May 17. Retrieved from https://samidoun​.net​/2017​/08​/palestinian​-student​-former​-prisoner​ -detained​-by​-palestinian​-authority/. Sayigh, A. (1965). Zionist colonialism in Palestine. Beirut: PLO Research Center.

The struggle for democratic space  109 Schmitter, P. C., & Karl, T. L. (1991). What democracy is … and is not. Journal of Democracy, 2(3), 75–88. Vautmans, H. (2018). Parliamentary questions: question for written answer to the (European) Commission E-003837-18: The intimidation of Najat Abu Bakr and freedom of expression in Palestine. July 11. Retrieved from https://www​.europarl​ .europa​.eu​/doceo​/document​/E​-8​-2018​-003837​_EN​.html. Wolfe, P. (2006). Settler colonialism and the elimination of the native. Journal of Genocide Research, 8(4), 387–409.

6

Moving mountains? Palestinian claim making from Oslo onwards Rebecca Burkert

Introduction In September 2018, a conference titled ‘Shrinking space in the Israel-Palestine conflict – departure for constructive cooperation’ organized by the Evangelical Academy Bad Boll provoked fierce criticism. While the event had already been defamed and painted as anti-Semitic even before taking place, organizers held on to their conference, arguing that comparable activities dealing with similar issues had been cancelled repeatedly due to external pressure. However, neither is this defamation new to civil society actors in Germany, Israel/Palestine, or elsewhere nor is the notion of a Palestinian ‘shrinking space’. This critical term has two distinct yet closely related meanings. On the one hand, ‘shrinking space’ describes a spatial constraint with regard to the dispossession, occupation, and destruction of Palestinian living space (Hanafi, 2009). On the other hand, the term denotes a diminishing civic space that limits Palestinians’ fundamental rights to organize and build social movements and political groups to express views and opinions. This chapter argues that (geographic and civic) space and limited opportunities for Palestinians in the West Bank to be politically active relating thereto have been shrinking continuously since the Oslo Accords in the 1990s. The structural groundwork of the two-folded shrinking space, consequentially, has its roots well over two decades ago, and Palestinians’ opportunity structures for advancing their demands have been penetrated by the political, economic, and social developments ever since. As a result, Palestinians have increasingly fewer opportunities to organize and claim their rights by means of collective action. Therefore, I argue that, within the status quo in the West Bank, claim-making opportunities have disappeared almost entirely. In this context, this chapter explores the questions of how claim making got to where it is today and how non-state actors still try advancing their claims. In order to answer these questions, I first outline the development of Palestinian social governance under Israeli occupation from a historical perspective and describe the consequences resulting from the agreements made within the framework of the Oslo Accords. They, I argue, laid the groundwork for a territorial division of Palestinian lands, the fragmentation of its society, and a reinforcement of Israeli rule in the West. Embedded in a theoretical framework of settler

Moving mountains?  111 colonialism, practices of erasure, institutionalized discrimination, and the defamation of non-state actors, I further argue, aim at delegitimizing the Palestinian struggle for freedom and human rights at its entirety. Based on interviews conducted with relevant actors, I demonstrate the systematic repression of Palestinian civil society actors and the manifestation of ‘shrinking space’ in practice. While this chapter provides detailed insights about diminishing opportunities for Palestinian claim making in the West Bank in particular, it contributes to a wider debate on a decreasing space for civil society actors worldwide.

Conflict origin and Palestinian nonviolent tradition Throughout the 1930s, non-Jewish Palestinian acts of resistance towards an increasing Jewish migration expanded and manifested in demonstrations, local strikes, tax withholding, or consumers’ boycotts of British and Jewish goods. British occupation forces answered these acts with collective fines, home demolitions, and mass arrests. Kidnappings, assassinations, and attacks on public roads and buildings from both the Palestinian as well as the Jewish side were followed by the United Nations Partition Plan for Palestine in 1947 and the Declaration of the State of Israel in May 1948. Between March and October of the same year, more than 750,000 Palestinians were expelled from their homes. Those who remained within the newly established State of Israel, which then controlled not the 55 per cent assigned to it by the partition plan, but 78 per cent of former Mandatory Palestine, were subjected to martial law (Khalidi, 2006). The Palestinian Liberation Organisation (PLO), founded in 1964, considered armed struggle as the only way to liberate Palestine. Thus, it is the overall strategy, not merely a tactical phase. The Palestinian Arab people assert their absolute determination and firm resolution to continue their armed struggle and to work for an armed popular revolution for the liberation of their country and their return to it. (Greenstein, 2014, p. 132) The PLO became the most influential institution of resistance, providing a political and organizational structure that was well suited for possible nation-building strategies, yet the war in 1967 made free political activities in the newly occupied territories impossible. However, in the 1970s, the Palestinian National Council, the legislative body of the Palestinian Liberation Organisation, announced that the PLO would ‘liberate’ the Palestinian territories occupied and aimed to establish a national authority. This hope of establishing an independent Palestinian state in the West Bank and Gaza was raised as an alternative to the ‘liberation’ of all of the former Mandatory Palestine. Simultaneously, the Palestinian National Front (PNF) started fighting land confiscations and detentions, provided social services, strengthened local economic institutions, and supported not only detainees’ families, but also guerrilla

112  Rebecca Burkert activities. As a result, activists were detained, their activities restricted, and the PNF was completely banned by Israel in 1982. However, as a territory-wide coalition of forces to organize within the Palestinian territories, its objective was resisting Israeli rule through political collective action (Frisch, 1998). In 1976, there were dozens of women’s organizations alone, not to mention voluntary work committees and student movements throughout the West Bank in Birzeit, Nablus, Bethlehem, and Hebron. They served as ‘a way to preserve Palestinian identity, establish a sense of nationalism, reclaim land, and, ultimately, struggle non-violently against the occupation’ (Norman, 2010, p. 23). These organizations and committees supplied services to many communities in the West Bank and served as cornerstones for the institutionalization of the soon erupting First Intifada. The intifada consisted of strategies of civil disobedience such as boycotts of Israeli civil administration institutions and Israeli goods, refusals to pay taxes, and organizing strikes and demonstrations, resulting in the fact that, for the first time, Palestinian nationalism was largely being defined from the inside, not the exile (Möller & Schierenbeck, 2014). Therefore, the focus of Palestinian resistance shifted from the diaspora to the occupied territories themselves. The intifada’s civil-based nature has been documented by numerous scholars. Acts of defiance took place all over the West Bank and Gaza and included waving the Palestinian flag and wearing the Palestinian kufiya. Mass arrests were answered with hunger strikes in prisons or the withdrawal of work from Israeli factories and farms.1 The entire population … took it upon themselves to challenge the status quo that had paralyzed the region, not through violent rebellion or militant opposition, but through intifada, a literal ‘waking up’ of the people and ‘shaking off’ of both their oppressor and their own quietude. (Norman, 2010, p. 27) In the complete absence of a state, the First Intifada demonstrated a widespread and participatory popular struggle. The work of huge numbers of initiatives on a regional level combined with dense networks across the territories provided for a decentralized, pluralist, ad-hoc, and bottom-up infrastructure of social governance. Through this governance, originating in the beginning of Israeli occupation in 1967, ‘Palestinians began the long struggle of building independent governance bodies in order to provide for social needs and become less dependent on Israeli institutions and more resilient against Israeli repression’ (Carpenter, 2019, p. 40).

The Oslo ‘peace process’ and the policing of today’s city enclaves The former decentralized popular committees largely lost their significance with the structural change taking place during the subsequent Oslo process, where administrative authority was centralized and popular struggle found its transitory ending.

Moving mountains?  113 Within the framework of the Oslo Accord of September 1993, the PLO recognized Israel’s right to exist and the Palestinian Authority (PA) was established as an organ through which the Palestinians would gradually receive powers from Israel. However, the Oslo Accord underlined the fragmentation of the Palestinian national movement. It was seen as a hardening of Israel’s occupation regime, a manoeuvre to stabilize the status quo, and as a way to better manage the occupation. After the establishment of the PA ‘state building was increasingly characterized by authoritarianism in decision-making, the anti-institutional personalisation of power, and the pervasiveness of violence in the system’ (Möller & Schierenbeck, 2014, p. 154). Simultaneously to the negotiations taking place, Israeli settlements continued to expand and more Palestinian land was seized. Since Oslo, the Israeli regime involved movement restrictions, permit systems, and checkpoint closures of the Jerusalem area as well as the construction of Israeli-only bypass roads linking settlements. This ‘matrix of control’ (Halper, 2006), rigorous occupation forces, the loss of faith in PA activities due to corruption allegations, and a decade of reneged promises, combined with Ariel Sharon’s visit to Temple Mount, triggered a Second Intifada starting in September 2000. Replaced by frustration and anger, the hope and optimism of the First Intifada faded. Palestinian actions increasingly consisted of violent assaults and included suicide bombings and rocket attacks. The also more direct violent Israeli strategy included raids, assassinations, curfews, and home demolitions, turning the intifada into a cycle of violence between armed Palestinian groups like Hamas, Islamic Jihad, Al-Aqsa Brigades, and the Israel Defense Forces (IDF). The involvement of several armed groups caused low public participation as a majority of Palestinians stayed away from direct confrontations (Norman, 2010). Villages were reoccupied and another 10 per cent of Palestinian land was annexed under the cover of building a ‘security barrier’ in 2002, built virtually within the West Bank.2 An arrangement that came into being with the signing of the 1995 Oslo II Accords is the West Bank’s division into three types of areas: Area A which is exclusively administered by the PA and Area B administered by the PA as well as Israel. Both areas are dotted throughout the West Bank in 165 disconnected ‘islands’. The remaining 61% of the West Bank were designated Area C – the land mass surrounding Areas A and B, where Israel retains full control over security and civil affairs, including planning, building, laying infrastructure and development. This artificial division, which was meant to remain in effect for five years only, does not reflect geographic reality or Palestinian space. (B’Tselem, 2017) This territorial division combined with settlement expansion and comprehensive control over the Palestinian economy vividly illustrates the Accord’s disempowering effects for Palestinians and their state-building endeavour (Seidel, 2019). Introducing Area C, the West Bank’s only contiguous territory, has further led to the downsizing of the Palestinian population in those areas. According to data

114  Rebecca Burkert provided by B’Tselem, as of November 2017, the Israeli Civil Administration has approved building plans for Palestinian communities in Area C. However, the plans covered a total of less than 1 per cent of the area, most of which is already built on anyway. This blocking of Palestinian development in Area C is not only exercised through the granting of construction permits (or rather their rejection), but also through the declaration of entire areas as ‘state land’, firing zones, nature reserves, and the allocation of land to settlements (B’Tselem, 2017). Combined with looming demolition orders against Palestinian building structures and the huge lack of infrastructure to fulfil daily tasks, a migration away from Area C and towards major West Bank cities lying in Area A can be observed. This geographical confinement combined with a process of NGO-ization3 following Oslo have both contributed to further structural fragmentation of the Palestinian society. Equally, even efforts intended to create governmental structures that allow for the development of sovereign statehood have likewise advanced the development of a shrinking civil space for rights-seeking activities within Palestinian society. The Security Sector Reform (SSR), for example, has been an essential component of Palestinian state-building. According to the International Crisis Group, the SSR’s objectives were, among others, monitoring the activities of Hamas and Islamic Jihad as well as better restricting Fatahaffiliated militants through co-optation (Tartir, 2019). Yet, Alaa Tartir argues that the overarching goal of the SSR, in general, and the security campaigns, in particular, was to criminalize resistance against Israeli occupation and to silence opposition to Israel’s colonial dominance. As a result, the campaigns can be seen as the early stages of the PA’s authoritarian transformation, manifest in the excessive use of arbitrary detention and torture in PA prisons as well as the narrowing of space for opposition voices or resistance inside Palestinian polity. (Tartir, 2019, p. 207) The creation of a Palestinian police force, as outlined in the Oslo Agreements, urged the Palestinian Authority to halt violent Palestinian resistance and prove its commitment to security cooperation with Israel. By demonstrating its capacity to ensure order and the monopoly of the use of force within Area A, the way to Palestinian statehood was supposed to be paved. However, these measures, closely coordinated with and supported by the US and the EU, have contributed to an extensive network of security forces policing today’s Palestinian enclosures (Clarno, 2017).

Settler colonialism and its structural framework In a settler-colonial context, as the case of Israel/Palestine is defined by several scholars (e.g., Veracini, 2013; Wolfe, 2006; Lentin, 2018), the ultimate goal is to replace the indigenous societies being encountered. With territoriality as its defining element and the intention of occupying permanently, settler colonizers ‘come

Moving mountains?  115 to stay’ (Wolfe, 2006, p. 388). Since the mid-1990s, Seidel and Tartir argue, the rule of power has been unfolded through institution-building agendas and commitments, while expressing itself in terms of foreign aid and dependency as well as political, economic, and security sector terms (Seidel & Tartir, 2019). The Oslo Agreements, consequentially, present a major turning point in Israel’s territorial expansion, as they made 60 percent of the West Bank territories negotiable … [They] effectively carved out the West Bank cities, villages and territories into separate entities similar so South African Bantustans under the Apartheid regime. This was a conscious, premeditated effort on the Israeli government’s part to create a geography of territorial control by using the old colonial strategy of ‘divide and rule’. (Chaichian, 2014, pp. 282–283) Settler colonialism is reinforced by daily practices of erasure and appropriation which are performed through legal, political, economic, social, and cultural institutions. Surveillance and control strategies, as well as regulations and laws, are said to have manifested the political power of the colonizer, inscribing relations of force ‘through visible and invisible modes, institutions, bureaucracies and language’ (Shalhoub-Kevorkian, 2015, p. 26). The Budget Foundations Law (Amendment 40) – Reducing Budget or Support for Activity Contrary to the Principles of the State, approved by the Knesset in 2011 (The Association for Civil Rights in Israel, 2011), presents one example of how practices of erasure manifest. The law penalizes municipalities, organizations, and public institutions that organize ceremonies in memory of the Palestinian exodus in 1948. The fabrication of such regulations and officializing control tactics concerning collective and individual memory over the loss of the homeland marks yet another perilous episode in the lives of Palestinians … It [the Budget Foundations Law] institutionalizes the desire to target the memory of Palestinian history and suffering as an expression of power, and uses officialized colonial strategies to penalize those who desire to guard and commemorate their history, essentially attacking the Palestinian collective and individual memory. (Shalhoub-Kevorkian, 2015, p. 82) Palestinian civil society activities and campaigns against discriminatory laws, as was the case with the Citizenship and Entry into Israel Law (Temporary Order),4 are framed as campaigns of delegitimization. This labelling aims, ‘in fact, to delegitimize these very campaigns [themselves], as it disassociates them from struggles for freedom, for human rights or for historical justice, and associates them with attempts to eliminate the Israeli state’ (Amir, 2017, p. 372). Since economic grievances function as a motivational catalyst in nonviolent resistance, Israeli authorities have been using economic well-being – or at least

116  Rebecca Burkert the fulfilment of basic economic needs – as a key factor in ensuring Palestinian quietude. While undermining the development of an independent national economy, Yael Zeira summarizes, Israeli policies intend to promote individual prosperity as a means of social stability (Zeira, 2019).

One rule, two legal systems5 After 1967, two separate judicial regimes operating on an ethnic-national basis developed in the West Bank. Palestinian neighbourhoods were subject to Jordanian law as well as Israeli military orders, while Israeli civil and administrative laws were increasingly applied to Israelis residing in the West Bank. Consequentially, slowly but surely, a development proceeded in which the Israeli legislation was applied to settlers in the occupied territories virtually in its entirety. The ‘enclave laws’, the import of Israeli law into the West Bank, gave and still gives Israel comprehensive bureaucratic administrative powers in the settlements (Ben-Naftali, Sfard & Viterbo, 2018). The cabinet as well as several authorities like the Civil Administration, the IDF, and the border police are authorized to issue decrees and provisions that – although outside of the official jurisdiction enacted by the Knesset – govern Palestinian life in the occupied territories. These decrees and provisions enable exceptional measures – including incarceration, torture, raids, mass arrests, brutal policing of nonviolent demonstrations, administrative detention, house and village demolitions, the detention of minors, and extrajudicial executions – directed at racialized populations and facilitating the racial state (Lentin, 2018, p. 31). This institutionalized discrimination, the legal distinction between Palestinians and Israeli settlers both residing in the West Bank, also implies that Palestinians are tried in military tribunals even for minor wrongdoings like traffic violations. Throughout the years, investigation materials, evidence, and indictments have not been translated into Arabic, and several offences, like stone-throwing or threatening a soldier, which are incorporated in military legislation are not a felony in Israeli legislation. The national identity of the suspect, a report of the Association for Civil Rights in Israel (ACRI) claims, determines which law applies and what authority has jurisdiction. Throughout all stages of the procedure, from the initial arrest, over the indictment to the sentence, Palestinians are discriminated against compared to Israelis (Dahan, Feldman & Re’i, 2014). The basic right to freedom of expression, for example, is virtually non-existent for Palestinians in the West Bank as vigils and demonstrations are defined as illegal assemblies by military law. Even when held in the home of a person, the law requires a permit for every gathering of more than ten people (when it involves a subject that could be construed as political). Thus, holding an assembly without obtaining a permit in advance constitutes a felony, which can be punished with a penalty of maximum ten years in prison (Dahan, Feldman & Re’i, 2014). Not only are disproportionately high sentences imposed on Palestinians, yet they are further sentenced to considerable fines. These fines are an ‘integral part of the West

Moving mountains?  117 Bank military court system, and as such help finance the occupation’ (Lentin, 2018, p. 38). Accordingly, ACRI defines the prevailing dual legal system as being ‘not specific or technical discrimination, or individual decisions, but rather [as] a system that entrenches institutionalized discrimination through legislation and governing institutions’ and as a violation of international law, ‘because its very existence contravenes the basic principles of modern law and severely undermines equality and human dignity as moral and legal principles’ (Dahan, Feldman & Re’i, 2014, pp. 121–122).

Shrinking space in practice The brief outline of the development of a settler-colonial structure, the processes initiated by the Oslo Accords, and the described legal framework vividly answer the initial question on how claim making got to where it is today. However, the issue of how non-state actors advance their claims within this status quo remains unaddressed. Due to the presence of a large number of organizations and civil society initiatives, easy access to information on their work, and direct impacts of Israeli and PA policies on these entities, this chapter’s geographical research focus lies on the West Bank6 and is based on interviews the author conducted between 2018 and the beginning of 2020.7 With an initial focus on rights claiming and the existing opportunity structures to do so, the interviews have elaborated on these questions. It became clear that people’s actions are more determined by the encountered challenges rather than by potential opportunities. Interviewees identified several major challenges to their claim-making efforts, some of which will be exemplarily outlined in more detail as follows. Putting a stigma on human rights work The term ‘smear campaigns’ includes campaigns which intend to delegitimize the organizations’ work. It refers to actions taken by the PA as well as by Israeli media outlets or organizations like NGO-Monitor and to defamations that address donors and foreign organizations working in Israel/Palestine. These smear campaigns have been identified as a major obstacle to the organizations’ work by all Jerusalem-based, most Israel-based, and half of the West Bank-based organizations. Consequentially, freedom of expression has become increasingly restricted for several organizations: either by being a direct target of these campaigns and by lowering their ‘profile in communication’ (Interview 5, 2018) or by being censored by donor agencies. One interviewee, working for a Palestinian think tank based in Jerusalem, stated: We have the problem with our main donor, that is [organisation shall not be named], and we already reached the point that everything we publish with them – they insist on it – … that they get to read it first, which is actually

118  Rebecca Burkert almost censorship. Yet they are so hysterical, afraid that people ask them why they financed us or why the word so-and-so is written somewhere, then it is politically incorrect from the German point of view or rather from the Israeli point of view and then the people in the headquarters in Germany are being contacted – and that is the way it works for everyone else … There are a lot of people who are afraid of this and then you just go back to topics that are not so tricky: a bit of youth development – not political, of course, but youth centre here, an activity there – and the same with women and culture … and ‘why do you not make a film festival’, according to the motto ’pretend that everything is normal’. (Interview 18, 2018 – translation R.B.) As a direct result of being attacked and discredited, local organizations see themselves forced to self-censor what might be perceived as seditious, withdraw from critical topics, and focus on non-political activities instead. A representative of a legal organization in the West Bank remarked: These smear campaigns work like this for example: Someone from an organisation has written something on their personal Facebook page where they have expressed themselves about something that is going on here and they write this personally, this is their opinion, this has nothing to do with the organisation [the person works for] and then someone like NGO Monitor comes and says: ‘you [referring to the organisation] have to pay attention to what your people are writing, because this is not right and they should not do this’ or ‘this is not the position of your organisation and you should do something about it.’ This has happened continuously with people who work for the UN, UNRWA … For us it is different, we are Palestinians already anyway and the standard is not the same … More often, they say something like: ‘this organisation has something to do with this political direction that is why they are terrorists, that is why you cannot really believe what they say.’ These are those ‘character assassinations’ that they do. (Interview 12, 2018 – translation R.B.) The term ‘character assassinations’ frequently appeared throughout the conducted interviews. As a form of defamation, it refers to deliberate vicious personal verbal attacks on an individual in order to destroy her reputation and credibility. These systematic character assassinations are used as a tool not only to silence activists, but to delegitimize the work of entire organizations. In Jerusalem, activists are further exposed to government authorities’ bureaucratic arbitrary use of power. Several interview partners claimed that activities related to promoting Palestinian rights are highly restricted in the city and organizations are prevented from renting halls or rooms for meetings and events. One interviewee summarized: You are being monitored all the time, but still … every person who is criticizing Israel and every person who wants to see justice in this region is being

Moving mountains?  119 labelled anti-Semitic. And there is a big fight even against Jewish voices who are critical, so I know that funding was stopped from Zochrot and from the Woman Coalition for Peace [Coalition of Women for Peace] and all these Jewish leftist organisations [are] being attacked all the time. (Interview 14, 2018) She continued: The people who are working in Palestine, like in the embassies and the representations, they understand that this comes with the territory to be attacked … The Norwegian People’s Aid have been taken to court and stuff like this, so this is part of the reality here … It is kind of a fear campaign also, to make even the international organisations fear from working here, that they could be sued, you know. And sometimes, even if the organisation is very much pro justice and pro human rights, it is lots of headaches for them. (Interview 14, 2018) The disassociation of Palestinian non-state actors from struggles for freedom or human rights and the steering of discourses through the systematic discrediting of critical voices are essential features of a settler-colonialist system. Putting a ‘stigma on human rights work’ (Interview 10, 2018), as one interview partner described it, consequentially, has had an enormous adverse effect on foreign funding, the credibility of Palestinian civil society organizations’ work, and, overall, the continuation of their efforts in the region. The international community and aid dependency perpetuating oppression Wherever the international community was mentioned as an obstacle to organizations’ claim making, interviewees mostly referred to the non-action of foreign governments regarding the enforcement of international law. The previously quoted interview partner from a Jerusalem-based think tank even stated that the international community’s policies are a key reason for the perpetuation of Israeli rule in the Palestinian territories: For me, the bottom line is that if there is someone to blame …: there would be no occupation without the international community. That is quite simple. You would not have to negotiate for a day to get justice here, because everything is regulated by international law: from water to settlements to Jerusalem to borders – it is all there, written down, so to speak, but it is not applied here … That is the bottom line no matter where you look … If international law was applied, if law was applied at all, then things would look very different here. (Interview 18, 2018 – translation R.B.)

120  Rebecca Burkert The non-adherence to international laws and regulations and the unwillingness of third-party states to hold the Israeli government accountable for its failure to comply have been brought up by interviewees repeatedly. Further, the key role the international community plays is particularly determined by the fact that it serves as a main donor of most interviewed organizations. Thus, one major obstacle for the activities of local organizations is the dependency on this foreign funding and, related to it, donors’ control of what the grants are used for. An interview partner from an Israeli NGO mainly funded by European donors reported: We believe that there is a need to improve the way that they [foreign donors] are working to support the communities in a better way, especially with mobile pastoralists, which they are unaware [of]; of the way that these communities are living and what is important for them. So they are coming with a kind of agenda, for example, to repair or to establish new structures like mobile structures which are not really good for the communities and they create a lot of trouble for the communities, because it exposes them more to demolitions. And the old status quo of a quiet situation of communities completely changes. (Interview 1, 2019) Consequentially, she sees a problem in how grant money has been and continues to be used: ‘[If] you want to strengthen the communities and create more resilience, what is happening at the end is that there is less’ (Interview 1, 2019). Although most organizations depend on it, foreign funding has, to some extent, proven to weaken rather than empower Palestinian non-state actors. With foreign donor agencies serving as guarantors for stable jobs and regular income, local non-state actors remain with little control on how grants and resources are used. This systemic reliance on ‘Western cash donations’ (Interview 21, 2018) has diminished community giving as a part of Palestinian cultural heritage and vividly illustrates the promotion of individual prosperity as a means of social stability (Zeira, 2019). Within a system where Palestinian non-state actors are almost completely dependent on foreign aid, a decrease in funding has severely harmful consequences for those organizations concerned. One interviewee stated: For the year 2017, we have been left with only one donor who gives … It is affecting our work, especially when it comes to advocacy and to reach the public, because you need media and they do not work on a voluntary basis. It costs money and they need to charge us. So, we managed to do that through our Facebook page, but still, it is not enough. We think that the advocacy and the lobbying campaigns need more than that. (Interview 8, 2018) While in the past several dozen donor agencies supported her organization annually, being left with only one in 2017 has restricted the organization’s activities to a mere minimum. The complete reliance on foreign grants, combined with the

Moving mountains?  121 unpredictability of how much financial aid an organization receives or whether donors withdraw from certain sectors and past commitments entirely, leaves many organizations in a state of suspense. While in the pre-Oslo era, independent social governance consisting of decentralized and pluralist organizations and initiatives strengthened Palestinian resilience towards Israeli repression, today’s rule of power leaves Palestinian non-state actors in the West Bank with little autonomy and few opportunities for claiming rights. On the one side, most organizations face the challenge of a shift from core to project-based funds,8 as do most civil society organizations globally, and a drastic decrease of external funding to the extent that their work has become limited. On the other side, foreign funding in general is a highly controversial topic. Project funding implies greater control over the agendas of organizations. The influence on the issues these organizations are working on has become a major challenge as donors frequently prefer giving grant money to non-political activities focusing on, e.g., women or youth. The Israeli legal system’s dead end Regarding the slim chances of success for claim making through legal aid, as underlined by the described existence of a dual legal system and Palestinians’ institutionalized discrimination, an interviewee from an Israeli organization summarized that basically, we came to the conclusion – after doing this for twenty something years and having gained a lot of intimate and very detailed knowledge of the inner workings of this [Israeli legal] system – we came to the conclusion, that it is not actually designed to provide justice to victims, but to protect perpetrators. Therefore, as a human rights organisation, if we lent from our credibility working with this system, then we are actually doing more harm than good. (Interview 13, 2018) She described the Israeli High Court as rubber-stamping every violation of human rights, ‘sometimes interfering slightly in the “how” we [Israelis] do what we do to “them” [the Palestinians], like moving the fence, the separation barrier, a few meters here or there, but never interfering in the “what”, not in the essence’ (Interview 13, 2018). Several organizations, which used to provide legal services to Palestinians in need, stopped these activities and developed alternative ways to confront Israeli policies, like documenting violations and focusing on research and public outreach. However, there still are organizations that keep on working within the Israeli legal system. One of their representatives stated that not getting one’s rights from the Israeli courts is a ‘new old issue’ (Interview 20, 2018), but that legal aid can be compared with first aid. The first objective of legal work is supposed to buy time and to, e.g., delay the execution of a demolition order. Trying to assert certain rights through juridical processes can, consequentially, be

122  Rebecca Burkert best understood as a strategy for buying time or for ensuring careful documentation for possible future reparations. An interviewee from a Jerusalem-based legal organization remarked: We are working, because we have to, within the system. We have no other option, unfortunately, but to work within the system [and] to represent according to the Israeli law, that is discriminatory and racist … Because of this problem, of having a legal system that is designed against the population, we also decided to start working with international advocacy. (Interview 10, 2018) She gave an example of a man who threw stones at a moving vehicle and was sentenced to 18 years in prison. The Jerusalem municipality revoked his residency, she claimed, and authorities sealed the house in which his mother and sister were living while leaving them with nowhere to stay: You [referring to Israeli authorities] imprisoned the man, you revoked his residency, which is an illegal measure in international law, and then you punish his mother … who has nothing to do with the stone throwing incident. It passed. It passed through the court. Because the court, eventually, used a very weird, illegitimate framework in [its] decision … We find it very important to … try to get the attention of the international community and trying to get some pressure on Israel to stop these measures. (Interview 10, 2018) The imposing of draconian penalties, as exemplarily described in the previous quotation, is intended to suppress Palestinian resistance and to prevent further social organization. Due to the existence of a discriminatory legislature, a move away from working with the Israeli legal system, as illustrated by the statements made by many interviewees, is reflected in the work of both Palestinian organizations based in the occupied territories as well as organizations in Israel. One representative of the latter reported on how Israeli courts hamper their work, explaining: ‘[We] are much less working on, or wasting our time on submitting objections to plans of settlements [to the courts]. We have done it a lot in the past and … there were not any real achievements’ (Interview 1, 2019). Stuck in the dilemma of trying to obtain one’s right within a system whose purpose it is to provide justification for the suppression of these rights, one interviewee stated that ‘the oppressor and the judge are the same person’ (Interview 4, 2018). It is for this reason that Israeli human rights lawyer Michael Sfard sums up the legal perspectives of Palestinian claim making as follows: Dozens of Israeli and Palestinian lawyers submitted tens of thousands of petitions, participated in thousands of trials, and represented countless subjects of the occupation, yet they still puzzle over the right way to fight the extensive, large-scale violation of human rights Israel is committing against millions

Moving mountains?  123 of people … The lawyers have challenged hundreds of demolition orders to destroy the family homes of suspected terrorists, claiming that the orders are collective punishment and therefore prohibited, and have almost never won. They have filed scores of petitions against deporting Palestinian activists, claiming this is a clear violation of an explicit prohibition under the international law of occupation, and never won. They have challenged restrictions on Palestinian travel countless times, with little success that achieved no significant change. The list goes on, but the point is clear. (Sfard, 2018, pp. 34–35) How organizations try advancing their claims Table 6.1 shows the relationship between organizations’ geographic location and their working areas. The term ‘unpolitical activities’ refers to remarks when, for example, an interviewee explicitly stated that her organization detaches itself from any activity that could be considered as questioning or criticizing the PA. The column percentages are based on the number of documents (N) in the particular column. This means that, e.g., none of the interviewed organizations based in Israel, East Jerusalem, or abroad is involved in these unpolitical activities compared to almost 20 per cent in the West Bank. This number can be explained by the fact that the first organizations do not suffer from PA restrictions as is the case for West Bank-based entities. These restrictions include interviewees’ fear of their organizations being ‘easily shut down’ (Interview 6, 2018) and of arbitrary arrests and torture (Interview 7, 2018). The PA’s surveillance and control strategies include the ‘recruiting of informations’ (Interview 6, 2018) intended to monitor organizations’ activities and the establishment of a ‘military regime’ (Interview 11, 2018) in order to control Palestinian society.  While none of the East Jerusalem-based organizations lobby policy makers, 60 per cent of Israel-based organizations try to influence Israeli and 20 per cent PA policies. None of the West Bank-based organizations aim at influencing Israeli policies and less than 20 per cent impinge on the PA, describing efforts to influence the PA’s policies as a ‘waste of time’ (Interview 8, 2018). Table 6.1 Relationship between organizations’ geographic location and their working areas9

Israeli legal system Smear campaigns PA restrictions Aid dependency Societal fragmentation International community Decrease in funding # N = Documents

East Jerusalem

West Bank

Israel

Total

60% 100% 60% 80% 40% 60% 100% 5

69% 50% 69% 88% 69% 44% 56% 16

80% 80% 40% 60% 20% 40% 40% 5

26

124  Rebecca Burkert Table 6.2 Relationship between organizations’ founding dates and their working areas

International advocacy Awareness campaigns Monitor and report Train civil society Culture and business Legal aid Influence PA Influence Israel Unpolitical activities # N = Documents

East Jerusalem

West Bank Israel

Foreign

40%

50%

80%

33%

60% 40% 40%

63% 44% 50% 31% 25% 19%

60% 80% 40% 20% 40% 20% 60%

40%

5

19% 16

5

Total

67% 33%

33% 3

29

Table 6.2 captures the relationship between organizations’ founding dates grouped in four categories and their fields of activities.10 The table indicates that the more recently an organization was founded, the more likely its working areas include training civil society and, thereby, increasing Palestinians’ resilience towards either Israeli or PA policies or the overall ramifications of Israeli occupation. None of the organizations founded after the Second Intifada is involved in legal aid as has also become apparent throughout the interviews. The pervasive lack of faith in the justice system has been summarized by one interviewee as follows: ‘[Nothing] is protected legally’ (Interview 20, 2018). Equally, also organizations that originally worked within the Israeli legal system, and were founded prior to the Second Intifada, stopped doing so in the past few years. Moreover, there has been an increase in organizations pursuing unpolitical activities since the 1990s (from 11 per cent to 50 per cent now, none before), supporting the argument that, since Oslo and the PA’s founding, organizations that are less politically involved have emerged. The emergence of these unpolitical entities and the withdrawal of organizations from political and/or critical issues stand symbolically for the initially described diminishing civic space for Palestinians to express views and opinions, to claim rights, or to even articulate their demands.

