This article traces a dramatic shift in Israel’s carceral system, providing crucial evidence of a broader shift in Israel’s control of the West Bank (WB) and the Gaza Strip (GS) toward a one-state regime and articulating the features of this regime. Between 2000 and 2006, Israel dismantled its military prisons in the Occupied Palestinian Territory (OPT, comprising the WB and the GS) and transferred the Palestinian prisoner population into civilian prisons, thereby consolidating a single carceral system in which Palestinian noncitizens are now imprisoned inside Israeli territory. Our analysis of this single carceral system—a configuration termed here the “one carceral state”—exposes how the long-practiced mass arrests of Palestinians in the OPT have undergone an organizational transformation, quietly turning them from an external military operation into an internal civilian matter. We argue that this internalization renders the scale of Palestinian mass incarceration, its political salience, and the racialized repression that underlies it a centerpiece of the regime in Israel/Palestine as a whole.
The most recent iteration of the one carceral state, taking place at the time of writing, has been unfolding since October 2023. Shortly after the October 7 Hamas-led attack on southern Israel and the outbreak of Israel’s war on Gaza, Israeli military forces detained thousands of Palestinians (predominately men) in the OPT. The vast majority of these detainees, formally noncitizens of Israel, were forcibly transferred into Israeli territory. Since military detention facilities had previously been dismantled, the military resorted to opening two new detention facilities after the outbreak of the war.Footnote 1 Although many of the detainees were initially transferred to these newly opened military facilities, gradually most were transferred and confined in Israeli civilian prisons.
To help Israel deal with these mass detentions, the legislature introduced a new term, “carceral state of emergency” (matsav ḥerum kli’ati), under which the civilian Israeli Prison Service (IPS; Sherut Batey Hasohar) was exempted from its legal obligation to provide prisoners with a minimal living space and a bed to sleep on.Footnote 2 This emergency measure allowed the IPS to deviate from a 2017 High Court of Justice (HCJ) order to reduce prison overcrowding, which had set a minimum living space of four square meters per prisoner (to be achieved gradually).Footnote 3 The state submitted to the court that the war had necessarily turned the tables on prison decrowding efforts. Prior to the events of October 7, 2023, the total prisoner population in the IPS (including citizens and noncitizens across all prisoners’ categories) stood at 16,353; but by June 2024 about 5,000 new “security” prisoners and detainees—a euphemism for Palestinian prisoners—had been added.Footnote 4 This number represented a 30 percent increase to 21,474 prisoners, and did not include hundreds of detainees from the GS in military detention facilities, held under the status of “unlawful combatants”. Strikingly, as of May 2024, 91 percent of the security prisoners in IPS prisons (compared to just 27 percent of “criminal” prisoners) were confined in subminimum living spaces.Footnote 5 By August 2024, some 840 Gazan detainees had been transferred from military to IPS facilities, further exacerbating the overcrowding crisis.Footnote 6
The state’s decision to declare a carceral state of emergency was not about assisting the military detention operations taking place in the OPT; rather, it was aimed at relaxing domestic Israeli legal standards that theoretically applied to all prisoners under the IPS. Although since 1967 Israel had operated a separate military carceral system in the OPT, ultimately, by 2006, it had dismantled the military system in this area and transferred all Palestinian prisoners to prisons managed by the civilian IPS. All but one of these were located inside Israel.Footnote 7 The IPS was rebranded as the National Prison Authority (Irgun Kli’a Le’umi), marking it as the sole authority responsible for all prisoners confined by the state.Footnote 8 Therefore, in the wake of Israel’s mass detention of Palestinians in 2023, most detainees were taken to civilian prisons inside Israel’s 1948 borders. Even the new military detention facility opened in Sde Teiman, now nicknamed the “Israeli Guantanamo” due to the multiple testimonies of torture and ill-treatment there, was not placed in a remote location, such as that of the actual Guantanamo camp chosen by the Bush Administration to create a “legal black hole.”Footnote 9 Rather, it was located within the state, normalizing the military detention operation and subjecting it, in theory, to an elaborate web of laws, regulations, and oversight by the Ministry of Justice and the courts. This sequence of events shows how, in the one carceral state, mass wartime detentions are inextricably linked to domestic incarceration, and therefore constituted a major upheaval for Israel’s civilian carceral system in 2023.
Israel’s broader paradigm shift to a one-state regime has been at the forefront of academic debates in political science, law, political geography, and sociology.Footnote 10 Under the one-state paradigm, it is widely understood that the OPT cannot be regarded as separate from Israel and that the entire territory of Palestine/Israel is, de facto, governed by Israel as a single, nondemocratic, state.Footnote 11 What has escaped scholars’ attention, however, is the role of the carceral system in this new configuration. We use the concept of the carceral state to address this scholarly lacuna and connect the conceptualization of the state with the management of prisons. This concept considers incarceration to be a central manifestation of state power, and we apply it here to articulate how incarceration is leveraged by the Israeli state in pursuit of government policies.Footnote 12 The new conceptualization we propose, the one carceral state, seeks to capture the integration of prisoners and detainees from both Israel and the OPT within Israel’s prison system as an expression of the one-state regime.
