By John Reynolds

‘1948’ connotes the calendar incarnation of catastrophe. But the Nakba is, in many ways, an ongoing process and implanted structure, not (just) a historical event. Nakba is now ‘a name that four generations share, and it endures so persistently’. This conception of the Nakba reflects the broader arc of history to which Walter Benjamin’s angel alerts us: history as one continuing catastrophe, no mere string of separate events.

Primary among the range of dynamics that render the Nakba as structural is its juridical form. A critique of Nakba violence implicates law – international and domestic – in both the state’s foundational (law-making) violence and its consolidating (law-preserving) violence, as well as what we might term its annexationist (law-expanding) violence. The life of the law is embedded in the violent processes through which the settler state is created, and through which settler sovereignty is reified, maintained and stretched at the frontier. The juridical modality of emergency has been deployed on all three registers: the law-making violence with which the state is born, the law-preserving violence meted out to secure the state, and the law-expanding violence in colonising land and asserting jurisdiction over new territory.

Thus, the permanent state of emergency: Israel has operated in a self-declared and continuous constitutional emergency since the first week of its existence. Since the Nakba. Or, rather, throughout the Nakba. The logic of emergency underpins the catastrophe of 1948; its shadow continues to loom over the catastrophe of today and tomorrow. It permeates the ‘jagged time’ of catastrophe, as J.M. Coetzee puts it, in which empire locates its existence.

This is an emergency marked not just by its longevity but by its racial anatomy. Colonial technologies of surveillance and securitisation encage the colonised and foment a deep-rooted siege mentality in the coloniser. Israel’s displacement of Palestine’s people and violation of its places has, for Derek Gregory, splintered it into ‘a scattered, shattered space of the exception’. I understand this “shattered space” as a space heavily populated by law, however, not the legal vacuum that the idea of exception might evoke for some. In the construction of a supposedly exceptional nomos in Palestine, law remains integral. It has spun a complex web of emergency powers, regulations, statutes, military orders and courts that continues to burgeon. Every micro aspect of Palestinian life is enveloped by the suffocating hold of racialised emergency management. The emergency does not produce something novel or exceptional, but rather reproduces colonial nodes of governance through proliferation of law and legal stratification.

It is notable that Israel’s representatives and apologists present the state as simultaneously normal and exceptional. ‘Israel is a normal country that is not normal’, its Supreme Court declared in 2012 – in a judgment validating the continuation of the six-decades-old national emergency. A “normal” western liberal democracy, but one which is subject to unique threats to its state security. Critical analysis can mirror this imagery of parallel exemplarity and exceptionality from a different vantage point, however: Israel is in one sense exceptional as a state in which racialised privilege is legally encoded in a manner that undercuts democracy; in another sense it is an archetypal enactment of settler colonialism. This dyadic structure shapes ‘the oscillating relation between norm and exception that [in turn] constitutes the paradoxes of the Israeli-Palestinian relation.’ Inherent in Israel’s exemplary coloniality is the idea that racialised emergency rule is itself exemplary of settler colonialism.

The state of emergency serves to frame the situation for both domestic and international consumption as one of defensive security rather than aggressive conquest. The deeper reality of institutionalised domination, however, reinforces racialisation as a prominent component of sovereign emergency power. As has typically been the case in colonial spaces, emergency powers are necessary to the preservation of sovereignty, serving as a bridge between the twinned pillars of liberal empire: conquest by force and rule of law. The line connecting settlement and emergency powers can also be mapped. Settlement and cultivation act, for Zionism, as a precursor to the establishment of Israeli sovereignty. Emergency powers are discharged as an element of that acquired sovereignty in order to consolidate its supremacy over any competing claims. An array of emergency legal mechanisms converge to inscribe a form of control over the body, mind and territory of the colonised, and to suppress resistance to such control.

Within broader legal discourse in Israel, the direct and concrete legacy of British colonial emergency measures continues to occupy a prominent position. Throughout the lifetime of the Israeli state, the British Defence (Emergency) Regulations 1945 have remained central to its legal structures and emergency politics vis-à-vis the Palestinians.

