2 Settler colonialism, the logic of elimination and the law

Settler colonialism, as defined by Lorenzo Veracini, is a ‘distinct form of colonization’ that is premised on the ‘displacement and domination’ of the native population of a given territory by a foreign settler society (Reference Veracini2015, pp. 34, 52, 106; Reference Veracini, Cavanagh and Veracini2017). Patrick Wolfe, whose pioneering work serves as the basis for our contemporary theoretical conceptualisation of settler colonialism, identified the key features of this settler-colonial enterprise, describing it as ‘an inclusive, land-centered project that coordinates a comprehensive range of agencies … with a view to eliminating indigenous societies’ (Reference Wolfe2006, p. 393). In his seminal studies, Wolfe introduced ‘the logic of elimination’, which represents the settlers’ unwavering commitment – as demonstrated through their actions, policies and discourse – to seize as much land as possible, to purge from it as many of the indigenes as possible and to establish on the purged land their settler colonies (ibid., p. 388; Reference Wolfe1999, p. 27).

The logic of elimination, Wolfe clarified, takes a ‘variety of forms’ and is shaped by the social, political and historical circumstances of each colony (Reference Wolfe2006, p. 401). These forms represent either the ‘positive’ or the ‘negative’ dimension of the logic of elimination. The negative dimension involves the physical elimination of the indigenes and is manifested in the settlers’ quest for ‘the dissolution of native societies’ through crude eliminatory actions like massacres, rapes and expulsions that directly target the indigenes’ bodies (ibid., p. 388). These actions usually take place during the initial invasion and conquest stages, when the settlers seek to expand their colony through the conquest of additional indigenous land, or amid the settlers’ quelling of rebellions waged by the natives. The negative dimension represents the primary means by which settlers violently dispossess native communities from the bulk of their land and significantly reduce the number of indigenes who live in their newly established states (Johnston and Lawson, Reference Johnston, Lawson, Schwarz and Ray2005, p. 362; Wolfe, Reference Wolfe and Kauanui J2018, pp. 347–348).

Positively, the logic of elimination manifests itself through an array of tightly connected executive, legislative and judicial measures that supplement, and gradually take primacy over, the extralegal violence upon which settler colonies are established (Wolfe, Reference Wolfe2006, p. 388; Veracini, Reference Veracini2010, pp. 75–77). These measures seek to retroactively absolve the settlers’ violent dispossession of the natives, complete their usurpation and cement the subjugation of the indigenes who survived the initial onslaught (Zureik, Reference Zureik2016). To this end, policies, legislation and juridical techniques that enable that goal are gradually introduced by the settlers (Veracini, Reference Veracini2010, p. 66; Erakat, Reference Erakat2019). These ‘positive’ measures are classified within the theoretical framework of settler colonialism as part and parcel of the logic of elimination because they represent how settlers enlarge, consolidate and secure the spoils of their invasion, including by ‘shatter[ing] and break[ing] up [the pre-invasion] social existence’ of indigenous communities (Moses, Reference Moses and Moses2004; Shaw, Reference Shaw2010, p. 5).

As this stance implies, the theories that underpin settler colonialism and genocide are closely connected, as both acknowledge that the destruction of a social group is often facilitated by means other than direct physical elimination, thus making their classification as eliminatory conceptually coherent (Wolfe, Reference Wolfe2006, pp. 402–403; Docker, Reference Docker and Moses A2008, pp. 94, 98).Footnote ² Indeed, as A. Dirk Moses noted, Raphael Lemkin, the architect of the Genocide Convention, himself implied that ‘genocide is intrinsically colonial and that therefore settler colonialism is intrinsically genocidal’ (Reference Moses and Moses2004, p. 27). Walter Hixson affirmed Moses's finding and explained that ‘part of the reason the G-word’ is largely absent from the discourse on colonialism is that the ‘Eurocentric genocide convention established a framework singling out the Holocaust while obscuring the histories of colonial [and settler-colonial] genocide’ (Reference Hixson2013, pp. 18–19). Acknowledging their shared characteristics while emphasising the distinctiveness of settler colonialism, Wolfe suggested ‘structural genocide’ as an articulation that incorporates the manifold manifestations of the logic of elimination – including those unrecognised by the convention – and identifies them as the preeminent elements of settler-colonial societies (2006, p. 403). This articulation embodies the centrepiece of Wolfe's argument: settler colonialism is ‘a structure, not an event’; it is a comprehensive, complex and multi-faceted system that methodically ‘destroys’ native societies in order to ‘replace’ them (1999, p. 163; 2006, p. 388).

As the foregoing discussion indicates, the positive dimension of the logic of elimination is usually manifested through the conduct of the executive, legislative and/or judicial branches of settler-colonial states. Historically, to use well-known examples, the international law doctrines of terra nullius and discovery – which were ultimately recognised as ‘legal fictions’ in the settlers’ own jurisprudence – were introduced in places such as Australia and North America to officially deny the recognition of pre-existing indigenous sovereignties and native property rights (Wolfe, Reference Wolfe1999, p. 27; Robertson, Reference Robertson2005, p. 72). These doctrines were premised on the factual ‘denial of the very existence of indigenous peoples as [right-bearing] human societies’ and on the legal sanctioning of the make-believe ‘idea that land invaded and taken over by [settlers may legitimately] be considered’ unoccupied and ownerless, and thus ripe for discovery, occupation and the establishment of settler sovereignties (Russell, Reference Russell2006, pp. 8, 40).

