Living Emergency

Israel's Permit Regime in the Occupied West Bank

Yael Berda

• Publisher: Stanford Briefs
• Year: 2017
• ISBN:
  9781503605299
• Edition: 1
• Topic: Storia
• Subtopic: Storia mediorientale

In 1991, the Israeli government introduced emergency legislation canceling the general exit permit that allowed Palestinians to enter Israel. The directive, effective for one year, has been reissued annually ever since, turning the Occupied Territories into a closed military zone. Today, Israel's permit regime for Palestinians is one of the world's most extreme and complex apparatuses for population management. Yael Berda worked as a human rights lawyer in Jerusalem and represented more than two hundred Palestinian clients trying to obtain labor permits to enter Israel from the West Bank. With Living Emergency, she brings readers inside the permit regime, offering a first-hand account of how the Israeli secret service, government, and military civil administration control the Palestinian population.

Through interviews with Palestinian laborers and their families, conversations with Israeli clerks and officials, and research into the archives and correspondence of governmental organizations, Berda reconstructs the institutional framework of the labyrinthine permit regime, illuminating both its overarching principles and its administrative practices. In an age where terrorism, crime, and immigration are perceived as intertwined security threats, she reveals how the Israeli example informs global homeland security and border control practices, creating a living emergency for targeted populations worldwide.

1

DANGEROUS POPULATIONS

On June 7, 1967, the third day of the Six Day War, when the Israeli military occupied territories of the West Bank, Gaza Strip, Golan Heights, and the Sinai, the Central Command of the Israeli military issued a decree on law and governance that established the power of the military commander to govern the civilian population: “As the commander of IDF forces in that area, this officer has thereby acquired all the powers of government, legislation, appointment and administration over the West Bank and over all its residents.”¹

THE POPULATION REGISTRY AND THE CHECKPOINT

That summer, two relatively mundane administrative events, a census and a military decree declaring the West Bank and Gaza closed military zones, would shape the organization of the military rule of the Palestinians fifty years later. The details of those two events, too boring and technical to be newsworthy at the time, were the building blocks of one of the most elaborate systems for managing populations in the modern world, the Israeli permit regime for Palestinians.²

The census of the Occupied Territories was supervised by the Israeli Central Bureau of Statistics and carried out by soldiers in the Israeli army in September 1967.³ The results of that enumeration ultimately formed the Palestinian Population Registry, the core source of data for management and control of the civilian population in the West Bank. In this registry Palestinians were given an unstable legal status, one that changed with political shifts and new laws and later became the basis for the identity documents that are central to Israeli control over Palestinian life.⁴ The legal declaration by the Israeli military that the West Bank and Gaza Strip were closed military zones had little effect on Palestinian movement for the first two decades of occupation. However, during the 1990s, a massive, expanding system of checkpoints was implemented, and eventually the separation wall was built. Yet the original military decree closing the territories is the reason that many Palestinians call the West Bank the “Great Open Prison.”

ORGANIZING THE “ENLIGHTENED OCCUPATION”

When the Israeli military occupied the Palestinian territories of the West Bank and Gaza in 1967, they already had experience running a military apparatus that governed a local population they perceived as hostile and suspicious.⁵ A military government had ruled the Palestinians in Israel from 1949 to 1966 following the Israeli War of Independence and Palestinian Nakba. The military administration used a set of colonial tools, inherited from the British, to monitor the movements and control the daily and political lives of Palestinian citizens of Israel. Three powerful tools would soon shape the organization of the occupation: emergency laws, classification of the population,⁶ and spatial closure.

In 1968, Shlomo Gazit, the first coordinator of COGAT, looked to that earlier period as a cautionary tale: military government was an abhorrent form of rule, rampant with corruption and power, in which officials manipulated conflicts between clans by exploiting the population for petty gain and plunder. These concerns echoed a rare consensus in Zionist politics in Israel against the legitimacy of the military government.⁷ Gazit recounts that plans for organizing the new military rule of the territories were overshadowed by the types of administration that they did not want: “Not the experience of the military rule within Israel, and not the experience of the American system in Vietnam. The most useful experience we had available was the Nazi occupation of Norway. We didn’t want to learn from that, for obvious reasons, even though there did exist a mechanism of Nazi civil administration.”⁸

The administration of the territories included a set of tensions inscribed in colonial rule, exacerbated by the fact that it was to be a temporary occupation. Officials vacillated between the desire to control the population through administration, which required long-term planning, and their fear of assuming the economic burdens of managing the Palestinian civilian population. Political scientist Neve Gordon explains Israel’s unwillingness to incorporate or integrate Palestinians in the Occupied Territories into Israel. The distinction it made between the occupied land, which was of great importance to Israel, and its inhabitants, who were not recognized as owners of the land, became the overarching logic informing the occupation.⁹

