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Abstract

Confinement is a common result of conflict, and states use various mechanisms to imprison enemy fighters. This article examines practices of incarceration in times of conflict as punishment. It analyses dominant themes in how states punish those they conceive as ‘enemies’ and proposes the term ‘conflict penality’ to encapsulate commonalities in state punishment during conflict. The article then discusses conflict penality further by examining Israel's punishment of Palestinians for ‘security offences’. The article contributes to the geographical and topical expansion of punishment studies, beyond the traditional borders of national criminal justice systems of Anglo-European countries. It concludes by showing how, under the extreme political climate of conflict, states use penal power to delegitimise their opponents, yet do so through extensive normative compromises that undermine their moral authority to punish.

Keywords

punishment conflict prisoners of war security enemy criminal law

Introduction

The history of conflict includes various titles for incarcerated fighters, including prisoners of war (POWs), administrative detainees, prisoners convicted of terror-related offences and the often-self-proclaimed title of political prisoners (Scheipers, 2015). States have numerous mechanisms to incarcerate those they identify as ‘enemies’. A rich literature in history, sociology, and law analyses carceral practices during times of conflict; it considers the importance of detainees’ legal status (Berman, 2004; Carvin, 2010; Paust, 2003), the use of indeterminate detention and quasi-judicial tribunals (Jackson and Doran, 1993; Ní Aoláin and Gross, 2013; Simpson, 1992), and the treatment of detainees behind bars (Ross, 2011; Silke, 2014).

This article examines confinement in times of conflict as a form of punishment. It considers different types of practices that entail the incarceration of enemies as a punitive response to hostilities that threaten state security. During conflict, the state acts against those who are considered to pose an inherent threat to its national security and who at times may denounce the state's authority. Conflict thus generates a specific set of relationships between the state, society, and those placed in custody. In these conditions, conceiving the incarceration of enemies as punishment raises a series of questions: what are the normative grounds for state punishment against individuals who challenge the state's power? How does conflict affect penal rationales and their materialisation in prison conditions? How does conflict shape punishment as a social and political construct that influences power dynamics outside prison?

Drawing on these questions, this article conducts a preliminary discussion on the legal and criminological aspects of punishment during conflict. The aim of this exploration is twofold: first, to identify dominant themes of penal carceral practices during conflict that connect different cases; and second, to draw on these themes to develop a conceptual framework that will help us understand how conflicts shape punishment. The article proposes the term, conflict penality, to encapsulate the dominant themes of how states punish enemies. It then moves to explore punishment in the case of the Israeli–Palestinian conflict. After years of adjudicating and sentencing Palestinians,¹ Israel has developed an expensive special penal system, which delegitimises various forms of resistance as terror, while recognising prisoners’ self-governance and using them as bargaining chips. The case study of Israel–Palestine provides a vivid example of how conflict penality seemingly positions the state as morally superior, yet in effect prioritises national security interests over basic criminal law principles.

Traditionally, normative and sociological debates about punishment have focused on domestic justice systems in Anglo-European countries (Simon and Sparks, 2012). Penal practices against non-citizens and beyond state borders, as often seen during conflict, have thus been more at the margins of punishment studies. In the past two decades, however, scholars have broadened the discussion of punishment by studying the punitive objectives and effects of draconian administrative powers in crime prevention, counterterrorism and immigration control (Ashworth and Zedner, 2014; Bosworth, 2019; Bowling, 2013; Hernández, 2014; Leerkes and Broeders, 2010). This article joins these endeavours because it focuses on penal practices in times of conflict and further broadens the geographical scope of punishment studies by studying incarceration in the Israeli–Palestinian context. Through the case of Israel–Palestine, the article discusses how states use the criminal justice system for conflict management, creating a form of punishment that is neither domestic nor international.

Dominant themes in how states punish enemies

The literature on incarceration during conflict is sizable and diverse. The discussion here does not presume to incorporate all the various ways in which states have incarcerated enemy fighters, or all the historical, sociological and normative debates regarding confinement in conflict. Rather, the article aims to conduct a focused conversation on state punishment against conceived enemies. For creating common grounds for comparison, I mostly draw on the recent experience of states that define themselves as democracies² and which are also, at least officially, committed to international law and the protection of human rights. When discussing conflict-related crimes, I mainly include acts that challenge the state institutions and stability, and which are often attributed to national or ethnic minorities. This is not to say that members of the majority group do not commit crimes that destabilise the state; however, as I note below, the circumstances of wide-scale conflict generate special enforcement measures that in many cases target minorities, rather than members of the majority group.

