Understanding conflict penality: Dominant themes and the case of the Israeli–Palestinian conflict
| Published date | 01 November 2023 |
| DOI | http://doi.org/10.1177/13624806231175861 |
| Author | Rachel Noah Hefetz |
| Date | 01 November 2023 |
Understanding conflict
penality: Dominant themes
and the case of the
Israeli–Palestinian conflict
Rachel Noah Hefetz
University of Oxford, UK
Abstract
Confinement is a common result of conflict, and states use various mechanismsto
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 common-
alities in state punishment during conflict. The article then discusses conflict penality fur-
ther 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 sothrough 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
Corresponding author:
Rachel Noah Hefetz, Faculty of Law,Centre for Criminology, University of Oxford, St Cross Building, St Cross
Rd, Oxford OX1 3UL, UK.
Email: Rachel.noahhefetz@gtc.ox.ac.uk
Article
Theoretical Criminology
2023, Vol. 27(4) 619–637
© The Author(s) 2023
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/13624806231175861
journals.sagepub.com/home/tcr
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 con-
siders 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 con-
siders 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 relation-
ships between the state, society, and those placed in custody. In these conditions, con-
ceiving 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 pro-
poses 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 con-
flict. 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 pen-
ality 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, counter-
terrorism 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.
620 Theoretical Criminology 27(4)
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