Adapting to a changing struggle The presented findings allow for the conclusion that no generic opportunity structures to assert rights exist and that, as a result, an effective claim making within the status quo is not possible. However, for many organizations, the careful documentation of rights violations and the attempt at achieving the maximum possible within today’s framework are a major driving force for their efforts. This ongoing and accurate documentation of violations of human rights and international law, which is undertaken to assert a possible claim to reparations in the future, can be

Moving mountains?  125 described as claim-making-to-be. Although outcomes so far are marginal, they constitute pillars in the pursuit of long-term social change. An additional reason for the ineffectiveness of claim making – besides the listed obstacles – is that organizations often find themselves caught in several dilemmas such as competing with each other for foreign donations. They try to do their work unnoticed in order not to give Israeli or Palestinian authorities a reason to influence their activities or to be perceived as a threat to their power. Simultaneously, organizations intend to train civil society, set up awareness campaigns, and influence public opinion locally and abroad. The intimidation caused by smear campaigns and PA restrictions has resulted in a change in the working areas of many organizations. Their missions have frequently pared down to simply keeping the organization running, while others have started (re-)evaluating, e.g., their attitude towards the PA and their political stance. On account of the discontentment with the foreign donor system, a few organizations are searching for new sources of funding, like contributions from local and diaspora communities, and at the same time reject the influence of foreign donors on their agendas. What has also become apparent is that – although the repertoires of their claim making take on different forms – Palestinian claim making is inextricably linked to efforts made by organizations in Israel as they face similar, although not equally restrictive, challenges. Another outcome of the conducted research is that third-party support is perceived as inevitable. However, the form it shall take is an issue of controversy among the interviewed organizations. Many of the interlocutors favour foreign pressure on Israel, politically or economically, to change its policies. Therefore, many organizations redrew their focus towards involving the international community and foreign civil society actors more actively. In light of smear campaigns and the attempt at delegitimizing human rights work in Israel/Palestine, thirdparty support presents a major source of legitimization for Palestinian organizations working in this field. Criminalizing resistance, as is happening by Israeli as well as PA policies, ‘is a good example of stripping from the oppressed its ability to challenge the oppressor, and maintaining the subjugation of the weak in an unbalanced power structure in the name of “peace”’ (Ali, 2019, p. 75). Claim making and the general exertion of rights can, consequentially, only take place within a political, legal, and socio-economic framework that allows for their existence in the first place. Due to geographical segregation and a discriminatory judiciary embedded in a settler-colonial system in the West Bank, Palestinian claim making is forced to continue to adapt.

Notes 1 There were violent actions like attacks on Israeli civilians, but compared to the massive, closed nonviolent movement in which the vast majority of Palestinian society engaged, they can be defined as isolated acts. 2 Human Rights Watch states that around ‘85 per cent of the barrier’s route falls within the West Bank, isolating 11,000 Palestinians who are barred from traveling to Israel and

126  Rebecca Burkert who must cross the barrier to access livelihoods and services in the West Bank’ (Human Rights Watch, 2013). 3 The term NGO-ization describes the professionalization and institutionalization of activism that have contributed to depoliticizing discourses and movements within civil society. 4 The law bans family unification where one spouse is an Israeli citizen (in practice almost all of whom are Palestinian citizens) and the other a resident of the occupied territories. It passed in 2003 and was extended in June 2016. 5 Borrowed from the 2014 report of the Association for Civil Rights in Israel (ACRI) titled: ‘One Rule, Two Legal Systems: Israel’s Regime of Laws in the West Bank’. 6 However, several organizations which make claims on behalf of Palestinians in the West Bank and work on issues related thereto operate from elsewhere and are listed as based in East Jerusalem or Israel in the subsequent analysis. 7 Relevant ‘organizations’, a term used throughout the chapter for reasons of simplicity, include legal institutions, think tanks, educational establishments, youth or community organizations, initiatives, and administrative authorities involved in some sort of rights-seeking activities. Most of them were identified through research and/or were referred to by other interview partners. The field site was mainly centred in Israel/ Palestine where most interviews were conducted face-to-face. Some were conducted via Skype and a few face-to-face in Berlin. 8 In contrast to core funding, project-based funding does not cover organizations’ administrative or overhead costs like salaries or rent and includes the recurring application for calls for proposals. 9 With the help of QDA software, categories have been discovered within the collected data and were formed on its basis. Twenty-nine files total, 19 audio files and 10 text documents, have been analysed. Through this data-driven approach, 37 codes have been developed and 511 segments coded. 10 Analysed were 22 documents only as, e.g., interviews with individuals not representing one organization in particular were not assigned a founding date.

References Ali, N. (2019). Active and transformative sumud among Palestinian activists in Israel. In T. Seidel & A. Tartir (Eds.), Palestine and rule of power: Local dissent vs. international governance (pp. 71–103). Cham: Palgrave Macmillan. Amir, M. (2017). Revisiting politicide: State annihilation in Israel/Palestine. Territory, Politics, Governance, 5(4), 368–387. Ben-Naftali, O., Sfard, M., & Viterbo, H. (2018). The ABC of the OPT: A legal lexicon of the Israeli occupation over the occupied Palestinian territory. Cambridge: Cambridge University Press. B’Tselem. (2017). Planning policy in the West Bank. B’Tselem, 11 November. Retrieved from https://www​.btselem​.org​/planning​_and​_building. Carpenter, M.J. (2019). Palestinian popular struggle: Unarmed and participatory. New York: Routledge. Chaichian, M.A. (2014). Empires and walls: Globalization, migration, and colonial domination. Boston & Leiden: Brill. Clarno, A. (2017). Neoliberal Apartheid: Palestine/Israel and South Africa after 1994. Chicago: University of Chicago Press. Dahan, T., Feldman, T., & Re’i, G. (2014). One rule, two legal systems: Israel’s regime of laws in the West Bank. The Association for Civil Rights in Israel. Retrieved from https://www​.google​.com​/url​?sa​=t​&rct​=j​&q=​&esrc​=s​&source​=web​&cd​=1​&cad​=rja​

Moving mountains?  127 &uact​=8​&ved​=2ah​UKEw​i739​m5nP​PhAh​UHJl​AKHT​uoCs​IQFj​AAeg​QIABAC​&url​ =https​%3A​%2F​%2Fwww​.acri​.org​.il​%2Fen​%2Fwp​-content​%2Fuploads​%2F2015​ %2F02​%2FTwo​-Systems​-of​-Law​-English​-FINAL​.pdf​&usg​=AOv​Vaw1​rNsP​dTBn​ fBJj​psn4cr​_M5. Frisch, H. (1998). Countdown to statehood: Palestinian state formation in the West Bank and Gaza. Albany: State University of New York Press. Greenstein, R. (2014). Zionism and its discontents: A century of radical dissent in Israel/ Palestine. London: Pluto Press. Halper, J. (2006). The 94 percent solution: Israel’s matrix of control. In J. Beinin & R.L. Stein (Eds.), The struggle for sovereignty: Palestine and Israel, 1993–2005 (pp. 62– 74). Stanford: Stanford University Press. Hanafi, Sari (2009). Spacio-cide: Colonial politics, invisibility and rezoning in Palestinian territory. In: Contemporary Arab Affairs, 2(1), 106–121. Human Rights Watch. (2013). World report 2013: Israel/Palestine: Events of 2012. Human Rights Watch. Retrieved from https://www​.hrw​.org​/world​-report​/2013​/country​ -chapters​/israel​/palestine. Khalidi, R.I. (2006). The iron cage: The story of the Palestinian struggle for statehood. Boston: Beacon Press. Lentin, R. (2018). Traces of racial exception: Racializing Israeli settler colonialism. London: Bloomsbury Academic. Möller, U., & Schierenbeck, I. (2014). Political leadership, nascent statehood and democracy: A comparative study. Abingdon: Routledge. Norman, J.M. (2010). The second Palestinian intifada: Civil resistance. New York: Routledge. Seidel, T. (2019). Sovereign bodies, sovereign states: Settler colonial violence and the visibility of resistance in Palestine. In T. Seidel & A. Tartir (Eds.), Palestine and rule of power: Local dissent vs. international governance (pp. 47–70). Cham: Palgrave Macmillan. Seidel, T., & Tartir, A. (2019). The rule of power in Palestine: Settler colonialism, neoliberal governance, and resistance. In T. Seidel & A. Tartir (Eds.), Palestine and rule of power: Local dissent vs. international governance (pp. 1–19). Cham: Palgrave Macmillan. Sfard, M. (2018). The wall and the gate: Israel, Palestine, and the legal battle for human rights. New York: Metropolitan Books. Shalhoub-Kevorkian, N. (2015). Security theology, surveillance and the politics of fear. Cambridge: Cambridge University Press. Tartir, A. (2019). Criminalizing resistance: Security sector reform and Palestinian authoritarianism. In T. Seidel & A. Tartir (Eds.), Palestine and rule of power: Local dissent vs. international governance (pp. 205–226). Cham: Palgrave Macmillan. The Association for Civil Rights in Israel (2011). The Nakba law. Retrieved from https:// law​.acri​.org​.il​/en​/knesset​/nakba​-law/. Veracini, L. (2013). The other shift: Settler colonialism, Israel, and the occupation. Journal of Palestine Studies, XLII(2), 26–42. Wolfe, P. (2006). Settler colonialism and the elimination of the native. Journal of Genocide Research, 8(4), 387–409. Zeira, Y. (2019). The revolution within: State institutions and unarmed resistance in Palestine. Cambridge: Cambridge University Press.

7

Political resistance and contested citizenship Scott A. Bollens

Introduction Examining urban arenas of ethnic, nationalistic, and religious conflict, this chapter focuses on the influence of social and ethnic interests operating within the city in disrupting the implementation of national policy agendas. While nationalistic conflict emanates from, and engages with, broader national and international geographies, urban centres are increasingly focal points where individuals encounter the state most directly and can constitute battlegrounds between insurgents and counter-insurgent forces (Graham, 2010; Kilcullen, 2013). Cities are bedrocks upon which democracy and citizenship are either reinforced or eviscerated. They constitute the foundation of the nation-state in terms of loyalty, a location where the citizen constitutes himself as both subject and object of conduct in the public sphere, and a breeding ground for active engagement in democracy. Cities are also places of discipline for those excluded from citizenship (Isin, 2000). I will show how implementing national political goals in politically contested urban environments produces impacts that are complex and paradoxical, and that this creates space for political resistance. National political goals – whether they be partisan in promoting sovereign control or peacebuilding in aspiration – are transmitted to, and implemented in, cities in ways that produce outcomes that are at times unintended and contradictory to the national goals themselves. This difficulty in implementing national policy directives in cities of inter-group division provides opportunity spaces that confrontational and mobilized ethnic and cultural groups exploit in ways to counteract national dictates. These interests are unwilling to engage in formal governance institutions and are able through their actions to impede policy strategies and distort intended outcomes.

Contested citizenship In both the Palestinian territories and Northern Ireland, there exist enduring and fundamental conflicts about political sovereignty associated with a lack of common citizenship accepted by all.

Political resistance, contested citizenship  129 Palestine and Israel The wide-ranging Israeli victories in the Six-Day War of 1967 resulted in Israel taking military control over all of the West Bank, including the Jordanian-ruled eastern part of Jerusalem. Palestinians envision the West Bank as the future location for their independent state. The international status of the West Bank (and East Jerusalem) today is as ‘occupied territory’. Since 1967, Jerusalem has been a politically contested Israeli-controlled Municipality three times the area of its pre-1967 city (due to unilateral, and internationally unrecognized, annexation) and encompassing formerly Arab East Jerusalem. Israel claims political control over all of Jerusalem, while Palestinians assert East Jerusalem as the rightful capital of its prospective state. The Israeli state considers Palestinian inhabitants in annexed parts of Israeli-defined Jerusalem to be residents of the city if they meet certain residency requirements, but not citizens of Israel (unless they apply and receive such status). Since 1967, only 4 per cent of the total Palestinian population in Jerusalem have applied for Israeli citizenship (Daniel Seidemann, Jerusalem Lawyer and Expert, interview, 1 February 2016). As residents, Palestinians are eligible to vote in Jerusalem municipal elections but have chosen for the most part to boycott elections because they do not view the Israeli municipal authority as legitimate. In the West Bank, a politically amorphous region lacking statehood, Palestinians are eligible for Palestinian passports for travel purposes, although these are subject to Israeli restrictions due to security concerns. Although the West Bank is not part of Israel’s sovereign territory, the significant numbers of Israeli settlers living in settlements there are subject to Israeli law. As a result, settlers enjoy all the rights of citizens in a democratic state, just as do Israeli citizens who live within the State of Israel. In contrast, Palestinians live under martial law in the majority of the West Bank area and are severely restricted in their ability to have a sustainable livelihood. In 1996, pursuant to the Oslo II agreement, there was territorial division of the West Bank into three sections intended to be for an interim period. In the largest Area C (fully 60 per cent of West Bank land area), Israel maintains full territorial and security control. Since 1967, Israel has established approximately 127 settlements in the West Bank; in addition, there are about 100 ‘outposts’ erected by settlers without official authorization (OCHAOPT, 2012). As of 2014, an estimated 370,000 Israeli settlers lived in Area C, while 300,000 Palestinians are scattered over 532 residential locations. Israel has retained complete control of Area C, including security and all civil matters such as land allocation, planning and construction, and infrastructure provision. Palestinians cannot build in Area C without an army permit and they are regularly denied (Niksic, Eddin & Cali, 2014). Northern Ireland The violent and traumatizing years of the ‘Troubles’ (1969–1998) that gripped Northern Ireland was due to competing nationalisms. A strong alignment of religious identities with political and national loyalties led to the seeming

130  Scott A. Bollens intractability of the conflict. Protestant ‘unionists’ and ‘loyalists’ assert their claims to continued political association within the United Kingdom, and their allegiances are with Britain, which for many of the conflict years exercised direct rule over Northern Ireland. Catholic ‘nationalists’ and ‘republicans’ consider themselves more Irish and tend to commit their personal and political loyalties to the Republic of Ireland to the south. The border between Northern Ireland and the Republic of Ireland, established in 1921, created a secure Protestant majority in the north of the island. A double minority syndrome has trapped Northern Ireland in an unrelenting dilemma – Protestants are an island-wide minority threatened by possible unification with Ireland, while Catholics have been historically a minority within Northern Ireland threatened by Protestant and British direct rule. Northern Ireland fundamentally changed in 1998, when a historic shift in Northern Ireland governing institutions and constitutional status was specified in the April 1998 Agreement Reached in the Multi-Party Negotiations (i.e. the ‘Good Friday Agreement’). This agreement allowed the transfer of day-to-day rule of the province from Britain (‘direct rule’) to a locally elected Northern Ireland Assembly. In this legislature, Protestants and Catholics are to share power (‘local rule’). Major legislative decisions require concurrent majorities from both sectarian groups. The Good Friday Agreement also states that Northern Ireland is to remain within the United Kingdom as long as a majority in the province wants to remain there. Institutionalization of local power sharing has been tortuous since 1998. A seemingly unending series of obstructions to the peace progress (most prominently, paramilitary decommissioning and police reform) from 1998 to 2007 resulted in on-again, off-again local rule by Northern Ireland elected officials. From 2007 to early 2017, the Northern Ireland Assembly and Northern Ireland Executive achieved its first period of sustained local rule. Local powersharing government collapsed in January 2017 and was not re-instated until January 2020.

Citizenship rights and national policy agendas Jerusalem and Belfast illuminate the dilemmas and challenges faced by cities and societies polarized by nationalistic conflict. In politically polarized cities, there is contestation of political control as identity groups push to create a political system that expresses and protects their distinctive group characteristics (Calame & Charlesworth, 2009; Hepburn, 2004). Such conflict exhibits a lack of trust in normal political channels and is capable of jumping tracks onto aggressive and violent pathways. There is a growing literature focused on politically contested cities vulnerable to violence (such as Bollens, 2007, 2018; Brand & Fregonese, 2013; Calame & Charlesworth, 2009; Charlesworth, 2006; Gaffikin & Morrissey, 2011). Due to the political contestation found in divided societies such as Israel/Palestine and Northern Ireland, governmental authorities must seek to manage a contested urban area through the formulation of national political goals and mandates. A national governing agenda can be either ethnonational or civic (Lijphart, 1977). In the first case, the moral doctrines of an ethnonational group regarding sovereignty

Political resistance, contested citizenship  131 and cultural identity determine how a government addresses the city. In the second case, government goals seek to accommodate or transcend ethnonational ideologies. These national political projects profoundly influence basic citizenship rights in the city, including civil rights such as freedom of movement and rule of law, political rights such as voting, and social rights such as welfare and health care (Isin, 2000). They can provide or deny access to formal or informal institutions for claim making, for influencing urban policy, or for advocating for group identity goals (Davis, 2011). National policies shape the boundaries of inclusion and exclusion of citizenship. They not only effect spatial boundaries of citizenship (who is physically inside and who is outside), but also symbolic boundaries that promote or fragment ethnic and cultural diversity, and social boundaries that influence the distribution of material resources of citizenship (Mackert & Turner, 2017). There must be translation of a national policy agenda into technical prescriptions that seek to move a society, or in this case a city, toward national goals or visions. The challenge for societies, and political leaders, is that operative forms of national agendas do not logically proceed from the grand visions or ends asserted by fundamental moral assertions. This is because the relationship between the state and the city – between national political goals and mandates and urban spatiality and everyday life – is not clearly a dominant-subordinate one. There is not the logical transmission and clear operationalization of national policies in urban space. Magnusson (2011, p. 5) points out that the ‘spatialities and temporalities of the city’ constitute ‘an order not susceptible to sovereign authority’ by the state. City politics and everyday dynamics commonly exceed the regulatory effort of the state (Magnusson, 2011; Simone, 2010). The state in its policymaking and interventions seeks to impose order, schematic visions, and regularity (Scott, 1999). Yet, the city presents a mosaic of local histories, geographies, and power relationships that can disrupt and distort mandates and goals established by the national state. In both Israel and Northern Ireland, there is the assertion of policy agendas by higher levels of government concerning the status and future of their primary cities. In Israel’s case, its long-held vision for Jerusalem is that it is always to be united under Israeli rule. To support this goal, demographic dominance by Israelis within the municipality is critical. In the early 1970s, Prime Minister Golda Meir proclaimed that Israel should do all in its power to maintain the 73/27 per cent Jewish to Arab numerical ratio then existing in the city. In 1980, the Israeli legislature passed the ‘Jerusalem Law’, aspiring to bring Jerusalem fully under the control of Israel and to establish it as the clear capital of Israel. Most Israeli governments since then have proclaimed that Jerusalem will always be united under Israeli sovereignty, including the areas of East Jerusalem unilaterally annexed in 1967, and have rejected calls to divide the city politically. Israel uses growth and development programmes to maintain the demographic dominance of Israelis in Jerusalem and its larger urban sphere. In the eyes of Israeli policymakers, such demographic presence decreases the chances that political control will be wrested away from Israel in the future.

132  Scott A. Bollens In the case of Northern Ireland since the 1998 Good Friday Agreement (GFA), the goals of a shared future, shared space, and the ending of ethnic-religious (‘sectarian’) division have been consistently asserted by multiple governmental actors both external and internal to Northern Ireland. A key policy document, A Shared Future, was produced by the British Government’s Northern Ireland Office in 2005 during a time of suspended Northern Irish government (OFMDFMNI, 2005). Northern Ireland also emphasizes equality and ‘good relations’ as primary peace goals. While the equality goal seeks to counter societal inequalities, the good relations goal aims at assuring harmony between sectarian groups in the carrying out of governmental programmes. The strategy of Northern Ireland government seeks peacebuilding and reconciliation by transcending the sectarian differences linked to inter-group violence and tension. Both Jerusalem and Belfast are embedded in long-term and uncertain peacemaking contexts –Jerusalem since 1993 and Belfast since 1998.1

Palestinian territories: Resistance to hegemony From the Oslo Accord in 1993 until the present, Israel’s policy agenda promoting its sole and unified political control over Jerusalem has continued without interruption. Field research in Jerusalem in 1994 documented the implementation of Israel’s sole sovereignty project in Jerusalem (Bollens, 2000). Despite Oslo, there was tightening of Israel’s control over Jerusalem, including restrictions on Palestinian institutional presence within Jerusalem and increased security checkpoints along the municipal border. A set of implementation tools, many part of the Israeli land use planning system used since 1967, continued to increase new Israeli development to maintain Israeli demographic superiority and establish an Israeli presence in East Jerusalem, and to restrict Arab growth and development in the eastern sector to weaken their claims to Jerusalem (Bollens, 2000). More recent field research, in 2015, enables a longitudinal assessment of what has changed spatially over a 21-year period. The implementation of Israel’s unilateral policy agenda has produced even greater imprints. The nationalistic competition over Jerusalem has created a significantly bigger city in terms of population, growing from 603,000 in 1995 to 865,000 in 2015 (Jerusalem Institute for Israel Studies, 2017). Israel’s project of control in Jerusalem has intensified since Oslo. In 1992, just ahead of the Oslo Accord, Israeli settlements (neighbourhoods) built on expropriated land in areas of Jerusalem unilaterally annexed by Israel in 1967 were home to 125,800 Israelis (Americans for Peace Now, 2016). By the end of 2014, continued expansion of these areas led to there being 205,220 residents in these contentious developments in the annexed area (Jerusalem Institute for Israel Studies, 2015). In contrast, Arabs face severe development restrictions in the city. The Jerusalem Municipality planning system creates multiple layers of obstacles facing the Arab community that cumulatively result in the strong improbability, if not impossibility, of Israeli-approved Arab development at a level anywhere near what is needed to meet natural growth (Bimkom, 2014; Bollens, 2018). Further, an elaborate and convoluted road system functionally integrates the Israeli parts of the metropolitan area, splits Arab neighbourhoods in some cases, and functionally

Political resistance, contested citizenship  133 segregates the road system from Jerusalem’s Arab residents. Outside Jerusalem, there has been extensive Israeli settlement activity in the West Bank over the past 20 years. Whereas 105,400 Israeli settlers lived in the West Bank outside Jerusalem in 1992, this had grown by the end of 2015 to 385,900 (Americans for Peace Now, 2016). In terms of the magnitude and location of Israel-promoted development for its citizens, the period of 1994–2016 has witnessed intensification and deepening in the implementation of Israel’s policy agenda. The most visible feature in the Jerusalem landscape today is the separation barrier, which started construction in 2003 for the stated purpose of security amid violence and loss of Israeli Jewish life during the Second Intifada. From 2000 to 2004, numerous attacks by Palestinians of Israelis in Jerusalem killed 210 people and wounded many more in suicide bomb attacks of buses and restaurants (Shragai, 2015). The separation barrier cuts off thousands of Palestinians from the city. It is over 40 miles long in the Jerusalem urban region, and more than 97 per cent of its route extends beyond the ‘green line’ that politically demarcates Israel from the West Bank (International Peace and Cooperation Center, 2007). The barrier severs from the city (by placing them east of the wall or enclaving them within walls) between 70,000 and 100,000 Palestinian Jerusalemites who presently live within municipal Jerusalem (Nadav Shragai, Jerusalem Center for Public Affairs, interview, 17 December 2015). Also separated from Jerusalem are another estimated 145,000 Palestinian Jerusalemites who live in villages adjacent to Israel’s Jerusalem municipal border (OCHAOPT, 2011). Palestinian suicide and other bombing attacks against Israelis are down significantly since the construction of the separation barrier began (Israel Ministry of Foreign Affairs, 2011). However, the barrier may not be restricting Arab mobility into Jerusalem as much as security experts expected (Lis, 2016; OCHAOPT, 2013). A wave of violence, occurring mostly in Jerusalem from September 2015 to January 2017, killed 46 Israelis and injured 645 persons (Israel Ministry of Foreign Affairs, 2015). Despite the continuation and deepening of Israel’s policies since 1967 aimed at sole sovereignty of Jerusalem, urban and community dynamics have emerged over the past 20 years that are creating greater complexities and contradictions not fully consistent with Israel’s pursuit of political control. These phenomena include Arab development activity and in-migration into ‘grey areas’ created by the problematic location of the separation barrier, extensive unlicensed development by Jerusalem Arabs, and the vulnerable nature of Israel’s settlement building project. Each dynamic shows how Palestinians have been able to compromise Israel’s implementation of national political goals. The net effect of these features paints a complex picture of Jerusalem today, one that neither promotes Israel’s sole political control nor supports a genuine sharing of the city. Developing Jerusalem’s ‘grey areas’ Palestinians have exploited the location of the separation barrier inside the Municipality border in two locations, asserting territorial claims contrary to Israel’s political goals of weakening the Palestinian presence in the city. The location of the separation barrier in the north-eastern area of Kafr Aqab and in

134  Scott A. Bollens the eastern area of the Shuafat refugee camp puts these neighbourhoods that are within the municipal limits outside the wall. This has, paradoxically (from Israel’s perspective), stimulated development in these ‘grey areas’. Palestinians have been able to build extensively in these two areas, taking advantage of the fact that since the barrier’s construction, the Municipality has abandoned governance in Kafr Aqab and Shuafat refugee camp areas, leading to an atmosphere of unregulated growth (Ir Amim, 2015). From 2006 to 2010, 20 per cent of all recorded residential construction in Arab East Jerusalem took place in Kafr Aqab (Jerusalem Institute for Israel Studies, 2011). By 2011, of 15 Arab neighbourhoods, Kafr Aqab had the second greatest area of square metres of built space (Jerusalem Institute for Israel Studies, 2012). Because the separation barrier threatens Palestinians in the urban region with the potential loss of their Jerusalem residency status, Palestinians living outside city borders have purchased properties in these largely unregulated neighbourhoods in order to maintain Jerusalem residency. Kafr Aqab has become the Jerusalem address for many Palestinians from outside the city; by paying property taxes in Kafr Aqab, these residents can maintain residency in the city (Fouad Hallak, Policy Advisor, Palestine Liberation Organization, interview, 7 December 2015). This counters Israel’s demographic mission to weaken the official Arab population count of Jerusalem residents. Further, the migration of Palestinians without official residency status into these areas has produced two dense Arab settlement nodes that are officially within the city. Estimates are that between 70,000 and 100,000 residents now live in Kafr Aqab and Shuafat refugee camp areas within the city but outside the wall (Israel Kimhi, interview, 3 December 2015; Ir Amim, 2015). These areas are places of extreme neglect, with dilapidated or non-existent roads, schools, parks, and infrastructure. No formal institutions govern the area because Israel disallows the Palestinian National Authority from operating within the Municipality (Adel Abu Zneid, Fatah Committee in Jerusalem, interview, 27 October 2015). Amidst such a void, the more politically extreme political party of Hamas is gaining footholds in the area, particularly within the refugee camp itself. In addition, in-migration of Palestinian Arabs to the Israeli side of the barrier, caused by the threat of being outside the barrier, has also increased the density of Arab settlement in the rest of the city, driven up housing prices, and led some Arabs to migrate into Israeli neighbourhoods (contrary to city objectives to keep the two groups separate). Building unlicensed housing In order to penetrate hegemony, one must work at the margins of the occupation (Yosef Jabareen, Technion Institute of Technology, Interview, 2 December 2015). A conspicuous feature in 2016 compared to 1994 is the amount of unlicensed Palestinian development in Jerusalem, of such magnitude that it is overwhelming the Israeli legal and regulatory system aimed at restricting it. According to

Political resistance, contested citizenship  135 Israeli data, the Arab percentage of city population increased from 30 per cent of city population in 1995 to 37 per cent in 2014 (Jerusalem Institute for Israel Studies, 2016). From 1995 to 2014, the Arab population in Jerusalem increased by 134,000, while the Israeli Jewish population increased by 113,000 (Jerusalem Institute for Israel Studies, 2016). This growth in the Arab population in the city is not due to increased housing opportunities for them in the city authorized by the Municipality. Rather, growth is occurring through unlicensed housing construction deemed illegal by Israel. The most cited figure for the number of unlicensed units in Arab East Jerusalem is 20,000, which would mean more than 30 per cent of all Palestinian units in Jerusalem are not authorized by the Israeli state. In the period 2001–2010, 70 per cent of all new Palestinian construction is estimated to have been unlicensed (International Peace and Cooperation Center, 2013). Bypassing Israeli formal governance institutions, Palestinians through their housing and demographic growth have exploited a major vulnerability and crack in the implementation of Israel’s sole sovereignty policy goals. The Arab population in the city is increasing during a time of strict Israeli controls over formal development. ‘For a long time now’, observes Meir Margalit (former Jerusalem municipal councillor), ‘the Municipality has lost control over what is happening on the ground’ (interview, 27 October 2015). ‘There is no possibility of Israel stopping this illegal building. Israel has lost the larger battle of Jerusalem’, observes Efrat Cohen-Bar (planner, Bimkom, interview, 21 January 2016). Municipal officials are aware that unlicensed housing is increasing, but for the most part look the other way. In certain Arab neighbourhoods in Jerusalem, Israeli police do not allow Municipality housing inspectors to enter the area due to security concerns. Although some demolitions by Israel of unlicensed housing occur in Jerusalem, the large-scale demolition of thousands of unlicensed units would be politically difficult because Israel would need to destroy substantial urban fabric. The extent of unlicensed Arab development over the past two decades on the one hand is meeting, at least partially, objective needs for housing and bolstering Palestinian political-demographic claims. However, the demographic-political competition in Jerusalem is strikingly asymmetric in terms of institutional capacity – a contest between well-funded and coordinated Israeli development and a poorly coordinated Arab development dynamic unsupported by Palestinian public authorities banned by Israel from operating in the city. Thus, Palestinian unlicensed development frequently occurs in haphazard, ad hoc patterns and lacks community assets such as parks, neighbourhood centres, employment opportunities, utility connections, and adequate roads. Such impoverished community development ‘lacks real opportunity and spawns hopelessness and despair’ (Judith Oppenheimer, interview, 26 January 2016). Economic decline in Arab Jerusalem is producing new depths of deprivation and neglect; the share of Arab families in Jerusalem living under the Israeli poverty line rose from 64 per cent in 2003 to 79 per cent in 2015 (Jerusalem Institute for Israel Studies, 2004, 2017). Although institutionally asymmetric, the demographic competition in Jerusalem nonetheless is problematizing Israel’s political goals.