We articulate the one carceral state by providing the first comprehensive account of the territorial and organizational unification of the carceral apparatus, revealing a transformation from two separate prison systems to unification under the IPS and the one state. We also analyze the subsequent changes in the treatment of Palestinian prisoners and in the respective mechanisms of Israeli law, government institutions, and political discourse. This detailed analysis enables us to advance beyond proving the existence of the one state toward demonstrating the massive “exclusionary inclusion” of this population into Israel. We argue that this changes the landscape of the Israeli citizenship regime by creating a new citizenship category of “carceral citizenship.”Footnote 13 Thousands of Palestinian prisoners become carceral citizens of the one state, as subjects of one of its most coercive powers yet also as rights-bearing actors. The entire carceral apparatus (the web of administrative agencies responsible for or otherwise engaged with incarceration) and other state institutions are now engaging with them.Footnote 14 We therefore argue that the one carceral state affects the essential elements of the modern state: territory, population, and government, and therefore lies at the heart of Israel’s one-state regime.Footnote 15
Once they are transferred into Israeli territory, imprisoned Palestinians are formally placed under Israeli law and IPS regulations. As we will describe, following a typically brutal arrest and interrogation, the inclusive aspects of citizenship develop over the course of lengthy imprisonment terms.Footnote 16 Because Palestinians are now included in a carceral system originally designed for Israeli citizens, they are inadvertently afforded legal rights pertaining to Israeli prisoners (such as the right to a minimal living space) and also avenues to claim these rights (such as access to courts). Although the distribution of rights by the state remains frugal and profoundly unequal, laws applicable to citizens still provide mechanisms with which to challenge state power and claim rights. As our study shows, even as the state seeks to curtail Palestinian prisoners’ rights, it simultaneously makes it possible for them to exercise agency and engage with it as rights-bearers. Palestinian prisoners expand their repertoire of resistance by generating civic engagement with Israeli state mechanisms and civil society, such as the courts, the legislature (Knesset), government ministries, professional associations, and civil rights organizations.Footnote 17 The result is a dynamic in which the content of carceral citizenship is constantly negotiated between the prisoners and the state. This perverse form of repressive and racialized citizenship regime is emblematic of settler-colonial domination across Palestine/Israel.
Background and Methodology
Although Palestinian prisoners end up in Israeli prisons with Israeli prisoners, their pathways to prison are distinct and separate. Palestinians are arrested in the OPT by the military and are either prosecuted and sentenced in military courts or detained without charge under administrative military orders. In times of heightened conflict, Palestinian detainees are initially held and screened in military facilities before charges are made or detention orders issued. Ultimately, many are released without charge and the rest are processed by one of these two routes and transferred into IPS facilities. In contrast, Israeli citizens are arrested by the police and prosecuted in civilian courts. Only a very small minority is detained under security administrative detention orders, reviewed in a civilian procedure.Footnote 18
In the IPS, prisoners are classified into distinct categories. Israeli prisoners and detainees, who are primarily Jewish citizens, are mostly classified as criminal prisoners. Palestinians, both administrative detainees and those convicted of offenses relating to political violence and security (security being defined very broadly by the state), are classified by the IPS as security prisoners.Footnote 19 Palestinian prisoners typically reject the security label, which depoliticizes their struggle, and self-identify instead as political prisoners or simply prisoners, using an Arabic word also meaning captives (اسيرا).Footnote 20 In both categories—security and criminal—there also are smaller numbers of Palestinian citizens of Israel, who form about 20 percent of the Israeli population, as well as foreign nationals. This means that population groups of every political status in the one state are (disproportionately) represented in Israel’s civilian prisons.
To render visible the one carceral state, our inquiry traces spatial, organizational, and legal processes in the carceral system since 1967 across the Palestine/Israel divide and analyzes them in relation to broader political developments. To achieve this, we located and triangulated legal and bureaucratic documents dealing with security prisoners and their position within Israeli law and state institutions. We obtained the release of military correspondence from the Israeli Defense Forces (IDF) Archive and collected relevant documents and data from the websites of the IPS, the Knesset, and the Public Defender’s Office (PDO).Footnote 21 For statistics on military and civilian detainees and prisoners, we relied on data from the military and the IPS gathered by the NGO B’tselem.Footnote 22 Together, these enabled us to map the movement of prisons and Palestinian prisoners, and the changing activities and logics of the web of organizations that engage with them. Additionally, we searched the Nevo legal database for decisions of the HCJ for the period of 1967 to 2022 on the treatment of Palestinian prisoners, arriving at a final data set of 168 decisions.Footnote 23 We used these legal decisions as secondary sources to document changes in prison organization and prisoners’ rights and as primary sources on prisoners’ adoption of legal strategies to claim rights and on their involvement with Israeli civil society.
