Two Units of Analysis: The Occupied Territories and the Jewish and Democratic Israel
In liberal-leftist discourses, both Zionist and otherwise, the pivotal year for what is called the Israeli-Palestinian conflict – a misleading designation in itself – is 1967. It was then that Israel occupied East Jerusalem, the West Bank, and the Gaza Strip (as well as the Syrian territory in the North). Nineteen sixty-seven is not merely the year in which the Occupation commenced, but it represents a political and ideological paradigm.
It reproduces Historic Palestine into two analytically and conceptually separate legal and political units by entrenching a binary, qualitative and territorial distinction between ‘Israel’ and the ‘Occupied Territories.’
On the one hand, we have the Jewish and Democratic Israeli state demarcated by the 1949 Armistice borders. This ‘Israel’ is the unit that is usually referred to in academic disciplinary fields such as comparative government or comparative constitutional law, and by organizations measuring and ranking democratic performance and the state of political rights such as Freedom House and IDEA International. Within this unit, it is often argued that a relatively democratic regime operates, characterized by the normal constitutional tensions and contradictions that are found in many other constitutional democracies, in this case balancing the wishes of the Jewish majority with a scheme of individual rights as well as a limited array of group minority rights (Gavizon, 2006).
On the other hand, we have the Occupied Territories, which were brought under Israel’s control in 1967 and are further subdivided into smaller units governed under different legal systems: The West Bank (and its three sub-areas: A, B, and C), the Gaza Strip, and East Jerusalem. This unit is usually absent from any analysis of Israeli democracy. Freedom House, for example, has continuously ranked Israel as free, and accorded it the highest scores on metrics relating to its electoral system and performance (4/4). This is so despite the fact that the same Israel controls the political fate of Palestinians living under its military control, with little respect to individual rights and no influence on the formal channels of decision-making that Jewish-Zionist settlers residing in the same territories enjoy.
Israel’s control over all aspects of Palestinians’ lives, both those who live within the ‘Jewish state’ and those who reside in the Occupied Territories, renders the 1967 paradigm not only unpersuasive, but ridiculous. Under the illusion of a temporary, yet seemingly unending occupation, and the unfeasible yet (internationally) popular Two-State solution, it permits speak of two (or multiple) distinct units that should be evaluated, analyzed and treated separately: Democratic Israel and Occupying Israel (with the latter susceptible to further subcategorizations), while in reality Israel is the only effective ruler in the whole territory of Historic Palestine. Even Area A of the West Bank – where the Palestinian Authority retains relatively the widest scope of autonomy on both security and civil matters – remains subject to Israeli policies especially if security considerations are invoked. The Military Commander, who is considered the highest legal authority in the Occupied Territories, retains the power to confiscate lands under the guise of security objectives. The Israeli government continues to collect the majority of taxes on behalf of the Palestinian Authority, distributes them in accordance with its own policies and continuously withholds them unilaterally and punitively. And on and on.
This is indeed the position the renowned political scientist Ian Lustick adopted in his most recent book entitled Paradigm Lost (2019). Lustick states that currently there is
one and only one state ruling the territory between the Mediterranean Sea and the Jordan River, and its name is Israel. To be sure, the government of Israel rules different territories and groups of people ‘between the sea and the river’ according to different laws and norms and with different degrees of authority and regularity. But if a state is defined to mean an entity with ultimate control over the security of life and property, then no inhabitant of this area, whether in Tel Aviv, Nablus, Haifa, or Gaza, lives in any state other than Israel (Lustick, 2019).
It is, therefore, quite astonishing that despite this unquestionable state of affairs, discussions and analyses about Israel’s democratic credentials continue to be governed by the 1967 paradigm, especially given the fact that almost 4 million of the inhabitants of Historic Palestine who are subject to Israeli rule are excluded from having any say in the political system(s) that deeply impacts their daily lives.
Stability without Legitimacy: The Facets of Israeli Control
Conceptualizing Historic Palestine as a single unit of analysis requires shifting our sights towards the ways and mechanisms through which political stability has been successfully sustained despite the absence of basic democratic requirements often found in working democracies.
Political scientists have attempted throughout the twentieth century to theorize about and explain the factors of political stability. Divided places have presented scholars with a challenge that was taken up by Arend Lijphart who posited that in plural (democratic) societies stability could be explained by consociational forms of governance (Lijphart, 1969). Throughout the years, the concept received a lot of attention and became one of the most influential theories throughout the late twentieth and early twenty-first centuries. In societies characterized by deep group divisions, so goes the theory, elite cooperation and a set of specific institutional configurations aimed at providing access to all groups in society into the political decision-making apparatus, stability can be achieved where traditional forms of majoritarian democracy are destined to fail. Part of the reason for the failure of majoritarian forms of democracy in deeply divided places lies in the fact that permanent exclusion from political power is more prevalent and so the excluded tend to turn against the system (Choudhry, 2008). The result is that significant portions of society consider the political system to be deeply illegitimate. This is the story of the Muslims, and in particular the Shia community, in Lebanon in the post-independence period; the Belgians under the United Kingdom of the Netherlands between 1815 and 1830; the Flemish in Belgium since the end of the nineteenth century and until federalization; the Catholics/Irish Republicans/Nationalists in Northern Ireland and more. In all of these places the constitutional order itself was under attack and was perceived as lacking legitimacy by well-defined and self-conscious political communities leading in all instances to the eruption of violence, and in some to bloody and protracted civil wars. A perception of the constitutional order as legitimacy-deficient is one of the main causes of instability in divided places. To counter the forces of instability caused by perceptions of illegitimacy, states might respond either by enhancing the legitimacy of the system through constitutional reforms aimed at expanding its inclusivity or by instituting mechanisms of control, which keep the underlying condition untreated, but promotes one group’s domination over another/others through repressive arrangements (Lustick, 1979).