136  Scott A. Bollens Resistance at territorial interfaces An occupation regime has soft spots. We should increase costs to Israeli society of the occupation regime, not attack directly the regime’s hard spots. We need to think in terms of the soft power that we have. (Husam Zomlot, Ambassador at Large, Palestine Presidency, interview, 4 February 2016) Israeli growth strategies since 1967 have sustained a solid, yet decreasing, Israeli majority within municipal borders drawn by Israel. Yet, this landscape of domination is one of internal frictions and personal insecurity. Major friction exists due to extended Israeli penetration into disputed territory in annexed parts of the city. Demographic planning in pursuit of political control meant that new neighbourhoods after 1967 were built in ‘east’ Jerusalem across the green line that had politically divided Israeli and Arab Jerusalem from 1948 to 1967. With the goal of political control, spatial penetration and consolidation of the east became vital. This brought the two antagonistic groups closer together spatially, creating an extensive spatial pattern of Israeli neighbourhoods adjacent to ghettoized and fragmented Arab villages and providing multiple interface points where tensions arise. Employing violence as a means of political resistance, Palestinians exploit the opportunity spaces created by this spatially vulnerable development pattern. Interfaces of recurrent violence and tension exist along the former border of the 1948 green line, along interfaces between Israeli and Arab neighbourhoods created in annexed parts of Jerusalem, along the 1967 enlarged Israeli municipal border, and at checkpoints of the separation barrier. In the violence of 2015 and 2016, many stabbing attacks took place near the old green line, at and proximate to the Damascus Gate area in East Jerusalem. Sustained Palestinian resistance through the decades has thwarted Israel’s goal of unifying the city. Although Israel’s hegemonic actions have radically changed the physical landscape of the city, the social and psychological fabric of the urban system remains divided. ‘There is a two-state reality in Jerusalem’, asserts Udi Dekel (Institute of National Security Studies [INSS], interview, 3 February 2016). He further claims that ‘those who preach united Jerusalem are disconnected from the realities of East Jerusalem’. In an internal, confidential INSS survey, 75 per cent of Israeli Jerusalemites perceive that the city in the future will not be unified. Former Municipality planner Israel Kimhi notes that the city ‘is psychologically divided’, that many Israelis are afraid to visit Arab East Jerusalem because it is ‘a different place’ (interview, 3 December 2015). ‘The younger Israeli generation’, observes former Municipal Councillor Meir Margalit (interview, 27 October 2015), ‘is starting to realize that parts of the city are not Israel’.

Northern Ireland and Belfast: Resistance to peacebuilding In contrast to the Israel case, Northern Ireland created a peace agreement that has countered regression back to organized violence. In the 15 years after negotiated peace (1999 to 2014), security-related deaths have drastically lessened (Police

Political resistance, contested citizenship  137 Service of Northern Ireland, 2016). The Good Friday Agreement (GFA) fundamentally restructured government in Northern Ireland and produced a framework of shared power between former enemies. Since the peace accord, the Northern Ireland government has put forward urban peacebuilding goals addressing the future of Belfast. The objectives of shared future, shared space, and the ending of ethnic-religious (‘sectarian’) division have been asserted. In 2005, A Shared Future argues against continued community division between Protestants and Catholics and advocates sharing over separation. It states: The division that perpetuates itself in Northern Ireland is costly both socially and economically. Adapting public policy in Northern Ireland simply to cope with community division holds out no prospect of stability and sustainability in the long run. (OFMDFMNI, 2005, p. 4) It further underscores that, ‘separate but equal is not an option … that parallel living and the provision of parallel services are unsustainable both morally and economically’ (OFMDFMNI, 2005, p. 20). Northern Ireland also emphasizes equality and good relations as primary goals guiding future policy (OFMDFMNI, 2010, p. 3; Northern Ireland Act of 1998). The equality mandate requires that government pursue equality of opportunity between persons of different religious belief and political opinion. The good relations goal states that policies must be carried out with ‘regard to the desirability of promoting good relations between persons of different religious belief, political opinion or racial group’ (Northern Ireland Act of 1998, section 75 [2]). While the equality goal seeks to counter deeply ingrained social and religious inequalities, the good relations goal aims at assuring harmony between sectarian groups. These peacebuilding goals of the Northern Ireland government attempt to promote peace and reconciliation and are a radical departure from the decades of discriminatory Protestant rule (1920–1972) and the period of conservative British ‘direct rule’ (1972–1998). Northern Ireland has put forth worthy goals of peacebuilding. Yet, they have existed at a level of abstraction that has created uncertainty in their implementation and has opened opportunity spaces for those interests opposed to the new direction. With opposing sides at the peacemaking negotiations having ideologically opposed perspectives, language incorporated into political and policy agreements became necessarily abstract in order to accommodate these differences. A ‘creative ambiguity’ in terminology was used to facilitate political compromise (Colin Knox, professor, University of Ulster, interview, 7 April 2016). This ‘discursive and ambiguous language of the peace agreement was necessary so that all could sign on’ to the Agreement, observes Brendan Murtagh (Queen’s University, interview, 21 March 2016). However, political agreement at a ‘symbolic, rhetorical level’ did not provide effective guidance for peace interventions at the urban level (James Anderson, professor, Queen’s University, interview, 22 March 2016). Consequently, the implementation of specific policies to remedy inequalities, increase harmony and tolerance between groups, and increase mutual sharing

138  Scott A. Bollens has created obstructive tensions and political difficulties. There have been ‘huge embedded contradictions’ in urban implementation (Brendan Murtagh, interview, 21 March 2016) and there has been a ‘struggle for the determination of meaning’ strongly shaped by sectarian and political motivations (Yanow, 1996, p. 19). The distorted urban spatial realities of Belfast created and reinforced during the violent years of ‘the Troubles’ (1968–1998) constitute significant obstructions to the implementation of new peacebuilding goals. Northern Ireland’s goals confront a sectarian divided city of structural inequality reinforced by numerous interface barriers. The physical legacies of the Troubles are numerous – partitions, residential hyper-segregation of Catholics and Protestants, deep-rooted sectarian ‘ownership’ of many neighbourhoods that prevents accommodating members of one religious group in the other group’s ‘territory’, and provocative symbols (Boal, 1994). Reinforcing these spatial legacies are local actors who feel they gain more by existing sectarian territoriality than in changing it. These include paramilitary legacy groups and dissidents who control sectarian territories through community organizations, local politicians electorally wedded to their sectarian districts, and residents who feel secure in segregated neighbourhoods. Peacebuilders face the fundamental challenge in Belfast of the persistence of sectarian territoriality in western, eastern, and northern parts of the city. There are two cities in effect – one part is Catholic, growing in population, but experiencing limited land for growth in areas typically considered Catholic; the other is Protestant, stagnating in population, and living in areas of underutilized and vacant land. Catholics have a greater objective need for new housing due to their growth rate (John McPeake, former head of Northern Ireland Housing Executive, interview, 25 May 2016). However, due to the difficulty of finding suitable noncontentious sites outside of traditionally Protestant areas, the ability to meet Catholic need is severely limited. On the other hand, Protestants argue for more housing, jobs, and services in their communities to bring back vitality lost in the past decades. The two communities, beset by territorial boundaries that preclude normal urban functionality, experience differential community needs – objective needs on the Catholic side, needs for community revitalization on the Protestant side. Jennifer Hawthorne illuminates the dilemma faced by government when intervening in the sectarian city: We have a grossly inefficient housing market in Belfast. We need 346 acres of land to house Catholics in west Belfast. On the Protestant side, we have 356 acres of land vacant. They are 320 feet apart. But we have to pay top dollar for sites in the Catholic west boundary area when we own sites 320 feet away that we can’t do anything with. (Northern Ireland Housing Executive, interview, 14 April 2016) When peacemaking goals such as shared future, equality, and good relations are operationalized, they face deep fractures in the urban system. Since the Catholic population faces greater levels of deprivation and housing need (Gaffikin et al.,

Political resistance, contested citizenship  139 2016), the challenge becomes how to distribute more housing and resources to the Catholic population without it antagonizing Protestants to such a degree that inter-group relations deteriorate. The goals of equality and good relations are in conflict. Interpreting peacebuilding goals to resist new directions When abstract national peacebuilding concepts encounter sectarianized urban space, they have become susceptible to clashing political interpretations and manipulations (Colin Knox, interview, 7 April 2016). Community members resistant to peace goals exploit the opportunity spaces created by the abstract formulation of goals. The redevelopment of the closed Girdwood Barracks site in north Belfast reveals how community resistance obstructs the operationalizing of peacebuilding goals. Formerly the largest British army base in Northern Ireland, this 14-acre site is close to both Catholic and Protestant neighbourhoods and redevelopment plans ignited a sectarian dispute over prospective uses. On the one hand, the plan sought to build more housing for Catholics in order to meet greater projected demand. On the other hand, Protestant leaders argued that such housing would facilitate Catholic intrusion that would negatively impact Protestant areas, degrade good relations between the two sides, and eliminate the possibility for shared space in the area. This project shows how each community can use equality and shared future principles as convenient advantages for their own advocacy (Gaffikin et al., 2016). The Protestant side argued that the pursuit of equality, which effectively supported a greater Catholic presence on the site, was contrary to the promotion of good relations and a shared future. In contrast, the Catholic side argued that sustainable good relations could not occur without the implementation of equality policies. The Girdwood project was eventually built, but with significantly less Catholic housing than objective need would require (Frank Gaffikin, interview, 13 March 2016). The dynamic at Girdwood is one that exists throughout the city when policymakers seek to intervene in the city. Government-funded social housing for Belfast low-income residents constitutes a particularly difficult issue facing policymakers in the Northern Ireland Housing Executive (NIHE). Since over 90 per cent of social housing in the city is currently segregated, decisions regarding the location of new social housing, and who will live there, are important influences in efforts to create a less segregated city (Jennifer Hawthorne, interview, 14 April 2016). Yet, the building of new social housing shared between Protestants and Catholics runs up against the sharp edge of embedded sectarian territoriality. Many neighbourhoods in Belfast remain the protectorates of strong community voices who seek to maintain the status quo of separation. ‘People are still sitting in single-identity communities often with the strong presence of paramilitaries’, notes Hawthorne (interview, 14 April 2016). The two main Protestant loyalist paramilitary groups and Catholic dissident republicans regularly resist the establishment of shared housing estates. If located close to Protestant areas, threats and spray-painting of ‘no Catholics’ on buildings have occurred. Elsewhere,

140  Scott A. Bollens republicans capture shared estates through threats and the flying of the Irish tricolour flag. The most spatial peacemaking goal of government arising from the Good Friday Agreement has been the promotion of ‘shared spaces’ where both Protestants and Catholics can have access to urban space without fear of threat and intimidation. Yet, this goal lacks a methodology about how it is to be achieved in contentious geographies (Milena Komarova, research fellow, Queen’s University, interview, 24 March 2016). Absent specification, the goal becomes susceptible to political manipulation by sectarian interests and ineffective government action. In the Girdwood case, Protestant opponents were able to wrap themselves around the peacemaking goal of shared space to support their ultimately successful claims to downsize the amount of housing built for Catholics. In addition, there was the construction of a high-quality community recreation centre in an attempt to create shared space. However, the pattern of programmed activities at the centre has led to the sense that it has become ‘Catholic space’ (confidential interview, 2016). ‘People are looking for opportunities to claim space and you can’t design that out’ through physical planning, observes Keith Sutherland (Belfast Department of Planning and Place, 14 April 2016). Shared space implies an everyday sharing of space that is safe and inviting, not identifiable as belonging to one group or the other, and hosting frequent activities to encourage interaction (Frank Gaffikin, Professor, Queen’s University, interview, 15 March 2016; Callie Persic, Belfast City Council, interview, 14 April 2016). If community facilities (such as health, sport, or education) are established within sectarian-segregated communities, there will typically be psychological resistance by the ‘out-group’ to using the facilities (the so-called ‘chill factor’). When seeking to implement shared space goals in Belfast, community resistance in the forms of intimidating single-identity events and symbols such as parades, flags, and murals hamper peacebuilding progress. Each of these phenomena contains assertive nationalistic content antagonistic to the vision of a shared and tolerant society. Triumphalist Protestant parades assert the right to use space throughout the city and prior to the peace accord frequently travelled intentionally near or through Catholic communities. Although there was in 1997 the establishment of an independent, quasi-judicial Parades Commission to regulate parade routes, the major sponsor of Protestant loyalist parades, the Orange Order, has refused to engage with the Commission, resulting in a ‘frozen dispute’ (Neil Jarman, research fellow, Queen’s University, interview, 23 May 2016). The flying of flags and banners similarly demarcates sectarian and nationalistic space. Whether the Union Jack, the Irish tricolour, or other symbols aligned with sectarian identity and paramilitaries, there continues to be positioning of flags in housing estates and on lampposts in sectarian heartlands and at contentious sites along roads and intersections. Police remain hesitate to involve themselves in implementing this law that forbids the flying of flags on lampposts along roads or on government social housing structures (Dominic Bryan, director of Institute of Irish Studies, Queen’s University, interview, 14 April 2016). Another robust signifier in the city are the numerous political murals in the city having sectarian and

Political resistance, contested citizenship  141 paramilitary references. The primary government approach has been to work with community groups and to fund efforts to replace the most antagonistic murals. Although modifications and take-downs of inflammatory murals were noticeable in my 2016 research compared to 1994, provocative political murals remain in Belfast, particularly in Protestant neighbourhoods; indeed, at times even increasing in number during volatile periods (Gerard McGlade, Black Cab Tours, interview, 14 March 2016). A potent and visible indicator of the anaemic condition of shared space in Belfast are the ‘peace walls’ and interface barriers that divide neighbourhoods. Ninety-nine such barriers exist in Belfast, snaking a path some 12 miles in length between Protestant and Catholic areas (Belfast Interface Project, 2011). The most obvious barriers are made of solid and high walls with metal fencing above. In an eye-catching declaration, the Northern Ireland government stated the goal of removing all interface barriers in the city by 2023 (OFMDFMNI, 2013). Although this is a significant stance by government, residents living near the barriers express concerns about removing them, including fears of violence and ‘loss’ of community (Byrne, Heenan & Robinson, 2012). Brian Rowan (journalist and author, interview, 1 June 2016) questions, ‘when the walls come down, what do we put in their place’. The removal of barriers – a visible spatial and social legacy of the Troubles – is an important part of creating shared space in Belfast. Similar to the goals of equality, good relations, and shared space, the devil is in the operational details of how the implementation of a laudable public goal such as barrier removal will occur amid community insecurity and lack of trust. Political pronouncements are not enough. Sensitive social and psychological aspects of community identity and resistance can be significant roadblocks in implementing peacebuilding initiatives.

Conclusion This chapter illuminates in two polarized societies how identity-based challenges to national political goals occur in response to attempted implementation within the city. It has identified avenues through which community-based interests obstruct national directives. Where there is contestation of citizenship rights, local ethnic-cultural forces show the ability to resist and distort governing mandates. Palestinians in the Jerusalem case and sectarian powers (especially Protestant loyalists) in the Northern Ireland case operate on the ground, appear not as governable, and actively counter institutional initiatives aimed at controlling and managing the city. Palestinians have countered Israeli sole sovereignty goals through significant unlicensed development that has impeded Israeli politicaldemographic objectives. Development in the grey areas outside the barrier but within the city, and migration into the city inside the barrier route, have complicated Israeli demographic goals. Acts of violent resistance cement differences between the two sides, and long-term boycotting by Palestinians of Jerusalem municipal elections reinforce a two-city, divided reality contrary to Israeli unification goals. In Belfast, Protestant loyalist local leaders resistant to post-Good

142  Scott A. Bollens Friday policies have problematized and obstructed the implementation of ‘shared space’ and ‘equality’ peacebuilding goals using the promise of ‘good relations’ as shield. This has enabled the physical legacy of conflict to continue as a major hindrance to normalizing the city socially and territorially. These local interests do not cooperate with formal, sovereign political structures and processes. This recalcitrance contrasts sharply with urban regime and governance literatures that assume that organized interests will interact with governing regimes in order to fight for their interests (Gross, 2017; Pierre, 1999, 2014; Stone, 1989, 1993). In cities polarized by ethno-political conflict, however, deep ethnic and cultural divisions fragment and disrupt any efforts at collaborative urban governance. Defiant groups take advantage of the inherent difficulty of implementing national political goals in urban and regional space. They disrupt the implementation of national political goals through two means: (1) bypassing of formal government channels in order to assert political-territorial claims, and (2) articulating political interpretations of abstract national goals in order to resist new mandates. Self-organized, these are ‘social movements and covert networks as political organizations that command different forms of loyalty and different resources’ (Magnusson, 2011, p. 8). In both case studies, these self-organized interests employ urban materiality and space – the grist of the city – in asserting non-sovereign authority vis-à-vis the state. Palestinians build in urban space outside the Israeli regulatory regime and Protestant loyalists claim authority and control over neighbourhood territoriality. This interplay of local political dynamics reveals the city as containing an urban order that, at times, can subordinate national prerogatives. The opportunities for political resistance are heightened by the contentious relationship that exists between the political realm of policy agenda setting and the urban realm of implementation. Amid contested citizenship and sovereignty, goals such as a united Jerusalem in Israel and a shared future in Northern Ireland become problematized as they are operationalized. The community dynamics of complex urban systems consisting of established and resilient patterns of community power are capable of distorting national goals. Locally mobilized entrenched ethnic constituencies, unregulated dynamics beyond the reach of the national state, the complex social ecology of the urban environment, and urban demographicmigratory reactions to national policies each illuminate the problematic nature of operationalizing grand visions in the urban system. The physicality of the city differentiates it from the broader political milieu; consequently, there exist local community forces that operate semi-autonomously of larger political ones. The incongruity between national policy agendas and their operative forms provides opportunity spaces exploited by opponents. National initiatives encounter complex urban-spatial dynamics causing unforeseen and erratic effects on the national programme. The fact that mobilized ethnic and cultural groups have been able to counteract national dictates in fundamentally different national programmes – one pursuing unilateral control and the other promoting shared peace – illuminates the fundamental obstructive ability of non-cooperative urban groups in the city to resist and confound national mandates.

Political resistance, contested citizenship  143

Note 1 I employed multiple research methods during seven months of in-country fieldwork in 2015 and 2016 (Bollens, 2018). I investigated the relationship between national policy agendas and the spatial, economic, and social changes in the two primary cities since the 1993 Oslo Accord and the 1998 Good Friday Agreement, respectively. I examined urban interventions that address economic development, borders, public services, urban violence, housing, development regulation, public space, and resident participation. I focused on community responses to national policy agendas, and on how they affected intended outcomes of the national project. I undertook 122 semi-structured interviews (70 in Jerusalem, 52 in Belfast) with urban professionals, political leaders, community and nongovernmental organization representatives, and academic experts. I also investigated published and unpublished analyses and data from academic, agency, nongovernmental organization, and popular press sources. I first engaged in field research in these two cities in 1994 and 1995 (74 interviews) and this provided a foundation upon which to make longitudinal appraisals (Bollens, 2000).

References Americans for Peace Now. (2016). Settlement watch. Retrieved from https://peacenow​.org​ .il​/en​/settlements​-watch​/settlements​-data​/population. Belfast Interface Project. (2011). Belfast interfaces: Security barriers and defensive use of space. Belfast: BIP. Retrieved from https://www​.bel​fast​inte​rfac​eproject​.org​/sites​/ default​/files​/publications​/Belfast​%20Interfaces​%20-​%20Security​%20barriers​%20and​ %20defensive​%20use​%20of​%20space​.pdf. Bimkom. (2014). Trapped by planning: Israeli policy, planning and development in the Palestinian neighbourhoods of east Jerusalem. Jerusalem: Bimkom. Retrieved from http://bimkom​.org​/eng​/wp​-content​/uploads​/TrappedbyPlanning​.pdf. Boal, F. (1994). Belfast: A city on edge. In H. Clout (Ed.), Europe’s cities in the late twentieth century (pp. 141–155). Amsterdam: Royal Dutch Geographical Society. Bollens, S. (2000). On narrow ground: Urban policy and ethnic conflict in Jerusalem and Belfast. Albany: State University of New York Press. Bollens, S. (2007). Cities, nationalism, and democratization. London and New York: Routledge. Bollens, S. (2018). Trajectories of conflict and peace: Jerusalem and Belfast since 1994. London and New York: Routledge. Brand, R., & Fregonese, S. (2013). The radicals’ city: Urban environment, polarisation, cohesion. Surrey: Ashgate. Byrne, J., Heenan C., & Robinson, G. (2012). Attitudes to peace walls: Research report to Office of the First Minister and Deputy First Minister. Belfast: University of Ulster. Calame, J., & Charlesworth, E. (2009). Divided cities: Belfast, Beirut, Jerusalem, Mostar, and Nicosia. Philadelphia: University of Pennsylvania Press. Charlesworth, E. (2006). Architects without borders: War, reconstruction and design responsibility. Oxford: Elsevier. Davis, D. (2011). Conclusion. In D. Davis & N. Libertun de Duren (Eds.), Cities and sovereignty: Identity politics in urban spaces (pp. 226–256). Bloomington: Indiana University Press. Gaffikin, F., Karelse, C., Morrissey, M., Mulholland, C., & Sterrett, K. (2016). Making space for each other: Civic place-making in a divided society. Belfast: Queen’s University.

144  Scott A. Bollens Gaffikin, F. & Morrissey, M. (2011). Planning in divided cities: Collaborative shaping of contested space. Oxford: Wiley-Blackwell. Graham, S. (2010). Cities under siege: The new military urbanism. London and New York: Verso. Gross, J.S. (2017). Hybridization and urban governance: Malleability, modality, or mindset? Urban Affairs Review, 53(3), 559–577. Hepburn, A. (2004). Contested cities in the modern west. New York: Palgrave MacMillan. International Peace and Cooperation Center. (2007). The wall—fragmenting the Palestinian fabric in Jerusalem. Jerusalem: IPCC. International Peace and Cooperation Center. (2013). East Jerusalem: Housing review. Jerusalem: IPCC. Retrieved from https://www​.fes​-palestine​.org​/fileadmin​/user​_upload​/ Publication​_1​/IPCC​/IPCC​_2013​/IPCC​_East​_Jerusalem​_Housing​_Review​:English​.pdf. Ir Amim. (2015). Displaced in their own city: The impact of Israeli policy in east Jerusalem on the Palestinian neighbourhoods of the city beyond the separation barrier. Jerusalem: Ir Amim. Retrieved from http://www​.ir​-amim​.org​.il​/sites​/default​/files​/akurim​_ENG​ _for​%20web​_0​.pdf. Isin, E. (2000). Introduction: Democracy, citizenship and the city. In E. Isin (Ed.), Democracy, citizenship and the global city (pp. 1–21). London and New York: Routledge. Israel Ministry of Foreign Affairs. (2011). Suicide and other bombing attacks in Israel since the Declaration of Principles (Sept 1993). Retrieved from http://mfa​.gov​.il. Israel Ministry of Foreign Affairs. (2015). Palestinian wave of terror. Retrieved from http://mfa​.gov​.il. Jerusalem Institute for Israel Studies. (2004, 2011, 2012, 2015, 2016, 2017). Statistical yearbook of Jerusalem. Jerusalem: JIIS. Kilcullen, D. (2013). Out of the mountains: The coming age of the urban guerrilla. Oxford: Oxford University Press. Lijphart, A. (1977). Democracy in plural societies: A comparative exploration. New Haven: Yale University Press. Lis, J. (2016). Flaws in IDF checkpoints still unfixed, six years after state comptroller report. Haaretz, 6 August. Retrieved from https://www​.haaretz​.com​/israel​-news​/flaws​ -in​-idf​-checkpoints​-still​-unfixed​-six​-years​-after​-state​-comptroller​-report​-1​.5425662. Mackert, J., & Turner, B. (2017). Introduction: Citizenship and its boundaries. In J. Mackert & B. Turner (Eds.), The transformation of citizenship, Volume 2: Boundaries of inclusion and exclusion (pp. 1–14). London and New York: Routledge. Magnusson, W. (2011). Politics of urbanism: Seeing like a city. New York: Routledge. Niksic, O., Eddin, N.N., & Cali, M. (2014). Area C and the future of the Palestinian economy. Washington, DC: World Bank. Northern Ireland Act of 1998. (1998). Retrieved from https://www​.legislation​.gov​.uk​/ ukpga​/1998​/47​/contents. OCHAOPT—United Nations Office for the Coordination of Humanitarian Affairs in the Occupied Palestinian Territory. (2011). Barrier update. East Jerusalem: OCHAOPT. Retrieved from https://www​.ochaopt​.org​/content​/barrier​-update​-seven​-years​-after​ -advisory​-opinion​-international​-court​-justice​-barrier. OCHAOPT—United Nations Office for the Coordination of Humanitarian Affairs in the Occupied Palestinian Territory. (2012). The humanitarian impact of Israeli settlement policies: Update December 2012. East Jerusalem: OCHAOPT. Retrieved from https:// www​.ochaopt​.org​/content​/humanitarian​-impact​-israeli​-settlement​-policies​-update​ -december​-2012.

Political resistance, contested citizenship  145 OCHAOPT—United Nations Office for the Coordination of Humanitarian Affairs in the Occupied Palestinian Territory. (2013). The humanitarian impact of the barrier. East Jerusalem: OCHAOPT. Retrieved from https://www​.ochaopt​.org​/content​/humanitarian​ -impact​-barrier​-july​-2013. OFMDFMNI—Office of the First Minister and Deputy First Minister. (2005). A shared future: Policy and strategy framework for good relations in Northern Ireland. Belfast: OFMDFMNI. Retrieved from https://www​.niacro​.co​.uk​/sites​/default​/files​/publications​ /A​%20Shared​%20Future-​%20OFMDFM​-Mar​%202005​.pdf. OFMDFMNI—Office of the First Minister and Deputy First Minister. (2010). Programme for cohesion, sharing and integration. Belfast: OFMDFMNI. Retrieved from https:// cain​.ulster​.ac​.uk​/issues​/politics​/ofmdfm​/ofmdfm​_270710​_sharing​.pdf. OFMDFMNI—Office of the First Minister and Deputy First Minister Northern Ireland. (2013). Together: Building a united community. Belfast: OFMDFMNI. Retrieved from https://www​.pprproject​.org​/sites​/default​/files​/OFMDFM​%20Committee​%20Inquiry​ _Together​%20Building​%20a​%20United​%20Community​.pdf. Pierre, J. (1999). Models of urban governance: The institutional dimension of urban politics. Urban Affairs Review, 34(3), 372–396. Pierre, J. (2014). Can urban regimes travel in time and space? Urban regime theory, urban governance theory, and comparative urban politics. Urban Affairs Review, 50(6), 864–889. Police Service of Northern Ireland. (2016). Security situation statistics archive. Retrieved from https://www​.psni​.police​.uk​/inside​-psni​/Statistics​/security​-situation​ -statistics​/security​-situation​-statistics​-archive/. Scott, J. (1999). Seeing like a state: How certain schemes to improve the human condition have failed. New Haven: Yale University Press. Shragai, N. (2015). Jerusalem: Delusions of division. Jerusalem: Jerusalem Center for Public Affairs. Simone, A. (2010). City life from Jakarta to Dakar: Movements at the crossroads. New York: Routledge. Stone, C. (1989). Regime politics: Governing Atlanta, 1946–1988. Lawrence: University Press of Kansas. Stone, C. (1993). Urban regimes and the capacity to govern: A political economy approach. Journal of Urban Affairs, 15(1), 1–28. Yanow, D. (1996). How does a policy mean? Interpreting policy and organizational actions. Washington, DC: Georgetown University Press.

8

Municipal elections in occupied Jerusalem Why do Palestinians boycott? Munir Nueseibah

Introduction Since the Israeli occupation and illegal annexation of East Jerusalem in 1967, Israel unilaterally decided to consider Jerusalemites as permanent residents of Israel. This status was given only to the residents of newly annexed territories, but not to those who lived in the rest of the occupied territory, which was placed under a military governing regime. Israel’s annexation of Jerusalem has never been recognized by the international community or by the Palestinian people and their political representatives. This has led to a reality where Israel has forced its legal system on Jerusalem and its Palestinian population who have avoided taking actions that might be interpreted as a local recognition of Israel’s sovereignty over Jerusalem. Despite that, in Israel’s 2018 municipal elections, two Palestinian lists decided to breach the traditional position and to run for the municipal elections. This paper will examine this experience by explaining the context, reactions, and final result.

The context: Historical background Until the end of the First World War (WWI), the Ottoman State ruled vast areas including Palestine. In 1917, the foreign minister of the United Kingdom sent a letter to the Zionist Federation declaring that his government was in favour of creating a ‘Jewish homeland’ in Palestine, despite the fact that Jews had been a small minority of the population of Palestine. By the end of the war, the UK managed to occupy all of Palestine and later be mandated by the League of Nations to prepare it for independence while taking into consideration the implementation of the Balfour Declaration. Indeed, the UK ruled over Palestine until 1948, during which time it regulated Jewish immigration and institutionalized state institutions. However, by the end of its mandate, the Jewish population was only around 30 per cent of the population in Palestine. Before the UK ended its mandate, it sought the intervention of the United Nations to make suggestions about the fate of Palestine following the mandate. Accordingly, this initiative resulted in the adoption by the United Nations General Assembly (UNGA) of a resolution in November 1947 according to which the UN recommended that following the end

Municipal elections in occupied Jerusalem  147 of the mandate Palestine should be divided into two states, a bigger Jewish state and a smaller Arab state, while Jerusalem would fall under a ‘corpus saparatum’, a special regime regulated by the UN itself. Following the UN resolution, a war erupted between the Jewish and Arab populations in Palestine. In May 1948, while the war was ongoing and Palestinian villages were being evicted by the Jewish forces, the UK declared the end of its mandate. This was followed by the declaration of the Jewish leadership in Palestine of the state of Israel, as a Jewish state, and, a few months later, a declaration of the Palestinian leadership of the independence of the state of Palestine on all of the territory of Palestine. The war continued until early 1949, when it was eventually ended by a number of armistice agreements between the new-born Israel and Egypt, Jordan, Syria, and Lebanon. As a result of these agreements, Israel managed to control 78 per cent of Palestine, far more than what had been allocated to it by Resolution 181. This included the western part of Jerusalem. The remaining 22 per cent of Palestine, known as the West Bank and Gaza Strip, went under Jordanian sovereignty and Egyptian administration respectively. The Jordanian-ruled West Bank included the eastern part of Jerusalem. In 1967, another war erupted, resulting in Israel’s occupation of the remaining part of Palestine as well as additional territories from Egypt and Syria. As soon as this happened, Israel annexed the eastern part of Jerusalem as well as an additional area from the West Bank surrounding Jerusalem, amounting to a total of around 70 square kilometres. The annexation of East Jerusalem took place by introducing legal amendments to the Israeli law (Dinstein, 2009, pp. 18–19; Halabi, 2011, pp. 11–12; Halabi, 1999, pp. 10–12; Benvenisti, 1993, pp. 112–113). In the first amendment, Israel legalized (according to its own law) the extension of Israeli legal and judicial jurisdiction over any part of ‘Eretz-Yisrael’ (translated as ‘the Land of Israel’ which is an undefined term that considers areas outside the boundaries of the state of Israel as the Land of Israel) with a single government cabinet decree (Law to Amend the Legal and Judicial Jurisdiction of the State of Israel, 1967). The following day after this legislation, the Israeli government issued a decree that expanded the state’s legal and judicial jurisdiction in East Jerusalem (Halabi, 1999, p. 10). By this legal amendment and government decree, Israel expanded its legal and judicial jurisdiction over 72,000 Dunams1 (Halabi, 1999, p. 10). Then Israel annexed East Jerusalem to the West Jerusalem municipality, and dismantled the Palestinian municipal council (Halabi, 1999, p. 12). In 1980, Israel enacted a basic law called Basic Law: Jerusalem, Capital of Israel in which it declared in paragraph 1 that Jerusalem ‘complete and united is the capital of Israel’ (Basic Law: Jerusalem, Capital of Israel, 1980). In paragraph 5, the basic law stated that the jurisdiction of the city includes the areas annexed in 1967, and in paragraph 6 it prohibited any transfer of ‘authority … stipulated in the law of the State of Israel or of the Jerusalem Municipality’ to any ‘foreign body’ (Basic Law: Jerusalem, Capital of Israel, 1980). In fact, the law enacted in 1980 did not impose any new changes to the status of East Jerusalem according to the Israeli law, but rather confirmed the effect of the

148  Munir Nueseibah laws enacted in 1967, and had more of a political declaratory purpose (Benvenisti, 1993, p. 113). In the words of the Israeli Knesset website, this law aimed, inter alia, to ‘secure its [Jerusalem’s] integrity and unity and concentrate all the instructions which were scattered in various laws’ (Israeli Knesset, n.d.). The practical implication of this annexation is that Israel does not consider or treat Jerusalem as occupied, but rather as an integral part of the sovereign territory of the state. As such, Israel considers that international humanitarian law does not apply in the city. The Israeli judiciary, having to work by the law of the state of Israel, follows this approach and applies only Israeli law to every case that comes to it, regardless of international law (see, e.g., HCJ, 1988, 282/88 paras 7–10). Of course, any attempt to apply international humanitarian law, especially the rules that regulate occupation, fails. In the Rabah case, the Israeli Supreme Court was asked to apply the Hague Regulations and GCIV to an East Jerusalem case, but it refused such application providing the justification that if internal Israeli law contradicts international law, internal law prevails (HCJ, 2002, 256/01, paras 5–7). As the court noted, the annexation of East Jerusalem was a constitutionally stipulated principle, and the court found that it applies even if it was contrary to international law (HCJ, 2002, 256/01, paras 5–7).