In November 1967, the Israeli government accepted Defense Minister Moshe Dayan’s plan for an “invisible administration” in the territories. Israel would allow movement between Jordan and the West Bank, from the territories into Israel, and between the West Bank and Gaza Strip. Dayan’s logic enabled extensive political, legal, and economic flexibility, as it blurred the territorial boundaries between the Occupied Territories and 1948 Israel, while it highlighted the stark difference in political status between the citizens of Israel and Palestinians residing outside 1948 boundaries. While Labor Minister Yigal Allon had proposed to redraw the border to gain “maximum security and maximum territory for Israel with a minimum number of Arabs,” Dayan’s stance, which permitted free movement by day, allowing workers into Israel yet demanding their return to the territories by night, enabled the ongoing attempt to separate the occupied land and its inhabitants.¹⁰ It was an effort to incorporate the West Bank and Gaza Strip into Israel’s territory without integrating the Palestinian population into Israeli society.

Even as the military was focused on security, it also had the obligations of an occupying power under international humanitarian law, as an “effective sovereign,”¹¹ to administer a sophisticated civilian apparatus.¹² The British imperial mechanism of indirect rule—in which a few senior administrative roles were reserved for European officials and mid-tier roles were delegated to thousands of local or native employees—provided a template for managing the Palestinian civilians.¹³ With this model in mind, the military officials granted a degree of autonomy to the Palestinian mayors, engaging Palestinian elites in the administration to some degree. This was not the only set of administrative tools inspired by the British, for the entire legal framework of the occupation was based on British colonial emergency laws.

COPY AND PASTE: COLONIAL EMERGENCY LAWS

Four years before the occupation, in spring of 1963, Military Attorney General Meir Shamgar decided to use the British colonial Emergency Defense Regulations of 1945 as a legal contingency plan in the event of Israeli occupation of the West Bank. Motivated by a tidal wave of protests in the West Bank, demanding Jordan join Egypt in a United Arab Republic, Shamgar’s plan outlined a legal system to manage the civilian population in accordance with the laws of war. The Emergency Defense Regulations were a despised set of rules that had been used throughout the British Empire and earlier in Mandate Palestine to subdue uprisings, decapitate political opposition, and facilitate economic exploitation. The regulations created government by decree and enabled extensive executive power and discretion.

Zvi Inbar, a young soldier on Shamgar’s legal team, wrote in his diary in 2001 that the template for administering the Occupied Territories was very literally copied and pasted from the British regulations of 1945: “Today I worked with a translator on preparing the [Emergency] Defense Regulations of 1945 in Arabic, and they needed to be purged of . . . terms like ‘High Commissioner,’ ‘His Majesty’s Forces,’ and replaced with ‘the commander in chief,’ ‘Israeli forces,’ and so on. Instead of the High Commissioner or the Chief of Staff we put the highest authority in the hands of a commander in chief, who, as we entered the territories, would announce these regulations as part of the legal system of the occupied territory, and would use them to appoint 8 representatives as military commanders.” A few days later, Inbar wrote, “To continue the preparation of the defense regulations in Arabic, we found that the best way for preparing the material is photocopying the regulations and preparing the text by cutting, pasting, and recopying.”¹⁴

Yet copying and pasting did more than transfer the authority of the law. The colonial regulations carried with them the administrative memory of colonial rule, which involved not only laws but organizational practices and political dispositions, primarily the legitimacy to use separate legal systems for different populations based on race. In 1967, this same legal plan was used as scaffolding for governing civilian life in the Occupied Territories, and the role of the governors was again similar to that of district commissioners in the British colonies. Administration of the occupation was possible with very few Israelis at the helm, while Palestinians who served in the lower ranks of civil service and the police were recruited and paid by the military apparatus. The law was a set of military decrees that derived authority from the Emergency Defense Regulations of 1945. These military decrees did not govern territory but the Palestinian population. They were separate from Israeli law.¹⁵ One of the first decrees was that every Palestinian resident older than sixteen had to register and carry an ID card.

In August 1967, the Israeli cabinet decided that the government of the territories would be funded by tax revenue, so it would not allocate budgets for governing the civilian population. The Committee of Ministers for Economic Issues decided that Israel would allow Palestinian laborers to work within its boundaries, based on quotas. By 1968, some 6 percent of the Palestinian labor force worked in Israel.¹⁶ In November 1968, the Israeli Employment Service opened its first office in the territories to manage the employment of Palestinians. Over the next few years, fourteen offices opened throughout the West Bank and Gaza Strip.¹⁷ In 1970, the government established the Payments Section of the employment office, whose declared mission was to equate the wages and rights of Palestinian and Israeli workers through registration and taxation of Israeli employers of Palestinian workers. Despite declaring the equality of the workers, when the Payment Section applied Israeli labor law to Palestinian workers, it simultaneously cemented their status as external to the Israeli labor market,¹⁸ but it failed to regulate their work through registration. In practice, tens of thousands of undocumented Palestinian laborers worked in Israel daily—the territories were a closed military zone legally, but population movement was not yet prevented.