Mirroring settler colonialism elsewhere, shortly after the Zionist conquest of Palestine and the establishment of the settler-colonial state, the Israeli government enacted a ‘series of laws chiefly aimed at justifying’ and legalising its foundational violent dispossession of the indigenous Palestinian Arab population, and at providing the Israeli government with ‘extensive powers to continue expropriating land that still remained in Arab hands’ (Jiryis, Reference Jiryis1976, pp. 82–87). Principal among these expropriation laws was the Absentees’ Property Law of 1950, which had a dual function. First, it retroactively sanctioned the expropriation of land and property belonging to more than 750,000 Palestinians who were ethnically cleansed by the Zionists in 1948 (Lustick, Reference Lustick1980, p. 174; Pappé, Reference Pappé2007). Second, it legalised the expropriation of more than 1,000,000 dunums (one dunum is equal to 0.247 acres) of land owned by Palestinians who survived the ethnic cleansing and remained, for various reasons, within Israel (Kimmerling, Reference Kimmerling1983, p. 140). The latter was accomplished by the law's authorisation of the state's Custodian of Abandoned Property to expropriate the land of Palestinians who ‘vacated [or were vacated by Zionist forces from] their homes during the war, regardless of whether they returned’ to their homes, remained in Israeli-controlled territories or became Israeli citizens (Cohen, Reference Cohen2000, p. 62; Forman and Kedar, Reference Forman and Kedar2004, p. 815). As a result, the law – which presently serves as the legal basis for the expropriation of Palestinian property in East Jerusalem – created a particular group of internally displaced and dispossessed Palestinians, commonly referred to by the term ‘present-absentees’ (Robinson, Reference Robinson2013, p. 47; Hasson, Reference Hasson2015). This oxymoron, viewed through the lens of settler colonialism, embodies the same logic upon which the legal fictions of terra nullius and discovery were based, namely the denial that a right-bearing native Palestinian population exists on the conquered land, and the legal sanctioning of the apocryphal idea that the expropriated land has been abandoned by its owners and is thus available for expropriation and settlement.

As previously discussed, the positive dimension of the logic of elimination also manifests itself through oppressive, legally backed governmental measures designed to secure settler usurpation. These measures represent ‘the site-specific workings of the varied local expressions of the settler drive to eliminate native territoriality’ and exhibit the coaction of state organs that are tasked with their implementation (Wolfe, Reference Wolfe2016, pp. 269–270; Reference Wolfe and Kauanui J2018, pp. 347–348). The ubiquity of such ‘positive’ manifestations of the logic of elimination in settler colonialism, and their dominant role in its construction, has resulted in their identification as ‘an organizing principal of settler-colonial’ societies (Wolfe, Reference Wolfe2006, p. 388; Veracini, Reference Veracini2010, p. 10). The settlers’ strategic shift from warfare-based to lawfare-based elimination thus transforms settler law and legal institutions as they are increasingly tasked with enabling eliminatory conduct, ensuring the perpetual subjugation of the natives and enshrining settler privilege under the law (Chesterman and Galligan, Reference Chesterman and Galligan1997; Elkins and Pedersen, Reference Elkins, Pedersen, Elkins and Pedersen2005; Comaroff and Comaroff, Reference Comaroff, Comaroff, Comaroff and Comaroff2006). Utilised in such a manner, settler-colonial legal systems begin to ‘embrace[] and envelope[]’ the indigenes in a ‘suffocating hold’ as they prescribe and permit the implementation of measures designed to control, weaken, fragment and marginalise indigenous communities (Shihade, Reference Shihade2012; Reynolds, Reference Reynolds2017, p. 38). The accumulated effects of the positive dimension of the logic of elimination are therefore ‘indelibly linked’ to its negative dimension, as both are implicated – directly and indirectly – in the destruction of the pre-invasion social existence of native populations (Moses, Reference Moses and Moses2004; Shaw, Reference Shaw2010; Nielsen and Robyn, Reference Nielsen and Robyn2019, p. 13).

Such measures may include, for example, the creation of a separate native citizenship with diminished legal rights, the disunification of communal indigenous land and its severing into alienable freeholds, and the enactment of despotic labour laws that render self-sustaining indigenes into dependent wage employees (Engle Merry, Reference Engle2000; Wolfe, Reference Wolfe2006). The criminalisation of indigenous resistance, however – particularly that which may countervail the various manifestations of the logic of elimination – best exemplifies the critical role that settler law and legal institutions have in this offensive (Simons and Simons, Reference Simons and Simons1969; Douglas and Finnane, Reference Douglas and Finnane2012; Madley, Reference Madley2016). To forestall and repel such opposition, settlers use their legal systems to criminalise and punish native conduct that amounts to or may facilitate resistance. While the former targets conduct such as rebellions and strikes, the latter has a far greater aim because it criminalises and punishes conduct associated with the reestablishment of indigenous political organisations and spaces in which native resistance may galvanise.

For instance, indigenous peoples in South Africa withstood the criminalisation of labour unionisation (Seekings and Nattrass, Reference Seekings and Nattrass2005); First Nations in Canada endured the illegalisation of communal fundraising efforts that sought to cover the legal costs of lawsuits that challenged settler dispossession (McHugh and Ford, Reference McHugh, Ford, Ford and Rowse2013); and Native Californians bore the prohibition of communal ‘religious and cultural gatherings’ (Madley, Reference Madley2016, p. 10). Similarly, the native Palestinian population living under Israeli rule has faced the banning of civil associations, political parties and newspaper publications, as well as travel to neighbouring Arab countries to visit their compatriots, among others (Gordon, Reference Gordon2008). Indeed, as this paper demonstrates, settler-colonial societies are particularly concerned about the appearance of a unified front of native resistance and accordingly continuously work to forestall its emergence through measures that are sanctioned by settler law, even if nominally.