In our discussion of the extant literature, we bring together works from prison studies and criminology with literature on political science, sociology, and law. Studies on Israeli incarceration of Palestinians can broadly be categorized into three types, according to the positionality of scholars and their access to data, which we aim to integrate.Footnote 24 At the risk of overgeneralization, Palestinian scholars largely focus on the prevalence and effects of incarceration in Palestinian society, drawing on interviews with formerly incarcerated individuals and data produced by Palestinian NGOs. Israeli scholars work from either a traditional or a critical criminology perspective and tend to examine Israeli policies toward Palestinian prisoners, enjoying access to materials produced by Israeli authorities, typically in Hebrew. The third type of studies are mostly produced by Israeli citizens, either Palestinian or Jewish, who are involved in legal representation or NGO work around Palestinian prisoners, and therefore have access to both of the aforementioned sources of data and perspectives. This in-between position also is our own. The first author, Israeli Jewish, was formerly a practicing lawyer who represented many Palestinian prisoners. The second author is a Palestinian citizen of Israel and was until recently a practicing lawyer involved in representing Palestinian prisoners. Thanks to this particular blend of backgrounds and experiences, we were able to bring knowledge of the two perspectives and access to relevant sources, which we combine here in a critical analysis of the Israeli carceral system. This dual perspective contributes to a thicker understanding of the one-state condition.Footnote 25
The One State and the Carceral State: A Literature Review
The one-state paradigm evolved as a response to what we call the separation paradigm.Footnote 26 For decades, the dominant separation paradigm has portrayed Israel as a sovereign and democratic state exercising temporary military control over the OPT as a separate nonsovereign territory.Footnote 27 This paradigm stems from formal Israeli politics and the international law of occupation and is embedded in two main political decisions, international and Israeli, respectively.
Internationally, according to the 1947 United Nations (UN) General Assembly Resolution 181, the UN accepted a plan for the partition of Palestine into two states: one Jewish, one Palestinian, each with its own designated territory. Despite the eventual outcomes of the 1948 war and the establishment of a single State of Israel, separation into two states remained the internationally agreed-upon vision in the well-known two-state solution to the Israeli–Palestinian conflict, which requires separation to maintain a viable Palestinian state.Footnote 28 Internally, Israel identifies itself as a sovereign state within the 1949 green line in which the WB and the GS were not included. Following the 1967 occupation, Israel chose to refrain from annexation of the OPT and to control the area and its population as a nonsovereign territory that is referred to as “administered” (according to the mainstream official Israeli position) or “occupied” (according to other official positions and Israeli and international legal institutions). The international law of occupation requires the OPT to remain a separate political and legal unit and views annexation as unlawful, regardless of the envisioned political solution to the conflict, which is why we call this the separation paradigm (and not the two-state paradigm).Footnote 29 The formal separation is not only territorial but also legal and organizational, and it has been maintained by the military government of the OPT, including the military management of courts and prisons, enabling Israel to argue that it is abstaining from annexation and is therefore abiding by international law.
Scholars working within this paradigm define Israel and the OPT as separate political units, and the entire situation as temporary. Their research unit is limited to the territory, law, population, and political systems of either Israel or the OPT on their own respective terms and does not extend to analyzing them within the same framework.