In this section, I identify five dominant themes that characterise state punishment during conflict: (a) deviation from criminal law principles and the protection of basic rights; (b) the importance of detainees’ and prisoners’ status; (c) the use of punishment to delegitimise adversary political agendas and seemingly gain moral superiority; (d) the targeting of ethnic and national minorities as enemies; and (e) the strategic use of punishment for managing conflicts, often by compromising penal rationales. To clarify, I discuss these themes in relation to confinement in times of conflict; however, some of them are of course also relevant to general domestic penal policies, namely, the targeting of minorities. Yet, put together, the five themes capture a commonality between states’ punitive practices of confinement, which I propose calling conflict penality. Penality is originally a Foucauldian term that has been developed by punishment scholars as a comprehensive subject of inquiry and which includes the relationships between the state, society, and punishment in a wider social and cultural context (Cavadino et al., 2013; Garland and Young, 1983). I use penality here as a term that encompasses both normative and sociological aspects of punishment.

The first theme concerns the common use of penal practices that deviate from criminal law principles, procedural safeguards, and the protection of basic rights. At times, this is done through specialised tribunals that withdraw due process protections, like the UK Diplock Courts (Jackson and Doran, 1993) and the currently active US military commissions (Ní Aoláin and Campbell, 2018). States also often use intrusive executive measures in times of conflict that infringe on basic rights. An important example in terms of incarceration is detention without trial. To clarify though, detention with no charges is not unique to conflict as it has become a common measure in immigration control and crime prevention during the past three decades (Ashworth and Zedner, 2014; Bosworth, 2019). Arguably, detention is not a penal practice, because it aims to prevent future conduct rather than punish previous wrongdoings (Robinson, 2001; Slobogin, 2003). However, as the European Court of Human Rights found, detention that entails similar conditions to those of sentenced prisoners, and which does not provide detainees with the means to reduce the risk they pose, can be seen as punitive by nature, even if not officially titled as punishment (Jamil v France, 1995; M v Germany, 2010; Welch v UK, 1995). Examples of practices during conflict that fit these criteria are abundant. Colonial regimes used detention extensively against insurgencies, for example in Algeria and Kenya (Bosworth and Flavin, 2007; Klose, 2013). Similarly, the British Government detained paramilitaries in Northern Ireland (Bennet, 2010), and the Nationalist Government in South Africa confined anti-apartheid activists in grave conditions, including prolonged solitary confinement (Amnesty International, 1978). The US camp Delta in Guantánamo Bay provides a more recent example (Steyn, 2004). Detention in these cases created harsh impacts that indicate punitiveness and imply its use as state-led ‘political and psychological violence’ (Foster, 1987: 5) against resistance. The common use of detention during conflict attests not only to governments’ willingness to deprive people of liberty without trial, but also to a diffusion of preventive measures and punishment when it comes to state enemies.

The first theme shows us how, in conflicts, governments tend to create harsher specialised tracks of judicial and executive powers that are divorced from the standards of their criminal justice systems. Here, Jakobs’ now-famous idea of Feindstrafrecht, which is often translated as ‘enemy criminal law’ (Diez, 2008) or ‘enemy penology’ (Krasmann, 2007), helps to understand the normative meanings of imposing a special justice system against enemies. For Jakobs, a separate system is justified against individuals who durably and extensively violate legal norms, because by doing so they lost their entitlement to criminal law protections (Jakobs, 2014). Hence, they may face the removal of procedural safeguards, disproportionate punishments and detention beyond their prescribed sentence (Ohana, 2014). Enemy criminal law helps us understand the penal practices discussed above as more than a response to emergency, but rather as the government's way of subordinating human rights to loyalty. Like others, I disagree with Jakobs (Krasmann, 2007; Ohana, 2014) and I discuss below how separate practices seem to target individuals for their identity, rather than conduct, and how harsh measures do not necessarily protect the state but instead undermine its authority.