International legal status of Jerusalem As mentioned earlier, in 1947, the UN General Assembly issued a resolution according to which it recommended that after the end of the mandate, Palestine should be divided into two states, while Jerusalem should be granted a ‘corpus saparatum’ status. Since then, the international community has been consistent in refraining from recognizing Israel’s sovereignty over Jerusalem. This has been expressed through a number of General Assembly and Security Council resolutions. Especially in the aftermath of the 1967 war and the annexation of the eastern part of Jerusalem, the condemnation of the international community on annexation became even stronger. This position can be referred to a number of sources of international law, including the charter of the United Nations which prohibits the ‘threat or use of force against the territorial integrity or political independence of any state’ (United Nations, 1945, Article 2). Furthermore, the Fourth Geneva Convention prohibits changing laws in an occupied territory unless absolutely necessary in the Convention Respecting the Laws and Customs of War on Land, 1907, Article 43 (Hague Convention, 1907). The Security Council has affirmed on several occasions that the annexation of East Jerusalem was illegal. In 1968, it issued a resolution that referred to the inadmissibility of acquisition of territory by military consequences, and determined that it: Considers that all legislative and administrative measures and actions taken by Israel, including expropriation of land and properties thereon, which tend to change the legal status of Jerusalem are invalid and cannot change that status. (UN Security Council, 1968)

Municipal elections in occupied Jerusalem  149 In 1980, after Israel adopted its basic law Jerusalem the Capital of Israel mentioned above, the UN Security Council determined that all these measures taken by Israel to alter the status of Jerusalem were ‘null and void’ (UN Security Council, 1980). Based on the considerations mentioned above, the ICJ confirmed this conclusion in its 2004 Advisory Opinion, deciding that ‘subsequent events in these [occupied] territories … have done nothing to alter this situation [i.e. their status as occupied]’ (International Court of Justice, 2004, para. 78). The position of the international community on Jerusalem has been consistent, although recent events have presented some exceptions. In 2017, the US administration breached this consensus by recognizing Israel’s sovereignty on Jerusalem. A few months later, in May 2018, the US moved its embassy from Tel Aviv to Jerusalem, breaching a UN Security Council resolution that prohibits such a step.

The dilemma of municipal elections Since Israel annexed the eastern part of Jerusalem, it has been implementing colonial policies that aim at changing the demographic composition of the city. This has happened through a number of policies including developing restrictions on the civil status that allows Palestinians to reside in Jerusalem, home demolitions, collective punishment, and many others. As a result of that, Jerusalemites have been always busy with working out resilience mechanisms. In light of this dilemma, participation in the Israeli municipal elections was presented as a resilience method. This section will present some of the challenges facing Jerusalemites in the city and then discuss the elections discussion within this context. Since the occupation and annexation of the eastern part of Jerusalem, Israel has forced the civil status of ‘permanent resident’ in Israel on all Palestinian inhabitants in the city who were counted in a census and who had not been displaced during or after the 1967 war. This status allows them to vote in municipal elections, but not parliamentary elections. More importantly, it is not a stable status. Israel has been developing methods to revoke this status from Palestinians and restrict passing it to children or spouses. The residency revocation policy, which has affected around 15,000 Palestinians in Jerusalem, went through several steps. First, Israel revoked the residency of Palestinians when they travelled for a period that exceeded seven years without a single entry, or received permanent residency or citizenship abroad. Then, after the Palestinian-Israeli peace process started, Israel escalated its residency revocation policy by introducing a new criterion for revocation known as the ‘center of life’. Since that criterion became applicable, Palestinians who lived anywhere in the West Bank, Gaza Strip, or abroad were victims of a revocation of residency because, as the Israeli Supreme Court justified, they uprooted themselves from ‘Israel’ and rooted themselves abroad. Palestinians were not notified about the intention to revoke their residency, but suddenly discovered that their residency had ‘expired’. This technically meant that those who had lost their status became complete foreigners to their homeland, and were not allowed to return and live in their homes. They were denied all rights that were linked to the residency status,

150  Munir Nueseibah including their membership in social welfare institutions and national medical insurance. In addition to the status issue, Jerusalemites have been suffering from Israel’s home demolition policy, which is related to discriminatory zoning and planning policies as well as collective punishment. Following the occupation of 1967, Israel zoned Jerusalem in a way that limits Palestinian construction and expansion and at the same time maximizes Jewish colonization. While 35 per cent of the total territory of East Jerusalem was confiscated for Jewish-only settlement construction, only 13 per cent was zoned for Palestinian construction, much of it already built (UN OCHA, 2014). The remaining territory of Jerusalem was zoned either as green areas or has been unplanned, rendering any construction in such areas illegal under Israeli law (UN OCHA, 2009, p. 8). This led to Israel’s consideration of one-third of all Palestinian structures in Jerusalem as illegally built structures, subject to demolition as well as fines that their owners, builders, and inhabitants have to pay, and in some cases, imprisonment (UN OCHA, 2014). This has forced Palestinians to become concentrated in areas that Israel chooses not to monitor closely such as Kufur Aqab and Shufat Refugee Camp. When Israel built its separation wall in the West Bank, including in and around annexed East Jerusalem, it left some of the annexed areas behind the wall. These areas have been ignored by services and have had very little governmental intervention including in planning, infrastructure, and other municipal services. This has led to the condensed construction of large apartment buildings, lacking the appropriate infrastructure, effectively turning them into concentration neighbourhoods. These communities are now threatened by Israeli parliamentary proposals to excise the area from the annexed area in Jerusalem, rendering their residency status at risk of revocation. Israel also demolishes Palestinians’ homes in Jerusalem as a collective punishment. Since the occupation, Israel has been using its emergency laws to punish Palestinians in Jerusalem for attacks on Israeli soldiers or civilians that one of their family members allegedly conducted (Lynk, 2020). These policies are only implemented against Palestinians. Jewish families in Jerusalem are never punished or displaced because of an act attributed to a family member. In addition to that, the Israeli municipality in Jerusalem has been ignoring municipal services in Palestinian neighbourhoods, with very little spending on infrastructure, cleaning, street lighting, etc. (Cheshin, 1998, pp. 55–86). According to a study conducted by an Israeli organization called Ir Amim in 2013, around 10–13 per cent of the total budget of the Jerusalem municipality was spent in Palestinian neighbourhoods in Jerusalem at a time when Palestinians made up 37 per cent of the population of Jerusalem (Ir Amim, 2013). Furthermore, the Israeli authorities have been prohibiting Palestinian political representatives from officially meeting, acting, or intervening in Jerusalem. In 2002, Israel closed the Orient House, the Palestine Liberation Organization’s (PLO) headquarters in Jerusalem. Moreover, the Israeli police has been raiding any meeting, event, medical facility, or activity that they considered an activity related to the PLO, Palestinian Authority, or any of the Palestinian political

Municipal elections in occupied Jerusalem  151 parties or movements. This has led to a shrinking of the space of Palestinian political activity.

In light of all of this, why not participate in municipal elections? Between the years 1948 and 1967, Jerusalem had two municipalities: an Israeli Jerusalem municipality in West Jerusalem, and a Palestinian-Jordanian municipality in East Jerusalem. As soon as Israel occupied and annexed East Jerusalem in 1967, it dissolved the Palestinian municipal council, a step that preceded the annexing of the eastern part of the city to the West Jerusalem municipality. Since then, Jerusalem’s Palestinians have been boycotting municipal elections mainly in order not to give any legitimacy to the annexation of their occupied city. But the year 2018 brought about an important change. A marginal community discussion about the potential participation of Palestinians in the elections suddenly became the main topic Palestinians talked about. Around the same period that the US president Donald Trump decided to change US policy and recognize Jerusalem as Israel’s capital, it was time for Israel’s municipal elections, including for occupied Jerusalem. The uniqueness of this round of elections was that, for the first time, two Palestinian lists decided to run for the elections, breaking a 51-year-old Palestinian red line. The two lists were different although they both presented to the potential Palestinian voters that they were planning to work on the major problems that Palestinians suffer from in the city. The first list was named Al-Quds Lana, translated into English as Our Jerusalem. This list was headed by a PalestinianAmerican Jerusalemite called Aziz Abu Sara, and had two other participants, a young Palestinian student from Al-Quds University in Jerusalem who studied human rights and a Palestinian chef. The three announced their candidacy in the municipality hall square, wearing pins with the Palestinian flag while announcing that they saw their nomination to the elections as a form of resistance. This list talked about Jerusalem as an occupied city, and argued that the occupying power has an obligation to provide services to the people falling under its occupation. They claimed their programme would help with the resilience of the Palestinian people by introducing progress on the main issues facing Palestinians, most importantly the long discriminatory zoning and planning policy which has prevented Palestinians from building over the past few decades. This list received a lot of attention from Palestinians and initiated a lot of discussion, mainly criticism on social media as well as in opinion articles. On the day they announced their candidacy, a group of young Palestinian men threw eggs at them and accused them of ‘normalizing’ the Israeli occupation. The other list called itself Al-Quds Baladi, translated as: Jerusalem is my city. It was headed by a Palestinian Jerusalemite who heads a community centre funded by the Israeli Jerusalem municipality called Ramadan Dabash. This man had a history of supporting the right-wing Israeli party, Likud, which effectively led to his candidacy being taken less seriously by the Palestinians in Jerusalem and beyond. This list promised to solve the most important problems of Palestinians.

152  Munir Nueseibah In a document that was published on Mr. Dabash’s Facebook page,2 he claimed that if his list won the elections it would (1) stop home demolition in East Jerusalem by introducing new urban plans … (2) pay attention to infrastructure, streets, playgrounds and swimming pools; (3) improving education and covering the shortage of 2000 classrooms, building new schools and kindergartens, and hiring Jerusalemites in this field; (4) improving cleaning and sewage services; (5) building clubs for youth and the elderly; (6) restructuring public transport and parking spaces in Jerusalem. (translation – M. N.) In another Facebook video, Dabash (2018) warned the residents of areas within the annexed municipal boundaries of Jerusalem but outside the wall (Kufr Aqab, Shufat Refugee Camp, and Anata) that there was a plan to excise their areas from Jerusalem, which would result in the revocation of their residency status and their separation from the remaining part of Jerusalem (Dabash, 2018). As a result, Dabash called upon Palestinians in Jerusalem to participate in the elections and vote for him. Unlike the other list that ran for elections, Al-Quds Baladi did not use the occupation framework. It discussed discrimination by Israel and promised to work to fight it. While both campaigns cited the biggest fears of the Palestinian population in Jerusalem, it was not clear to the public how their potential representation in the municipal council could effectively address these fears. Undoubtedly, the Israeli municipality has its mandate and some things might change if Palestinians were represented there. However, many of the major policies that target Palestinians are planned at the level of the central Israeli government, not the local councils. This includes everything related to the residency status of Palestinians in Jerusalem, child registration, family unification, part of home demolitions, decisions to excise or annex territory, etc. During the months that led to the elections at the end of October 2018, this topic was one of the main issues of discussion among Palestinians in Jerusalem. This discussion was also accompanied by official Palestinian positions that rejected any Palestinian nomination or participation in the Israeli municipal elections in Jerusalem. For example, the Palestine Liberation Organisation issued a press release in June 2018 reminding readers of its rejection of participation in Israeli elections, as this would ‘provide legitimacy to Israel, the occupying power or represent participation in determining and implementing colonial racist policies of the occupation in the holy city’ (Negotiations Affairs Department PLO, 2018). Furthermore, the press release declared that the PLO views that ‘in light of Trump’s unilateral illegal recognition of Jerusalem as Israel’s capital’, participation in this election would help with the Israeli policies (Negotiations Affairs Department PLO, 2018). Equally importantly, the Palestinian Higher Council of Ifta’, an official national Islamic scholarly council charged with the task of examining questions of interest to Palestinian Muslims from a religious point of view and publishing decrees

Municipal elections in occupied Jerusalem  153 with their opinion, issued a decree forbidding Palestinian participation in Israeli municipal elections in Jerusalem (Dar Al-Ifta’ Alfilistiniya, 2018). The decree explained that the Israeli occupation authorities have been pushing Palestinians to recognize Israeli sovereignty in Jerusalem through oppressing them with home demolitions, reduced municipal services, restricting building permits, imposing costly taxes, or encouraging them to participate in municipal elections. The council further recognized that there might be some advantages to Palestinian participation in such elections, however they saw that the disadvantages were much greater than the advantages, hence, it should continue to be forbidden religiously to participate (Dar Al-Ifta’ Alfilistiniya, 2018). These two authoritative sources helped to form Palestinian public opinion. They both make a significant contribution to determining popular reactions in Jerusalem. Despite that, some level of unofficial discussion continued among Palestinians, mainly comparing the advantages and disadvantages of participation. According to the current map of Jerusalem, Palestinians are 40 per cent of the total population of Jerusalem. If they participate en masse, they could be well represented in the municipal council. This might influence some of the municipal services, but it certainly cannot change policies that Israel conducts on the national level, as mentioned earlier. However, the potential disadvantage of such participation is likely to be support for the Israeli argument that it is not an occupation power, but a democracy. This, in turn, might result in making the injustices more durable, and hence, result in greater disadvantages faced by Palestinians. Israel argues that it is a democracy. However, it has prevented those who were forcibly displaced from their homes in 1948 from return, effectively excluding most of what should be its population from their right to freely participate in political decisions, and since 1948 they have been living in refugee camps. Moreover, Israel has occupied the West Bank including East Jerusalem and the Gaza Strip since 1967, and has been ruling the Palestinians who remained in their homes after the war with a political system that excludes them from any participation in decision-making since all of them are considered foreigners although Israel controls their daily lives. The peace process that started in the early 1990s introduced a semi-autonomous Palestinian Authority that has limited powers in ruling pockets of Palestinians in addition to the Israeli military government which continues to exercise levels of control also in these pockets. In Jerusalem, Israel has outlawed all forms of Palestinian political life. In 2006, Israel transferred three of the elected Palestinian legislative council representatives to the West Bank and revoked their residency status, effectively denying them their right to return to Jerusalem. It also closed several service offices related to the Palestinian Authority, including educational and medical facilities. Even civil society institutions that are officially registered in the Palestinian Authority have been outlawed by Israel, such as the significant Arab Chamber of Commerce and Industry in Jerusalem (The Arab Chamber of Commerce and Industry, n.d.). In 2018, Israel issued a constitutional law that cements the character of Israel as a Jewish state. One of its articles declared that ‘[the] State of Israel is the nation state of the Jewish People, in which it realizes its natural, cultural, religious and

154  Munir Nueseibah historical right to self-determination’ (Basic Law: Israel—The Nation State of The Jewish People, 2018). Furthermore it declared that ‘[the] exercise of the right to national self-determination in the State of Israel is unique to the Jewish People’ (Basic Law: Israel—The Nation State of The Jewish People, 2018). Hence, even in constitutional Israeli law non-Jews are excluded from the democratic right to self-determination. All these measures strengthen the positions of those who reject participation in the elections. If such participation will serve as a decorative act to a state that has almost eliminated Palestinian political life and representation in Jerusalem, then boycotting is better. As a result of public Palestinian pressure, as well as discriminatory Israeli laws, the Al-Quds Lana list withdrew its nomination before the date of the elections. Ms. Aida Qleibo was the first to withdraw her own nomination, in a visit to one of the most famous Islamic scholars in Jerusalem, Sheikh Ikrima Sabri, announcing that she learned that such nomination is forbidden according to Islamic principles (Qleibo, 2018). Aziz Abu Sara, who was planning to file a petition in Israel’s Supreme Court against a law that does not give the right to non-Israeli citizens to become mayors, later decided to withdraw his nomination citing legal challenges to his permanent residency status in Jerusalem imposed by the Israeli Ministry of Interior. The other list, Al-Quds Baladi, continued the nomination of Dabash until the end. However, when the elections took place, only around 2 per cent of Jerusalem’s Palestinians participated in the elections. As a result, Dabash lost the elections and did not get a seat on the municipal council.

Conclusion Elections are not the only condition for democracy. Israel’s history has revolved around colonization, displacement, discrimination, and exclusion. In such a case, the argument against participating in its political institutions, even if they are service-oriented like the municipality, is much stronger than the one in favour of participation. When the state has engineered its discriminatory policies for decades and denied Palestinians their basic rights, it is not possible to change these policies with minor participation. Hence, the goal in Palestine, including Jerusalem, continues to be liberation.

Notes 1 One dunam in Palestine is equal to 1,000 square meters (10,764 square feet). 2 See https://www​.facebook​.com​/Dr​.Ramadan​.Dabash.

References Basic Law: Israel—The Nation State of the Jewish People. (2018). Retrieved from https:// knesset​.gov​.il​/laws​/special​/eng​/BasicLawNationState​.pdf.

Municipal elections in occupied Jerusalem  155 Basic Law: Jerusalem, Capital of Israel. (1980). Published in Sefer Ha-Chukkim No. 980 of 5th August, 1980, p. 186. Retrieved from https://www​.knesset​.gov​.il​/laws​/ special​/eng​/basic10​_eng​.htm. Benvenisti, E. (1993). The international law of occupation. Princeton: Princeton University Press. Cheshin, A. (1998). Municipal policies in Jerusalem: An account from within. PASSIA. Retrieved from http://passia​.org​/publications​/23. Hague Convention. (1907). Convention Respecting the Laws and Customs of War on Land. Retrieved from https://www​.loc​.gov​/law​/help​/us​-treaties​/bevans​/m​-ust000001​ -0631​.pdf. Dabash, R. (2018). To our people in Kufr Aqab, Shufat refugee camp and Anata. Retrieved from https://www​.facebook​.com​/Dr​.Ramadan​.Dabash​/videos​/342727353204166. Dar Al-Ifta’ Alfilistiniya. (2018). Higher Ifta Council Issues a decree forbidding participation or nomination in municipal elections in occupied Jerusalem. Dar Al-Ifta’ Alfilistiniya, 30  July. Retrieved from http://www​.darifta​.ps​/news​/shownew​.php​?title=​ %D9​%85​%D8​%AC​%D9​%84​%D8​%B3​%20​%D8​%A7​%D9​%84​%D8​%A5​%D9​%81​ %D8​%AA​%D8​%A7​%D8​%A1​%20​%D8​%A7​%D9​%84​%D8​%A3​%D8​%B9​%D9​%84​ %D9​%89​%20​%20​%D9​%8A​%D8​%B5​%D8​%AF​%D8​%B1​%20​%D9​%81​%D8​%AA​ %D9​%88​%D9​%89​%20​%D9​%8A​%D8​%AD​%D8​%B1​%D9​%85​%20​%D8​%A7​%D9​ %84​%D9​%85​%D8​%B4​%D8​%A7​%D8​%B1​%D9​%83​%D8​%A9​%20​%D8​%A3​%D9​ %88​%20​%D8​%A7​%D9​%84​%D8​%AA​%D8​%B1​%D8​%B4​%D8​%AD​%20​%D9​%84​ %D8​%A7​%D9​%86​%D8​%AA​%D8​%AE​%D8​%A7​%D8​%A8​%D8​%A7​%D8​%AA​ %20​%D8​%A8​%D9​%84​%D8​%AF​%D9​%8A​%D8​%A9​%20​%D8​%A7​%D9​%84​%D9​ %82​%D8​%AF​%D8​%B3​%20​%D8​%A7​%D9​%84​%D9​%85​%D8​%AD​%D8​%AA​%D9​ %84​%D8​%A9. Dinstein, Y. (2009). The international law of belligerent occupation. Cambridge: Cambridge University Press. Halabi, U. (1999). The legal status of Jerusalem and its Arab citizens. 2nd edition. Jerusalem: Institute for Palestine Studies. Halabi, U. (2011). Legal status of the population of East Jerusalem since 1967 and the implications of Israeli annexation on their civil and social rights. In 43  Years of Occupation: Jerusalem File (pp. 11–25). Edited by Civic Coalition, Jerusalem, Civic Coalition for Palestinian Rights in Jerusalem. 2nd edition. Retrieved from https://www​.civiccoalition​-jerusalem​.org​/uploads​/9​/3​/6​/8​/93682182​/43​_years​_of​ _occupation​.pdf. HCJ. (1988). 282/88—Awad v Yitzhak Shamir, Prime Minister and Minister of Interior et al. Judgment. Retrieved from http://www​.hamoked​.org​/files​/2010​/1430​_eng​.pdf. HCJ. (2002). 256/01—Rabah v. Jerusalem Court for Local Matters et al. PD 930–35. Judgement. Retrieved from http://www​.hamoked​.org​/files​/2012​/115170​_eng​.pdf. International Court of Justice. (2004). Legal consequences of the construction of a wall in the occupied Palestinian territories. ICJ Advisory Opinion. Retrieved from https:// www​.icj​-cij​.org​/en​/case​/131. Ir Amim. (2013). Jerusalem municipality budget analysis for 2013: Share of investment in East Jerusalem. Retrieved from http://www​.ir​-amim​.org​.il​/en​/policy​_papers​/jerusalem​ -municipality​-budget​-analysis​-2013​-share​-investment​-east​-jerusalem. Israeli Knesset. (n.d.). The existing basic laws: Summaries. Israeli Knesset Website. http://www​.knesset​.gov​.il​/description​/eng​/eng​_mimshal​_yesod2​.htm​#6. Law and Administration Ordinance (Amendment No. 11) Law, 5727–1967. Retrieved from http://www​.hamoked​.org​/images​/1161970​_eng​.pdf.

156  Munir Nueseibah Lynk, M. (2020). Report of the special rapporteur on the situation of human rights in the Palestinian territories occupied since 1967. Special Rapporteur Report A/HRC/44/60. Geneva: UN Human Rights Council. Retrieved from https://www​.ohchr​.org​/EN​/ HRBodies​/HRC​/RegularSessions​/Session44​/Documents​/A​_HRC​_44​_60​.pdf. Negotiations Affairs Department PLO. (2018). The executive committee supports the position of Palestinians in Jerusalem and its institutions to refrain from participating in municipal elections. Retrieved from https://www​.nad​.ps​/ar​/media​-room​/press​-releases/​ %D8​%A7​%D9​%84​%D9​%84​%D8​%AC​%D9​%86​%D8​%A9-​%D8​%A7​%D9​%84​%D8​ %AA​%D9​%86​%D9​%81​%D9​%8A​%D8​%B0​%D9​%8A​%D8​%A9-​%D8​%AA​%D8​ %AF​%D8​%B9​%D9​%85-​%D9​%85​%D9​%88​%D9​%82​%D9​%81-​%D8​%A3​%D8​%A8​ %D9​%86​%D8​%A7​%D8​%A1-​%D9​%88​%D9​%85​%D8​%A4​%D8​%B3​%D8​%B3​%D8​ %A7​%D8​%AA-​%D8​%A7​%D9​%84​%D9​%82​%D8​%AF​%D8​%B3-​%D8​%B9​%D8​ %AF​%D9​%85-​%D8​%A7​%D9​%84​%D9​%85​%D8​%B4​%D8​%A7​%D8​%B1​%D9​%83​ %D8​%A9-​%D9​%81​%D9​%8A-​%D8​%A7​%D9​%84​%D8​%A7​%D9​%86​%D8​%AA​ %D8​%AE​%D8​%A7​%D8​%A8​%D8​%A7​%D8​%AA. Qleibo, A. (2018). The activist Aida Ali Qleibo announces withdrawing her nomination from the Jerusalem municipal elections, 13 September. Retrieved from https://www​ .facebook​.com​/aida​.kl​.583​/posts​/451822955308208. The Arab Chamber of Commerce and Industry. (n.d.). About—the Arab chamber of commerce and industry. Retreived from http://www​.jacci​.org​/articles​/view​/2. United Nations. (1945). Charter of the United Nations. Retrieved from https://www​.un​.org​ /en​/charter​-united​-nations/. UN OCHA. (2009). The planning crisis in East Jerusalem. Jerusalem: United Nations Office for Coordination of Humanitarian Affairs—Occupied Palestinian Territory. UN OCHA. (2014). East Jerusalem: Key humanitarian concerns (update). United Nations Office for the Coordination of Humanitarian Affairs—Occupied Palestinian Territory. Retrieved from https://www​.ochaopt​.org​/content​/east​-jerusalem​-key​-humanitarian​ -concerns​-august​-2014. UN Security Council. (1968). Resolution 252. Retrieved from https://unispal​.un​.org​/ UNISPAL​.NSF​/0​/46F​2803​D78A​0488​E852​560C​3006023A8. UN Security Council. (1980). Resolution 478. Retrieved from https://unispal​.un​.org​/DPA​/ DPR​/unispal​.nsf​/0​/DDE​590C​6FF2​3200​7852​560D​F0065FDDB.

9

How the Law of Return creates one legal order in Palestine Hassan Jabareen

Introduction The prevailing discourse in Israeli academia on justifying the values of Israel as a ‘Jewish and democratic state’ takes the form of a debate involving questions of the group rights of a national minority, as in any liberal democracy (Kymlicka, 1995).1 The framework of this discourse relies on three interconnected hegemonic assertions. This article questions the validity of these assertions through a caselaw study regarding family life between spouses and their children in Palestine – within the Green Line, including Jerusalem, as well as in the West Bank and Gaza. If these assertions are wrong, I contend, colonialism is the relevant framework of Israel’s constitutional identity in Palestine. The first assertion on which the prevailing discourse is founded is that Israeli constitutional law ensures equality to all of the country’s individual citizens, Jews and Palestinians. According to this assertion, at least since the enactment of the two 1992 Basic Laws, which are considered to be a ‘constitutional revolution’, Israel has become a ‘constitutional democracy’ (see Sapir, Barak-Erez & Barak, 2013).2 The landmark Ka’adan case, for instance, illustrates a ‘new beginning’ when then-Chief Justice Aharon Barak rejected the government’s position to continue with its policy of excluding Palestinian citizens from housing since 1948.3 Justice Barak stressed that the values of the state as ‘Jewish and democratic’ ensure equality to every citizen, emphasizing that ‘it is always important to know not only from where we came, but also where we are heading’.4 Indeed, the academic writing on justifications for the ‘Jewish and democratic state’ started to flourish widely after Ka’adan, focusing mostly on ‘where we are heading’. The second assertion is that the Israeli occupation of the West Bank and Gaza is irrelevant to the discussion on justifications of the state’s ‘Jewishness’. This assertion relies on a strict distinction between two allegedly separate legal systems: one that applies Israeli constitutional law within the Green Line (including Jerusalem and the Golan Heights), and the other that applies international humanitarian law (IHL) to the Palestinians living in the West Bank and Gaza. Based on H.L.A. Hart’s concept, each legal system has only one rule of recognition, which provides different concepts of sovereignty (Hart, 2012, pp. 100–123). The Israeli rule of recognition provides that legal acts within the Green Line (including Jerusalem

158  Hassan Jabareen and the Golan Heights) must comply with the Israeli Basic Laws.5 The IHL rule of recognition provides that the military commander’s legal acts must comply, inter alia, with protecting the public order and public life of the population, and the commander serves only as a trustee, as sovereignty is not transferred there. This distinction is the main starting point of the discourse. As Justice Barak put it, just as US constitutional rights have nothing to do with the US occupation of Iraq, so the Israeli occupation has nothing to do with Israeli constitutional values (Barak, [2005] 2006, pp. 147–148). Indeed, as the articles in this volume indicate, the framework for justifying these values excludes the Israeli occupation. Israeli legal scholars, human rights lawyers including the Palestinians, and international lawyers all refer to the distinction between two separate rules of recognition as a fact, and there is no legal literature that challenges this assertion.6 The third assertion is that Jewish group rights, which include the Law of Return and maintaining a Jewish demographic majority in Israel, do not lead to discrimination against Palestinian individuals. This assertion conceptualizes the entire debate on the ‘Jewish and democratic state’ as one of majority-minority relations within the Green Line. According to this assertion, it is justified to preserve the Jewish majority and the dominance of Jewish cultural group rights, including the Law of Return, in order to protect the Jewish people’s right to selfdetermination (Carmi, 2008; Gavison, 2003; Gans, 2008). Under this framing, the Law of Return is a matter of immigration that a democratic sovereign state is entitled to determine, and as noted in Ka’adan, ‘The Law of Return only concerns the right to enter “the gate of the home” but once inside “the home”, every citizen is equal before the law’.7 Thus, this assertion is mainly about ‘separate (group rights including the Law of Return) and equal (individual rights)’. Indeed, most writings, including those of non-Zionists, perceive the majorityminority relationship as the starting point of the discussion. Allen Patten’s article in this volume is an example of this framing (Patten, 2020). The discussion thereby moves to the question of group rights of the Palestinian minority, and the debate on the Law of Return moves to the question of the right of return of Palestinian refugees. These three hegemonic assertions are interconnected. Without the first and second assertions, it would not be easy to conceptualize the Green Line based on a majority-minority relationship. Without the three assertions together, which consider the Palestinian people as three separate units – Palestinians subject to the Israeli rule of recognition, Palestinians under IHL, and Palestinian refugees as ‘outsiders’ – Israeli sovereignty would be perceived as dominating the Palestinian people in Palestine. Only by assuming the applicability of equal individual rights, putting aside the relevance of the Occupation, and conceptualizing Jewish group rights as not leading to discrimination against individuals, can one reach the framework of a liberal democracy. I contend that these three assertions are invalid. I argue there is one Constitution in Palestine that applies to the fundamental rights of both populations.8 This Constitution relies on one conception of sovereignty regardless of any rules of recognition. The Law of Return, together with the value of ‘preserving a

The Law of Return  159 Jewish majority’, constitutes the very essence of this Constitution that targets the Palestinians as such. As I will show, due to this Constitution, the Israeli Supreme Court has denied their family rights as a legal right on both sides of the Green Line since 1948. I argue that this Constitution is a colonial one. Before moving on to the case-law, I will identify the fundamental principles that make a Constitution a colonial one. I am not interested in historical processes of who came first, whether it be Palestinians or Zionists, or who are the natives or the immigrants/settlers. Nor am I interested in any sociological, ideological, or anthropological relationship such as colonizers–colonized. I am interested in state structure: the Constitution. My starting point is that the fundamental principles of a colonial constitution must be derived from the fundamental features of the historical formation of the European colonial regimes.9 Thus, the domination of groups who live under the jurisdiction of the Constitution is the constitutive feature, and race is its leading principle.10 The plurality of laws and legal systems that define different statuses of the groups are a fundamental principle (Engle Merry, 1991).11 As the dominant group must control the security apparatus to sustain the racial domination, the constitutional scope of national security must further carry a racial-demographic meaning.12 Citizenship, based on inclusion-exclusion and the duality of citizen-subjects, constitutes ‘We the People’ of this Constitution.13 From ancient Athens and the writing of Aristotle, Bodin, Hobbes, and Rousseau to modern theories, citizenship (including the duality of citizen-subject) is considered the basic unit for understanding the conception of sovereignty of any polity.14 Family life, as the generic form of citizenship, is my basic unit of analysis in this article. This article reveals a unique and unfamiliar phenomenon. Unlike the plurality of written laws that constitute the colonial Constitution, this case-law shows that court decisions create racial domination regardless of written laws through deciding on the exception. Indeed, while the debate between the jurisprudential schools is about how the court reaches the law, none of these schools recognizes the court’s ability to make a valid decision without telling us what the law is, meaning, to determine a type of behaviour or to give guidance to be followed in future cases. Even Carl Schmitt, an anti-positivist who asserted that ‘the sovereign is he who decides on the exception’, did not advocate this political role of the court.15 Still the characterization of Schmitt’s decision is helpful. For him, it suspends the entire legal order, derives itself from nowhere, and creates no normativity (Schmitt, [1922] 1985, pp. 18–37). Following this, I define the scope of deciding on the exception by the court as follows: a valid court decision that suspends the law in a particular case, and derives itself from no law and creates no future legal obligation.16 In this case-law, when the Israeli Supreme Court accepts a Palestinian family unification request, its decision is more like the granting of a gift, similar to a monarch’s decision to grant a pardon, which does not create any legal obligation to be followed in other cases.17 This article proceeds in three steps. First, I discusses the case-law of the Israeli Supreme Court concerning family unification within the Green Line, Jerusalem, the West Bank, and Gaza. Here I show that the court has denied the legal rights for

160  Hassan Jabareen Palestinian family life since 1948, and has applied one conception of sovereignty, regardless of any rules of recognition. It also examines the three interconnected hegemonic assertions in light of this case-law. Second, it posits a substitute framework of Israel’s constitutional identity: colonialism. Here I explain that there is one Constitution in Palestine, which dominates the fundamental family life of the Palestinians regardless of their geography. Third, it sets forth the conclusion.