The reliance of settler colonialism on law and legal institutions, especially in its European variant, should therefore be briefly explained. The legal systems of European states, including international law, have for centuries been widely regarded by Europeans as the ‘defining feature’ of their civilisation (Robin Letwin, Reference Robin2005; Russell, Reference Russell2006, p. 31). This belief stemmed from another: that without a legal system that ‘define[s] rights and entitlements’ and ‘ensure[s] compliance’ with its rules, civilisation cannot actualise (Collins, Reference Collins1982, pp. 10–12). This reverence for the law, which is linked to Europe's embrace of Christian divine law, gave rise to prevalent perceptions about the law's virtues, particularly the impression that all laws retain an ‘inviolable, built-in principled integrity’ deriving from their inherent ‘core of good and right’ (Tamanaha, Reference Tamanaha2006, p. 215). Such perceptions were later emboldened by natural law scholarship that ‘solidified the identification of law with justice’ and ultimately culminated in the ascension of ‘the rule of law’ as Europe's premier principle of governance (Tamanaha, Reference Tamanaha2004, pp. 24, 137–141). Consequently, Europe's conflation of law and morality was discursively extended to positive law, greatly contributing to the dissemination of the idea that law is ‘good’ and therefore that ‘it is good to be ruled by law … regardless of its particular content’ (Hussain, Reference Hussain2003, p. 68; Marmor, Reference Marmor and Patterson2010, pp. 666–667).

The supposed inherent benevolence of the law provided European settler-colonial formations with a powerful tool through which the unjust dispossession of native communities and the ceaseless violence upon which it depends are simultaneously justified, obscured and disavowed (Johnston and Lawson, Reference Johnston, Lawson, Schwarz and Ray2005; Whitt, Reference Whitt2009). As Robert Williams demonstrated, European law and legal discourse became the ‘most vital and effective instrument[s]’ in the enablement of settler-colonial ‘genocidal conquest[s]’ specifically due to their capacity to approbate self-serving ‘vision[s] of truth’ that vindicated these violent dispossessions (1990, pp. 6, 325–326). Indeed, denial is a fundamental feature of settler colonialism, for it continuously seeks to conceal the ‘conditions of its own production’ by cloaking them with the ‘immaculate garment of justice’ that settler law and legal institutions consistently provide (Chanock, Reference Chanock2001, p. 21; Veracini, Reference Veracini2010, p. 14). As the long legal history of European settler colonialism demonstrates, the judiciaries – supreme courts in particular – are at the forefront of settler denialism and represent a key site in which the various manifestations of the logic of elimination are legally sanitised (Bell and Asch, Reference Bell, Asch and Asch2002; Russell, Reference Russell2006; Miller et al., Reference Miller2010). The following sections illustrate the ways in which this occurs in Palestine/Israel.

3 Zionist settler colonialism, the Supreme Court of Israel and the jurisprudence of elimination

The Zionist conquest of Palestine and the founding of Israel – ‘the last European settler colony to be established on earth’ (Wolfe, Reference Wolfe and Kauanui J2018, p. 357) – epitomises settler colonialism, a finding thoroughly proven by pertinent literature (Sayegh, Reference Sayegh1965; Abu-Lughod and Abu-Laban, Reference Abu-Lughod and Abu-Laban B1974; Kimmerling, Reference Kimmerling1983; Shafir, Reference Shafir1996; Veracini, Reference Veracini2006; Reference Veracini2013; Jabary Salamanca et al., Reference Salamanca O2012; Wolfe, Reference Wolfe2016; Khalidi, Reference Khalidi2020). As the following discussion shows, law and legal institutions, the Supreme Court of Israel in particular, are correspondingly implicated in the ongoing violent dispossession and subjugation of the native Palestinian Arab population.

In Israel, the Supreme Court stands at the top of the judicial hierarchy and is the foremost institution responsible for ‘safeguarding the rule of law’ (Netanyahu, Reference Netanyahu1993, p. 2; Velner v. Chairman of the Israeli Labor Party, 1995, pp. 758, 808; Barak, Reference Barak2006, p. 22). As such, it is incumbent upon the Court to apply, interpret and enforce Israeli and international law (Waldron, Reference Waldron2006; Kedar, Reference Kedar2018). However, as Menachem Mautner noted, the Court ‘has unquestionably perceived itself, above all, as an organ of the Zionist state’ – a perception acutely felt by its indigenous Palestinian Arab population (Reference Mautner2011, p. 38). Historically, the Court's support for the various manifestations of the logic of elimination has been represented not only by the one-sidedness of its rulings, but also through its employment of distinct jurisprudential techniques, to which I will refer as the jurisprudence of elimination. These techniques, I argue, include the misrepresentation of pertinent facts, reliance on dubious interpretations of international law, assertions of extralegal justifications in support of its rulings and denials that the Court and other state organs engage in a co-ordinated attack against the indigenous Palestinian population. Hence, the concept of the jurisprudence of elimination represents a positive manifestation of the logic of elimination.