The status of detainees and prisoners is the second theme. How states classify incarcerated fighters matters because it, first, implies the state's normative response to detainees’ conduct and, second, affects their conditions of confinement. POW status is considered the ‘gold standard’ for detainees because it protects ‘legitimate combatants’ who should not be punished for fulfilling their duty as members of a state's armed forces (Best, 1997). Accordingly, international humanitarian law (IHL) provides extensive material and procedural protections to POWs (Third Geneva Convention, 1949). However, as Third World approaches to international law scholars argue, the criteria for POW status are tailored to the circumstances of soldiers serving states’ armies (Mégret, 2006; Scheipers, 2015). The criteria perpetuate the exclusionary European-led version of IHL, which perceives non-European anti-colonial belligerency as non-sovereign, uncivilised, and therefore illegitimate and punishable (Anghie, 2006; Berman, 2004; Kinsella, 2011). In 1977, Additional Protocol I to the Geneva Conventions expanded the POW definition to include members of national liberation movements, such as those who fought in South Africa and Israel–Palestine (Aldrich, 2000). Israel did not sign the Protocol, and the United States has not ratified it, although 174 states have ratified it to date (International Committee of the Red Cross [ICRC], 2021). The United States recently upheld the exclusionary IHL rhetoric when it denied suspected members of al Qaeda and the Taliban of both POW and civilian status (Mofidi and Eckert, 2003). As ‘enemy combatants’, with no IHL protections, detainees were held in Guantánamo, where they faced especially severe conditions, including torture (Fletcher and Stover, 2009; Human Rights Watch, 2008). The United States's refusal to provide POW or civilian status can be considered a form of moral censure then, which not only delegitimised detainees’ alleged conduct, but also dehumanised them by exposing them to cruel and inhumane conditions.

The third theme is the use of criminalisation and punishment as a means to delegitimise state opponents. Such practice is common in asymmetric conflicts, where one party – in most cases, the state – uses adjudication to impose moral censure on its opponents and reinforce its authority. The word ‘terrorist’ is particularly effective in these contexts, because it narrows down an individual to their conduct, regardless of the historical and political background of their actions. In Northern Ireland and South Africa, criminalisation was used to depoliticise paramilitaries and anti-apartheid activists by portraying them as criminals, as ‘terrorists’, and obscuring the context of their actions (Coleman, 1998; McEvoy, 2001). Criminalisation allows the state to position itself as morally superior to the conflict, as if it is not a party that has an interest in shutting down political resistance but rather seeks to enforce the law.

The fourth theme is how state measures, particularly those that operate in the domestic sphere, target minorities and drive forward racist and xenophobic conceptions of who is ‘the enemy’. An early example is the internment of ‘enemy aliens’ during the two world wars, who were foreign nationals and citizens suspected of association with enemy states for their ancestry (Lohr, 2003; Simpson, 1992). As Cole (2003) noted, the United States’ mass internment of citizens of Japanese ancestry during the Second World War indicated the importance of race in defining the ‘enemy alien’. Post-9/11 counterterrorism practices in the United States, United Kingdom (UK), and European Union have similarly vilified minority groups, particularly Muslims and Arabs suspected of ties with Islamist organisations (Lazarus and Goold, 2019). The use of immigration control as a counterterrorism measure in these countries likewise manifested the perception of non-citizens as a threat to national security (Zedner, 2010). Counterterrorism measures that target specific groups enforce an exclusionary form of security that sacrifices minorities’ human rights to allegedly protect the majority's security interests (Waldron, 2010). Indeed, in the past decade, the rising threat of right-wing extremism has led states like the UK and Canada to use counterterrorism measures against populations who were less targeted by these practices in the past (Regulations Establishing a List of Entities, Canada, 2019; UK Home Office, 2021; United Nations Counter-Terrorism Committee Executive Directorate, 2020). However, this is not yet the case in the United States, where law enforcement still does not seem to prioritise the threat of right-wing extremism (German and Robinson, 2018; Rotella, 2021). As Israel's policies will exemplify, the fact that a state is beginning to address the acts of members of the majority group as ‘terror’ does not necessarily mean they will face the same measures that apply to minorities.

The fifth and final theme is the strategic use of punishment for managing the conflict in ways that compromise penal rationales, such as prevention and retribution. In both Northern Ireland and South Africa, international pressure and the challenge of keeping prisons orderly resulted in a pragmatic managerial approach, where staff negotiated with prisoners on their conditions (McEvoy, 2001; Thompson, 2016). Such policy supported political organisations in prisons, which worked against preventive and retributivist penal rationales. However, it allowed staff to maintain better operational routines in prisons (Buntman, 2003) and thus to better contain incarcerated enemies. Prison authorities in Northern Ireland and South Africa also continued their fight against prisoners’ organisations by dispersing members and proposing individualised tracks of rehabilitation (Buntman, 2003; McEvoy, 2001). Prisoners’ release during the peace accords indicated the final withdrawal from penal rationales, given the release of those considered to be security threats (McEvoy, 2001; Savage, 2000). In Northern Ireland and South Africa, the conflict had an ongoing impact on policies of criminalisation and punishment because both governments used incarceration, rehabilitation, and release in line with their general policy regarding the conflict.