Family unification The Adalah case Legal academia, human rights lawyers, and the media were all surprised on 14 May 2006 when the Supreme Court announced its six-to-five decision to uphold the constitutionality of the law banning Palestinian family unification in Israel and Jerusalem (hereinafter: the Adalah case).18 No other case in recent memory gained such local and international notoriety, or drew such strong criticism from Israeli academia (see Barak-Erez, 2008; Orgad, 2008; Peled, 2007; Medina & Saban, 2009; Gross, 2007; Ben-Shemesh, 2007; Davidov et al., 2005). The 2003 law bans family unification of Israeli citizens and permanent residents (Jerusalem) with their Palestinian spouses from the West Bank and Gaza (hereinafter: the 2003 ban).19 The Court delivered the Adalah case after Ka’adan,20 which, as mentioned above, emphasized ensuring equal rights for all individual citizens. Relying on the ‘enemy alien’ doctrine, the state claimed that the purpose of the 2003 ban was to protect national security. It asserted that Palestinians living in the West Bank and Gaza are enemy aliens, and as such, they are not allowed to enter Israel. The petitioners argued that the ban discriminates against Palestinian citizens; that its purpose is racist, based on demographical considerations to preserve the Jewish majority; and that it is not proportionate. Most of the justices accepted that the law’s purpose is security and not demography.21 Justice Cheshin wrote the leading majority opinion. He reasoned that the law’s enactment is not a matter of citizens’ rights, but belongs to the realm of state sovereignty, which allows every state to decide its immigration policy and demands that each citizen is not given a free hand, on the level of a constitutional right, to change the social status quo ante by bringing foreigners to Israel, even as spouses. The ‘state’ is the authorized spokesperson … a state would not be prepared to open up its borders entrusting to every citizen the key that opens the gates of the state, even for the immigration of a spouse or parent into the state … it is the state that will decide who will be entitled to immigrate into it.22 Justice Cheshin accepted the state claims regarding the applicability of the ‘enemy alien’ doctrine and further ruled that the law does not prohibit the marriage of citizens, as they ‘can exercise their right for marriage and establishing family in another place’,23 but not in Israel.

The Law of Return  161 Chief Justice Barak wrote the leading minority opinion. He rejected the majority’s contention that exercising family life is a matter of immigration, as citizens must be entitled to exercise their constitutional rights in Israel. He explained that the law leads to discrimination against Arab citizens, as its consequences limit their ability to exercise their right to family life.24 For him, while the 2003 ban is justified for security reasons, it fails to pass the proportionality test. Justice Barak rejected the petitioners’ claim regarding the ‘means’ of the proportionality test, as for him, the examination of individual cases based on written criteria does not ensure national security.25 However, he struck down the 2003 ban, based on a cost-benefit analysis of the proportionality test: the additional value of national security does not justify discrimination against thousands of Israeli spouses. While both the majority and minority opinions refer to the West Bank and Gaza as a foreign entity (the second assertion), for Justice Barak, Palestinian citizens are equal (the first assertion) and immigration policy should not discriminate against them as ‘insiders’ (the third assertion). Most of the academic writings criticized the majority opinion as deviating from the legal heritage, and supported Justice Barak’s minority opinion (Barak-Erez, 2008; Medina & Saban, 2009; Orgad, 2008; Peled, 2007; Gross, 2007; Yaacov Ben-Shemesh, 2007; Davidov et al., 2005). I contend that the academics’ analysis missed the main points of both the majority and the minority opinions. First, the problem with Justice Cheshin’s opinion is not that it fails to apply the proportionality test, but rather its conception of sovereignty suspends the entire applicability of the constitutional law. For him, since immigration policy falls under the absolute discretion of state sovereignty, there is no right for insiders to bring their foreign spouses, as the key to the gate is not a matter of the 1992 Basic Laws. Second, regarding Justice Barak’s opinion, I argue that the academics’ writings missed the full scope of his opinion. The question that his opinion raises is what the solution is if there are no means to satisfy the security interest. Justice Barak’s answer is that at least ‘then there is a need for a mechanism that allows exceptional cases such as humanitarian exceptions’,26 and it is the legislators’ duty to regulate a mechanism ‘for exceptions that provide answers for exceptional and justified circumstances’27 and to examine them on a case-by-case basis. He suggested that the legislator could choose the Supreme Court’s rulings that apply to West Bank and Gaza as a solution: Why is it not possible to allow a permit to enter Israel in individual cases where there are humanitarian reasons of great weight? In this context, the remarks of President M. Shamgar concerning the reunification of families between foreigners from outside the territories and spouses in the territories should be cited. The President wrote: ‘The respondent’s aforesaid policy and mode of operation includes the weighing of each and every case in accordance with its circumstances, and each case will also be reconsidered if there are unusual humanitarian circumstances.’28

162  Hassan Jabareen This opinion invites questions regarding the three assertions noted in the introduction. First, how is the solution regarding the West Bank and Gaza, which is determined based on a different rule of recognition (the second assertion), relevant to the legal system of Israel? Second, since Palestinian citizens of Israel should enjoy equal constitutional rights (first assertion), how does the ‘humanitarian case’ fit constitutionalism, as there is no ‘humanitarian right’ and no legal definition of this category? Third, how does the examination on a case-by-case basis ensure equal rights? In order to understand the scope of this decision, we must examine the West Bank and Gaza cases. I do so in the next section.

Family life in the West Bank-Gaza When the Israeli army entered the West Bank and Gaza as an occupying power in June 1967, the military commander declared that these areas were under his control and that the local laws (Jordanian law) would continue to be valid, as long as they did not contradict his new authority.29 Following this, the Israeli Supreme Court referred to this declaration as a social fact and decided that Article 43 of the 1907 Hague Regulations was ‘the Basic Norm’ or the ‘constitutional framework’ as the IHL rule of recognition, which aims to maintain public order, the public life of the population, the status quo, and the local law, as much as possible.30 Accordingly, the commander should consider only the interests of the local population and the security of the area in its strict meaning (Kretzmer, 2002, pp. 25–26). As Justice Barak emphasized, the military commander is not allowed to consider the diplomatic, political, social, economic, or even the general security interests of his state.31 Indeed, these rulings and norms show that the IHL rule of recognition is different from the Israeli rule of recognition, as the second assertion of the Israeli discourse puts it, and it lays out a different concept of sovereignty.32 Despite these differences, the Court decided otherwise in family life cases. Already in 1972, the Court rejected the applicability of Article 43 in Palestinian family life cases by ruling that the local Jordanian law is not relevant; like Adalah, which made the linkage between immigration policy and the rights of the insiders, the Court decided here that the entrance to this area was a decision of the Israeli army.33 While the ‘family right’ is ensured directly through specific IHL regulations,34 the Court ruled that these regulations did not include explicit reference to the entry of ‘foreigners’ to the region.35 As Justice Cheshin ruled in Adalah that the ‘key to the gate’ belongs to the absolute discretion of the state and is not a matter of insiders’ rights, Justice Shamgar, in 1986, stated: The State of Israel is not willing to accept a situation in which any resident of the region who so wishes can marry a woman from outside and bring her here, or any [female] resident of the region, or her family, can decide that she will marry someone living abroad and bring him to the region. The decision about who will enter and who will settle in one of the regions (Judea and

The Law of Return  163 Samaria, or the Gaza Strip) is a matter for the government’s decision, and no resident is entitled to impose his private decision on the government in this matter.36 Further, just as the majority in Adalah reasoned that the solution is that the families voluntarily leave, since the 2003 ban does not prohibit them from living outside of Israel, the same Court applied the same logic two decades earlier in a Gaza case: It should be emphasized that the refusal to grant entry to a husband or wife from outside of the region does not mean that the couple is forced to live apart, because there is nothing to prevent the spouse from leaving for the purpose of family unification outside of the region. If the unity of the family is indeed the supreme consideration of those seeking family unification, then this consideration can be duly satisfied in this way.37 Based on this conception, the Court accepted that demographical policy is legitimate. As Justice Shamgar put it, ‘The policy is to minimize as much as possible the granting of family unification, awarding it only in cases in which there are extremely exceptional circumstances’.38 In another case, the military commander explained that setting criteria for family unification cases would compel the acceptance of other cases, and Justice Barak ruled: ‘it is true, putting and exercising criteria for family unification is actually a sensitive matter that refers to the State’s security and its foreign relations’.39 What is the scope of the minority’s opinion in Adalah regarding ‘humanitarian exceptions’? In 1976, the Court already ruled that ‘family unification … is a special act of benevolence of the Israeli authorities, anchored in humanitarian considerations’, and that it would be granted only ‘in rare and very exceptional cases’40 in which ‘extraordinary and special humanitarian considerations exist’.41 This means that the idea of ‘exceptional humanitarian cases’ is in itself a sweeping policy.42 The ‘humanitarian case’ is not a legal right; it is like a gesture that follows no norm and creates no norm. As Jacques Derrida noted, this sort of deciding on the exception illustrates the ‘particular in its particular situation’ (Derrida, 1992). Thus, the understanding that similar cases should be treated alike is irrelevant, and as Justice Shamgar provided, it is an ‘exceptional personal gesture, when implemented at a particular time, [it] does not become a standard according to which the authorities must continue to act in every case’.43 The 1979 Samara case is the only case accepted by the Court since the 1967 occupation.44 This case concerned a Palestinian native of the West Bank who travelled to Germany for work, and while his pending application to return was approved, he did not come back because he was hospitalized. The military commander decided not to renew the approval of family unification with his wife, but the Court granted his request. Yoram Dinstein and David Kretzmer later criticized the Court for failing to use Samara as a precedent in other cases to

164  Hassan Jabareen allow family unification when the person does not constitute a security threat (Dienstein, 1987, pp. 221, 229; Kretzmer, 2002, p. 110). However, Samara is not about security but about particular facts and not law, as Justice Barak ruled that ‘these circumstances are extremely exceptional’ and ‘the humanitarian nature is prominent’. As he explained: The Commander is concerned that granting the permit to the petitioners will force him to grant permits in other cases … and thus it will impede the entire policy. This Commander’s concern in the case before us is not a concern at all … The case before us is unique in a number of respects, and although each of them may exist in many other cases, their accumulation together sets it apart from the situation before us.45 Indeed, when the Court was subsequently asked to apply Samara, it stated that Samara had been accepted due to its extraordinary humanitarian circumstances, and it rejected many other cases with even more compelling facts.46 While the Court was sharply divided on the constitutionality of the 2003 ban in Adalah, the same Court ruled in 2000 to uphold a new policy to freeze tens of thousands of family unification applications to the West Bank and Gaza, resulting in much harsher consequences than the 2003 ban. Justice Barak confirmed the new policy with only a few lines explaining that the Court would only review on a case-by-case basis. After this, the Court rejected all of the following cases,47 even where they posed extremely painful human circumstances.48 Notably, Jewish Israeli settlers in the West Bank have a different track. While the military orders in the West Bank-Gaza regarding residency, entry, and family unification do not refer to ethnicity and read as neutral, the Law of Return applies, in fact, only to the Jewish settlers. The Emergency Regulations that apply to the West Bank provide a different track to any person who is entitled for immigration based on the Law of Return. By this order, every Jewish person, including non-Israeli citizens, has legal rights, whereas West Bank Palestinians lack any right.49 Let us summarize. Since the 1967 Israeli occupation, the Supreme Court has denied the right to family life in the West Bank and Gaza and adopted the deportation and separation of Palestinian families as a legitimate policy.50 The Court clearly adopted a demographical policy to minimize the numbers of approved family unification requests, by confirming the absolute power of the military commander. Contrary to the second assertion of the Israeli discourse (that the Occupation is irrelevant), the Israeli constitutional protection based on the Israeli rule of recognition in Adalah and the IHL rule of recognition in the West BankGaza was suspended in these cases, and both rules did not create a different conception of sovereignty based on geography. In both kinds of cases, the Court adopted the same conception of sovereignty that holds that the state has absolute authority over the keys to the gate. Like Adalah, since there is no right for ‘outsiders’ to enter to exercise their family life, there is no such legal right for the ‘insiders’, as it is matter of immigration policy. However, the Jewish population

The Law of Return  165 living in the West Bank enjoys the applicability of the Law of Return, regardless of whether or not they are Israelis. Still this comparison is not enough. It may indicate that Israeli control is colonial in the West Bank and Gaza, but we cannot generalize regarding the Green Line. Adalah could be perceived as an exceptional ruling delivered by a divided Court. In the next chapter, I examine whether or not Adalah represents the law since Israel’s establishment. Back to the Green Line and Jerusalem Israeli written laws on citizenship rights respect the third assertion of the Israeli discourse as a matter of separate (group rights including the Law of Return) and equal (individual rights including family life). They are based on two ethnic tracks of citizenship: one for Jews, including their non-Jewish family members, based on the Law of Return 5710-1950, and the other for non-Jews based on the Citizenship Law 5712-1952. Indeed, the Citizenship Law recognizes the right to naturalization of the spouse of a non-Jewish Israeli citizen, as Section 7 provides: ‘The spouse of a person who is an Israeli citizen … may obtain Israeli citizenship by naturalization even if he does not meet the conditions of Section 5A’. Despite the written law, the Court decided otherwise. The first Palestinian case was brought before the Supreme Court in 1955, where the petitioner asked the Interior Minister, based on Section 7, to provide a permit for his wife.51 In just a few lines, the Court rejected Zayed’s petition, ruling that: We were not convinced that the Interior Minister exercised improper judgment in refusing to grant the petitioner’s wife permission to enter Israel. It is true that under the Citizenship Law – 1952 the wife is entitled to receive Israeli citizenship as her husband – the applicant – is an Israeli citizen. For this purpose, she has to submit an application to declare allegiance (see Section 5 (b) and 5(c)). However, nowhere in the law does it say that the Interior Minister is obligated to award an entry permit to a person to come from outside of the state to exercise her right to submit her application for naturalization.52 The Court linked the applicability of the legal right of the insider with the state’s immigration policy and entry. Accordingly, since the permit is not matter of citizenship rights, Section 7 of the Citizenship Law became a dead letter. Thus, the Entry into Israel Law 5712-1952, which deals with permits for foreigners to enter the country, became the relevant law. The first Palestinian case to rely on the Entry into Israel Law was brought in 1973.53 Chief Justice Landau decided that except in cases involving the Law of Return, ‘The Interior Minister’s discretion … to permit or refuse a permit to enter the State … is absolute’.54 Further, for the first time, the Court ruled that the Minister’s decision ‘can be influenced by humanitarian considerations’.55 The petitioners claimed that the decision was arbitrary, as the Minister provided

166  Hassan Jabareen permits to another two families from their village in circumstances much less compelling than their own. It ruled that since there is absolute state authority on immigration, equality between citizens is irrelevant: A claim of discrimination in these kinds of cases is irrelevant, since this is not a matter of maintaining equality between citizens, but the state authorities operate in them externally, and the state itself is the one that faces those who wish to enter for permanent residence.56 Notably, this 1973 case was very significant as a precedent for the West BankGaza cases. For example, in Samara, Justice Barak referred to it as central in defining the scope of the military commander’s authority: ‘For this purpose, I see no difference between the discretion of the commander before us and the discretion of the Interior Minister under the Entry into Israel Law. The two powers are dealing with very similar material’.57 After the 1992 Basic Laws, petitioners argued that the policy violates the rule of law and infringes the constitutional right to human dignity. Justice Goldberg rejected these claims, stating that ‘A permit for permanent residency for foreigners, who do not immigrate under the Law of Return, cannot be granted except in exceptional cases where unique considerations exist’.58 As in the previously noted 1973 case and Adalah, Justice Goldberg ruled: ‘The petitioners do not have any vested right’,59 and thus the constitutional right to human dignity is irrelevant. The Court refused to intervene despite its confirmation that ‘the criteria set by the Interior Minister for exceptions remain invisible’.60 The deportation of Palestinians has taken different forms, without any legislation to authorize these decisions. For example, bigamy is frequently used to reject women’s requests for residency, which leads to their deportation (Zaher, 2005). Additionally, Palestinian women have lost their status and become stateless only for technical reasons, such as delays in requests.61 The Court also started to use the ‘enemy-alien doctrine’ without any legislative authority. It severed the 11-year marriage of a Palestinian woman, a citizen of Israel, just because her husband had served in the Palestinian police in the West Bank in the distant past.62 It broke up the family of a Palestinian woman, a citizen of Israel, after nine years, as her Syrian husband had served in the Syrian army, although military service in Syria is compulsory as in Israel.63 The deportation also continues through illegal cooperation with the Israel Security Agency (ISA). The Court accepted the ISA position in cases without providing reasons based on secret evidence. For example, Justice Beinisch explained in just a few lines that the Court upholds an ISA decision to deport a man with no criminal or security record who was in a long marriage with a citizen.64 Prior to Adalah, then, the Court already denied Palestinians’ family rights, despite the enactment of the 1992 Basic Laws and Ka’adan (the first assertion). It is not clear why or how the academics writing against the majority opinion in Adalah arrived at their critique, when the decision simply follows the legal heritage; the Court never accepted any Palestinian case before Adalah. It is also

The Law of Return  167 astonishing that the academics failed to comprehend the scope of the minority opinion in Adalah, which advocated for decisionism – deciding on the exception on a case-by-case basis. After Adalah, in 2007, the Knesset added more prohibitions on family unification to include persons originally from four ‘enemy-states’ – Iran, Iraq, Syria, and Lebanon.65 Further, it established a new mechanism – ‘the Committee for Humanitarian Cases’ – to review applications.66 The Supreme Court again upheld the constitutionality of this 2007 amendment in a split six-to-five decision in 2012.67 In fact, this amendment just set forth the judicial policy before Adalah. Still, the question remains as to why we see minority opinions against the legislation. I will come back to this question later. Surprisingly, it was only after Adalah, in 2010, that the Court accepted a Palestinian citizen’s case for the first time. As in Samara (the West Bank), the Court provided a gesture and repeatedly stressed that the case involved very exceptional humanitarian circumstances.68 Also like Samara, it was never used as a precedent. In 2010, the Court also partially accepted another petition.69 The Court again emphasized: ‘The rule is that the applicant for a residence permit under the Entry into Israel Law does not have a vested right’.70 Chief Justice Beinisch stated: ‘The circumstances of Petitioner 3 are special and exceptional, and since there is no rule without exceptions, Petitioner 3 is the exception’.71 The Court noted that this formula for examining applicants on a case-by-case basis follows the minority opinion in Adalah.72 In a 2017 case, the justices disputed whether the case was humanitarian. Justice Barak-Erez, who wrote the minority opinion to grant a permit, opened her decision with these honest words: How bad and difficult should a person’s life be in order to be recognized as ‘humanitarian’ which justifies granting a status in Israel? This question hovered over the petition before us. However, of course, we are not required to answer it in its abstract or general form.73 Indeed, the scope of the ‘humanitarian case’ cannot be derived from a ‘general form’ or an abstract principle, as the solution is a ‘case-by-case examination’.74 Simply put, the Court’s role is like that of a king who provides his pardon without any legal standard and his decisions cannot bind him. Probably the justices themselves have no idea when they will grant their gift. Let us summarize. Since 1948, the Supreme Court has denied the right of family unification to Palestinian citizens, including residents of Jerusalem. The two assertions of the Israeli discourse (the first and the third) are invalid: if you do not belong to the people of the Law of Return, you are not equal before the law as an individual insider. For this reason, the Citizenship Law, including its Section 7, became irrelevant. The formula of deciding on the exception case-by-case, which completely suspended the Israeli rule of recognition and its conception of sovereignty, was transferred to West Bank-Gaza cases in the 1970s. Contrary to the second assertion regarding the separation between the two legal systems, the

168  Hassan Jabareen Court cites and quotes cases from each side of the Green Line as relevant to one another and as one unit of case-law, as we saw in Samara, for example. Why, then, did the Knesset legislate the 2003 ban when the Court was already implementing such policies? This question is discussed below. Family unification as a Jewish problem: The logic of the 2003 ban Due to the closure of the West Bank and Gaza in the mid-1990s, the Israeli labour market needed foreign workers to replace the Palestinians. Some of these ‘foreigners’ married Israeli Jews and asked for citizenship under the Law of Return. The Interior Ministry claimed that many of these marriages were fictitious and for that reason, it adopted a new interpretation of the Law of Return, specifically that the law will apply only when the Jewish person and his non-Jewish spouse immigrate together as a family unit to Israel and not when the Jewish person is an insider.75 Until 1995 and before the Interior Ministry changed its policy, the Law of Return applied to the non-Jewish (non-Palestinian) spouse of an Israeli Jewish citizen, and citizenship was granted to the spouse automatically.76 For the first time, after 1995, family unification became a Jewish problem. The Court delivered its landmark Stamka ruling in 1999.77 While Justice Cheshin accepted the Interior Ministry’s new interpretation, for the first time, this family life decision follows the first assertion regarding equal rights between all the insiders, the citizens. He explained that this interpretation is for a good purpose, as it places all the insiders on an equal footing; if only a Jewish citizen were to be able to obtain citizenship for his spouse, it would be a ‘severe act of discrimination and we did not find a suitable purpose for this practice’.78 His next step marked a return to legality. Justice Cheshin criticized the lawyers’ use of the term ‘family unification’. Relying on the second assertion of the Israeli discourse, Justice Cheshin contended that the term applies to the West Bank-Gaza and that ‘the borrowing of this term’ in the Israeli legal system is problematic, ‘as the legal basis of each is different’.79 For Justice Cheshin, this case is about citizenship rights and ‘citizenship is a fundamental right’ under Israeli law, where ‘the citizen carries his citizenship with him on his back, and wherever he goes, it goes with him’.80 Therefore, ‘criteria that reside in the clerk’s drawer and do not see the light of day, invite arbitrariness’.81 Most importantly, Justice Cheshin ruled that the Ministry, by separating a couple,82 was ignoring the Citizenship Law: As any other kind of discretion, there are boundaries and limits to the Interior Minister’s discretion provided by the Citizenship Law. One of these limits is specified by Section 7 of the Citizenship Law, in which the legislator expressed its will to ease [the process] with the spouses of Israeli citizens when they ask to be naturalized. These are the legislator’s words and the Minister is prohibited from ignoring the legislator’s instruction.83 This landmark case should have been a revolutionary moment for Palestinian citizens of Israel. It returned the track of Section 7 of the Citizenship Law that

The Law of Return  169 the Court had suspended since 1955. It views the issue as a citizenship right, it cancelled the arbitrary policy, and it requires clear written reasonable criteria that lead to naturalization within five years. After Stamka but before it started to apply, in 2002, the government froze all applications for Palestinian family unification and pronounced that its decision applies retroactively to all pending requests.84 The Court issued an order nisi against this decision on petitions brought by human rights organizations, which claimed that it deviated from Stamka and that no legislation authorized it.85 After that, the Knesset passed the 2003 ban. As previously noted, the military commander also froze all the applications for family unification in the West Bank and Gaza in 2000. Thus, I argue that the 2003 ban was enacted due to changes in the applicability of the Law of Return. If Ka’adan and Stamka are taken seriously, family life cases should discuss ‘simple discrimination’ in citizenship between insiders. However, for this purpose, the Law of Return should be present, but this law is not a matter for comparison, as it is the very essence of the Jewish state. Instead, the formula of examining these issues case-by-case appeared. Equality is never examined based on this formula, but solely on the general principle of antidiscrimination as the only guidance. It is no wonder that in Adalah Justice Cheshin, who suspended constitutional rights, supported this formula and stated: We were disturbed by the absence of a provision designed for special humanitarian cases. This omission admittedly is not capable of resulting in the voidance of the law, but I think the state ought to consider adding an exception of this kind to the law, in one form or another.86 Thus, while for a long time the concept of the Law of Return led to the suspension of citizenship rights by the Court, later it led to the suspension of rights by the law through the 2003 ban. When Justice Cheshin stated in Adalah that the authority regarding ‘the key to the gate’ is absolute, he meant except for the people of the Law of Return.87 The main significant point of the third assertion of the Israeli discourse is the Court’s ruling in Ka’adan: ‘The Law of Return only concerns the right to enter “the gate of the home,” but once inside “the home”, every citizen is equal before the law’. This case study shows that this statement is false. The three assertions in light of the case-law Let us now evaluate the three hegemonic assertions that are considered to be the foundation of the Israeli discourse on justifying the ‘Jewish and democratic state’ in light of the case-law. The first assertion is that Israeli constitutional law ensures equality to all of its individual citizens, Jews and Palestinians alike. As I have argued, the citizenship rights of Palestinian citizens of Israel are neither a constitutional right nor even a legal right. Rather, such matters are decided as a humanitarian case, which knows no law. With the absence of a legal right of citizenship,

170  Hassan Jabareen there is no equal individual right to citizenship. Absolute authority controls the Israeli-Palestinian family, whereas Israeli Jewish families enjoy citizenship as a legal right. The second assertion relies on a strict distinction and posits that two separate legal systems exist: one that applies the Israeli rule of recognition and the other that applies the IHL rule of recognition. The case-law shows clearly that neither of these two rules of recognition applies to Palestinian family life, as the latter case is treated as a humanitarian issue and knows no legality in Palestine regardless of geography. By contrast, Israeli Jewish family life enjoys the applicability of the Israeli rule of recognition based on the Law of Return regardless of geography. Changes in the interpretation of the Law of Return directly affected the status of Palestinians on both sides of the Green Line. One conception of state sovereignty applies on both sides of the Green Line regardless of the different conceptions based on the rules of recognition. The Interior Minister for inside the Green Line and the military commander in the West Bank enjoy absolute authority, as both deal, as the Court put it, with the ‘same material’ and both, together with the Court, decide on the exception: who is to be included and who is to be excluded. The third assertion contends that the Law of Return and the value of ‘preserving a Jewish majority’ do not lead to discrimination against insiders, as these are only matters of group rights for the Jewish population as a majority group. This assertion is an illusion. The immigration policy based on the Law of Return targets the insiders, the Palestinian citizens, and leads to ‘separate but unequal’ citizenship rights. This conception of sovereignty holds that except in the case of the Law of Return, the state has absolute authority over the keys to the gate, and since there is no right for ‘outsiders’ to enter, there is also no legal right for the ‘insiders’. The collapse of the three assertions renders the prevailing Israeli discourse on a ‘Jewish and democratic state’ irrelevant. It discusses norms that arguably refer to sovereignty and self-determination, which by their nature belong to the realm of politics in the abstract and rely only on the normativity of the written law without any examination of the relevant judgements. Indeed, the text of the Law of Return says nothing about Palestinians; the value of ‘preserving a Jewish majority’ is not supported by written law; IHL norms are not a part of Israeli laws; and the written citizenship laws articulate a doctrine of ‘separate and equal between citizens’. However, the Israeli Supreme Court has suspended the two rules of recognition. Law is what is decided in cases and how it functions in the case-law (Llewellyn, 1951, p. 9; Chipman Gray, 1909, §276). Its scope cannot be grasped without considering the applicability of the norms/values it encapsulates (Kahn, 2011, p. 90). We must consider how the Law of Return functions in the concrete reality of Palestine, and not whether it has a good moral justification as a norm. We know very well that despite the endless moral justifications for the doctrine of ‘separate and equal’, before Brown v. Board of Education it functioned as ‘separate and unequal’. Thus, Israeli academia’s ceaseless engagement with the moral justifications behind the Law of Return, as we see in part in this journal88 (Carmi, 2008; Gavinson, 2003; Gans, 2008), reveals nothing about the workings of the

The Law of Return  171 law itself, as it does not explain how this law functions in Palestine. Justification of the law is one thing, how it applies another thing altogether.89 An expected response is that the norms and values that constitute the essence of the Jewish state should not have played the role they did through their use by the Court. This response, however, does not grasp the political moment of the decision. All the justices who dealt with hundreds of Palestinian family life cases since 1955 have shared in the suspension of legality. Thus, in order to take this response seriously, we must conclude that either all of the justices are racist, or they do not understand the scope of the Jewish state. The moment of deciding on the exception reveals the essence of the regime, as Schmitt put it (Schmitt, [1928] 2008, p. 13). It is about the raison d’état of the state that expresses the state’s very essence, where all judges yield to it, as Foucault articulated (Foucault, [2004] 2007, p. 257). It trumps personal opinions, as shown by Robert Cover’s work on liberal judges who confirmed the norms of slavery, although before their nomination, they held anti-slavery positions (Cover, 1984). It is the values of Ackerman’s political moment, which trump the personal values of any judge (Ackermann, 1998, p. 1314). As I explain in the next section, this is the power of the Constitution that precedes the rules of recognition.