Importantly, the suggested conceptualisation of the jurisprudence of elimination does not exclude previous assessments of the Court's jurisprudence involving Palestinians. Rather, it seeks to contextualise their findings and emphasise their aggregate importance in a manner that can be applied to interpret the Court's rulings through the lens of settler colonialism. For example, Nimer Sultany pointed to six ‘legal and rhetorical moves’ that the Court used to ‘justify and advance’ Israeli military rule in the Occupied Palestinian Territories (Reference Sultany2014, p. 323). These moves consisted of (1) refusal to recognise international humanitarian law (IHL) as the controlling legal regime; (2) inconsistent employment of its justiciability doctrine; (3) blind acceptance of arguments presented by the state; (4) stalling for time by refusing to issue decisions on pending cases; (5) decontextualisation of the systematic nature of state-sanctioned violence targeting Palestinians; and (6) narration of a language that presents Israel as fighting against ‘incomprehensible and irrational [Palestinian] violence’ (ibid., pp. 325–326). Similarly, Aeyal Gross demonstrated how the Court utilised international human rights law to ‘obscure rather than challenge’ the routine violation of Palestinian legal rights (Reference Gross2017, p. 35). Likewise, Baruch Kimmerling showed how the Court formally held that all Israeli citizens – including Palestinians – are equal before the law, only to leave a ‘loophole for the court to avoid supporting equal rights for Arab citizens if the mere specter of national security is raised’ (Reference Kimmerling2002, p. 1121). Furthermore, Ronen Shamir's study of landmark, supposedly precedent-setting, cases in which the Court ruled in favour of Palestinians revealed that they were in fact ‘isolated victories’ that ‘were not followed by similar results in subsequent cases’ (Reference Shamir1990, p. 797). Critically, Shamir concluded that what these cases were able to accomplish was the ‘reinforce[ment of] the court's legitimacy as a solid defender of human rights’ (ibid.).

Shamir's conclusion was affirmed by Sultany, who contended that the six aforementioned ‘moves’ helped the Court to maintain its ‘discourse of legitimation’ (Reference Sultany2014, p. 323). This ongoing quest for legitimation by the Court is hardly surprising when assessed through the framework of settler colonialism. As Veracini demonstrated, settler-colonial societies experience ‘stubborn and lingering anxieties’ about the legitimacy of their projects (Reference Veracini2010, p. 77). This persistent sense of illegitimacy, he contended, is tied to the ‘original founding violence’ through which the state was established and to the protracted violence through which the colonial project progresses (ibid.). Therefore, the concept of the jurisprudence of elimination brings together, expands upon and establishes a framework that incorporates the numerous ways in which the Court has been able not only to legalise, but to legitimise the negative and positive manifestations of the logic of elimination.

The consistent failure of the Court to protect the legal rights of Palestinians, while simultaneously striving to present its rulings as legitimate, has resulted in what Kretzmer described as a ‘schizophrenic legal system’ (Reference Kretzmer, Bar-Tal and Schnell2014, p. 52).Footnote ³ When applied to Jewish Israelis, the system ‘has a fairly liberal character and employs the rhetoric of rule of law, human rights, and democratic values’ (ibid.). When applied to Palestinians, however, the same system ‘has little connection to the rule of law, only minimal connection to human rights, and no connection to democratic values’ (ibid.). Understanding the fundamental objectives of settler colonialism makes this state of affairs less puzzling, as the legal systems within such societies are subservient to the logic of elimination (Williams, Reference Williams1990, pp. 7, 327; Engle Merry, Reference Engle1991, p. 890; Miller et al., Reference Miller2010, p. 93). To paraphrase P.G. McHugh, the logic of elimination is a vision sealed in blood and set in law (Reference McHugh2004, p. 129).

The following discussion illustrates how the jurisprudence of elimination facilitated Israel's eliminatory conduct targeting the native Palestinian population by analysing two thematically interconnected cases adjudicated by the Court. The first involves the Court's sanctioning of a negative manifestation of the logic of elimination entailing the 2002 siege of the Church of the Nativity in Bethlehem, during which the Israeli military starved Palestinians holed up inside in order to compel their surrender.Footnote ⁴ The second involves the Court's sanctioning of a positive manifestation of the logic of elimination entailing the 2015 amendment to the 1971 Prison Ordinance that empowered Israeli district courts to issue force-feeding orders for the suppression of hunger strikes by Palestinian prisoners.Footnote ⁵ As these analyses show, the Court indeed misrepresented pertinent facts, advanced dubious interpretations of international law, relied on extralegal assertions and sought to conceal, deny and vindicate the state's – and the Court's – eliminatory aims. Moreover, the analyses highlight the degree of settlers’ apprehension regarding the emergence of a unified front of native resistance and the severity of their response when they encounter it.

4 Starvation of besieged Palestinian civilians

In April 2002, in the midst of the Second Intifada, then Chief Justice Aharon Barak presided over a case that drew substantial international attention (Almandi v. Minister of Defense, 2002). Operation Defensive Shield, the brutal Israeli response to the Palestinian uprising, was ongoing and Israel was in the process of re-establishing complete military rule over major Palestinian cities in the West Bank. Israel utilised hundreds of tanks and F-16 fighter jets during the operation, which resulted in the killing of 497 Palestinians and the wounding of 1,447 more (United Nations, 2002). When Israeli forces entered the city of Bethlehem, Palestinians began fleeing. In a desperate attempt to find safe haven, about 200 entered the Church of the Nativity, a holy Christian site believed to be located above the cave in which Jesus was born, locking themselves inside together with forty-eight priests. Most of the Palestinians in the church were unarmed civilians, although a few – most of whom were Palestinian police officers who also sought refuge in the church – were armed (Perry, Reference Perry2002). At the time, Israel contended that between thirty and forty of those in the church were ‘wanted Palestinian terrorists’, but did not provide evidence to support its contention (Almandi v. Minister of Defense, 2002, p. 32; Anon., 2002). Due to the religious and historical significance of the site, and to the fact that the world was watching, the military chose not to break in. Instead, it laid siege to the church for thirty-nine days, cut off the water and electricity supply, and utilised snipers from afar to kill seven Palestinians and wound forty of them (Hammer, Reference Hammer2002; Perry, Reference Perry2002; Hass, Reference Hass2014).