The five themes discussed above demonstrate the tendency of states to develop mechanisms of punishment that are loosely attached to criminal law principles and that can be used to advance the state's interests, be it to delegitimise members of opposition organisations or release them. Conflict penality thus represents a flexible use of the penal practice that is not strictly committed to ideal penal rationales and procedural limitations, but rather prioritises national security goals. The various examples of conflict penality indicate the effective use of punishment to contain, weaken and delegitimise state enemies. And yet, although some of the penal practices during conflict demonstrate formidable administrative power, they also exemplify inherent weakness in the state's legal protections of basic rights.

Punishment in Israel–Palestine

The incarceration of Palestinians in Israeli prisons is a key issue for both parties of the Israeli–Palestinian conflict. Since 1967, when Israel took over the West Bank and the Gaza Strip, it has incarcerated thousands of Palestinians each year for acts against its armed forces and civilians (Bernstein, 2017; Gortler, 2020; UN Special Rapporteur, 2008).² Several scholars refer to Israel's confinement of Palestinians as mass incarceration, given its extent and impact on the Palestinian population (Hajjar, 2005; Rosenfeld, 2011; Viterbo, 2018).³ Yet, whereas the Palestinian mainstream narrative considers Palestinians detained for security offences to be ‘political captives’ (assra syasiwuna) who sacrificed their liberty to free Palestine, Israelis commonly refer to them as ‘terrorists’ (mehablim). So, as the Palestinian Authority and various organisations support prisoners and their families, Israeli authorities see them as imminent threats, even from within securitised prisons (Bernstein, 2017; Schteltzer, 2004). Accordingly, the prison conditions of Palestinians and their prospects of release have been a central concern in negotiations between the Israeli government and Palestinian organisations (Margalit, 2020).

Israel does not categorise Palestinians as POWs. Military and civilian courts upheld this policy based on the pre-Additional Protocol I criteria, under which members of Palestinian organisations are ineligible for POW status because they do not serve a ‘party to a conflict’ and, furthermore, violate the laws of war, notably by targeting Israeli civilians (Burris, 1997; Israel v Barghouti, 2002; Military Prosecutor v Kassem, 1969). Israel thus preserves the Westernised idea of the ‘legitimate combatant’, which excludes irregular fighters from IHL protections. Instead, it criminalises Palestinians for violent and non-violent acts that target its military rule and civilians. Inside prisons, Palestinians are classified as ‘security prisoners’, a title that arguably obscures the political context of their actions (Baker and Matar, 2011). The following subsections go deeper into Israel's penal policy, first by discussing the work of military and civilian courts and second by focusing on the treatment of Palestinians in Israeli prisons.

Military and civilian punishment

Since its foundation in 1948, Israel has relied on colonial emergency regulations for governing the Palestinian population. After 1967, the British Mandate's 1945 Defence (Emergency) Regulations provided the basis for Israel's military regulation over the West Bank and Gaza (Ben-Natan, 2020). Israel then established military courts to adjudicate Palestinians for ‘security offences’ against its military forces and Jewish settlers (Order Regarding Security Provisions, 2009).⁴ Jewish settlers, however, were under the Israeli civilian jurisdiction and were to be tried before civilian courts inside Israel (Emergency Regulations – Adjudication, 1967). To this day, ethnicity is what determines the jurisdiction of military versus civilian law in the West Bank (Ben-Natan, 2020). These rules of jurisdiction reflect how military justice serves military rule. Military justice seeks to govern the Palestinian population by, inter alia, delegitimising resistance (Hajjar, 2005). And unlike Jewish settlers, Palestinians are disenfranchised and have no way to influence military criminal law and procedures.