Alternative framework: Colonialism I argue that there is one Constitution in Palestine. Schmitt distinguished between the Constitution that refers to the values of the political identity and constitutional law that refers to written laws, basic laws, and judgements. For him, the Constitution precedes and sometimes trumps constitutional law (Schmitt, [1928] 2008).90 The Israeli Constitution in Palestine constitutes the essence of the Jewish political identity, which is to maintain the superiority of Jewish demography through the value of preserving the Jewish majority (and minimizing the Palestinian population) and the Law of Return. As mentioned above, the moment of the political decision on the exception by all the justices is due to the appearance of the very essence of the Constitution in Palestine.91 For this reason, the Israeli Supreme Court’s decisions on the exception in family life cases are valid, and did not create a political crisis with the other branches of government, but in fact led to mutuality between the branches, as has been shown here. In this sense, the Court is the guardian of the Constitution in Palestine. Within this structure, the two rules of recognition may work and the Court may deliver rulings like Ka’adan based on the Israeli rule of recognition and other judgements based on the IHL rule of recognition. However, at least in matters of demography, the Constitution trumps the rules of recognition, as it relies on a conception of sovereignty that precedes Section 7 of the Citizenship Law and IHL norms. As I noted earlier, citizenship, including family life as its generic form, which determines the duality of the citizen-subject, expresses the essence of sovereignty that the Constitution rests on (Rubenstein, 2003). This is a colonial Constitution. The main principle of a colonial Constitution is domination, where race is its basic unit (Arendt, 1951; Chatterjee, 1993).

172  Hassan Jabareen Domination appears here when the Court negates the only two legitimate kinds of legal regimes under international law: equality before the national law, as required by international human rights law, and IHL, or the laws of war.92 This sort of domination renders the Palestinian citizen of Israel and the Palestinian person protected under IHL only a Palestinian subject to absolute power without any legal protection. Race is its basic unit, as it targets the Palestinians as such. At the same time, as we saw in the West Bank cases, Jewish individuals enjoy the applicability of the Israeli rule of recognition as Jews and not even as Israeli citizens. Hannah Arendt is the first philosopher to have noted the ‘humanitarian case’ (Arendt, 1951, pp. 269–302). The fall of the nation-state between the two World Wars led to the stripping of citizenship from ethnic groups, who became ‘stateless’ refugees, and ‘humanitarian cases’, as just ‘a human’ with no legal status. Indeed, the ‘humanitarian case’ transforms the Palestinians into foreigners in their homeland. Still, how is racial domination relevant within the Green Line when almost half of the justices voted to strike down the 2003 ban in Adalah? My short answer refers to the self-understanding of the rule of law of the ‘Jewish democracy’. The Israeli rule of recognition must maintain the integrity of the Israeli written laws, as it is ‘our own laws’ that represent and reflect ‘our Jewish state’. Decisionism, by conducting a case-by-case examination, is the alternative way to keep the written laws free of ethnicity. For this reason, I contend, the Court showed indifference when the military commander froze all family unification applications in the West Bank-Gaza in 2000. Simply, this decision, in contrast to the 2003 ban, did not concern the Israeli written law of the Knesset. In another article, I explain in detail that the Israeli legal culture prefers decisionism, which leaves the written laws free of direct racial discrimination (Jabareen, 2019). The model of ‘ethnic democracy’, as articulated by Sami Smooha, attempts to challenge racial domination (Smooha, 2002). According to this model, while Israel discriminates against its Palestinian citizens in almost all aspects of life, they still participate in the national Israeli elections, and the state adheres to separation of powers, including access to the Court and the independence of the judiciary. First, however, under this state of exception the parliament is marginal. The Court, together with the executive branch, decides on the exception against parliamentary laws, which makes political participation and separation of powers, as such, ineffective.93 Second, the main question should be who decides on crucial sovereign matters such as family life and citizenship? The answer is that all the Palestinian people in Palestine, regardless of whether or not they participate in the Knesset’s election, are controlled by an ‘alien’ absolute power, as they lack any power to influence these crucial decisions. This sort of control and domination is the same whether the Palestinian lives under Israeli occupation or is a citizen of Israel. Third and most importantly, the model of ‘ethnic democracy’ is about ‘Jewish democracy’, which by itself is about colonial constitutionalism that is also known as ‘white democracy’.94 The principle of a plurality of legal systems and racial laws is a leading feature of the colonial Constitution. The aim of this plurality, as Chatterjee posits, is to

The Law of Return  173 create racial superiority under the ‘rule of difference’ in order to maintain the racial values of ‘separate and unequal’ (Chatterjee, 1993). In fact, the second and third assertions are about creating different rules based on group ethnic belonging and geography by dividing the Palestinian people into three separate units, when in fact all the Palestinian people in Palestine live under the same constitutional jurisdiction. Still, the Israeli model introduces a form different than that of other colonial states. Besides some of the written laws, decisionism is a main means for maintaining the rule of difference. The case-law here shows that the Palestinian individual is the law as regards exclusion. In this regard, the Israeli Constitution is very close to the model of the Constitution of the polis, which according to Agamben is the paradigm of colonialism (De la Durantaye, 2012). Banishing, deportations, and the subjugation of the noncitizens living in the polis were accomplished by decisionism without written laws, as these laws are for the citizens and therefore their integrity should be maintained. Under the colonial Constitution, demography and security are intertwined. Israeli academics questioned whether Adalah is indeed about security or whether it is just about demography, i.e. preserving a Jewish majority (Ben-Shemesh, 2007). It is about both. It is ‘the demography of security’ or ‘the security of demography’. This also explains why the ISA was involved in family unification cases, and why the ‘enemy alien’ doctrine is dominant in these cases. Similarly, in the West Bank-Gaza cases, the Court justified the military commander’s refusal to posit criteria for family unification, reasoning that it is ‘a sensitive matter that refers to the State’s security’.95 The constitutional identity of this Constitution is based on ‘We the Jewish People’. Its leading principle as regards citizenship is ‘separate and unequal’ and the duality of citizen-subject. As Comaroff put it, ‘one of the most fundamental constitutive features of the colonial state’ is that it is ‘a state sans nation’ (Comaroff, 1998, p. 346), as it rejects the principle of nationality/citizenship based on territorial belonging. Indeed, the Israeli Supreme Court even refused to recognize the existence of ‘Israeli nationality’ (DeCaroli, 2007).96 The Basic Law: Israel – The Nation State of the Jewish People, which was enacted in 2018, reveals this sharply. While it emphasizes only the rights of the Jewish people in Palestine, it does not even define who is a citizen. Benvenisti and Lustig portray it rightly as a law about ‘We the Jewish People’ in Palestine (Benvenisit & Lustig, 2018). The colonial Constitution in Palestine targets the most crucial matters of Palestinian life. It targets what makes a citizen a citizen, or a person a protected person under IHL. For John Locke, even in the case of occupation, targeting the family life of non-fighters is prohibited (Locke, [1689] 1986, chapter 16). For Arendt, citizenship is ‘the right to have rights’ (Arendt, 1951, pp. 296–297). For John Rawls, the regime becomes illegitimate when it reaches a level of too much injustice (Rawls, 1971). For Justice Barak in Adalah: Democracy does not … separate its citizens from their spouses … [nor] give its citizens the option of living in it without their spouse or leaving the state in

174  Hassan Jabareen order to live a proper family life [nor] … separate parents from their children [nor] … discriminate between its citizens with regard to the realization of their family life.97 Israel’s law schools still insist on teaching constitutional law based on the three hegemonic assertions. One of the characteristics of colonialism is that it constructs a hegemony that justifies its control based on universal and liberal values (Mantena, 2010). This is how ‘the rule of difference’ attempts to separate groups based on the idea of respect for different cultures, while at the same time articulating different individual rights based on group belonging. And this is why the three assertions together portray the state as a liberal democracy. The strength of such hegemony explains why the Law of Return is accepted as a very moral law, which has nothing to do with other groups (see Jabareeen, 2019). This belief, which has turned into a kind of religion, may explain why there has been no research into whether this law leads to exclusion. In other disciplines, however, we find that scholars do perceive the Israeli regime within the Green Line as colonial.98

Conclusion While the three hegemonic assertions refer to the Palestinians as three separate units, the Israeli Supreme Court refers to them as one unit, whether they live within the Green Line, in Jerusalem, or in the West Bank or Gaza. The three assertions imagine the Palestinians as foreigners to each other: the Occupation is foreign to Israeli citizens, including the Palestinian citizens, and the refugees are total outsiders (Bilsky, 2008).99 Daily, the Supreme Court faces cases of Palestinian family unification, which challenge the foreignness by replacing it with intimacy and love between the members of a people. The Court’s solution is domination and exclusion. The Israeli legal academia’s solution relies on an imagined partitioning of Palestine based on hegemonic ethnicity within the Green Line, as the first order based on the values of a ‘Jewish and democratic state’. These values are the sword of domination in the case-law. We have seen here that the deportation, fragmentation, and separation of Palestinian families have been the main policy since 1948. The lessons of the family unification issue compel us to consider decolonization as the top priority in Palestine. Decolonization deals with the domination and the foreignness. For this reason, it must refer to the Palestinian people as one unit and establish equality between the two peoples as the first order. The discussion must avoid the distinctions: the Israeli rule of recognition versus the IHL rule of recognition, group rights versus individual rights, and outsiders-insiders. These distinctions belong to the plurality of laws that characterize colonial constitutionalism. Decolonization establishes equality on both levels, group rights and individual rights in Palestine, as one territory, and it should also refer to the historical injustice. The family unification cases ask us to think first about the rights of the people whose members wish to live together with freedom in their homeland and not

The Law of Return  175 about the state or sovereignty, which creates imagined borders as a first order. The partitioning of Palestine, if needed, must be the second order that refers to political arrangements. However, these arrangements cannot put limitations on the right of equality between the peoples to exercise their liberty and freedom in Palestine.

Acknowledgements This article was first published in 2020 in Theoretical Inquiries in Law, 21(2), 459–490. The editors are grateful for being granted permission to reprint it.

Notes 1 Kymlicka (1995, p. 35) defines this type of liberal democracy as one in which a ‘basic commitment is to the freedom and equality of its individual citizens’, but not to the group rights of its national minorities. 2 Most of the authors in the book are leading Israeli constitutional scholars and the book celebrates the Israeli constitutional revolution as one that ensures freedom and equality for all citizens in the ‘Jewish and democratic state’, as in any Western liberal democracy. 3 HCJ 6698/95 Ka’adan v. Israel Land Administration 54(1) PD 258 (2000) (Isr.). 4 HCJ 6698/95 Ka’adan v. Israel Land Administration 54(1) PD 258 (2000) (Isr.), p. 37. 5 CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village 49(4) PD 221 (1995) (Isr.). 6 For example, see Kretzmer (2002), which discusses the applicability of IHL to the West Bank and Gaza as a separate legal system from that of Israel; see also supra note 2, which discusses Israeli constitutionalism without referring to the law that applies to the West Bank and Gaza. While the international community, including human rights lawyers, views East Jerusalem as occupied by Israel, it recognizes that the law that is applied to Palestinians in the West Bank and Gaza is different, and is not Israeli law. See Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J Rep. (July 9), which is also based on this distinction between two separate legal systems. 7 HCJ 6698/95 Ka’adan v. Israel Land Administration 54(1) PD 258 (2000) (Isr.), p. 31. 8 By Constitution, I mean written or unwritten fundamental principles that precede constitutional law, legislations, or court judgements, as it constitutes the political identity of the state. See Schmitt ([1928] 2008), Roznai (2017). 9 On features of a colonial constitution that derive from historical formation, see Ghai & Cottrell (2007). Mamdani (1996, p. 16) sees that while colonialism is a European historical formation, ‘its structure everywhere came to share fundamental features’, and thus revealing these common features allows us to conceptualize the colonial state. Similarly, Comaroff (1998) asked the question what makes a state a colonial state. See also de la Durantaye (2012), who refers to the ancient Greek polis as the paradigm. Kohn and Reddy (2017) refer to the main common features of European colonial history in order to conceptualize colonialism. 10 For Arendt, colonialism had two leading principles: ‘One was race as a principle of the body politics, and the other bureaucracy as a principle of foreign domination’ (Arendt, 1951, p. 185). For Chatterjee, what distinguishes the colonial state from other forms is the ‘rule of difference’ and ‘marking this difference was race’ (Chatterjee, 1993, pp. 14, 19). For Kohn and Reddy (2017, p. 13): ‘Colonialism is a practice of domination, which involves the subjugation of one people to another’.

176  Hassan Jabareen 11 This article reviews nine books, which refer to this feature of plurality of legal systems and racial laws under colonial regimes. 12 About racial biopolitics and security under the colony, see Mbembe (2003). About the scope of emergency, which carries racial meaning under the colonial state, see Hussain (2003). About security and demography before the US Supreme Court, including cases on deportation and immigration during the nineteenth century, see Cho & Gott (2010). 13 See generally Cooper (2019). For Dyzenhaus (2017, p. 3) the main characteristic of a regime that belongs to the family of Apartheid regimes is that its legal order creates a second class of citizenship. Mamdani (1996) and Comaroff (1998) also identified citizen-subject as the leading principle that identifies the colonial-state. De la Durantaye (2012) explains that the polis is the paradigm of colonialism for Agamben due to its conception of citizenship that is based on citizen-subject. The case of Dred Scott v. Sandford, 60 U.S. 393 (1857) is the paradigmatic American case, in which the Court decided that blacks do not belong to ‘We the People’ and thereby justified slavery. For Ackerman (1991), the political moments of each period in American history that shape ‘We the People’ were determined based on the status of citizenship. 14 See the references in Rubenstein (2003). 15 For Schmitt ([1928] 2008, p. 229), the judge is ‘bound to statute’ and ‘normatively determined’. 16 For Agamben ([1995] 1998, pp. 17–18; 23) ‘the exception is a kind of exclusion. What is excluded from the general rule is an individual case’, and ‘The rule applies to the exception in no longer applying, in withdrawing from it’. 17 As Kahn (2011, p. 34) put it, the sovereign power’s decision on the exception in such cases is like granting a gift, and it is ‘outside the law but not illegal’, and the principle of ‘treat[ing] like cases alike’ is irrelevant. 18 HCJ 7052/03 Adalah et al. v. Minister of Interior et al. 61(1) PD 443 (2006) (Isr.). English translation retrieved from https://supremedecisions​.court​.gov​.il​/Home​/ Download​?path​=EnglishVerdicts\03\520\070\a47&fileName​=03070520​_a47​.txt​&ty​ pe​=4. (For reasons of transparency: the author was the lead lawyer in this case.) 19 The Citizenship and Entry into Israel Law (Temporary Provision), 5753-2003 1901 SH 544. 20 HCJ 6698/95 Ka’adan v. Israel Land Administration 54(1) PD 258 (2000) (Isr.). 21 Only Justices Jubran and Procaccia raised serious doubt as to whether real security reasons and not demography stood behind the enactment of the law. 22 Id. at ¶¶ 54–55 of Justice Cheshin’s ruling. 23 Id. at ¶ 121 of Justice Cheshin’s ruling. 24 Id. at ¶ 46 of Chief Justice Barak’s ruling. 25 As Justice Barak puts it: ‘our conclusion, therefore, that under these circumstances, individual examination on a case-by-case basis does not fulfill the purpose of the legislation to the same extent as the sweeping prohibition’. See Id. at ¶ 89 of Justice Barak’s ruling. 26 Adalah, supra note 18, at ¶ 72 of Justice Barak’s ruling. 27 Adalah, supra note 18, at ¶ 72 of Justice Barak’s ruling. 28 Id. at ¶ 95 of Justice Barak’s ruling. 29 The Proclamation on The Arrangements of Law and Authority (West Bank Region) (No. 2) (1967). 30 HCJ 302/72 Abu Hilu v. The Government of Israel 27(2) PD 169, 180 (1973) (Isr.); HCJ 390/79 Dweekat v. The Government of Israel 34(1) PD 1, 13 (1979) (Isr.). 31 HCJ 393/82 Jam’ayat Iskan v. Commander of IDF Forces in the Judea and Samaria Region et al. 37(4) PD 785, 794-95 (1983) (Isr.). 32 Benvenisti (1993, pp. 5–6) explained: ‘The foundation upon which the entire law of occupation is based is the principle of inalienability of sovereignty through the actual or threatened use of force. Effective control by foreign military force can never bring

The Law of Return  177 about by itself a valid transfer of sovereignty … Thus the occupant’s status is conceived to be that of a trustee’. 33 HCJ 500/72 Miryam Abu Al-Tin v. Minister of Defense 27(1) PD 481 (1970) (Isr.). 34 According to the Hague Regulations, ‘Family honour and rights … must be respected’, 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, art. 46, 18 October 1907, 36 Stat. 2277; according to the Fourth Geneva Convention, ‘[protected] persons are entitled, in all circumstances, to respect for their persons, their honor, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity’ (United Nations, 1949, p. 179). 35 HCJ 13/86 Shahin v. Commander of the Judea and Samaria Region 41(4) PD 197, 208 (1987) (Isr.). 36 HCJ 673/86 Al-Saudi v. Head of the Civil Administration in the Gaza Strip 41(3) PD 138, 140 (1987) (Isr.). 37 HCJ 673/86 Al-Saudi v. Head of the Civil Administration in the Gaza Strip 41(3) PD 138, 140 (1987) (Isr.). 38 HCJ 106/86, Al-Saufiri v. Head of the Civil Administration (31 December 1986) Nevo Legal Database (by subscription, in Hebrew (Isr.). 39 HCJ 802/79 Samara v. Commander of the Judea and Samaria Region 34(4) PD 1, ¶ 3 (1980) (Isr.). 40 HCJ 489/76 Ta’yeh v. Minister of Defense (unpublished) (Isr.). 41 HCJ 209/86 Al-Atrash v. Head of the Civil Administration (12 December 1986) Nevo Legal Database (by subscription, in Hebrew (Isr.); See also Shahin, supra note 35. 42 For example, when the military commander declared that his policy is not to check applications when ‘the foreign spouse’ lives in the territory and not ‘abroad’, Justice Shamgar accepted this policy regardless if the wife is already pregnant: HCJ 683/85 Mashtaha v. Military Commander of the Gaza Strip Region, 40(1) PD 309 (1986) (Isr.). In another case, the policy did not grant a widower with children family unification, even when he remarried and had twins with his second wife, as Justice Barak decided that ‘the rule is that the entrance to the region is prohibited unless it is allowed. Regarding family unification, a specific policy was put which allows entrance in exceptional instances’. HCJ 11/86 Hateeb v. The Interior Minister (9 July 1986) Nevo Legal Database (by subscription, in Hebrew (Isr.). 43 HCJ 263/85 Awad v. Commander of the Civil Administration, Ramallah District 40(2) PD 281, 285 (1986) (Isr.). 44 HCJ 802/79 Samara v. Commander of the Judea and Samaria Region 34(4) PD 1, ¶ 3 (1980) (Isr.). 45 S HCJ 802/79 Samara v. Commander of the Judea and Samaria Region 34(4) PD 1, ¶ 3 (1980) (Isr.), p. 2. 46 HCJ 724/85 Khalil v. Commander of the Judea and Samaria Region (1986) (1 May 1986). Nevo Legal Database (by subscription, in Hebrew) (Isr.). In this case, the Court rejected the request even when the woman became stateless; HCJ 31/87 Sharab v. Head of the Civil Administration in the Gaza Strip 41(4) PD 670, 671 (Isr.). There, a woman from Gaza resided with her family in Kuwait but lost her residency in Kuwait and the Court did not accept the case; HCJ 42/88 Saba’aneh v. Commander of IDF Forces in the Judea and Samaria Region (16 March 1988), Takdin Legal Database (by subscription, in Hebrew) (Isr.). There, it stated that in case HCJ 147/81, the woman was in a foreign state for about ten years and she, like the petitioner, did not become a citizen there. It was therefore stated (by Justice Barak): ‘[In] this matter, there is no decisive significance in the fact that the petitioner did not acquire Colombian citizenship’.

178  Hassan Jabareen 47 HCJ 323/04 Abu Dakhan v. Minister of Defense (30 May 2005) Nevo Legal Database (by subscription, in Hebrew) (Isr.). Subsequently, the issue of freezing applications again arose in HCJ 11698/04 Karni v. Commander of IDF Forces in the Gaza Strip (2 August 2005) Nevo Legal Database (by subscription, in Hebrew) (Isr.). The petitioner, a resident of Rafah in the Gaza Strip, requested an entry permit for his wife and their two children. 48 See, e.g. HCJ 5829/09 Mansour v. Military Commander of the West Bank Region (30 July 2009) Nevo Legal Database (by subscription, in Hebrew) (Isr.), where the court rejected a petition from a Gazan woman to visit her brother in the West Bank who was suffering from serious bodily injuries; HCJ 5263/08 Al-Harimi v. Commander of Military Forces in the Territories (2009) (unpublished) (Isr.). The court rejected a petition from a West Bank resident and her children to visit the father of the family, who had been expelled to Gaza; HCJ 9657/07 Jarbu’a v. Commander of Army Forces in the West Bank (24 July 2008) Nevo Legal Database (by subscription, in Hebrew) (Isr.). The court rejected a petition from a Gazan woman who sought to visit her three children living in the West Bank. 49 See the Emergency Regulations (Judea and Samaria—Adjudication of Offences and Legal Assistance), 5767–1967, Art. 6. For more details, see Ben-Naftali, Gross & Michaeli (2005, pp. 584–587). 50 Note that this article deals only with cases brought before and decided by the Supreme Court. Some applications for family unification were accepted through the intervention of the Office of the Attorney General without establishing criteria for accepting applications. See Dotan (2001). 51 HCJ 37/55 Zayed v. Minister of Interior 9 PD 732, ¶ 9 (1955) (Isr.). 52 HCJ 37/55 Zayed v. Minister of Interior 9 PD 732, ¶ 9 (1955) (Isr.). 53 HCJ 209/73 Najla Lafi v. Minister of Interior 28(1) PD 13 (1973) (Isr.). 54 HCJ 209/73 Najla Lafi v. Minister of Interior 28(1) PD 13 (1973) (Isr.). 55 HCJ 209/73 Najla Lafi v. Minister of Interior 28(1) PD 13 (1973) (Isr.), p.16. 56 HCJ 209/73 Najla Lafi v. Minister of Interior 28(1) PD 13 (1973) (Isr.), p.16. 57 HCJ 802/79 Samara v. Commander of the Judea and Samaria Region 34(4) PD 1, ¶ 3 (1980) (Isr.), p. 3. 58 HCJ 1689/94 Harari v. The Interior Minister 41(1) PD 15, 19 (1994) (Isr.). 59 HCJ 1689/94 Harari v. The Interior Minister 41(1) PD 15, 19 (1994) (Isr.). 60 HCJ 1689/94 Harari v. The Interior Minister 41(1) PD 15, 19 (1994) (Isr.). 61 See, e.g. HCJ 9037/02 Rifa’ah v. Minister of Interior (13 December 2006), Nevo Legal Database (by subscription, in Hebrew) (Isr.), which involved an Arab Bedouin woman, a citizen of Israel, who gave up her Israeli citizenship in order to marry a family member from Jordan and reside there. She later became a widow and did not receive Jordanian citizenship. She asked to restore her Israeli citizenship, but the court ruled that she was late in applying; HCJ 9778/04 Alwan v. Ministry of Interior (20 April 2005), Nevo Legal Database (by subscription, in Hebrew) (Isr.). There, a spouse from the West Bank married an Israeli citizen in 1994. Despite being married for ten years and having three children, their request was denied for technical reasons. See also HCJ 10191/03 Tamadar v. Minister of Interior (17 February 2005), Nevo Legal Database (by subscription, in Hebrew) (Isr.); HCJ 3432/05 Sabrin v. Minister of Interior (17 November 2005), Nevo Legal Database (by subscription, in Hebrew) (Isr.); HCJ 5635/05 Jabareen v. Minister of Interior (22 November 2005), Nevo Legal Database (by subscription, in Hebrew) (Isr.). 62 HCJ 4961/01 Abu Zahiban v. Minister of the Interior (03 July 2002), Takdin Legal Database (by subscription, in Hebrew) (Isr.). There, the petition was rejected in two paragraphs. 63 HCJ 10642/06 Abbas v. Minister of Interior (24 December 2006), Nevo Legal Database (by subscription, in Hebrew) (Isr.). There, the petition was rejected in one page.

The Law of Return  179 64 HCJ 2527/03 As’id et al. v. Minister of Interior 58(1) PD 139 (2003), (Isr.). See also HCJ 8405/05 Tawatha v. Minister of Interior (2 March 2006), Nevo Legal Database (by subscription, in Hebrew) (Isr.), in which the Court rejected a woman’s petition based on information that concerned her brothers and not her and in one paragraph terminated her family life in Israel after eight years of marriage. Another example is HCJ 7202/96 Mansour et al. v. Acting Deputy Director of the Population Registry (23 March 1997), Nevo Legal Database (by subscription, in Hebrew) (Isr.), in which Justice Barak stated that although the petitioner was convicted, the facts in the indictment do not describe the full danger he poses to the public. For this reason, the Court confirmed the order to expel him from the country. 65 The Citizenship and Entry into Israel Law (Temporary Provision), § 2, 5753-2003 1901 SH 544. 66 The Citizenship and Entry into Israel Law (Temporary Provision), § 3, 5753-2003 1901 SH 544. 67 HCJ 466/07 MK Zahava Gal-On v. The Attorney General 65(2) PD 44 (2012) (Isr.). 68 HCJ 7444/03 Daka v. Minister of Interior (22 February 2010), Nevo Legal Database (by subscription, in Hebrew) (Isr.). In this case, an Israeli citizen married a woman from the West Bank and the court stated the unique exceptional facts: (1) this is a 14-year marriage; (2) the wife learned Hebrew; (3) the couple lives in Israel with their children; (4) there is no security record against her; (5) the husband is a public servant; (6) she worked in the Israeli Shar’ia Court; and (7) she always received temporary permits in the past. The Court imposed severe restrictions on her, namely, that she is not allowed to have any contact, directly or indirectly, with her family in the West Bank; she is not allowed to enter this area; and if she wishes to travel abroad, she should inform the authorities. 69 HCJ 1905/03 Akel v. The Interior Minister (5 December 2010), Nevo Legal Database (by subscription, in Hebrew) (Isr.). The woman, who originally came from the West Bank, had been living in Israel for 25 years and her child was a minor and an Israeli citizen. She learned Hebrew and became ‘involved with the Jewish society’, studied law in Israel and graduated with excellent grades. Following this decision, the Court accepted another two petitions for technical reasons: that the petitioners filed their motions before the 2003 ban and the authorities neglected to answer the families on time. 70 HCJ 1905/03 Akel v. The Interior Minister (5 December 2010), Nevo Legal Database (by subscription, in Hebrew) (Isr.), p. 10. 71 HCJ 1905/03 Akel v. The Interior Minister (5 December 2010), Nevo Legal Database (by subscription, in Hebrew) (Isr.), p. 10 (The concurring opinion of Justice Beinisch). 72 HCJ 1905/03 Akel v. The Interior Minister (5 December 2010), Nevo Legal Database (by subscription, in Hebrew) (Isr.), p. 9. 73 HCJ 4380/11 Plonit v. The State of Israel—Ministry of Interior (26 March 2017), Nevo Legal Database (by subscription, in Hebrew) (Isr.). 74 For example, a recent case involved a Palestinian woman, a citizen of Israel, and her husband from the West Bank; this couple cannot even visit each other. Justice BarakErez stated: ‘Despite the considerable implications of the decision for the lives of the petitioners, this is not an exceptional and unique case’. HCJ 896/17 Jaber v. The Interior Minister (11 October 2018), Nevo Legal Database (by subscription, in Hebrew) (Isr.). 75 HCJ 3648/97 Stamka v. Minister of Interior 53(2) PD 728 (1999) (Isr.). 76 HCJ 3648/97 Stamka v. Minister of Interior 53(2) PD 728 (1999) (Isr.), p. 5. 77 HCJ 3648/97 Stamka v. Minister of Interior 53(2) PD 728 (1999) (Isr.), p. 5. 78 HCJ 3648/97 Stamka v. Minister of Interior 53(2) PD 728 (1999) (Isr.), p. 758–759. 79 HCJ 3648/97 Stamka v. Minister of Interior 53(2) PD 728 (1999) (Isr.) p. 70. 80 HCJ 3648/97 Stamka v. Minister of Interior 53(2) PD 728 (1999) (Isr.), p. 80. 81 HCJ 3648/97 Stamka v. Minister of Interior 53(2) PD 728 (1999) (Isr.), p. 46. 82 HCJ 3648/97 Stamka v. Minister of Interior 53(2) PD 728 (1999) (Isr.), p. 778–780.

180  Hassan Jabareen 83 HCJ 3648/97 Stamka v. Minister of Interior 53(2) PD 728 (1999) (Isr.), p. 80. 84 Decision No. 1813 of the 29th Government (12 May 2002) (Isr.). 85 HCJ 4022/02 The Association for Civil Rights in Israel v. Minister of Interior (11 January 2007), Nevo Legal Database (by subscription, in Hebrew (Isr.). 86 HCJ 7052/03 Adalah et al. v. Minister of Interior et al. 61(1) PD 443 (2006) (Isr.) (pp. 126–224). English translation. Retrieved from https://supremedecisions​.court​.gov​.il​/ Home​/Download​?path​=EnglishVerdicts\03\520\070\a47&fileName​=03070520​_a47​ .txt​&ty​pe​=4. (For reasons of transparency: the author was the lead lawyer in this case). 87 After Stamka and a year before Adalah, a wide panel of the Court discussed whether a non-Jewish spouse of an Israeli citizen is allowed to convert to Judaism in a fast and easy ceremony abroad and return as a Jew based on the Law of Return or must pass a longer process in Israel. The Court confirmed ‘quickie conversions’ and Justice Cheshin ruled: ‘Jewish communities throughout the world hold … the power and authority to give converts a key to enter Israel, to return and receive immediate citizenship … all of these are empowered to decide who will enter the gates of Israel as people entitled to rights … This is the mandate of the Law of Return … and no one will tell Jewish communities outside of Israel what they may or may not do’. HCJ 2597/99 RodriguezTushbeim v. Minister of Interior 58(5) PD 412, p. 7 of Justice Cheshin’s ruling (2005). 88 Editors’ note: The author here refers to Theoretical Inquiries in Law, 21(2), 2020, where his article was first published. 89 This discourse does not notice that if the Law of Return is a matter of peoples’ selfdetermination, which by itself a revolutionary act that occurs rarely and mostly illegally, how the mere existence of this law, which supposes to self-determine at every moment, does not lead to decisionism. 90 Ackerman’s (1991) dualist model expresses a similar idea as it distinguishes between the values of the ‘political moment’ (Schmitt’s constitution) that appear in rare times, such as the foundation, through extra-legality, and it continues to shape and precede the ‘normal politics’, which is expressed in day-to-day politics through the constitutional law and legislation (Schmitt’s constitutional law). Amar (1994) also developed a similar dualist model and contended that the original meaning of the Constitution (Schmitt’s Constitution) is even able to create constitutional changes, including against Article V (Schmitt’s constitutional law) at any time, as it limits only governmental agents and not the will of the people. Today, Schmitt’s concept of Constitution explains the doctrine of ‘unconstitutional constitutional amendment’ in many countries. See Roznai (2017). 91 Also for Agamben ([1995] 1998, p. 183), the moment of exception expresses the state’s understanding of its sovereignty, which tells us about the very essence of the polity. 92 This form of domination appears for Agamben regarding the detainees at Guantanamo, as they neither have ‘the status of persons’ under US law or the status of prisoners of war (POWs), and thus they are ‘neither prisoners nor persons accused, but simply “detainees”’ (Agamben, [2003] 2005, p. 3). 93 As we saw here, for example, the court suspended the applicability of Section 7 of the Citizenship Law, and at the same time, it decided on the exception prior to the 2003 ban. 94 Dyzenhaus (2017) explains that while South Africa was colonial during the Apartheid era, as racial discrimination in all fields of life was its policy, it was a state of rule of law, which adhered to separation of powers, provided access to courts, had an independent judiciary, and was governed by law through ‘white democracy’. He also compares the Apartheid regime with the Israeli legal order on both sides of the Green Line in relation to the rule of law. 95 HCJ 802/79 Samara v. Commander of the Judea and Samaria Region 34(4) PD 1, (1980) (Isr.), p. 3. 96 The Court dismissed a petition by Jewish citizens to register ‘Israeli’ instead of ‘Jewish’ as their nationality on their identity cards, explaining that there is no such category. HCJ 8573/08 Ornan v. Minister of Interior 66(3) PD 44 (2013) (Isr.).

