The dual penal empire: Emergency powers and military courts in Palestine/Israel and beyond *
| Date | 01 December 2021 |
| DOI | 10.1177/14624745211040311 |
| Author | Smadar Ben-Natan |
| Published date | 01 December 2021 |
| Subject Matter | Special Issue: Legacies of Empire |
The dual penal empire:
Emergency powers and
military courts in
Palestine/Israel and
beyond∗
Smadar Ben-Natan
Henry M. Jackson School of International Studies,
University of Washington, Seattle, WA, USA
Abstract
This article explores the duality of emergency powers and criminal law in old and new for-
mations of empire. Set against the backdrop of the US “war on terror,”I link discussions
around current articulations of empire and the treatment of “enemy combatants,”illumin-
ating new connections between empire, emergency, and “enemy penology.”Focusing on
Palestine/Israel, I explore the duality created by emergency powers and criminal law from
the late British Empire to contemporary Israel/Palestine as an “imperial formation.”
Through a genealogy of emergency legislation, military cour ts, and two case studies from
the 1980s Israel, I show how emergency powers constitute a penal regime that complements
ordinary criminal law through prosecutions of racialized enemy populations under a distinct
exclusionary and punitive legality. Building on Markus Dubber’sDual Penal State, I demon-
strate how the—openly illiberal—dual penal empire (i) suppresses political resistance (insur-
gency, rebellion, and terrorism) and (ii) institutionalizes enemy penology through emergency
statutes and military courts. Thus, in imperial formations, such as Israel and the US—which
deny their illiberal features—emergency powers are framed as preventive security and
denied as part of the penal system, while enemy penology operates in plain sight.
Keywords
empire, colonialism and postcolonialism, Israel/Palestine, military courts, emergency,
enemy penology in military courts, legal history, political sociology
∗To Avigdor Feldman, who modeled for me how to gracefully represent enemies.
Corresponding author:
Smadar Ben-Natan, Henry M. Jackson School of International Studies, University of Washington, Seattle, WA, USA.
Email: smadarbn@UW.edu
Special Issue: Legacies of Empire
Punishment & Society
2021, Vol. 23(5) 741–763
© The Author(s) 2021
Article reuse guidelines:
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DOI: 10.1177/14624745211040311
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Introduction
This article explores the duality of emergency powers and criminal law in old and new
formations of empire. It is set against the backdrop of the United States’“war on
terror,”which triggered a discussion on 21st century articulations of empire, and the
use of military commissions to try “enemy combatants,”which sparked a renewed inter-
est in the construction and treatment of enemies. I link these two discussions to illuminate
new connections between empire, emergency, and “enemy penology.”
As early as the 1980s, German legal scholar Günther Jakobs had argued that German
liberal criminal law concealed another distinguishable form of illiberal criminal law
designed for enemies (Jakobs, 1985, 2014). He characterized enemy criminal law, con-
trasting it with the ordinary liberal “citizen criminal law,”as inflicting preventive crim-
inalization, providing fewer procedural protections, and imposing harsher punishments.
He went on to justify this illiberal law for enemies by relying on citizens’right to security.
In the post-9/11 world, critical scholars used Jakobs’insight and the broader term “enemy
penology”to observe the securitization, risk-aversion, and exclusionary modes of penal,
security, and immigration policies (Dubber, 2010; Gomez-Jara Diez, 2008; Meliá, 2011;
Krasmann, 2007; Zedner, 2010).
1
More recently, Dubber (2018b) offered a broader framework: The Dual Penal State.
Situating the penal state within Fraenkel’s (2017) concept of The Dual State,
2
Dubber
identifies several instances where state penal power features a duality: his own distinction
between “law”and “police”(Dubber, 2005); Packer’s (1968) crime control and due
process; Jakobs’(1985) citizen and enemy criminal law; and Alexander’s (2012) The
New Jim Crow as a penal system of racial caste. The dual penal state thus manifests in
various ways, but the essence of the argument is this: forms of illiberal criminal law
and punishment permeate penal systems in liberal democracies, creating a dual system.
On the one hand, the liberal penal system is acknowledged as the legitimate doctrine
of criminal justice and the paradigm of law enforcement and punishment. On the
other, the illiberal system that underlies it is denied on the doctrinal level but is employed
to treat particular groups and categories of cases with an iron fist (Dubber, 2018b;
McCann and Kahraman, 2021).
All of these accounts take the modern, liberal nation-state as their framework of refer-
ence. This article aims to reframe the dual penal state in the context of empire by inves-
tigating emergency penal regimes—that is, penal regimes that are embedded in statutory
emergency powers. I argue that emergency powers are characteristic of empire and are
employed to establish a separate penal regime for enemies that runs parallel to the ordin-
ary penal system, constituting a dual penal regime. Emergency statutes feature broad
criminalization of political and military resistance, prosecution of civilians by military
courts, summary proceedings, and harsh punishments. The masked duality of emergency
and ordinary penal systems facilitates the prosecution of the enemies of imperial rule
under the far more coercive system of emergency.
The British Empire was the main production site for statutory emergency powers in
the interwar period, and here I touch on various imperial domains, from Northern
Ireland to India and Kenya. My main focus is on Palestine/Israel, where the Briti sh
742 Punishment & Society 23(5)
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