Israeli military justice is harsher than its civilian law. Detention powers, for instance, are extensive. Suspects might be detained for eight days before judicial review, and up to six months before indictment (Order Regarding Security Provisions, 2009: ss. 29–30). Military courts may also deny access to counsel and detain suspects in absentia (ss. 52, 58–59). Military law often uses vague terms like harming ‘the security of the region’⁵ (s. 222), which provide prosecutors and judges with wide discretion while inhibiting individuals’ ability to foresee what will constitute criminal conduct. Punishments are often disproportionate, as evident in the numerous offences for which the court may impose a life sentence, including weapon offences and sabotaging a military facility (ss. 220, 230(b)). Most defendants are placed on pre-trial remand, which in turn impedes the presumption of innocence because detainees are further pressured to plea bargain (Yavne, 2007). Trial is accordingly a rarity. As one 2015 study found, among 642 military court cases, only 5 (0.8%) went to trial (Baumgarten-Sharon and Stein, 2015).

Like the special tribunals discussed earlier, Israel's military courts also represent a divergence from due process standards, the protection of basic rights, and the principles of legality and proportionality. But unlike other cases, Israel's long-standing military justice system has become an integral part of its law enforcement apparatus. Some 12,128 proceedings were opened in military courts in 2016 alone, and an average of 4230 indictments were served each year between 2011 and 2019 (State Comptroller, 2019; The Military Prosecution, 2017, 2020). Approximately one-third of Israel's prison population was sentenced by military courts (Israel Prison Service, 2021).⁶ As the Israeli High Court of Justice found, the common reasoning for military law's deviation from criminal law principles is ‘the circumstances of the region’ (Massalma v The Military Court of Appeal, 2006: para. c). These circumstances are the need to manage the Palestinians as an allegedly hostile population, which is prioritised over procedural safeguards that aim to guarantee justice. The normative grounds for Israel's penal authority in that regard do not derive from a contractual or communitarian relationship with the Palestinians (Zedner, 2013), but rather build on Israel's powers as an occupying force. As former Israeli military judge Yehonatan Livni summarised:

As a military judge, you represent the authorities of the occupation, vis-à-vis a population that sees you as the enemy. You are conducting a trial against your enemy. (The Law in These Parts, 2012)

Israel's civilian criminal justice system has likewise developed a specialised track for security offences that operates inside its borders. Those suspected of membership of a ‘terrorist organisation’, for instance, may also face denial of access to counsel and detention in absentia, albeit for shorter periods (Counterterrorism Law, 2016: ss. 45–46; Criminal Procedure Law – Arrest, 1996: s. 35). Punishments are also harsher, given that a custodial sentence was the most common sanction among those convicted of security offences, compared with other offences, between 2000 and 2009 (Central Bureau of Statistics, 2002–2011).⁷ In recent years, the Israeli legislator increased penal severity further by doubling the sentence for offences classified as an ‘act of terror’ and removing the option for parole for those convicted of murder and attempted murder classified as an ‘act of terror’ (Counterterrorism Law, 2016: ss. 37–40a).⁸ Right-wing politicians have long promoted a bill on the Death Penalty for Defendants Convicted of Terror-Related Murder (2021).⁹ The bill has yet to pass, mainly given the resistance of security bodies and legal advisors, who were concerned that capital punishment might encourage counterattacks of kidnapping Israelis, glorify insurgents as Shaheed heroes,¹⁰ and damage Israel's image abroad (Dudai, 2018; Sangero, 2000). At the same time, defence counsels reported that security classification often applies to Palestinian defendants, even without indication of an ideological motive (Shahav, 2019). Inside Israel as well, most security suspects and defendants are Palestinians and thus, they are the population most affected by deviations from procedural law and harsher punishments for security offences.

Administrative detention is also a prominent measure against Palestinian insurgency. Based on the power to detain security threats set in Article 42 of the Fourth Geneva Convention (1949), military and civilian law allows administrative detention for renewable periods of six months (Emergency Powers Law (Detentions), 1979; Order Regarding Administrative Detention, 2007). It is estimated that, since 1967, thousands of Palestinians have been detained in this fast-tracked classified procedure, which allows indeterminate detention (Feuerstein, 2009). Since 2000, Israel has held an average of 500 detainees at any given time (B’Tselem, 2021). Those detained face prison conditions and are denied basic information on suspicions, evidence, and their estimated time of release (Pelleg-Sryck, 2011). Drawing on the European Court of Human Rights’ approach, administrative detention is a punitive measure that Israel uses extensively, undermining basic procedural obligations and blurring the boundaries between preventive tools and criminal punishment.