The Law of Return  181 97 HCJ 7052/03 Adalah et al. v. Minister of Interior et al. 61(1) PD 443 (2006) (Isr.). For the English translation of the decision, p. 93 of Justice Barak’s ruling. Retrieved from https:// supremedecisions​.court​.gov​.il​/Home​/Download​?path​=EnglishVerdicts\03\520\070\ a47&fileName​=03070520​_a47​.txt​&ty​pe​=4. 98 For the leading systematic work, see Yiftachel (2006). His work shows that Israeli policy is based on an ethnocratic regime, where one ethnic group dominated the land and colonized the natives through land confiscation and exclusion in land allocation and housing. Rouhana (1997) is one of the first scholars who refers to the identity of the state as a matter of domination over Palestinian citizens. Kimmerling (2002) also refers to the case of inside Israel as a form of colonialism vis-à-vis Palestinian citizens. I also discuss the formation of Palestinian citizenship as colonial, through an analysis of Palestinians’ participation in national elections; see Jabareen (2014). 99 For a discussion of the Adalah case as it refers to the Palestinians as foreigners to each other.

References Ackerman, B. (1991). We the people. Vol. 1. Foundations. Harvard: Harvard University Press. Ackerman, B. (1998). We the people. Vol. 2. Transformations. Harvard: Harvard University Press. Agamben, G. [1995] (1998). Homo sacer: Sovereign power and bare life. Stanford: Stanford University Press. Agamben, G. [2003] (2005). State of exception. Chicago: University of Chicago Press. Amar, A.R. (1994). The consent of the governed: Constitutional amendment outside Article V. Faculty Scholarship Series. Paper 982. Retrieved from http://digitalcommons​ .law​.yale​.edu​/fss​_papers​/982. Arendt, H. (1951). The origins of totalitarianism. New York: Schocken. Barak A. [2004] (2006). The judge in a democratic society. Princeton: Princeton University Press. Barak-Erez, D. (2008). Israel: Citizenship and immigration law in the vise of security, nationality, and human rights. International Journal of Constitutional Law, 6(1), 184–192. Ben-Naftali, O., Gross, A.M., & Michaeli, K. (2005). Illegal occupation: Framing the occupied Palestinian territory. Berkeley Journal of International Law, 23(3), 551–614. Ben-Shemesh, Y. (2007). Zhuyot Hukatiyot, Hagira VeDemographia, BeIkvot Bagatz Hok HaEzrahut VeHacnisa LeIsrael, [Constitutional rights, immigration and demography (following the citizenship and entry into Israel law]. 10 Mishpat & Mimshal 47 (Hebrew). Benvenisti, E., & Lustig, D. (2018). We the Jewish people—a deep look into Israel’s new law. Just Security, 24 July. Retrieved from https://www​.justsecurity​.org​/59632​/israel​ -nationality​-jewish​-state​-law/. Bilsky, L. (2008) Citizenship as mask: Between the imposter and the refugee. Constellation, 15(1), 72–96. Carmi, N. (2008). Immigration policy: Between demographic considerations and preservation of culture. Law & Ethics of Human Rights, 2(1), 1–29. Chatterjee, P. (1993). The nation and its fragments: Colonial and postcolonial histories. Princeton: Princeton University Press. Chipman Gray, J. (1909). The nature and sources of the law. New York: Columbia University Press.

182  Hassan Jabareen Cho, S., & Gott, G. (2010). The racial sovereign. In A. Sarat (Ed.), Sovereignty, emergency, legality (pp. 182–227). Cambridge: Cambridge University Press. Comaroff, J.L. (1998). Reflections on the colonial state in South Africa and elsewhere: Factions, fragments, facts and fictions. Social Identities, 4(3), 327–361. Cooper, F. (2019). Citizenship, inequality and difference: Historical perspectives. Princeton: Princeton University Press. Cover, R.M. (1984). Justice accused: Antislavery and the judicial process. New Haven: Yale University Press. Davidov, G., Reichman, A., Saban, I., & Yovel, J. (2005). Medina O Mishpaha? Hok HaEzrahut VeHacnisa LeIsrael (Hora'At Sha'A) 2003 [State or family? The citizenship and entry to Israel act (temporary order) 2003]. Law and government in Israel, 8(2), 643–700 (in Hebrew). DeCaroli, S. (2007). Giorgio Agamben and the field of sovereignty. In M. Calarco & S. DeCaroli (Eds.), Giorgio Agamben: Sovereignty & life (pp. 43–69). Stanford: Stanford University Press. De la Durantaye, L. (2012) The paradigm of colonialism. In M. Svirsky & S. Bignall (Eds.), Agamben and colonialism (pp. 229–238). Edinburgh: Edinburgh University Press. Derrida, J. (1992). Force of law: The ‘mystical foundation of authority’. In D. Cornell, M. Rosenfeld & D.G. Carlson (Eds.), Deconstruction and the possibility of justice (pp. 3–67). London: Routledge. Dinstein, Y. (1987). Ihud Mishpahot Beshtahim Hamuhzakim [Family unification in the administered territories]. 13 Iyunei Mishpat (legal studies). Dotan, Y. (2001). Government lawyers as adjudicators: Pre-petitions in the high court of justice department 1990–1997. Israeli Law Review, 35(2–3), 453–480. Dyzenhaus, D. (2017). Dugardian legal theory. In T. Maluwa, M. du Plessis & D. Tladi (Eds.), The pursuit of a brave new world in international law (pp. 1–41). Amsterdam: Brill. Engle Merry, S. (1991). Law and colonialism: Review essay. Law and Society Review, 25(4), 889–922. Foucault, M. [2004] (2007). Security, territoriality, population: Lectures at the Collège de France, 1977–1978. New York: Palgrave Macmillan Gans, C. (2008). A just Zionism: On the morality of the Jewish state. Oxford: Oxford University Press. Gavison, R. (2003). The Jews’ right to statehood: A Defense. Azure online. Retrieved from http://azure​.org​.il​/article​.php​?id​=239. Ghai, Y., & Cottrell, J. (2007). A tale of three constitutions: Ethnicity and politics in Fiji. International Journal of Constitutional Law, 5(4), 639–669. Gross, A.M. (2007). Me'ohev Le'oyev: Zedek, Yosher Ve'sechel Yashar Ben Israel Le'otopia Be'bagatz Hok Ha'ezrahut [In love with the enemy: Justice, truth, integrity and common sense between Israel and utopia in the citizenship law case]. 23 HaMishpat 79. Hart, H.L.A. (2012). The concept of law. Oxford: Oxford University Press. Hussain, N. (2003). The jurisprudence of emergency: Colonialism and rule of law. Ann Arbor: The University of Michigan Press. Jabareen, H. (2014). Hobbesian citizenship: How the Palestinians became a minority in Israel. In W. Kymlicka & E. Pföstl (Eds.), Multiculturalism and minority rights in the Arab world (pp. 189–218). Oxford: Oxford University Press.

The Law of Return  183 Jabareen, H. (2019). The paradigm of originalism: Israeli constitutional law and legal thought. Review Essay. Israeli Law Review, 52(3), 427–454. Kahn, P.W. (2011). Political theology: Four new chapters on sovereignty. New York: Columbia University Press. Kimmerling, B. (2002). Jurisdiction in an immigrant-settler society: The ‘Jewish and democratic state’. Comparative Political Studies, 35(10), 1119–1144. Kohn, M., & Reddy, K. (2017). Colonialism. In E.N. Zalta (Ed.), Stanford encyclopedia of philosophy. Retrieved from https://plato​.stanford​.edu​/entries​/colonialism/. Kretzmer, D. (2002). The occupation of justice: The supreme court of Israel and the occupied territories. Albany: State University of New York Press. Kymlicka, W. (1995). Multicultural citizenship. A liberal theory of minority rights. Oxford: Oxford University Press. Llewellyn, K.N. (1951). The bramble bush. New York: Oceana Publications. Locke, J. [1689] (1986). The second treatise on civil government. New York: Prometheus Books. Mamdani, M. (1996). Citizen and subject: Contemporary Africa and the legacy of late colonialism. Princeton: Princeton University Press. Mantena, K. (2010). Alibis of empire: Henry Maine and the ends of liberal imperialism. Princeton: Princeton University Press. Mbembe, A. (2003). Necropolitics. Public Culture, 15(1), 11–40. Medina, B., & Saban, I. (2009). Zhuyot Adam VeNetilat Sicunim Al Democratia, 'TiYug Etny VeMivhaney Piskat Ha'Hagbala (BeIkvot Psak Din Hok HaEzrahut VeHacnisa LeIsrael) [Human rights and risk-taking: On democracy, ethnic-profiling and the limitation clause (following the decision on the validity of the citizenship and entry into Israel law)]. 39 Mishpatim 47 (Hebrew). Orgad, L. (2008). Love and war: Family migration in time of national emergency. Georgetown Immigration Law Journal, 22. Retrieved from https://papers​.ssrn​.com​/sol3​ /papers​.cfm​?abstract​_id​=1131082#. Patten, A. (2020). The idea of Israel as a Jewish state. Theoretical Inquiries in Law, 21(2). Retrieved from http://www7​.tau​.ac​.il​/ojs​/index​.php​/til​/article​/view​/1656. Peled, Y. (2007). Citizenship betrayed: Israel’s emerging immigration and citizenship regime. Theoretical Inquiries in Law, 8(2), 603–628. Rawls, J. (1971). A theory of justice. Harvard: Harvard University Press. Rouhana, N.N. (1997). Palestinian citizens in an ethnic Jewish state: Identities in conflict. New Haven: Yale University Press. Roznai, Y. (2017). Unconstitutional, constitutional amendments: The limits of amendment powers. Oxford and New York: Oxford University Press. Rubenstein, K. (2003). Globalization and citizenship and nationality. In C. Dauvergne (Ed.), Jurisprudence for an interconnected globe (pp. 159–186). Farnham: Ashgate. Sapir, G., Barak-Erez, D., & Barak, A (Eds.) (2013). Israeli constitutional law in the making. Oxford: Hart Publishing. Schmitt, C. [1922] (1985). Political theology: Four chapters on the concept of sovereignty. Chicago: The University of Chicago Press. Schmitt, C. [1928] (2008). Constitutional theory. Durham: Duke University Press. Smooha, S. (2002). The model of ethnic democracy: Israel as a Jewish and democratic state. Nations and Nationalism, 8(4), 475–503.

184  Hassan Jabareen United Nations. (1949). Geneva Convention Relative to the Protection of Civilian Persons in the Time of War, 12 August. Retrieved from https://www​.un​.org​/en​/ genocideprevention​/documents​/atrocity​-crimes​/Doc​.33​_GC​-IV​-EN​.pdf. Yiftachel, O. (2006). Ethnocracy: Land and identity in Israel/Palestine. Philadelphia: University of Pennsylvania Press. Zaher, S. (2005). When the right to family life clashes with the right to a united family. Adalah’s Newsletter, 20. Retrieved from https://pdfs​.semanticscholar​.org​/b864​ /18d ​ c 84e ​ 3 875 ​ 2 bf9 ​ 3 ad1 ​ 3 9ed ​ 9 b81 ​ b 8c3b63e3 ​ . pdf?​ _ ga​ = 2​ . 147112050​ . 432719070​ .1599025721​-1600533411​.1599025721.

10 The discourse of exceptionalism Civil and human rights in Israel Ilan Pappe

Introduction In recent years, a new paradigm has been applied to the study of Israel and Palestine: settler colonialism (Salamanca, Qato, Rabie & Samour, 2012). Such a framing sheds a different light on the conversation about human and civil rights in Israel. Since Israel is an active and incomplete settler-colonial project, the issue of human and civil rights is directly affected by this reality. In the mainstream academia and media, Israel is not perceived as a settlercolonial state. But this refusal to acknowledge the settler-colonial nature of the state leads to obfuscation when the issue of human and civil rights in Israel is discussed. The conventional reference is to Israel as a democracy, and at that the only democracy in the Middle East. This reference belittles and distorts our understating of the nature and gravity of the human and civil rights abuses in Israel. Another crucial implication of framing Israel as a democracy, with a unique regime in an area bereft of any democratic states, was the exclusion of Israel from any general discussion on human and civil rights in the region. Such a discussion is particularly urgent given the abuse of human and civil rights in the Middle East, both by regimes and opposition movements to them in the wake of the Arab Spring.

Early challenges to the democracy myth Both Edward Said and Noam Chomsky in the 1980s had already noticed how in American media, and by inference Western media and academia in general, Israel was framed in a way that immunized it from meaningful rebuke of its policies on the ground. Noam Chomsky was particularly interested in how freedom of thought is curtailed when it comes to the American media’s analysis of, and reporting on, Israel and Palestine (already in the mid-1980s) (Chomsky, 1986). In Chomsky’s view at the time, Israel was immunized in the American media by what he named ‘a form of Newspeak’. A prime example for him was the term ‘the peace process’. What it came down to was that anyone who wished to be part of pax Americana had to consent to an American proxy in the region (this is how the PLO was excluded

186  Ilan Pappe from this ‘process’). Another word in the vocabulary of Newspeak is ‘extremists’, always easily attributed to Palestinians but rarely associated with the abuse of human rights when extremists on the Israeli side were concerned. Finally, among the examples Chomsky gave was the binary that juxtaposes terrorism with retaliation. With the passing of years, it transpired clearly that some of the worst Israeli abuses of basic rights have been done under the pretext of retaliation. In a similar way, Edward Said (2000) noted at the very beginning of the Second Intifada how the media coverage of the events at the time ignored explicit Israeli violations of human rights. In fact, without referring to the settler-colonial paradigm, which was not yet as widespread at that time, Said identified one of the major features of that paradigm: the dehumanization of victims of such abuses: Nothing is said of house demolitions, land expropriations, illegal arrests, beatings and torture. Forgotten are the ethnic cleansing of 1948; the massacres of Qibya, Kafr Qassem, Sabra and Shatila; the defiance of UN resolutions and flouting of the Geneva Convention; the decades of military invigilation and discrimination against the Arab population within Israel. (Said, 2000, p. 46) While this is one side of the coin, as Said noted, the other side is total condemnation of Palestinian barbarism: For all too many American Zionists, Palestinians are not real beings, but demonized phantasms – fearsome embodiments of terrorism and anti-Semitism. (Said, 2000, p. 48) Chomsky, Said, and many others have been very good in analysing why Israel is immunized from criticism despite its long record of human rights abuses that began with the ethnic cleansing of Palestine in 1948 and continued at various historical junctures. And yet, the introduction, or rather the reintroduction of the settler colonial paradigm as an analytical framework for understanding the essence of the Zionist project in Palestine highlighted the exceptionalism Israel benefits from when it comes to its abuses of civil and human rights. This akin to a situation in which the academic world would analyze Apartheid South Africa as a racist state, but this analysis would affect South Africa’s international standing.

Settler colonialism, democracy, and human rights We make a distinction between settler colonialism and classical colonialism. The settler colonialists are Europeans who were forced to leave Europe due to persecution or a sense of existential danger and who settled in someone else’s homeland. They were at first assisted by empires, but soon rebelled against them as they wished to re-define themselves as new nations (Veracini, 2015).

The discourse of exceptionalism  187 Their main obstacle however was not their empires but the native population. Their main challenge was the presence of indigenous populations in their newly coveted homelands. The encounter with the local people activated what Patrick Wolfe called the ‘logic of the elimination of the native’ (Wolfe, 2006). At times, this led to a genocide, as happened in North America, at times to Apartheid as occurred in South Africa. In Palestine, the presence of a native population led to ethnic cleansing operations that began in the mid-1920, culminated in the 1948 Nakba, and continued ever since. The settlers also saw themselves as the indigenous and perceived the indigenous as aliens. This self-indigenization of the settler and de-indigenization of the native in the case of Zionism was done in the name of the Bible. And thus, a secular Jewish settler movement demanded a new homeland by using a sacred religious text, the Bible, as a scientific proof for their right to national sovereignty in the land, and hence the Palestinians were the usurpers who took it over. The first setters who came between 1882 and 1914 could have not made it in Palestine without the help of the local Palestinians, but in their diaries and letters back home they described their local hosts as the foreigners who usurped ‘our ancient homeland and destroyed it’ (Pappe, 2012). The settler-colonial paradigm is particularly useful for explaining what lay behind the massive ethnic cleansing operations of 1948. It differentiates between the Zionist vision and the attempt to implement it. Zionism, as a classical settler colonial movement, wished to have a new land without the people on it. Through the settler colonial paradigm, we can follow historically what enabled Zionism to implement that vision and assess how successful it has been. Hence the quality of the Palestinian leadership, the inability or in some cases unwillingness of the Arab world to help, and the genuine or cynical wish of the Western world to compensate the Jews for the Holocaust all created a convenient historical movement for implementing the settler-colonial plan. This is a very effective argument for the common Western pro-Israeli narrative casting the blame on the Palestinians for their catastrophe. In this respect the Palestinian acceptance or rejection of the UN partition plan was also less crucial in determining the fate of Palestine and its people in 1948. With or without their consent to the UN partition plan and with or without a more effective resistance to it – the Palestinians faced in 1948 a settler-colonial ideology that had the unconditional support of the Western world. In fact, long before the Holocaust the Zionist settlers acted upon the logic of ‘the elimination of the native’ and the particular circumstances of 1948 provided the opportunity for the partial realization of the vison of a de-Arabized Palestine (Salamanca, Qato, Rabie & Samour, 2012). However, in 1948, the Israeli forces expelled ‘only’ half of the indigenous population and took over ‘only’ 78 per cent of the coveted new homeland. The inability to get rid of all the Palestinians and the takeover of most, but not all, of the land is an incompletion that explains the Israeli policy towards the Palestinians ever since 1948. This incompletion left a Palestinian minority with the newly founded Jewish state, and the settler-colonial basic strategy informed the harsh Israeli policy towards these Palestinians left within Israel, the 1948 Arabs as they are named by

188  Ilan Pappe the Palestinians or the Israeli Arabs as they are referred to by Israel. Until 1956, this community was subjected to further ethnic cleansing operations – this time against Palestinians who were citizens of the Jewish state whose declaration of independence promised to protect them, and yet they were expelled by the settler state (dozens of villages were depopulated in that period) (Masalha, 2000). Then they were put under a punitive military rule that robbed them of any normality in their life, where soldiers could arrest, shoot, or banish them at will. The settlercolonial state saw its Arab citizens as aliens with the potential to become hostile aliens at any given moment. The settler-colonial paradigm explains also the Israeli policy leading to the June 1967 war as well its policy in the early years of the occupation of the West Bank and the Gaza Strip. In a recent book, The Biggest Prison on Earth. A History of the Israeli Occupation, I have analysed the decision to occupy the West Bank and the Gaza Strip in the June war 1967, not as a defensive response to an allArab attack (which is the common narrative), but rather as an Israeli solution to the incompletion of the 1948 operations (Pappe, 2018). The geographical incompletion of the settler-colonial project in 1948 frustrated important sections of the Israeli political and military elite, and they contemplated ever after the takeover of the West Bank and the Gaza Strip. The plans moved into a more practical stage when in 1963 the principal politician who objected to such a takeover, David Ben-Gurion, was removed from a significant role in Israel’s political life. In that year, a group of senior officers and officials drew a plan, called the Schaham plan, that would be implemented in 1967, to abolish the military rule imposed on the Palestinians inside Israel and to move this apparatus and impose it on the Palestinians living in the West Bank and the Gaza Strip after their planned occupation (Pappe, 2018, pp. xiv–xvii).

Practicing settler colonialism in the occupied territories, 1967–2007 Already four years before the actual takeover, it was clear that with the coveted new territory, the settler state would have new demographic problems. Like all settler-colonial movements before them, the Zionist movement was troubled by how to balance space and people while turning a colony into a state. The more territory you get the more natives you rule. How to eliminate them as a demographic problem was the question, and the answer and methods depended on the capacity, the circumstances, and the ability of the indigenous population to resist. In the immediate aftermath of the June 1967 war, the decision of how to engage with the new territory and deal with the new demographic challenge to the settler state rested with the 13th government of Israel. It was the most consensual government Israel ever had or will have. Every shade of Zionism and Jewish orthodox anti-Zionism was represented in this unity government. This explains its ability to carve out a strategy that is still adhered to, today. The decision was not to officially annex the new territories, but also never give them up as part of the space of the future Jewish state. The settler state took over

The discourse of exceptionalism  189 the remaining 22 per cent of ‘the Land of Israel’, under the pretext that the borders of 1948 were deemed indefensible and that the ancient biblical sites in the West Bank were sanctified as the heart of the ancient Land of Israel without which the new nation state would not thrive. This is how the issue of geography, or space, was resolved. There was a debate on how much of the new territory should be annexed officially or directly (a debate that has still not been resolved today). However, a Zionist consensus, still intact today, evolved that the guiding principle for making such decisions is partition; namely, the West Bank and the Gaza Strip could be best controlled if they were divided into Jewish and non-Jewish areas. The Right wing in Israel still strives to turn most of the land of Israel (toady Areas A and B of the West Bank, according to the Oslo Accord, and if possible, the Gaza Strip) into the State of Israel (which de-facto exists in Area C in the West Bank and might be de jure annexed at any given moment); the shrinking Left and Centre wish to exclude the densely populated Palestinian areas (Areas A and B) from the State of Israel, while hoping to annex part of Area C (it is important to mention that Area C is more than 60 per cent of the West Bank). The first post-1967 partition map was offered by Yigal Allon, one of the leaders of the Labour government. The Jewish space would be determined, he said in June 1967, by colonization (‘uvodt hityashvoyot’ – settlement facts on the ground). Allon drew a strategic map that left only densely populated Palestinian areas out of the Jewish West Bank and Gaza Strip. The problem for the 13th government and the ones that followed it, the Golda Meir and Rabin governments, was that the new messianic movement, Gush Emunim, had a different map of colonization, based on the Bible and the nationalistic imagination of Israeli archaeologists, which wanted to settle Jews precisely on densely populated Palestinian areas (which allegedly were situated on ancient biblical Hebrew places). This twin effort from above and below already by 1974 defined the West Bank in particular as a partitioned space between a Jewish West Bank and a Palestinian one, the former growing all the time, the latter shrinking all the time. The state had to decide how to incorporate the territory without changing the demographic balance inside the Jewish state. The solution in the immediate aftermath of the war, and long after it, was to enclave the people of the West Bank and the Gaza Strip in mega prisons, that by now a third generation of hundreds of thousands of Israelis is involved in policing and maintaining as a way of life that looks to them as normal and acceptable, despite wide international condemnation of this reality created on the ground. The same government that decided to divide the 1967 occupied territories into ours and theirs also made the first and crucial decisions on the fate of the people living in the occupied territories. After some hesitations and a quite substantial forced transfer of the population, it was decided not to ethnically cleanse the population. The status of the population was to have some official connection with the previous powers, namely Jordan and Egypt, but basically, they were to remain as long as possible citizenship-less citizens.

190  Ilan Pappe The next resolution was not to announce these decisions and engage in a peace process, with the help of the Americans, the aim of which was to obtain international, and if possible Arab, and later on even Palestinian, legitimization, or at least consent, to the way Israel wishes to have the territory without the people. The hope was that this legitimization would turn the Israeli plan into the end game of a future peace process. It was taken for granted that there would be genuine public debate in Israel about the future of the territories and some friction with the US, but at the end of the day, the Israeli interpretation of what is peace and what is a solution would prevail. Nothing in what happened in the next 53 years indicates that these politicians did not get it right basing their hope on Palestinian fragmentation, Arab impotence, American immunity, and global indifference. The other constituent element of the settler colonial policy after 1967 was how to rule and police the citizenship-less citizens. In the last 53 years, the settler state has employed two models for ruling over millions of citizenship-less citizens. Both models are mega-prison models, with the logic of a prison and with only one difference, you can leave the prison and become a refugee with no right of return (Pappe, 2018, pp. xiv–xvii). The open prison model is based on allowing freedom of movement inside the Palestinian areas and controlled movement outside the Palestinian areas and between the West Bank and the Gaza Strip. No spatial growth for the Palestinians, no new villages or towns built on any land coveted for present and future Jewish settlements. The settler state did not tolerate any resistance to the geopolitical reality it created on the ground, but a certain level of autonomy was allowed in running municipal affairs. The first open prison was run between 1967 and 1987. Life was constantly monitored by the army and from 1981 by an outfit called the Civil Administration ruled by a set of regulations that gave the military unlimited power in the life of the citizenship-less citizens. They were arrested without trial, expelled, their houses and business demolished, wounded and killed at the discretion of soldiers quite often of lower ranks. This was on offer, the first time between 1967 and 1987 and the second time between 1993 and 2000. It has been on offer for Areas A and B in the West Bank since 2004. Every new model of the open prison is worse for ‘the inmates’ than the previous one. Privileges granted in the first term are reduced as long-term punishment for resisting the model. Thus, the second open prison, what one can call the open prison model of the Oslo Accord which created mini prisons in Areas A, B, and C and the Gaza Strip, is far less open that the one in place before Oslo. This didactic approach is inbuilt into the Israeli perception – supported by Israeli orientalists – of how best to teach the Palestinians lessons that would subdue them and disempower them to the point of submission. The first Palestinian resistance to the open prison model was in the First Intifada in 1987. The punishment was replacing the open prison model with a maximum-security prison. Between 1987 and 1993, it included short-term punitive actions – mass arrests without trial, wounding and killing demonstrators,

The discourse of exceptionalism  191 massive demolition of houses, shut down of business and the education system, and most importantly, further expropriation of land for the sake of Jewish settlements. The Palestinians were offered a sophisticated open prison model in Oslo (regardless of how Palestinians and the world saw the accord). This is why the end of the occupation is not mentioned in the accord and the accord did not promise any end to intensive Israeli involvement in the life of the Palestinians, even if the Palestinians would implement every other Israel demand within the Oslo Accord. However, this model included the long-term punishment, the didactic one. From 1994 there was no freedom of movement any more inside the Palestinian areas, let alone outside the Palestinian areas, and the Judaization of the West Bank increased. The Gaza Strip was encircled already in 1994 with barbed wire, and the privileges granted in the first model of the open prison for the Gazans to work in Israel were withdrawn. Another permanent punishment was the allocation of more water to the Gush Qafif settlements and cutting the Strip into two parts controlled by Israel. If life under the first open prison model was unacceptable to the Palestinians, the second one was worse, both in objective terms but even more importantly as it was presented as part of a peace process. The years devoted to Oslo and its implementation were creating life under conditions which were far worse than those in the first open prison model. The second uprising generated yet again a punitive maximum-security model: far worse in its short-term punitive actions and the long-term punishments. The massive use of military power included F-16s and tanks against the civilian population, in particular during the 2002 Defence Shield operation. This was an urbancide as we have witnessed in Syria, Iraq, and Yemen recently, and which was a prelude for the use of such power in the third model of the maximum-security prison imposed on Gaza after Hamas took over the Strip in 2006. In 2007 the two models clearly transpired in the way Israel ruled the West Bank and the Gaza Strip, still loyal to the main decision the 13th government took in 1967: not to annex, not to expel, and not to withdraw. The only decision discarded was the need to present it all as temporary measures pending peace, or to describe the open prison model as a peace plan. Even the Israeli public and politicians got tired of this charade and adopted what Prime Minister Ehud Olmert called unilateralism. Where there is collaboration there is an open prison model, in Areas A and B, which includes the long-term punitive actions: hundreds of checkpoints and an Apartheid wall meant to humiliate to the point of submission millions of people under the belief that this would discourage a third uprising. The checkpoints are the recruiting ground for a cruel network of informants that is meant to attack the dignity and self-respect of a whole nation that miraculously still succeeds in remaining human and steadfast today. And there has been the closure of whole towns and villages with only one exit controlled day and night by the army and recently by private companies. Where there is resistance as in the Gaza Strip against the maximum security, the prison has turned into a ghetto, with Israel rationing food and calories,

192  Ilan Pappe undermining health and the economy to the point of creating a human catastrophe as acknowledged by the UN prediction for the de-development and unsustainability of the Gaza Strip from next year onwards (United Nations, 2018).

The next target: The West Bankization of Israel All the Zionist parties of Israel in one form or another subscribed to these two models as the only game in town. Recently, the dominant political powers in Israel wish to import this twin model into Israel proper, vis-à-vis the Palestinians in Israel. The same methodology employed of turning what remains of the Land of Israel into the State of Israel is used in Israel proper. In the West Bank this modus operandi was an admixture of actions from below (by the messianic movement of Gush Emunim and other settler offshoots) and from above (through government housing and expansion policy). These mixed policies of allegedly unauthorized colonization (quite often legitimized in hindsight) and planned Judaization are also employed inside Israel. This admixture consists, among other projects, of planting zealot settler communities on the seams of mixed towns in Israel (such as al-Lid, Acre, Jaffa, and Ramleh), and using archaeological excavation to cleanse the old cities of Acre and Silwan, while the government supported an NGO, named ELAD (Ir David Foundation, a right-wing Israeli organization), which ousted Palestinians from their homes in Shaykh Jarah. There are also the more veteran programmes of the Judaization (yihud) of the Galilee and the Naqab. The spatial take over, very much as in the case of the West Bank, precedes the final definition of the status of the ‘unwanted’ population. This has been the method of the Zionist colonization of Palestine from the outset, and it’s the way most settlercolonial projects developed in the past. The Right-wing parties in Israel, in power since the late 1990s, like their Labour predecessors, do not particularly wish to leave such ‘national projects’ in the hands of vigilantes (this is why after 1948 the government preferred a systematic and orderly looting of the possessions left behind by the Palestinian refugees and struggled against individual acts of robbery and pillage). As a national project from above the only difference between the Labour establishment and new Centre-Right one is the move from de facto actions on the ground to de jure legislations. The de-facto actions are spatial strangulation, partition, and settlement. The need to move a to de-jure policy stems from the wish to determine in a more final way the status of the Palestinian population as it is constantly perceived as the main strategic challenge for the success of the settler-colonial project of Zionism. As a result, the Labour party imposed Judaization and partition on both sides of the green line that reduced the differences in the existential realities for all the Palestinians living in historical Palestine (apart from the Gaza Strip) through the construction of purely Jewish spaces (from small settlements to towns) in the West Bank as well in Greater Jerusalem, the Galilee, and the Negev and maintaining a discriminatory system in every aspect of life (although it was, and still is, in

The discourse of exceptionalism  193 terms of individual freedom to hold Israeli citizenship for freedom of movement, employment, and education). The Centre-Right coalition governments legalized, or in a way declared openly, this spatial Apartheid policy with a series of legislation that began with a law in 2011 that allowed Jewish communities and settlements inside Israel to reject any Palestinian citizen of Israel wishing to live there. In this century, the Centre-Right governments of Israel have attempted by law to deny the right of any form of self-determination for the Palestinians in Israel (while ‘tolerating’ it in Area A in the West Bank and unable to impact it in the Gaza Strip unless Israel decided to re-occupy it). A 2011 law enabled the state to define any Palestinian citizen identifying with the actions of Palestinian resistance as a traitor or terrorist. The Nakba Law on that year banned public commemoration of the 1948 events as a catastrophe by anyone connected to the state (such as schools or community centres) (ADALAH, 2017). According to the Palestinian non-governmental organization AL MADAR (Palestinian Forum for Israeli Studies, Ramallah), the Israeli Knesset between 2015 and 2018 passed 185 racist laws meant to consolidate an apartheid regime on both sides of the green line (AL MADAR, 2018). To sum up, viewing the history from 1882 until today in such a manner locates the very act of Zionist settlement in Palestine as the departure point for any historical record of the violation of the basic rights of the Palestinians first as an indigenous group and then as a national movement and its basic right to selfdetermination. It is the first act of violence to which - as in many anti-colonial struggles - the native population responds with its own violence, which in return produces more, and harsher, violations of human rights. Patrick Wolfe remarked that settler colonialism is ‘a structure rather than an event’ (Wolfe, 2006, p. 390). This is also applicable for our discussion on human and civil rights. It means that the Israeli violation of Palestinian rights stems from the Zionist ideology and is not only the fruit of an occasional policy and or retaliation. Can a settler colonial state be a democracy? The main reason that the answer to the above question is negative is the nature and record of its human and civil rights abuses. One can draw this conclusion firstly on the basis of the historical record presented so far in this chapter. The historical record provides the explanation for the nature of the current political regime of the State of Israel and its relations to civil and human rights, and by implication to democracy. Even other paradigms that do not adopt the settler-colonial point of view concede that the current regime cannot be easily framed as a democracy, as it is a political system that violates systematically the rights of non-Jews, just because of who they are and not because of their actions, or even opinions. This state of affairs would be unacceptable in any democracy as an ethos or as a constitutional reality (I refer here to Sami Smooha’s depiction of Israel as an ethnic democracy and Asad Ghanem and Oren Yiftachel’s depiction of Israel as an ethnocracy)

194  Ilan Pappe (Smooha, 2002; Yiftachel, 1997). But it is the settler colonial paradigm that allows to seeing Israel today as a master violator of human and civil rights. In 2018, this claim has been validated by the Israeli Nationality Law that put the current state of affairs in a clear perspective and in a constitutional manner.