During the course of the siege, the Israeli military allowed the priests to exit and enter the church so that they could eat, but blocked food supplies that had been provided by peace activists from reaching the rest of the Palestinians in the church. That situation prompted the Palestinian governor of the Bethlehem District and two Palestinian Knesset members (Petitioners) to submit a petition to the Court. Therein, the Petitioners argued, inter alia, that the military's refusal to allow food to enter the church was a violation of international law (Almandi v. Minister of Defense, 2002, p. 35). The pertinent international law provisions are Article 17 of the Fourth Geneva Convention, which calls for the besieger and besieged to reach an agreement regarding ‘the removal [of civilians] from besieged areas’; and Article 54 of Protocol I to the Geneva Conventions (Protocol I), which prohibits the ‘starvation of civilians as a method of warfare’.Footnote ⁶ If an agreement regarding the removal of civilians from the besieged area cannot be reached, the besieger ‘at minimum’ is required to provide them with ‘adequate food’ in the besieged area (Watts, Reference Watts2014, p. 16). As former UN Secretary-General Ban Ki-Moon emphasised: ‘Let me be clear: the use of starvation as a weapon of war is a war crime’ (UN News Centre, 2016; Van Schaack, Reference Van2016).

The Court, however, allowed the military to continue to starve the Palestinian civilians by finding the actions of the military to be legal and in compliance with international law, despite the clear evidence to the contrary. Barak, who wrote for the Court, accepted that the Church of the Nativity siege ‘is not taking place in a normative void [and] is being carried out according to the rules of international law, which provide principles and rules for combat activity’ (Almandi v. Minister of Defense, 2002, p. 34). He then emphasised the Court's steadfast commitment to IHL, especially regarding its protection of civilians. Barak asserted:

By referring to Cicero's aphorism, Barak sought to provide reassurance that the Court would protect the besieged civilians by recognising the legal protections to which they are entitled and by instructing the Israeli military to ensure that its conduct complies with IHL. However, and as I demonstrate below, this commitment was confined to the realm of rhetoric.

As alluded to above, under the particular circumstances of the siege, international law provided the Israeli military with three options regarding its treatment of the Palestinian civilians in the church: (1) reach an agreement with the armed Palestinians that would allow all unarmed civilians to exit the church; (2) provide food to the unarmed civilians in the church; or (3) refrain from blocking the peace activists’ food supplies from reaching the unarmed civilians in the church. Despite the fact that the military rejected all three options and continued to starve the civilians inside the church, the Court found that the actions of the military were not illegal or contrary to international law.

As for the first option, which entailed reaching an agreement with the armed Palestinians to remove the unarmed ones from the church, the Court stated that ‘[the military contends that it is] not preventing Palestinian civilians from exiting the compound, and [is] encouraging them to exit, while promising them that no harm shall befall them’ (ibid., p. 35). The Court stated further that it had asked the military whether it would allow the unarmed civilians to exit the church so that they could eat and return to the church afterward if they chose, and that the Court received ‘a positive answer’ to this question (ibid.). Predictably, the Court accepted both contentions as true, despite the fact that the reality in the church, as it was widely reported at the time, was quite different. In fact, the Israeli military made no distinction between armed and unarmed civilians, and used snipers to kill any Palestinian it could spot inside the church. As one Israeli soldier who took part in the siege stated: ‘Anyone armed gets shot, anyone crawling around [in the church] gets shot’ (Hammer, Reference Hammer2002). This statement not only constitutes an admission of a war crime; it also serves to illustrate the horrific circumstances under which Palestinians had to decide whether to trust the Israeli military when it said that no harm would come to those who chose to exit the church (Protocol I, Arts 48, 51(2), 52(2), 85(5); Hathaway et al., Reference Hathaway2019, pp. 65–66, 90–91).

Furthermore, the Court then stated that the Petitioners had argued before it that even if the military allowed the unarmed civilians to exit the church, the armed Palestinians would prevent them from leaving. Therefore, the willingness of the military to allow the unarmed civilians to exit the church did not free it from its legal obligation to provide the unarmed civilians with food (Almandi v. Minister of Defense, 2002, p. 35). If the Court's characterisation of the argument presented by the Petitioners is indeed accurate, it is somewhat peculiar. As the various (cited) news articles that covered the progression of the siege indicate, at no point did the armed Palestinians block the unarmed ones from exiting the church. It seems that the fear of the Israeli military (which had already killed several unarmed civilians) as well as the desire to stay united and not leave their brethren behind were the reasons why the unarmed civilians did not exit the church. Therefore, the wanton assault that the Israeli army mounted against the Palestinians may be attributed in part to the goal of preventing the formation of a unified front of native resistance in the church, as previously discussed. Regardless, whether it was the former, the latter or a combination of both reasons, the Israeli military failed to reach an agreement that resulted in the removal of the unarmed civilians from the church.