Israel's military and civilian systems of justice reflect security enforcement that categorises Palestinians as potential enemies, even if they are citizens of Israel. Unlike Jakobs’ original idea of enemy criminal law, Palestinians’ access to due process rights is contingent on their identity, more than their conduct. Palestinian ethnicity is what determines their adjudication under draconian military law and reportedly leads to security classification in civilian courts. By directing Palestinians to separate securitised tracks of justice, Israel reinforces an exclusionary idea of national security that sacrifices Palestinian rights since the ‘security of the state is synonymous with the security of the Jewish collective’ (Kretzmer, 1990: 136). Punishment through exceptional procedures and measures is thus a tool to define who is the enemy.

Furthermore, punishment is an instrument through which Israel reaffirms moral superiority against Palestinian acts of resistance, notably through the decontextualising labels of ‘security’ and ‘terror’. Israeli politicians’ continuing efforts to make Palestinians’ already disproportionate sentences even harsher indicate punishment that is more an act of Israeli sovereignty (Dudai, 2018; Krasmann, 2007) than carefully measured censorship as endorsed by penal theorists (Frase, 2009; von Hirsch and Ashworth, 2005). As the next section discusses, this instrumentalisation of punishment becomes slightly more complex inside prison, where the Israeli Prison Service recognises the leadership of the Palestinian Prisoners Movement.

Inside Israeli prisons

Israel's prison service (IPS) classifies a ‘security prisoner’ as someone who was suspected, charged or convicted of a security offence, or whose actions aided a terrorist organisation, or who sought to threaten national security, according to the Israeli Security Agency (Commission Ordinance, 2001). Nearly all security prisoners are Palestinians, and based on their classification, they are separated from the general prison population (Korn, 2011). The relatively few Jewish security prisoners¹¹ are not separated from ‘criminal’ prisoners and, as I show below, are treated quite differently from their Palestinian counterparts.

Soon after 1967, incarcerated Palestinians began to organise in prison and form what was later termed the Palestinian Prisoners Movement (Rosenfeld, 2004). Numerous hunger strikes took place in those early years and gained some important improvements to conditions, such as the permission to hold stationery and converse freely during yard time (Bernstein, 2017). By the mid-1970s, members of Palestinian organisations like the Fatah or the Popular Front for the Liberation of Palestine began building frameworks of self-governance in prison wings. Prisoners elected members to governing bodies that managed various aspects of prison life (Rosenfeld, 2004). The organisations ran education programmes in history, political theory, and languages, but also enforced strict daily routines and mandated adherence to their values (Viterbo, 2018). Disciplinary issues were handled through internal trials and sanctions, including corporal punishment (Gortler, 2020). Different organisations collaborated to counter the threat of informants and present a unified front against the Israeli authorities (Bernstein, 2017). In 1980, the death of three hunger strikers who were force-fed in prison drew local and international attention to the movement (Baker, 2016). Since then, incarcerated Palestinians have become a national symbol, while the Israeli prison has become a ‘Palestinian national site’ (Nashif, 2008: 4).

The IPS initially sanctioned incarcerated Palestinians for organising (Rosenfeld, 2004). However, during the 1980s, as the Palestinian Prisoners Movement gained traction, the IPS gradually acknowledged elected prisoners as legitimate representatives and permitted certain activities inside prisons (Gortler, 2020). Palestinians then gained some degree of political recognition, although, in return, the IPS expected full compliance with prison regulations (Baker, 2016). By the early 1990s, the movement was so well organised that it caused the dismissal of two strict prison commissioners through prisoners’ escapes and extensive hunger strikes that hampered the 1992 Oslo negotiations (Goldberg, 2008). Nevertheless, like in Northern Ireland and South Africa, the IPS prioritised pragmatism over the preventive rationale to disperse Palestinian organisations in prison.

A central component of the IPS's policy is the allocation of Palestinians along organisational and geographical lines. This applies to all Palestinian security prisoners, even if they do not affiliate with any organisation, in which case their background might dictate their organisational affiliation. For instance, a religious Muslim might be allocated to a Hamas or Islamic Jihad wing (Baker, 2016). Hence, rather than help prisoners to disengage, the IPS effectively encourages membership in ‘terrorist organisations’.¹² At the same time though, separating the organisations allows the IPS to limit cross-organisational communication and weaken the unified Palestinian Prisoners Movement as a whole. In the mid-2000s, the IPS introduced the geographical element to prisoners’ allocation, which separates them according to their towns and villages (Korn, 2011). Geographical separation further inhibits cooperation, in line with Israel's policy of governing the West Bank and Gaza through compartmentalisation (Bashi and Diamond, 2015). The Palestinian rift, which peaked in the Hamas–Fatah violent clashes in 2007, fuelled the internal divide even further (Schanzer, 2008). The IPS uses organisational and geographical divisions as a divide-and-rule mechanism that obstructs national cooperation in prisons (Daka, 2011). This does not mean that incarcerated Palestinians remain powerless. Prison protests continue, and only recently, in September 2021, the geographical separation policy proved counterproductive because six residents of Jenin collaborated and escaped Gilboa prison (BBC News, 2021).