The Nationality Law as an affirmation The one item on the long list of violations that stands out and epitomizes all the others and the structural and inherent nature of the anti-democratic make-up of the State of Israel is the Nationality Law. The law in many ways manifested the settler-colonial identity of the State of Israel and as such states clearly both the achievements of the Zionist movement as well its plans for the future. As such it is not an extreme right-wing document but rather a fair reflection of the major failure of the Zionist settler-colonial movement in Palestine. The new Israeli Nationality Law is a natural, almost inevitable, product of the Zionist project in Palestine. This text spells out clearly attitudes and positions that were obfuscated in the past by more cautious discourses. The Israeli Nationality Law was passed on 19 July 2018 as a fundamental (constitutional) law which has a special status as unique circumstances are required for its revision or abolition. This law, very much like the other abuses of civil and human rights of Palestinians by Israel, is a refined Israeli methodology of dealing with the inherent challenge facing any settler-colonial project which covets someone else’s homeland but wishes to have it without the indigenous population. This methodology was first put in place in the late nineteenth century and is adapted constantly, ever since, to changing circumstances and realities. More specifically, the Nationality Law responds to the reality Israel created in 1948, namely the fragmentation of the Palestinian people into discrete groups that were hitherto ruled by different means and now are been perceived as constituting a similar threat to the settler-colonial state. The text of the law, thus, represents both the fundamental Zionist ideology as well as the adjustments of this ideology to present-day realities. The law begins with similar statements to those found in the Israeli Declaration of Independence promulgated on 14 May 1948 stating that Palestine is the historical birth place of the Jewish people. However, the Declaration talks about the right of the Jews to ‘self-determination based on historical, cultural and constant religious attachment to the land’ (Provisional Government of Israel, 1948, p. 1), while the Nationality Law defines Israel as a Jewish nation-state based on ‘a moral, religious and natural right’ (Book of Laws 2018, p. 898), not just an attachment. Thrown to the wind are the previous Zionist claims that creating a state was a secular project of modernization that would benefit all who live in historical Palestine. These two concepts, ‘the Land of Israel’ and ‘the State of Israel’, are crucial for understanding the law, the nature of the Zionist project, and the future policies of the State of Israel (regardless of which government is in power). The ‘Land of

The discourse of exceptionalism  195 Israel’ reflects the spatial (geographical) dimension of the Zionist settler-colonial project while the ‘State of Israel’ represents the demographic aspect of the project. According to the law there is only one national group within the State of Israel, and there will be only one such group when the State of Israel extends over other parts of the Land of Israel: clause 1.3 asserts that ‘the right of national self-determination in the State of Israel is uniquely Jewish (yihudi lam hayehudi)’. This reality will be applied in the future to any additional part from the ‘Land of Israel’ that would be acquired through ‘Jewish settlement (Hityashvut Yehudit)’, namely the colonization of parts of the Land of Israel which are not yet the State of Israel (Book of Laws, 2018, p. 898). Hence the Nationality Law is the summation of these laws and not a new law. Like all the other laws and the politics on the ground, these are the twenty-firstcentury solutions to the conundrum of the settler-colonial project of a state wishing to be regarded as a democracy and which cannot implement massive ethnic cleansing. The Nationality Law is thus both a culmination of a wave of legislation meant to help the settler state to adapt to changing realities, and within a wider historical context, yet another method of dealing with both the incompletion of 1948 and the need to find a balance between exclusivity over space and overcoming ‘demographic threats’. The law also indicates a search in the future for a similar methodology for dealing with both Palestinian communities in at least part of the West Bank (in Area C) and the Palestinians in Israel. It is quite possible that the bottom-up policies and those from above, inspired by this law, will continue in the future. From below, the further expansion of exclusive Jewish spaces (or a municipality like Afula taking a vow never to allow Palestinian citizens to live in the city) will be followed by policies outlawing any further challenge to the Nationality Law’s definition of the Palestinian citizens as the people who speak a language that has a ‘special status’. Delegitimizing the Islamic Movement was a first step that can be followed by further outlawing other Palestinian parties, such as Balad (Tajamu). Outlawing Palestinian parties or movements will be part of what one may call the West Bankization of Israel. The attempt to re-define who the Palestinians are encountered some unexpected hitches in the law as it included automatically also the ‘good Arabs’, such as the Druze who asserted that serving in the Israeli army includes one within the privileged community of the Jewish society. The law defined exclusion according to a mother tongue, and not just service in the army. But all an all, the Zionist parties will continue to debate the best tactics for achieving the basic goal of the settler state – having the space without the indigenous people – but will not question the logic of its search; hence the correct prediction of many pundits that there is little hope of change from within the Jewish society in Israel. Palestinian resistance has never ceased from the very beginning of the colonization of Palestine. The incompletion of the 1948 ethnic cleansing and the continued preoccupation of the settler state with the demographic conundrum are

196  Ilan Pappe testimony to its successes (as well as failures). The struggle against the eviction as well as the struggle against the overall ideology and future plans are daily, quite often feeble and hampered by disunity and objective imbalance on the ground, the region, and the world. There are however achievements that in time may prove to be enhancers of a more successful liberation struggle in the future. Recognizing the settler colonial nature of Israel is quite common now among Western civil societies and beyond and with it follows the realization that what is needed is not peace but decolonization, not just of the areas occupied in 1967, but of the whole of historical Palestine, which will include the implementation of the Palestinian refugees’ right of return. Even beyond civil society and among a growing number of Palestinians, there is a willingness to revisit the two-state solution as an open prison model and think hard about how one can create one democratic state for all, taking into account two things. The first is the continued adherence of the representative bodies of the Palestinians today to the two state solutions; the second is that there is already one settler Apartheid Israel all over historical Palestine. United Palestinian support for the one democratic state solution, backed by international endorsement and measures such as those offered by the BDS movement, is a preliminary step before there is any hope for generating a change from within Jewish society. The Nationality Law may be a trigger for invigorated new definitions and a strategy of liberation or alas one may have to wait for even a clearer, if it is at all possible, exposure of the real nature of Zionism and the State of Israel.

References ADALAH. (2017). Israel’s Discriminatory Laws. Retrieved from https://www​.adalah​.org​ /en​/content​/view​/7771. AL MADAR. (2018). Special Report, 19 April. Retrieved from https://www​.madarcenter​ .org​/en​/reports​/special​-reports. Book of Laws. (2018). Volume 2743, 26 July 2018, Israeli Knesset, 898. Chomsky, N. (1986). Thought control in the USA: The case of the Middle East. Index on Censorship, 15(7), 2–22. Masalha, N. (2000). Imperial Israel and the Palestinians. London: Pluto. Pappe, I. (2012). Shtetl colonialism: First and last impressions of indigeneity by colonised colonisers. Settler Colonial Studies, 2(1), 39–58. Pappe, I. (2018). The biggest prison on earth: A history of the Israeli occupation. London and New York: Oneworld. Provisional Government of Israel. (1948). Official Gazette, Number 1, 15 May 1948. Retrieved from https://www​.gov​.il​/he​/Departments​/DynamicCollectors​/gazette​-official​ ?skip​=0​&limit​=10​&FolderType​=2. Said, E. (2000). America’s last taboo. New Left Review, 6 (November/December), 45–53. Salamanca, O.J., Qato, M., Rabie, K., & Samour, S. (2012). Past is present: Settler colonialism in Palestine. Settler Colonial Studies, 2(1), 1–8. Smooha, S. (2002). The model of ethnic democracy: Israel as a Jewish and democratic state. Nations and Nationalism, 8(4), 475–503.

The discourse of exceptionalism  197 United Nations. (2018). The question of Palestine. Gaza ‘unbelievable’. Retrieved from https://www​.un​.org​/unispal​/document​/gaza​-unliveable​-un​-special​-rapporteur​-for​-the​ -situation​-of​-human​-rights​-in​-the​-opt​-tells​-third​-committee​-press​-release​-excerpts/. Veracini, L. (2015). The settler colonial project. New York: Springer. Wolfe, P. (2006). Settler colonialism and the elimination of the Native. Journal of Genocide Research, 8(4), 387–409. Yiftachel, O. (1997). Israeli society and Jewish-Palestinian reconciliation: Ethnocracy and its territorial contradictions. Middle East Journal, 51(4), 505–519.

Index

AANES see Autonomous Administration of North and East Syria (AANES) Abbas, Mahmoud 85, 91, 93, 94, 99, 105 Abendland 6 ACRI see Association for Civil Rights in Israel (ACRI) Adalah case 160–167, 169, 172, 173 ad hoc detention facilities 40 African American Freedom Riders 103 African National Congress (ANC) 51, 53–56, 64–66, 75 Al-Aqsa Brigades 113 Algerian citizenship and unity 6, 24–27, 29; challenging tropes 25–26; intergenerational protests 25; re-politicization and public sphere 26–27, 29 Algerian hirak movement 17–19, 22–24; citizenship, unity, and organization 24–27; democratization and collective action 19–22; peaceful protest, silmiya, and reconciliation 27–29 Algerian War of Independence 103 Allon Plan 75–77, 79, 82, 86 Al-Mi’aa (the Mirror) 81 Al-Quds Baladi (Jerusalem is my city) 151, 154 Al-Quds Lana (Our Jerusalem) 151, 154 AMAN (Coalition for Accountability and Integrity in Palestine) 91, 104–105 Amazigh flag 24 AMCU see Association of Mineworkers and Construction (AMCU) Amnesty International 42 anarchism 12 ANC see African National Congress (ANC) anti-Apartheid movement 53 anti-Apartheid struggle 55, 56, 63

anti-colonial struggle 65, 82 ‘Anti-Terror Waiver’ 85 Apartheid 75, 83, 86, 176n13, 193 Arab Chamber of Commerce and Industry 153 Arab civic associations 20 Arab community 132–134 Arab development activity 133, 135 Arab population 134–135, 186 ‘Arab Spring’ uprisings (2011) 18–20, 22 Article 43, Hague Regulations (1907) 162; see also Hague Regulations Asayish (internal security force) 38, 40 al-Assad, Hafez 2, 33 Association for Civil Rights in Israel (ACRI) 116, 117, 126n5 Association of Mineworkers and Construction (AMCU) 57, 58 asymmetric containment 72 authoritarianism 19–21, 29, 90–93, 95, 104, 113 Autonomous Administration of North and East Syria (AANES) 33, 43, 43nn1, 2, 3; democratic autonomy 34–36; gendering radical democracy 36–38, 43; role of law 38–41; women’s democratic autonomy 36–38 Azanian People’s Organization 55 Balata refugee camp 101 Balfour Declaration 146 Bantustan model 86 Barak, Aharon 157, 158, 161–164, 166, 173 barbarism 4–7, 186 al-Barghuti, Mustafa 103 Basic Law: Israel – The Nation State of the Jewish People, The (2018) 173

200 Index Basic Law: Jerusalem, Capital of Israel (1980) 147–148 Bayat, Asef 18, 19, 21, 22, 28, 29 BDS movement 196 BEE see Black Economic Empowerment (BEE) Beit Ta’amir 97 Belfast 130, 132, 136–142; see also Northern Ireland Bible 5, 7, 8, 187, 189 Biggest Prison on Earth. A History of the Israeli Occupation, The (Pappe) 188 Biko, Steve 51, 65 Bimkom 97, 98 Black Decade (1990s) 17, 23, 27 Black Economic Empowerment (BEE) 52 ‘Black Lives Matter’ 12 Black Marxism (Robinson) 63–64 black oppression 51, 53 black political parties 55 black subaltern 58, 62, 65, 66 boycotts 93, 111, 112, 151–154 Brown v. Board of Education 170 Budget Foundations Law (Amendment 40) – Reducing Budget or Support for Activity Contrary to the Principles of the State 115 bureaucracy 74, 84, 94, 95, 105, 116 capitalism: racialized 50, 56; Western 1 Centre-Right governments 193 ‘character assassinations’ 118 child soldiers 42 citizen activists 21 citizenship 33, 41, 56, 59, 128, 159, 171, 176n13, 181n98, 193; active 34–36; contested 128–130, 142; rights 1, 62, 130–132, 141, 165, 168–170, 173 Citizenship and Entry into Israel Law (Temporary Order) 115 Citizenship Law 5712-1952 165, 167–169 citizenship-less citizens 189, 190 city politics 131 Civil Administration 79, 80, 81, 84, 116, 190 civil disobedience 112 civil society 52, 58, 111, 115, 117, 124, 125, 153, 196; organizations 20–24, 80, 119, 121 classical colonialism 186 classical liberalism 3, 9 class society 4 class struggles 1

Coalition of Women for Peace 119 Cold War 1, 81 colonial constitutionalism 159, 171–174 colonial governmentality 73–74 colonialism 6, 18, 59, 74, 149, 157, 171–174, 175nn9, 10, 176n13, 181n98 colonial-sponsored autonomy 74, 75 colonization 3, 71, 78, 82, 150, 189, 192, 195; Western 7; Zionist 8, 192 conservative British ‘direct rule’ (1972–1998) 137 Constituent Assembly of Northern Syria 33 constitutional revolution 157 Core Demands Committee 101 coronavirus pandemic 18, 28, 29, 57, 95 corruption 51, 53, 56, 58, 95, 100, 104 counterinsurgency 73, 77, 83 COVID-19 pandemic see coronavirus pandemic curfews 28 DA see Democratic Alliance (DA) David, Camp 79 ‘Deal of the Century’ see Middle East plan ‘decentralized despotism’ 74 decisionism 167, 172, 173 decision-making 3, 11, 18, 34–36, 39, 80, 96, 113 decolonization 73, 75, 82, 174, 196 Defence Shield operation (2002) 191 de jure legislations 189, 192 democracy 41, 128, 173–174, 186–188; direct 35, 36; ethnic 172; grassroots 34; justice and 38–41; movement 11, 12, 19, 29; participatory 34–36; as progressive force 10–12; settler 6, 7; transition 91–93 Democracy, ‘Arab Exceptionalism,’ and Social Science (Harik) 21 Democratic Alliance (DA) 54, 55 democratic autonomy 34–36; model 39; women’s 36–38 Democratic Federation of Rojava see Autonomous Administration of North and East Syria (AANES) ‘Democratic Progressive Pole’ 104 Democratic Union Party (PYD) 33, 42, 43, 43n7 democratization and collective action 19–22, 39, 41; authoritarian resilience 20–21; exceptionalism 21, 29 demographical policy 163, 164 despotism 5, 9, 10, 74 ‘divide and rule’ policy 81

Index  201 East Jerusalem 71, 76, 82, 86, 90, 123, 129, 131, 132, 134, 135, 146–151, 153, 175n6 economic development 78, 110 Economic Freedom Fighters (EFF) 55 economic inequality 4, 11 EFF see Economic Freedom Fighters (EFF) Egypt 20, 22, 189 ELAD (Ir David Foundation) 192 ‘embedded liberalism’ 1 emergency laws 150 Emergency Regulations 164 ‘enemy alien’ doctrine 160, 166, 173 Entry into Israel Law 5712-1952 165–167 erasure manifest 111, 115 ‘Eretz-Yisrael’ (the Land of Israel) 147, 189, 192, 194–195 ethnic cleansing 8, 71, 186–189, 195 ethnonational ideologies 130–131 ethno-political conflict 142 EU see European Union (EU) eurocentrism 41, 43 Europe 7, 59, 63, 91; Eastern 20; interference 29; race 5, 6 European Recovery Program 59 European Union (EU) 8, 10, 114 exceptionalism, discourse of 19, 21, 29, 186 false-democracy 63 Fascism 1, 9 Fatah 85, 91, 93–95, 99, 114 feudalism 52 First Palestinian Intifada (1987) 81, 82, 102, 112, 113, 190 First World War (WWI) 146 FIS see Front Islamique du Salut (FIS) FLN see Front de Libération National (FLN) foreign funding 120–121, 125 formal equality 3, 4, 11 Freedom Front-Plus 55 friend-enemy conception 50, 53, 56, 59–62, 65 Front de Libération National (FLN) 18 Front Islamique du Salut (FIS) 18 fundamental rights and freedoms 42, 63, 110 Gaza Strip 8, 71, 77, 85, 90, 91, 111, 112, 147, 149, 153, 157, 159–174, 175n6, 188–192

gender: discrimination 37, 38, 40; equality 36–38; justice 36, 37 General Union of Palestinian Teachers 99 Geneva Convention 148, 177n34, 186 genocides 5, 6, 10, 187 GFA see Good Friday Agreement (GFA, 1998) global riots 10–12 Good Friday Agreement (GFA, 1998) 130, 132, 137, 140, 143n1 ‘Great Conquest’ 6 Green Line 133, 136, 157–159, 165–168, 170, 172, 174 guerrilla activities 111–112 Gush Qafif settlements 191 Hague Regulations 148, 177n34; see also Article 43, Hague Regulations (1907) Hamas 82, 85, 91, 93–95, 99, 100, 113, 134, 191 hegemony 2, 3, 9, 132–136, 174 home demolition 111, 113, 149, 150, 153, 186, 191 ‘Hong Kong Lives Matter’ 12 humanity, crime against 2, 8 human rights 2, 9, 23, 41, 111, 117–119, 172, 185–188; international 42; treaties and charters 39; violations 121–124, 186, 193, 194 Human Rights Watch 41, 42, 125n2 al-Husaini, Abdel Qader 105 al-Husaini, Faisal 105 HyperNormalisation (2016) 1, 2 ICA see Israeli Civil Administration (ICA) ICJ Advisory Opinion (2004) 149 identity: Algerian 24; Arab Muslim 24; collective 52, 60; Kurdish 36; Palestine 112; political 63, 171; racial 50, 64; religious 129; Self-Other 65 IDF see Israel Defense Forces (IDF) IDP see internally displaced people (IDP) IHL see international humanitarian law (IHL) immigration policy 160–162, 164, 165, 170 indigenous elites 63 indigenous people 5, 187 institutionalized discrimination 111, 116, 117, 121 internal intelligence service 80 internally displaced people (IDP) 36, 44n13

202 Index international community’s policies 119–121 International Crisis Group 114 international humanitarian law (IHL) 42, 48, 148, 157, 158, 162, 164, 170–174, 175n6 international law 9, 40, 41, 90, 91, 117, 119, 120, 148, 172 International Monetary Fund 7 international politics 41, 60, 61 ISA see Israel Security Agency (ISA) ISIS 41, 42 Islam/Arab exceptionalism 21, 29 Islamic Jihad 82, 113 Islamic movements 81, 195 Islamist ideology 18 Israel 2, 91, 110, 112, 113, 129, 131–135, 142, 153; annexation of Jerusalem 146–151; early challenges to democracy myth 185–186; growth strategies 136; human and civil rights 185–188, 193, 194; as Jewish state 153–154, 157; Nationality Law (2018) 194–196; settler colonialism and democracy 7–10, 186–188; settler colonialism in occupied territories (1967–2007) 188–192; West Bankization of 192–195; see also Palestine/Palestinian(s) Israeli Basic Laws (1992) 157, 158, 161, 166 Israeli constitutional law 153, 157, 161, 169, 171 Israeli indirect colonial rule 71, 73–75; Oslo Accords 72–73, 81–86; pre-Oslo models 75–81; strategies of population management 71–72 Israeli law and legal system 116, 121–124, 129, 147, 150, 153–154, 157 Israeli Supreme Court 148, 149, 154, 159, 160, 162, 164, 165, 167, 170, 171, 173, 174 Jerusalem 86, 113, 117–119, 122, 129, 131–134, 142, 157, 159, 165–168, 174 ‘Jerusalem Law’ 131 Jerusalem municipal elections 129, 141; boycotting 151–154; dilemma 149–151; historical background 146–148; international legal status 148–149 Jewish and Israeli settlements 77–79, 83, 86, 113, 132, 133, 150, 189, 191, 193, 195 ‘Jewish democracy’ 172, 180n94

Jewish group rights 158 Jordan Valley 8, 76–78, 82, 86 Judaization (yihud) 191, 192 Judeo-Christian tradition 5, 9, 10 justice: council 37, 40, 44n20; democracy and 38–41; indigenous 74; system 37, 39, 40, 124 Kafr Aqab refugee camp 134 Kurdish movement 36 Kurdish People’s Protection Units 42 Kurdistan National Council 44n11 labour force 78 Law of Return 5710-1950 158–159, 164–171, 174, 180n87, 89 League of Nations 146 Legislative Council 39, 99, 100, 103, 105 liberal democracy 1–3, 10, 11, 37, 41, 157, 158, 174; see also South Africa, liberal democracy in liberalism 10; as anti-democratic 3–4, 9; thoughts of liberal minds 4–7 liberation movement 7, 73, 75, 82, 103 liberation struggle 25, 196 Mandatory Palestine 111 Marikana massacre (2012) 57–59 martial law 72, 111, 129 ‘Master-race democracy’ 10 Medical Relief Committees 98 MENA see Middle East and North African (MENA) region Merchant Empires 6 Middle East 1, 19, 85; plan 86; West’s influence in 2 Middle East and North African (MENA) region 11, 19–22 Military Governorate 77–81 military law 10, 116 military operations 42, 74, 83 modernization 75, 92, 194 Movement for a Democratic Society (TEV-DEM) 35 Muslim Exceptionalism? Measuring the ‘Democracy Gap’ (Goldsmith) 21 Mussolini 9 Nablus, local elections in 93–95 Nakba (1948) 8, 187, 193 nationalism 9, 65, 112, 129 nationalist political elite 50, 52, 53, 57–59, 65

Index  203 nationality 41, 82, 173 national liberation movements 75, 80, 82, 103, 113 National Party (NP) 53 national policy agendas 128, 130–133, 141, 142 national political goals 128, 130, 131, 133, 141, 142 national security 41, 159, 160, 161 National Union of Mineworkers (NUM) 57, 58 national unity 17, 24 nation-building strategies 54, 111 nation-state 33, 41, 128, 172, 194 neoliberal governmentality 1, 2, 11 ‘the new Palestinian men’ 83 NGO-ization 114, 126n3 non-governmental organizations (NGOs) 92–93, 103–105 non-Kurdish communities 42 ‘non-movements’ 18, 19, 21–22, 29 non-state actors 110, 111, 119–121 non-violence 27, 111–112, 115 Northern Ireland 129–130, 132, 142; resistance to peacebuilding 136–141 Occupation Regime 104 Occupied Palestinian Territories (OPT) 71–73, 76–79, 81–86 ‘Open Bridges’ strategy 77–78 open prison model 190, 191, 196 OPT see Occupied Palestinian Territories (OPT) Oslo Accord (1993) 72–73, 91, 106n3, 110, 112–115, 117, 124, 132, 143n1, 190, 191 Oslo II Accord (1995) 113, 129 PA see Palestinian Authority (PA) Palestine/Palestinian(s) 7–10, 71, 72, 78–80, 91, 129, 141, 142, 188–189, 195, 196; besiegement of 71; building plans for 114; citizenship 76, 82, 129; deportation of 166, 174; discrimination 116, 117, 121, 122, 152, 158, 160, 161, 166, 170, 172, 186; dispossession 76, 83, 110; Israel’s restrictions and occupation of 129, 147, 149, 151; ‘Jewish homeland’ in 146; massacres of 2, 8, 186; Muslims 152–153; pacification of 73, 77, 78, 85; participation in elections 151–152, 154; political activity 150–151, 153, 154; population 76, 77, 82, 113, 134, 135, 146, 152, 153, 192;

residency status of 134, 149, 150, 152–154; resistance 72, 83, 85, 111, 112, 114, 115, 122, 125, 136, 190, 193, 195; social and class structures 78, 81; violence 81, 133, 150, 186; voting status 149; women 166; see also Israel; Palestinian claim making; Palestinian family life; Palestinian territories and Israel’s hegemony; struggle for democratic space Palestinian Authority (PA) 72, 73, 82–86, 93, 98–104, 106, 113, 114, 117, 123–125, 134, 150, 153 Palestinian Basic Law 105 Palestinian claim making 110; adapting to changing struggle 124–125; conflict origin and nonviolent tradition 111–112; Israeli legal system 121–123; one rule, two legal systems 116–117, 126n5; Oslo ‘peace process’ and city enclaves 112–114; settler colonialism 114–116; shrinking space 117–124 Palestinian family life 157, 160; colonialism 171–174; family unification 160–162, 168–169; in West Bank-Gaza 162–171 Palestinian Legislative Council 85 Palestinian Liberation Organisation (PLO) 72, 78–82, 111, 113, 150, 152 ‘Palestinian Lives Matter’ 12 Palestinian territories and Israel’s hegemony 132–136; building unlicensed housing 134–135; developing Jerusalem’s ‘grey areas’ 133–134, 141; resistance at territorial interfaces 136 Palestinian Versailles 72 Pan-Africanist Congress 55 ‘pass laws’ labour legislation 57 patron-client system 84 peacebuilding 72, 84, 85, 128, 132, 136–142 penalties 116, 122 People’s Defence Court 39, 41 people’s/district courts (dadgeha gel) 39, 40, 45n21 PLO see Palestinian Liberation Organisation (PLO) political resistance 128–142 political system 3, 18, 33–35, 53, 54, 56, 91, 130, 153, 193 popular activism 19, 21, 22 populism 59 post-Apartheid politics 51, 52, 56, 62

204 Index postcolonial theory 59 private property 4, 6, 11, 54 Protestant parades 140 Protestant rule (1920–1972) 137 Protestants 130, 138–142 PR-party-list system 55 PYD see Democratic Union Party (PYD) Qaddurah Refugee Camp 103 race: discrimination 75, 172, 180n94; domination 159, 172; power of 63; segregation 11; White 5 racism 50, 52, 53, 56, 58 radical democracy 11, 33, 43n7; gendering 36–38, 43; stateless 34 radicalization 53, 78 Ramallah 91, 93, 95, 100, 101, 103, 104, 106 refugees 36, 44n13, 15, 59, 196 religious (in)equalities 137 rentier state theories 19 re-politicization and public sphere 26–27 residency revocation policy 149–150, 152, 153 ‘Road Map for Peace’ 84 Rojava Information Center 34, 38, 43n6 Second Intifada (2000–2005) 83, 84, 113, 124, 133, 186 Second World War (WWII) 1, 41, 59 sectarian division 138–140 self-determination 34, 35, 37, 82, 84, 158, 170, 193, 194, 195 self-governing autonomy 72 self-government 6, 33, 34, 41, 86 settler colonialism 5–9, 50, 52, 62, 86, 90, 92, 93, 106, 110–111, 114–117, 119, 125, 185, 186–192, 194–196 settler-colonial modernity 53, 56, 62–65 shared space 132, 137, 139–142 ‘shrinking space’ 110, 111, 114, 117–124 ‘Shrinking space in the Israel-Palestine conflict – departure for constructive cooperation’conference 110 Shuafat refugee camp 134, 150 Six-Day War (1967) 71, 75, 129, 188 slavery 5, 171 smear campaigns 117, 125 Social Contract of the Democratic Federation of Northern Syria (2016) 33, 37, 39, 40, 42, 43n3, 43nn3, 5; Article 7 35; Article 68 37

social (in)equality 3, 11, 132, 142 socialist interventionism 28 Socialist Party of Azania 55 social movements 2, 19–22, 110, 142 social transformation 39 South Africa, liberal democracy in 50; crisis and friend-enemy conception 59–62; disillusion 51–52; genealogy 52–57; Marikana massacre (2012) 57–59; settler-colonial modernity and 62–65 South African Apartheid (1994) 2, 11, 57, 58, 86, 187 sovereignty 6, 12, 33, 42, 64, 76, 86, 128–133, 135, 141, 142, 146, 148, 149, 153, 157, 158, 160–162, 164, 170, 175 Soweto student-inspired community revolt (1976) 53 SSR see Security Sector Reform (SSR) stateless postnational model 36 ‘the State of Israel’ 72, 111, 129, 147, 153, 154, 162, 189, 192–196 struggle for democratic space 90–106; Basel al-Araj case 103–104; choice of samples 92; local elections in Nablus 93–95; local elections in Yasuf 95–96; structural context for 90–92; teachers’ strike (2016) 99–103; theory and methodology 92–93; women of Jubbet al-Thi’b 96–99 subcontracting repression 72–73 Syria 11; civil war 33, 41–43; conflict 23; government 38, 39, 41–43 terrorism 7, 83, 85, 186 TEV-DEM see Movement for a Democratic Society (TEV-DEM) totalitarianism 63 traditional elite 78–79 ‘Troubles’ (1969–1998) 129, 138, 141 UNGA see United Nations General Assembly (UNGA, 1947) unilateralism 132, 191 UN Independent International Commission of Inquiry on Syria 42 United Nations (UN) 7–9, 146–148 United Nations General Assembly (UNGA, 1947) 146–148 United Nations Human Rights Council (UNHCR) 40 United Nations Partition Plan for Palestine (1947) 111

Index  205 United States of America 2, 91, 114, 149; see also American media UN partition plan 187 UN Security Council 148, 149 Village Leagues 79–81, 83 violence 26–28, 37, 50, 63, 81, 92, 98, 132, 136, 193 war crimes 2, 9 West Bank 71, 76, 77, 78, 80, 82, 83, 85, 86, 90, 91, 93, 95, 99, 101–103, 106n3, 110–113, 116–118, 121, 123, 125, 129, 133, 147, 149, 150, 153, 157, 159–174, 175n6, 188–192 Western ‘liberal civilization’ 3, 5, 6, 8, 10, 11; dark side of 7; myths and lies 1, 2, 10 Western liberal democracy 1, 2, 9, 10

West Jerusalem municipality 151 ‘white democracy’ see ‘Jewish democracy’ White supremacy 3–5, 7, 9, 11, 52 women: empowering 38, 43; freedom and rights 37; justice system 37, 40 Women’s Association 98 Women’s Council of North and East Syria (2019) 38 Women’s Law (2014) 37, 38; Article 16 of 44n16 working classes 3, 4, 20 WWI see First World War (WWI) WWII see Second World War (WWII) youth non-movements 18 Zionism 7–9, 71, 187, 188, 192–196 Zionist Federation 146