This left the Israeli military with the second and third options: either provide food to the civilians in the church or do not prevent food provided by others from reaching them. Yet, the Court failed to oblige the military to take either of those options. Instead, it justified the ongoing starvation of unarmed Palestinian civilians by misconstruing the conditions of the siege, claiming that there was already food inside the church and that the Israeli military was only preventing ‘extra’ food from entering:

Barak's account of the factual circumstances of the case and his determination that the Israeli military had satisfied pertinent legal requirements prescribed by international law are perplexing. First, contrary to the Court's assertion, on 21 April 2002, ten days before the Court issued its decision, the church's warden, Father Ibrahim Faltas, informed the British Broadcasting Corporation that ‘food has run out in the church’ and made no qualifications to his statement (BBC, 2002). The severity of the hunger experienced by the Palestinians in the church was made even clearer when a few of them tried to smuggle food from the adjacent Greek Orthodox convent with the help of one its members, risking their lives in the process. Demonstrating again that no distinction was made between armed and unarmed civilians in the church, when Israeli snipers spotted a twenty-year-old unarmed civilian trying to obtain food from the convent, they shot him too (Hammer, Reference Hammer2002).

Second, even if we do accept the Court's assertion regarding the existence of bags of rice and beans in the church, this would not have absolved the military of its legal responsibility to provide additional food, or to refrain from blocking additional food from reaching the unarmed civilians. As the International Committee of the Red Cross's commentary on Article 54 of Protocol I emphasises, besieged civilians are entitled to ‘adequate’ food (1987; Watts, Reference Watts2014, p. 16). Not only are bags of uncooked rice and beans inadequate – especially considering the cutting-off of the water and electricity supply by the military – but it seems that the Court expected the Palestinians inside the church to manage to cook under Israeli sniper fire. It is telling that the Court did not identify either the Palestinians who purportedly reported the presence of rice and beans inside the church or to whom they made this report. It is likewise telling that the Court cited no legal source in support of its reasoning that the mere existence of uncooked rice and beans inside the church satisfied the requirements international law imposes upon a besieger. Nevertheless, it appears that the Court was able to convince at least one scholar of the validity of its reasoning. Daphne Barak-Erez, the former dean of the Faculty of Law of Tel Aviv University who joined the Court as a judge in 2012, stated that

As the above discussion showed, no reading of the Court's decision would support Barak-Erez's assertion.

But the Court did not stop there. To further legitimise its ruling, the Court provided extralegal justifications in support of the ongoing war crime committed by the Israeli military. As Barak stated:

This was not the first time that Barak used the war against terror as a justification for qualifying the legal protections to which Palestinians are entitled under international law (PCATI v. Israel, 1999, p. 836; PCATI v. Israel, 2006, p. 545). As Anthony Anghie explained, by invoking the War on Terror, Barak implied that the case at hand involved a ‘threatening entity beyond the realm of the law that must be dealt with by extraordinary emergency powers, or even extra-legal methods’ (Reference Barak-Erez2004, p. 299). Remarkably, however, here Barak did so to justify the starvation of innocent civilians while nonetheless insisting that his ruling comported with international law.

In summation, the jurisprudence of elimination embodied in the Church of the Nativity decision consisted of the Court's rendering of the factual circumstances of the case in a way that diminished their severity, its distortion of international law and its advancement of extralegal justifications of the state's actions. By so doing, the Court sought to legalise and legitimise the eliminatory conduct of starvation, to vindicate the state and its army of any wrongdoing, and to conceal and deny the Court's own complicity in this co-ordinated offensive against Palestinians. Therefore, the decision illustrates the interplay between the negative and positive manifestations of the logic of elimination, how the former may be enabled by the latter and the synergy that exists between Israeli state organs as they implement eliminatory measures. As for the besieged Palestinians in the church, Israel reached an agreement with the Palestinian Authority to deport twenty-six of them, half to the Gaza Strip and half to European countries, in exchange for ending the siege (Kraizim, Reference Kraizim2013). Although the agreement stipulated a period of exile of two years, Israel has refused to allow them to return to their homes in the West Bank to this day (ibid.).

5 Force-feeding of Palestinian prisoners

Force-feeding a prisoner who goes on a hunger strike is an extremely painful, traumatic, degrading and dangerous practice, and is accordingly classified by many legal scholars as a form of torture that is prohibited by international law (Dayal, Reference Dayal2015). During a force-feeding procedure, a prisoner is strapped to a chair, while conscious, as a medical official forcefully inserts a two-foot-long plastic tube through the nose, down the throat and into the stomach (Kim, Reference Kim2015). Once the tube reaches the stomach, liquid food is delivered through it. Force-feeding has caused the death of prisoners as a result of food being released into the lungs instead of into the stomach, which resulted in ‘rapid death from pneumonia’ (Miller, Reference Miller2016, p. 3). The World Medical Association and legal experts from the UN have determined that the force-feeding of prisoners amounts to ‘cruel, inhumane and degrading treatment’ (OHCHR, 2015; Crosby et al., Reference Crosby, Apovian and Grodin2007). Such treatment of prisoners of war is illegal under multiple instruments of international law (UDHR, 1948, Art. 5; ICCPR, 1966, Art. 7; UNCAT, 1984, Art. 16). Moreover, Article 11 of Protocol I to the Geneva Conventions explicitly prohibits subjecting such prisoners to ‘any medical procedure … which is not consistent with [the] generally accepted medical standards [that] would be applied under similar medical circumstances to persons who are nationals of the party conducting the procedure’ (Goodman, Reference Goodman2013; Nocera, Reference Nocera2014). Furthermore, as Summer Dayal argued, force-feeding may amount to a crime against humanity under the Rome Statute of the International Criminal Court (2015, p. 703).

Yet, despite the prohibition against the practice in international law, several countries, Israel among them, continue to subject prisoners to force-feeding.Footnote ⁷ These countries justify this form of torture by arguing that they bear responsibility and are acting out of concern for the well-being of prisoners who endanger themselves by going on a hunger strike. According to that reasoning, the concern for prisoners’ lives trumps prisoners’ right to autonomy over their bodies, thus making force-feeding permissible (Lempel, Reference Lempel2016).

