Courting Conflict: The Israeli Military Court System in the West Bank and Gaza

1. A Political Geography of Law and Conflict

Law inspires, commands, and narrates social life. It creates or identiWes categories of social being and meaning, marking boundaries to connect and diVerentiate its subjects. It authorizes, prohibits, and in other ways regulates desires and relations and the activities to pursue them. It constitutes a terrain of social action and interaction where individuals and groups operate to deWne, promote, and protect their interests and their rights. It provides a form of ideological reasoning that inXuences the ways in which people understand their own place in the world, their relations with others, and their ideas about justice and fairness, order and change. In short, law provides an incomparable lens through which to view any social landscape because it permeates every level of society, from the most intimate and personal relations between individuals to the most bureaucratized and formal associations among institutions. This chapter, as the title suggests, maps law onto a landscape of social and political structures, relations, and ideologies. Like any project of mapping , mine accentuates certain elements and not others. I am particularly C h a p t e r 1 A Political Geography of Law and ConXict [L]aw constitutes or participates in the constitution of a terrain or Weld within which social relations are generated, reproduced, disputed and struggled over, the most important implication being that within such a Weld . . . the legal discourses in play both place limits of possibility on social action and impose speciWc forms of discursive possibility. Alan Hunt, “Foucault’s Expulsion of Law: Toward a Retrieval”1 23 interested in law’s paradoxical capacity to serve and secure the authority of the state while also enabling means of resisting that authority. I emphasize the terms authority and resistance because they are capable of denoting subtleties, complexities, and, in combination, the transactional nature of power. Their meanings are more expansive than, for example, repression and revolt, or domination and rebellion, because they express ideas of competing rationalities rather than simply forceful struggles. Together they suggest an asymmetrically ordered arrangement constantly reinforcing itself against challenges. Authority and resistance are particularly appropriate for conceptualizing and studying the impacts and uses of law. The central subject and setting of this book is the Israeli military court system in the West Bank and Gaza. In the political geography of Israel/Palestine, this system lies at the center of the conXict. Mapping this system involves a consideration of the various identity categories, ideological orientations, and relational networks among people involved in the system and the various discourses drawn upon to explain or represent it (e.g., nationalism, security, terrorism, rule of law, human rights). Law is a constitutive factor in the conXict because of the ways it is used to mark and reinforce—as well as contest—diVerences in people’s legal statuses and rights and struggles that derive from them. In this chapter, I lay out the analytical framework that I use to assess law and conXict in Israel/Palestine. Although military occupation is exceptionally problematic as a political arrangement, the military court system is not so legally anomalous that it deWes comparison. The issues that lend themselves to comparative sociolegal analysis include the ways in which law Wgures in institutionalizing and legitimizing state authority and in inspiring and aVording resistances of various kinds. Beyond Nationalism In the scholarly literature on the Israeli-Palestinian conXict, there is a prevailing tendency to rely on a national dichotomy as the analytical framework . The underlying assumption is that the conXict is, at root, a struggle over land—speciWcally a problem of “two peoples, one land.” The explanatory power accorded to nationalism and national diVerence hinges on notions of separateness, including an assumed a priori distinction between “Jews” and “Arabs,” which has manifested in the contemporary era as “Israelis versus Palestinians.” The result is a vast body of scholarship that reinforces an Israeli-Palestinian nationalist polemic by treating history 24 LAW AND CONFLICT IN ISRAEL/PALESTINE as mutually exclusive and competing narratives and interpreting politics largely in terms of the gains, losses, and goals of national political establishments . According to Zachary Lockman, “[M]any, if not most, of the historians, sociologists, and others who have contributed to this literature have worked from within (and implicitly accepted the premises of) either Zionist or Arab/Palestinian nationalist historical narratives.”2 This book presents an alternative to the national dichotomy and the assumptions of separateness that underlie it. To anticipate several points I...