THE CLOSURE

In 1968, the Entry to Israel Directive stipulated that entry into the territories required a permit and transferred authority to grant visas from the minister of the interior to the regional military commander. The open-border policy meant that no visa or permit was actually needed to cross into Israel, and little attention was paid to this transfer of authority, but this directive legally separated the political status of Palestinian residents of the West Bank from that of all other noncitizens: tourists, immigrants, and migrant workers remained under the jurisdiction of the Ministry of the Interior.¹⁹ Harsh forms of control of movement, such as curfews, deportations, and denial of entry, were used at this time, but they were reserved for those who participated in political or military resistance. On occasion, with growing frequency, settlers attempted to erect checkpoints and conduct searches of cars, mainly those of Palestinians.

In July 1972, Defense Minister Moshe Dayan made the open-border policy official by declaring a general exit permit from the territories into Israel. Thus, Palestinians were allowed to enter Israel and remain there from 5:00 a.m. to midnight without receiving an individual permit from the military commander. While enabling movement, the general permit also facilitated exploitation of cheap Palestinian labor by Israeli employers. This policy was notoriously named “the stick and the carrot” because it was applied to Palestinians based on their degree of collaboration with the occupation authorities. The general permit did not change the status of the territories as a closed military zone, but the closure was not enforced. In the first two decades of the occupation, while the gap between legal closure and the open-border policy was maintained, Palestinians in the West Bank became dependent on workplaces in Israel as their main sources of livelihood. By 1974, some 32 percent of the Palestinian labor force worked in Israel.²⁰

“CIVILIZING” THE OCCUPATION

In 1981, following the Camp David Accords between Israel and Egypt, the Israeli cabinet established a Civil Administration in the Occupied Territories.²¹ Designed to legitimate the status of the West Bank, this move officially signaled what had become quite clear after two decades—the occupation was not temporary, and Israel would control the territories until a peace agreement was reached. The government aimed “to separate security and civilian activity in Judea and Samaria; the purpose [of the administration] was to provide a framework for civil activity, with the aim of serving local residents and increasing their well-being.”²² The military government was dismantled, and in its stead, the Civil Administration was created to administer the lives of the civilian population. Military battalions continued to control the security of the territory, but the military governors who had ruled the districts were replaced by civil servants, many of them civilians in the service of the Israeli military, in an attempt to institutionally separate the territorial control of the population and the administration of daily civilian life. In many ways, the involvement of military commanders in managing the daily life of the population increased. Strikes and resistance to new taxes and decrees of the Civil Administration were met forcefully by the army, making arrests and shutting down businesses.

During the 1980s, Israel consolidated its institutional control over the Occupied Territories with “the four pillars”: army battalions, the Civil Administration, the Shin Bet, and the Israeli police, which operated a contingent of Palestinian police stations. Although it was never designated in the defense ministry’s organizational chart, the fifth pillar was the growing settlement movement. “Civilizing” the occupation by establishing a Civil Administration was not just an institutional shift to promote legitimacy for Israel’s military rule. The Civil Administration was part of a political and economic project of marrying the administrative apparatus of the occupation with the expansion of settlements.²³ Following peace accords with Egypt, Israel intended to normalize the status of the West Bank to differentiate it from the Sinai Peninsula it had returned to Egypt as part of the accords. The Civil Administration was established in that context. Israel attempted to create opposition to the Palestine Liberation Organization (PLO), the representative organization of Palestinians, in the West Bank. The “civilizing” process of the territories also entailed the creation of “village associations” (Agudot Hakfarim), supported by the Civil Administration in an effort to institutionally groom and co-opt local Palestinian leadership that was independent of the PLO.²⁴ In 1982, Israel replaced ten mayors in the West Bank and Gaza with military governors.

The Civil Administration had a central role in determining state resources for the expansion of the settlement project. During the 1990s, positions within the Civil Administration were filled by settlers, who accumulated great power in the administration over the years.²⁵ Because the interests of the settlers did not always correlate with those of ministries and the security establishment, the settlers gradually established an institutional system of their own within the administrative mechanisms of the occupation, primarily the Civil Administration, through appointments and internal guidelines, such as the appeals committees concerning land in the West Bank and the set of decrees determining that Israeli law applied to Je...