These Regulations are known today as the basis for a profusion of military orders covering administrative detention, home demolition, land seizure, curfew, deportation, and censorship against Palestinian residents of the occupied territories. As Edward Said reminds us, however, the best introduction to what has been taking place in the occupied territories since 1967 ‘is the testimony of Israeli Arabs who suffered through Israeli legal brutality before 1967’. The emergency Regulations were the primary legal framework for Israel’s military government imposed on its Arab-majority areas from the start of the Nakba until 1966. They were central to planning policies in the state’s formative years, and were used to expropriate large parcels of Palestinian land. As such, a territorial zone of emergency was carved out within Israel in a racially contingent manner, based on the demographic make-up of the region concerned. For Said, the implications were clear:

These laws were openly racist in that they were never used in Israel against Jews. When Israel retained them after 1948 for use in controlling the Arab minority, they forbade Arabs the right of movement, the right of purchase of land, the right of settlement, and so forth. Under the mandate the regulations were regularly denounced by the Jews as colonial and racist. Yet as soon as Israel became a state, those same laws were used against the Arabs. … Until 1966, the Arab citizens of Israel were ruled by a military government exclusively in existence to control, bend, manipulate, terrorize, tamper with every facet of Arab life from birth virtually to death.

Israeli scholars acknowledge that the Regulations were used almost exclusively against Palestinians, and at the time the state comptroller held there to be “something improper” about a law like this being enforced against one particular group of the population. For Said, the purpose underlying the application of stringent emergency powers was ‘to pay that wretched [Palestinian population] for its temerity in staying where it did not belong’. He saw it as entwined with the “Judaisation” of those parts of Israel that retained an Arab majority. The discourse of Israeli leaders during this period offers little to dispute that claim, with a racialised and exclusionary vision of the state’s constitutional structures very much to the fore. Writing in 1962, Shimon Peres made it clear that the fundamental value of the Defence (Emergency) Regulations was rooted not in immediate security concerns, but in facilitating Zionism’s overarching goals: ‘By making use of Article 125 [of the Regulations, allowing for territorial closures and control by the military], on which the Military Government is to a great extent based, we can directly continue the struggle for Jewish settlement and Jewish immigration.’

While the military government inside Israel ended in 1966, the Defence (Emergency) Regulations have continued to facilitate territorial closures, mass incarceration and colonial settlement in the Palestinian territories under military occupation for the last fifty years. The violence enacted on Palestinian bodies and killing of Palestinian life remains, as Mahmoud Darwish’s poem has it, routine. While the news searches for the names of an entire family of seventeen under the rubble, ‘abnormal life appears to be running its normal course.’

Mahmoud Darwish, ‘Routine’, in A River Dies of Thirst  [Athar al-Farâsha ] (2008) (Catherine Cobham trans., Brooklyn, NY: Archipelago Books, 2009) 40.

Meanwhile, for the Palestinians under Israel civil (as opposed to military) jurisdiction – those with Israeli citizenship or Jerusalem residency – the constitutional state of emergency has continued all the while, and now many provisions of the Defence (Emergency) Regulations have been re-imported into domestic law via the recently enacted Anti-Terror Law 2016. This is an extensive piece of counter-terrorism legislation, roundly criticised by rights organisations from its early inception as a ‘draconian’ move designed ‘to legally anchor the “state of emergency” regulations … and turn them into permanent legislation’.

The law was advanced by Minister for Justice Ayelet Shaked, of the far-right Jewish Home party, as the enactment of her assertion that acts of – and support for – Palestinian violence ‘can only be vanquished through appropriate punishment and deterrence.’ The legislation applies specifically to Israel and occupied East Jerusalem and functions as an omnibus law that replaces a number of existing ordinances on terrorism and effectively incorporates a raft of provisions from the British Defence (Emergency) Regulations, as well as other temporary Israeli emergency/security regulations. Emergency style powers assigned to state authorities under the law include: sweeping arrest powers, detention without trial, use of secret evidence, suspension of habeas corpus, significantly increased criminal sentences, travel bans, control orders and computerised surveillance, as well as powers vested personally in the Minister of Defence to expropriate the homes and property of alleged members of banned organisations without requiring approval by the courts.

The law allows for a broad interpretation of what constitutes a “terrorist” organisation (most Palestinian political movements are already designated as such by Israel), and expands the definition of indictable membership of such organisations to include “passive members” who play no direct role in the organisation’s activities. It casts the political activities and expression of Palestinians in Israel – including those of a social, humanitarian and charitable nature, particularly where they assist Palestinians in the occupied territories – as suspect and susceptible to prosecution. As such, the Anti-Terror Law appears designed to persecute Palestinian citizens – marking them out ‘simply because they are Arab’ – and to suppress their political activities in support of Palestinians living under occupation. With all of this now embedded in permanent Israeli criminal law, the discharge of emergency powers becomes ever more routine.