Historic Palestine has been produced by the Zionist settler-colonial project, with the support of world powers, into an ethnically and nationally divided space. These divisions have been managed through a system of violent domination resulting in a reality in which the space is currently under the effective control of one ethnonational-religious group – The Zionist-Jewish settler community. Through emigration policies informed by ethnoreligious favoritism (e.g. the Law of Return) and the strategic forced displacement of Palestinians in many parts of Palestine – practices that are characteristic of settler-colonial societies – there exist in the territory between ‘the River and the Sea’ two equally sized communities, largely espousing two contradicting national aspirations: the Palestinian and the Zionist national movements (although, contrary to Jewish nationalism, Palestinian nationalism, as I conceive it, is not necessarily ethnic/racial in character, but rather geographical). Israel has successfully divided the Palestinians into different groups concentrated in differently-governed territories (including the Palestinian refugees who have been forcefully excluded from the physical space), but the reality is that as one political unit, Historic Palestine has been produced into a deeply divided binational space ruled in its entirety by and serves in its entirety to realize the national aspirations of a settler community, the majority of which migrated to it from elsewhere.
It should be noted, however, that positioning the current state of affairs within the rubric of ‘divided places’ does not imply a denial of the history through which this place has come to be divided. To be sure, settler colonialism has produced many divided societies across the globe (Cyprus, Northern Ireland, South Africa, etc…), and Historic Palestine is no exception in this regard. The question then becomes, how might we conceive of the decolonization process of the ethnic constitutional order. First step, I propose, would be to diagnose and name the system as one that is sustained through violent domination, informed by a constitutional and a militaristic culture of justification that denies the indigineous population political agency, sovereignty and basic rights.
More concretely, the constitutional system prevalent inside Israel is characterized by notions of ethnic supremacy, and is geared towards sustaining domination and control. According to Ilan Peleg, an Ethnic Constitutional Order is “a regime based on the ‘management’ of interethnic relations by granting a single ethnic group full dominance within the polity, often by the use of the state as a primary instrument of control” (Peleg, 2007, p. 23). The exclusionary constitutional apparatus in Israel is explicitly devised to serve the interests of the Jewish community (including in the Occupied Territories), as evidenced by the recently enacted Basic Law: Israel – the Nation State of the Jewish People proclaiming Israel as the national home of the Jewish People within which the rights of self-determination is exclusive to them. It does so, among other things, by placing the internal Palestinian dissent movement under the watchful eye of the security apparatus and by a complex scheme of policies which include Israel’s denial of the national identity of 20 percent of its citizens and their right to self-determination as part of the wider Palestinian indigenous population; its policies of land confiscations and Judaization of the space; its demography-control policies such as the prohibition on family unification between Palestinian spouses; its refusal to do justice with the Palestinian refugees who were driven out of their homes in 1948; its constitutionally-enshrined prohibitions on political parties who object to the Jewish and Democratic constitutional paradigm; and its utilization of its security apparatus to limit non-violent political dissent, such as BDS activists or Palestinian protests against its policies in the Occupied Territories. To borrow Johan Galtung’s terminology, this ethnic constitutional system, to which Palestinian citizens of Israel have been subjected in order to sustain Zionist-Jewish dominance and supremacy, is a form of structural violence, legitimized through pervasive and well-ingrained cultural violence inherent in Zionist ideology (Galtung, 1990).
In the rest of Historic Palestine, military violence, which constitutes a more direct form of violence, is what characterizes the manner in which the Palestinian local population is kept under control. Both systems have proved to be quite stable, but inherently violent. Regardless of what system of control is being considered, in Historic Palestine political stability is only explicable by reference to the effective control by one group – the Jewish-Zionist settler community – of another – the indigenous Palestinian community. Episodes of periodic and direct violence by Palestinians cannot be understood without understanding the system of control from which they are trying to break free. Consequently, and no less importantly, any analysis of Israeli democracy, supreme court jurisprudence, political performance or constitutional order cannot be confined to the 1967 paradigm or without addressing the mechanisms through which the Jewish-Zionist settler community dominates the bifurcated Palestinian indigenous population in the deeply divided binational space that is Historic Palestine.
Arend Lijphart, Consociational Democracy, 21(2) World Politics 207–225 (1969).
Ian Lustick, Stability in Deeply Divided Societies: Consociationalism versus Control, 31(3) World Politics 325-344 (1979).
Ian Lustick, Paradigm Lost: From Two-State Solution to One-State Reality (University of Pennsylvania Press, 2019).
Ilan Peleg, Democratizing the Hegemonic State: Political Transformation in the Age of Identity (Cambridge Univ. Press, 2007).
Johan Galtung, Cultural Violence, 27(3) Journal of Peace Research 291-305 (1990).
Ruth Gavison, The Jewish State: A Justification, in New Essays on Zionism (David Hazony et al., eds., New York: Shalem Press, 2006).
Sujit Choudhry, Bridging Comparative Politics and Comparative Constitutional Law: Constitutional Design in Divided Societies, in Constitutional Design for Divided Societies: Integration or Accommodation? 3 (Sujit Choudhry ed., Oxford University Press, 2008).