Boundaries, obligations and belonging: The reconfiguration of citizenship in emergency criminal regimes
| Author | Irit Ballas |
| Published date | 01 May 2022 |
| Date | 01 May 2022 |
| DOI | http://doi.org/10.1177/13624806211025918 |
| Subject Matter | Articles |
https://doi.org/10.1177/13624806211025918
Theoretical Criminology
© The Author(s) 2021
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DOI: 10.1177/13624806211025918
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Boundaries, obligations and
belonging: The reconfiguration
of citizenship in emergency
criminal regimes
Irit Ballas
The Hebrew University of Jerusalem, Israel
Abstract
In national emergencies, states may establish special criminal regimes that criminalize
behaviours legal under ordinary law, use more oppressive measures of enforcement
and reduce procedural rights. Scholars associate such regimes with the exclusion of
offenders from the political community. However, in some emergency criminal regimes,
often dealing with economic crises and recently with pandemics, the reduction of
rights can also imply inclusion. By examining two emergency regimes in Israel in 1948,
a military regime imposing movement restrictions on the Palestinian minority, and an
austerity regime imposing restrictions on trade in food products on all citizens, the
article argues that different emergency criminal regimes can affect two different tenets
of ordinary criminal law: the reinforcing of the boundaries of the community, and the
set of obligations between members of that community. Hence, such regimes can foster
multiple configurations of citizenship. When simultaneously enforced on marginalized
groups, they render their citizenship equivocal.
Keywords
Citizenship, criminal law, emergencies, exclusion, Israel
Introduction
Throughout 2020, states all over the world attempted to slow the spread of the COVID-
19 pandemic by imposing a range of extraordinary measures intended to restrict their
Corresponding author:
Irit Ballas, The Faculty of Law, The Hebrew University of Jerusalem, Mt Scopus Campus, Jerusalem 9190501,
Israel.
Email: irit.ballas@gmail.com
1025918TCR0010.1177/13624806211025918Theoretical CriminologyBallas
research-article2021
Article
2022, Vol. 26(2) 183–201
citizens’ movement. These restrictions were sometimes accompanied by emergency
decrees sanctioning harsh enforcement measures.1 Commentators and political activists
have noted the parallels between the restrictions on movement under pandemic regimes
and those routinely imposed on marginalized groups. Indeed, pandemic legal regimes
come under the broad category of special legal regimes in which states tackle extraordi-
nary dangers by derogating rights found in ordinary criminal law (Badalič, 2021; Ben-
Natan, 2020; Berda, 2020; Reynolds, 2016; Zedner, 2007).
However, there is also a fundamental difference between the two scenarios. Violators
of public health regimes are understood to be part of the shared fabric of society. The
rules they have broken are framed as shielding all members of the polity—including
offenders—from a common threat. This is in contrast with counter-terror or immigration
regimes, which criminalize the movement of specific marginalized groups because it is
viewed as posing a danger to the ruling majority. The rationale given for revoking their
rights is that they are prone to commit crimes against the political community to which
they are not considered to belong—either because of their conduct or because of animos-
ity between their collective and the ruling majority (Ben-Natan, 2020; Krasmann, 2007).
In this article, I contend that different types of emergency criminal regimes may inter-
fere with two different tenets of ordinary criminal law: some shift the boundaries set by
ordinary criminal law, while others alter the content of the obligations between members
established by ordinary criminal law. This results in their constituting offenders very dif-
ferently in terms of their belonging to the political community.
To illustrate my argument, I examine two distinct emergency criminal regimes
imposed after the establishment of the State of Israel in 1948. The first was the military
regime imposed on the Palestinian minority (Berda, 2020; Mehozay, 2016; Robinson,
2013), primarily to control their movement in order to facilitate the confiscation of their
land. Military courts tried thousands of Palestinians who violated movement-related
decrees, thereby signalling that they were only partial members of the political commu-
nity. The second was the austerity regime that applied to all citizens of the newly formed
state of Israel (Rozin, 2011). Hoarding, illegal trading and similar violations of austerity
decrees were prosecuted as criminal offences in special, designated courts. In addition to
regulating food distribution, this austerity regime had a more covert objective: to pro-
mote a uniform lifestyle and values of sacrifice and collectivism among citizens
(Atkinson et al., 2013; Rozin, 2011). Charging people in the austerity courts2 was there-
fore meant to signal that all citizens were bound by a more demanding set of obligations
than in the ordinary criminal law.
Members of the Palestinian minority were charged in both emergency courts. When
charged in military courts for violating movement restrictions, they were denied their
rights because the state associated them with an enemy—the ‘other’. When charged in
the austerity courts for violating regulations related to trade and food rationing, they
were denied their rights because they violated a criminal regime that attempted to impose
an enhanced degree of social solidarity between all the state’s citizens. We will see, then,
how this fragmentation of criminalization is used by states to create different—even
contradictory— simultaneously applied configurations of citizenship.
The article is based on archival sources including documents from the Israel Defence
Forces Archives (IDFA) dealing with the military regime, and Parliamentary debates
184 Theoretical Criminology 26(2)
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