The IPS also draws on organisational affiliation to substantiate the special risk that security prisoners pose and to enforce universal restrictions (Darwish v The Prison Service, 1980). The IPS thus capitalises on its limited form of political recognition to further delegitimise incarcerated Palestinians as active threats, severely limiting their access to phones, and prohibiting conjugal visits and furloughs (Commission Ordinance, 2002). Visits are also limited to close family members only, once every two weeks and across partitions (Commission Ordinance, 2002). Moreover, prison education and rehabilitation programmes do not run in Palestinian wings (Viterbo, 2018). Prison regulations include an application procedure for removing these restrictions, yet it sets an almost impossible bar for Palestinians. First, it requires them to cut all ties with ‘terrorist organisations’ and effectively denounce the organisations that manage their life in prison. Second, it demands they prove to the security-minded Israeli Security Agency that they underwent a ‘substantial change’, as in an ideological transformation, and that removing the said limitations will not endanger national security (Commission Ordinance, 2002). The process bears differently on Jewish security prisoners, who are not automatically affiliated with organisations and thus find it easier to fulfil the conditions and access furloughs, rehabilitation and, subsequentially, parole (Galon v Maasiyahu Parole Committee, 2000; Israel v Gamliel, 2008).

In line with Israel's policy in military and civilian justice, the IPS determines risk based on ethnicity. For Palestinians, the IPS applies a double-step classification system that first defines them as security prisoners, and second affiliates them with organisations. This way, all Palestinians pose a security risk, regardless of their age, the severity of their offence, and their background (Baker, 2009). And yet it is the IPS that creates the conditions that ground this attributed dangerousness through its allocation policy. The IPS refrains from offering rehabilitation to prevent future offences or even weaken the organisations. Rather, it draws on organisational cohesion to hamper unified resistance. The IPS thus perceives prevention as the general weakening of Palestinian cooperation in prison and disregards the needs of incarcerated individuals. Such an approach not only violates the IPS's legal obligation to pursue the rehabilitation of residents and citizens (Prisons Ordinance, 1971: s. 11d), but also stands against fundamental liberal principles of individual treatment and accountability (Harel, 2011). Its universal restrictions are also arguably excessive considering the risk incarcerated Palestinians pose and the alternative means to monitor their contact with the outside world (Harel, 2011). Unlike Jewish prisoners, Palestinians are excluded from the IPS's liberal regime that is committed to administrative and constitutional law principles, like equal treatment, fair procedure and proportionality (Basic Law: Human Dignity and Liberty, 1992; Salah v The Prison Service, 2015). Subsequently, the disproportionately severe conditions imposed on Palestinians attest to an underlying punitive motivation rather than a preventive rationale (Baker, 2009). The IPS thus continues the exclusionary line of military and civilian justice by applying an enemy criminal law that denies prisoners’ rights and enforces harsher conditions on basis of ethnicity.

Israel has also used its power to deteriorate Palestinians’ prison conditions in response to external events. In 2011, it withdrew prisoners’ access to remote academic studies to pressure Hamas to release the kidnapped soldier Gilad Shalit (Ronen, 2013). However, despite Shalit's release, the prohibition remained, based on the reasoning that ‘terrorist organisations’ fund tuition fees as a reward (Salah v The Prison Service, 2015). What supposedly began as a measure to advance negotiations later revealed itself as another restriction to make punishment harsher in response to Shalit's captivity. In 2017, Israel similarly prohibited family visits to Hamas prisoners from Gaza, to pressure Hamas to release two Israeli citizens and the remains of two soldiers (Margalit, 2020). Such practices attest to Israel's instrumentalisation of prisoners’ rights, like the right to family visits (The Fourth Geneva Convention, 1949; Mandela Rules, 2015), which uses incarcerated Palestinians as pawns in a greater political game. And it is Israel's special prison regime that separates Palestinians and imposes collective restrictions, which allows external events to dictate penal severity. In this special regime, penal rationales enmesh with security interests that view Palestinians as a categorical enemy. This way, Israel inexplicitly ties together the prison and the conflict, revealing itself as a party to the hostilities (McEvoy, 2001) rather than a neutral arbitrator. Israel thus undermines its own moral authority to punish, as it uses punishment to reinforce superiority in power when challenged by Palestinian insurgency.