In protest of their prolonged imprisonment (of months or even years) without trial and of their poor prison conditions, many Palestinian prisoners have gone on hunger strike. These hunger strikes often result in negative publicity for Israel, especially in cases in which a detainee's health deteriorates drastically. In the past, Israel has force-fed hunger-striking prisoners, killing at least five of them while administering the procedure (Bandet and Zalait, Reference Bandet and Zalait2015). A 2015 case brought Israeli force-feeding back into the headlines when Muhammad Allan, a Palestinian attorney from the West Bank who was imprisoned for months without charge or trial, went on a hunger strike (Rudoren and Hadid, Reference Rudoren and Hadid2015).

After several weeks with no food, Allan's life was in danger and he was transferred to a hospital in the city of Ashkelon. The Israel Security Agency (the ISA, also known as Shin Bet or Shabak, is Israel's internal security service) demanded that Allan be force-fed. However, the physicians who were called in to administer the procedure refused to do so, as the World Medical Association prohibits physicians from force-feeding prisoners who are ‘capable of forming an unimpaired and rational judgment’ regarding their decision to go on a hunger strike (WMA, 1975, Art. 8; WMA, 1991, Art. 21; Mishali and Gvur, Reference Mishali and Gvur2015). Allan's rapidly deteriorating health and the international attention that his case received forced the ISA to admit that it had no evidence that could be used to legally continue his imprisonment and so it eventually permitted his release (Murphy, Reference Murphy2015). Israel, fearing that other Palestinian prisoners would follow suit, then decided to legalise the force-feeding of Palestinian prisoners by enacting a law to that effect (Anon., 2015b; Hadid, Reference Hadid2015).

In July 2015, the Knesset amended the 1971 Prison Ordinance to legally expand and systematise the force-feeding of Palestinian prisoners. Prior to the passage of this amendment, the legal basis for the practice had been the 1996 Patient Rights Law (PRL), which allowed force-feeding only in instances in which a medical ethics committee had approved the measure.Footnote ⁸ The PRL required that the committee ensures the following prior to granting its approval: (1) that the prisoner received the necessary medical information ordinarily provided to patients to meet the general legal requirement of informed consent for medical procedures; (2) that the force-feeding would substantially improve the prisoner's health; and (3) that it was reasonable to assume that the prisoner would retroactively authorise the force-feeding procedure (Art. 15). The PRL's criteria had made it difficult for the Israeli government to obtain permission from the ethics committee to force-feed Palestinian prisoners, as it could not prove that Palestinian prisoners, who had clearly stated their intention to go on hunger strike and their reasons for doing so, would retroactively give their permission to be force-fed. The amendment was accordingly designed to bypass this PRL restriction by creating an alternative legal path for force-feeding Palestinian prisoners. In addition to the ethics committee, the amendment now allowed force-feeding to be approved by a court order issued by chief justices of district courts or by their deputies.

What makes the amendment so significant is the criteria it prescribes for the granting of a force-feeding order. First, the amendment requires that district courts grant the order if

Second, the amendment requires that courts take into account ‘considerations of risk [posed by the prisoner] to human life or actual risk of serious harm to national security’ (Prison Ordinance, 1971, Art. 19–14(5)). While the first requirement reflects the justification for force-feeding espoused in the PRL and by other force-feeding countries, the second requirement, force-feeding in pursuit of national security objectives, is the world's first. No other country has ever justified, let alone legalised, the force-feeding of prisoners on such grounds (IMA v. Knesset, 2016, pp. 57–58, 76, 80).

Soon after the enactment of the amendment, several organisations, including the Israel Medical Association, filed a petition with the Supreme Court arguing against the legality of the amendment. In the government's response to the petition, the relationship between a Palestinian prisoner's hunger strike and national security was explained in the following way: a hunger strike is in essence a political tool that engages and influences those who sympathise with the prisoner. In cases in which prisoners die, unrest among other Palestinian prisoners and among Palestinians living in the Occupied Palestinian Territories could ensue (AG Response, 2015, pp. 15, 42).Footnote ⁹ Further, a hunger strike puts pressure on the government to release prisoners despite the danger they may pose to the public and to the state itself (ibid., p. 41). Therefore, the government explicitly admitted that the main purpose of the amendment is to dismantle the unified front of native resistance that emerges when a Palestinian prisoner goes on a hunger strike.

The government went on to state that the goal of the amendment was to allow security interests to serve as a basis for a force-feeding court order precisely because the PRL's ethics committee was not legally allowed to take such interests into account (ibid., p. 14; IMA v. Knesset, 2016, pp. 19–24). The government's bluntness regarding the motive that stood behind the enactment of the amendment left the Court in an odd position, as it revealed the hollowness of the first stated objective of the amendment of ensuring the well-being of the prisoner. It was then up to the Court to provide a normative framework under which force-feeding for national security interests – and not, as it had been traditionally excused elsewhere in the world, to protect the prisoner's well-being – could be deemed legal and constitutional (Khoury, Reference Khoury2016).

And that it did. In its ruling, the Court began its discussion regarding the compatibility of the amendment with pertinent international norms, not by assessing its legality, but by emphasising that the Israeli government had gone to great lengths to ensure that the amendment complied with international law. As Justice Elyakim Rubinstein, who penned the bulk of the decision, asserted:

The above assertion was followed by statements regarding the general legitimacy of force-feeding hunger-striking prisoners from a global perspective. Therein, Rubinstein situated Israel among other Western countries that force-feed hunger-striking prisoners. He noted:

Therefore, the Court sought to provide reassurance, not only that the amendment was drafted in accordance with international law, but also that it did not represent a departure from the way in which force-feeding is justified by other countries. Importantly, up to that point of the decision, the Court had avoided discussing the ultimate purpose of the amendment – the legalisation of force-feeding as a measure through which Israel could prevent Palestinians from using hunger strikes as a means of resistance – a purpose conveniently obscured behind the banner of national security. This came next.