Conclusions

Israel's punishment of Palestinians resonates with the five themes identified in the experience of other countries. Israel enforces specialised tracks of adjudication, detention, and incarceration that target Palestinians. It maintains the traditional exclusive definition of POWs, offering instead a limited political recognition that then justifies harsher conditions. Concurrently, general security interests shape prison conditions, affecting penal severity and the implementation of penal rationales. Israeli justice thus marks Palestinians as enemies from the stage of arrest, trial, and punishment through illiberal frameworks that compromise criminal, administrative, and constitutional law principles. The case study of Israel–Palestine further demonstrates how the conditions of ongoing occupation generate a penal system that combines features of interstate conflict with internal conflict. Israel draws on IHL to legitimise administrative detention while using its civilian legal system to set harsher punishments and special prison conditions for Palestinians. Its specialised penal system for Palestinian insurgency selectively builds on different sources of law to serve the guiding principle of state security, which is the chief normative value of punishment against enemies.

Israel's conflict penality highlights the centrality of punishment as an important instrument in conflict. During conflict, governments typically claim to act against a threat that endangers the country and the well-being of its residents. Often, then, they will argue that the said threat revokes the state's most basic obligation according to classical political theories: to protect citizens from a Hobbesian state of nature (Ashworth and Zedner, 2014). But as governments act to fulfil this obligation, they reveal pre-existing flaws in their democratic regime by compromising fundamental constitutional norms and determining who the ‘enemy’ is along ethnic and racial lines (Cole, 2003). Furthermore, the subordination of penal rationales to national security interests and external developments uncovers states’ role as parties to the conflict. States use punishment to delegitimise their opponents, yet such practice also challenges the state's moral authority by exposing a direct politicisation of the power to punish.

This article provided an initial examination of legal and criminological questions regarding states’ penal practices during conflict. Drawing on existing theories that justify exceptional state power against enemies, such as enemy criminal law, the discussion here offered a critical perspective on how states heavily politicise punishment as a strategic instrument that delegitimises, ostracises and weakens state opponents, in times of hostilities. How extreme political tensions manifest in highly problematic penal practices that, at least in theory, should follow normative standards of justifications and limitations.

However, understanding just how conflict shapes punishment requires much further debate about conflict penality. Future research may delve into the strategic benefits of penal power during conflict, alongside its shortcomings. Scholars can discuss the role that punishment plays as a social control mechanism that influences both parties of the conflict; examine the variations between the approaches taken by legislators, the executive branch, and the judiciary to punishment during conflict; or analyse colonial continuities in the penal practices that states adopt against insurgents. Such studies can potentially engage in conflicts in different circumstances, including the civil war in Tigray, Ethiopia or Russia's invasion of Ukraine. Scholars may also consider an array of methods and conduct qualitative inquiries into the experiences of the various actors involved in conflict penality, including state representatives and those punished. Yet, while examining potential commonalities between conflicts, we should also recognise the importance of local political and cultural differences and their potential impact on how punishment is conceived and practised. This article hopefully provides some grounds for the future study of these important subject matters.

Footnotes

Acknowledgements

I am grateful to Lucia Zedner and Mary Bosworth for their ongoing support and to Irit Ballas, Hallam Tuck and the Journal's reviewers for their insightful comments.

Declaration of conflicting interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

Notes

Author biography

Rachel Noah Hefetz is an academic and legal practitioner in the areas of criminal justice, incarceration and armed conflict. She completed her doctoral degree at the Centre for Criminology, Faculty of Law, University of Oxford and she currently works as the director of the Prisoners' Representation Department at the Israeli Public Defence Office, Tel Aviv District.

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Understanding conflict penality: Dominant themes and the case of the Israeli–Palestinian conflict

Abstract

Keywords

Introduction

Dominant themes in how states punish enemies

Punishment in Israel–Palestine

Military and civilian punishment

Inside Israeli prisons

Conclusions

Footnotes

Acknowledgements

Declaration of conflicting interests

Funding

Notes

Author biography

References