As previously discussed, the international norm regarding the force-feeding of hunger-striking prisoners in states that permit the practice is that it can only be legally justified if its officially stated aim is the protection of the health or life of the prisoner. It is thus worth emphasising the significance of what the Supreme Court sought to accomplish here. The Court attempted to justify the creation of an alternative legal path for the force-feeding of Palestinian prisoners – a measure that was specifically designed to protect the political interests of the state, not the health of the prisoner. Such a justification for the abrogation of the prisoner's autonomy over their life and body, a justification that privileges the good of the state over the good of the individual, represents a significant departure from the way in which force-feeding has been justified elsewhere in the world.

As the following discussion shows, the Court sought to conceal the significance of this departure by contending that it was not a departure, but an appropriate interpretation of the rationale upon which other states justify force-feeding hunger-striking prisoners. By so doing, the Court not only resorted again to denial in its jurisprudence of elimination; it also illustrated what Veracini described as the ‘mimetic character’ of settler-colonial societies seeking to conceal the implementation of eliminatory practices by describing them as ones already deemed permissible by other states (Veracini, Reference Veracini2010, pp. 14, 76–80, 93–94; Cohen, Reference Cohen2001, pp. 7–9). Thus, the force-feeding case exhibits how two positive manifestations of the logic of elimination – the enactment of the amendment and its sanctioning by the Court – work in tandem in pursuit of the same objective.

The Court began by reiterating that force-feeding hunger-striking prisoners is already permitted in some countries when the life of a prisoner is at risk. This justification, the Court asserted, derives from the principle that life is sacred. Thus, the Court concluded, since all life is sacred and since the amendment was enacted to protect the lives of the Israeli public, a decision to force-feed a prisoner that is based on national security considerations is as justifiable as one based on the well-being of the prisoner. As Rubinstein contended: ‘Force-feeding may be justified … [when] the hunger strike poses a risk to the life of others. … The precedence given to the value of life allows certain harm of other values’ (IMA v. Knesset, 2016, p. 55). In other words, the Court took the justification for force-feeding based on the well-being of the prisoner and equated it with a broader, generalised concern for the well-being of Jewish Israelis, arguing that the protection of the latter, too, justifies force-feeding. Such legal reasoning has virtually no support among legal scholars, thus exemplifying once more the Court's commitment to the enablement of eliminatory practices implemented by the state (Shahshahani and Arvind Patel, Reference Shahshahani and Arvind2018; Anon., 2015a).

Similar to the Church of the Nativity case, here, too, the Court sought to bolster the legitimacy of its decision by advancing extralegal justifications for it. As Rubinstein asserted:

The reality that Rubinstein portrayed is puzzling. On the one hand, he alluded to an ‘ongoing’ peace negotiation, even though no such negotiation was taking place at or around the time the Court issued its decision in September 2016. On the other hand, he predicted that the ways in which Israel's ‘security challenge[s]’ (i.e. the existence of a native Palestinian population in the territories conquered by Israel since 1948) were being resolved – through the systematic violation of Palestinians’ human rights – ‘will continue’ for the foreseeable future. Importantly, in Rubinstein's conception, even the attainment of peace between Israelis and Palestinians will not result in Israel being any safer, which accordingly shows that elimination, rather than security, guides the Court and the state it serves as they implement such measures. Furthermore, the portrayal of the native population as posing a permanent security challenge is a common pretext advanced by settler-colonial states to justify a wide range of eliminatory practices (Veracini, Reference Veracini2015, p. 25; Chanock, Reference Chanock2001, p. 115). As Wolfe emphasised, by merely ‘staying at home, the native gets in the way of settler colonization’ (Wolfe, Reference Wolfe1999, p. 36).

Perhaps the most revealing attempt made by Rubinstein to extra-legally justify the Court's ruling is this:

Thus, despite the state's admission that the amendment was enacted specifically for the purpose of suppressing Palestinian resistance, Rubinstein insisted that it was not (ibid., p. 65). Hence, Rubinstein attempted to deny and obscure the official purpose for which the Prison Ordinance was amended and the fact that Israel already had a proven track record of force-feeding Palestinian prisoners extra-legally for the same end. Therefore, Rubinstein illustrated again the omnipresence of denial in the jurisprudence of elimination.

In summation, the above delineation of the Court's jurisprudence of elimination, its rhetorical manoeuvring and the dubious reasoning that it employed to legalise and legitimise the force-feeding of hunger-striking Palestinian prisoners demonstrated the Court's role in advancing eliminatory state conduct. Analysed through this more apposite theoretical framework, the Court's refusal to protect Palestinian legal rights no longer seems ‘schizophrenic’; on the contrary, the Court is manifestly fulfilling its purpose within a settler-colonial society (Fitzpatrick, Reference Fitzpatrick2001, p. 36; Veracini, Reference Veracini2010, p. 66; Madley, Reference Madley2016, pp. 146, 172). It is worth mentioning that despite the Court's decision, the Israel Medical Association still prohibits Israeli physicians from administering force-feeding procedures to Palestinian prisoners. To bypass this prohibition, Israel is reportedly seeking to hire foreign physicians (Carlstrom, Reference Carlstrom2017).