However, especially from the early 2000s onward, critical scholars have sought to highlight the widening gap between the political and legal definitions of the State of Israel and the ongoing political reality.Footnote 30 Speaking from the one-state paradigm, these scholars maintain that formal separation serves to obfuscate the reality in which Israel/Palestine is, in fact, governed as a single, fragmented, and unequal political system and that the occupation is not temporary but a permanent, or at least indefinite, characteristic of the one state. The ongoing de facto annexation of the OPT has been evidenced through the expansion of Israel’s state mechanisms beyond its formal borders: the settlement project and the extension of rights to Israeli settlers; building roads and infrastructures and operating public transportation that serve the settlements; the control and use of water resources; and Israeli control over the population registry and border crossings to and from the OPT. All of these policies serve the privileged settler population and maintain domination over the Palestinian population through the organizational remit of the military. A single-state paradigm also exists as the settler-annexationist agenda; however, in this case, proponents justify and promote Israel’s undemocratic control of Palestine/Israel based on Jewish supremacy.Footnote 31
The critical one-state paradigm has two variants. On the one hand, the colonial and settler-colonial variant’s focus is a critique of the colonization of Palestine through Israel’s establishment in 1948 and views the 1967 occupation as a continuation of the same colonizing project.Footnote 32 In our context, a colonial approach problematizes Westphalian sovereignty of the nation–state as the single model of unitary sovereignty and points to colonial sovereignty as inherently fragmented and unequal. This understanding allows us to conceptualize Israel’s control over Palestine/Israel as colonial sovereignty, which comprises a hierarchical scale of territorial units and populations. On the other hand, the focus of scholars in the more state-centered variant is critical of the 1967 occupation specifically. This perspective highlights the creeping de facto annexation and unification of Israel and the OPT, which also impedes a two-state solution.Footnote 33
Both variants, whether expressed in terms of settler-colonialism or de facto annexation, critique the current single-state apparatus and political reality in the entire territory of Palestine/Israel, as well as the separation paradigm as a fiction that obfuscates this reality. As Oren Yiftachel and Raef Zreik argue, the old separation between Israel and the OPT, reflected in territory and legal citizenship status, has transitioned to a new hierarchical separation and segregation based on racialized ethnonational identities, typifying the apartheid regime of the one state.Footnote 34
To date, scholars from both the separation and the one-state paradigms have entirely neglected the prison system and incarceration as part of their analyses of the state. Most studies dealing with criminal justice and criminology abide by the separation paradigm, focusing on either the OPT or Israel, whereas Palestinian prisoners are mostly studied as part of their own society and national struggle.Footnote 35 Although Palestinians account for between a third and a half of the prisoner population in Israel, studies of the Israeli criminal and carceral mechanisms construct an imagined carceral system that is separate from the OPT. They either ignore the prosecution and incarceration of Palestinians by Israel and inside Israel or focus on Palestinian prisoners as exceptional and external to the state systems, often through the lens of terrorism and radicalization.Footnote 36 Critical studies exploring policies toward incarcerated Palestinians have emphasized the growing category of security prisoners that facilitates their treatment under a different carceral ideology and depoliticizes their status, and highlighted the parallel regime that denies them many of the rights afforded to Israeli Jewish prisoners.Footnote 37 Recently, one of us (Ben-Natan) has argued that the Israeli carceral state should be analyzed independently of formal sovereign borders and law, because it imprisons Palestinians beyond and within Israeli borders in a single carceral system.Footnote 38 Although helpful in problematizing the basic condition of inclusion of Palestinian prisoners in Israel, such literature has yet to consider how this inclusion reflects on Israel’s political regime.
To connect the study of the state and the study of prisons, we adopt here the aforementioned concept of the carceral state. Scholars of punishment in the United States have developed this term to articulate the mass scale of incarceration and its function as a manifestation of state power.Footnote 39 In this sense, it is a descriptor of a state that uses incarceration and similar technologies of control as a central repressive tool of government, affecting multiple areas of life and wielded to subordinate and marginalize racialized groups in particular.Footnote 40 Scholars studying the OPT use this and other terms such as mass incarceration, adopted by US scholarship, to highlight just how central the role of incarceration is to Israel’s control of the OPT and its prevalence throughout Palestinian society.Footnote 41
It is estimated that, since 1967, more than 800,000 Palestinians—approximately 20 percent of the population and 40 percent of the male population—have been detained, and that, of these, over 600,000 have been incarcerated for longer periods.Footnote 42 Imprisonment is a defining experience for the Palestinian community and its political consciousness.Footnote 43 Inside Israeli prisons, Palestinian prisoners organize in multiple ways, which is a characteristic of political imprisonment in colonial contexts.Footnote 44 The Palestinian Prisoners Movement and practices of resistance have profound effects outside the prisons, and the prisoners issue is central to Palestinian politics.Footnote 45 Indeed, it is rare to find a family in the WB or the GS that has not experienced the incarceration (even if short-term) of at least one of its male members. As one father of four sons observed: “Just as it was clear to me that every living creature eventually dies, it became evident that every Palestinian man would eventually be taken to prison.”Footnote 46
The term carceral also extends to the confinement of movement and surveillance directed at a larger targeted population. In this sense, it has been used to describe the entire Israeli military control of Palestinians’ day-to-day life, comprising checkpoints, manned crossings, movement-permit requirements, and physical impediments including walls, fences, and blockades. When orchestrated, all such measures exert a carceral effect by creating ghettoization, open-air prisons, and caging.Footnote 47
The seminal research of Alina Korn in the early 2000s showed the connection between Israeli incarceration and the Israeli–Palestinian conflict, accounting for incarcerated Palestinians within the framework of the Israeli carceral system.Footnote 48 Korn found that significant changes in the number of prisoners and rates of incarceration are mostly determined by the conflict and the incarceration of Palestinians, who, as noted earlier, account for between a third and a half of the prisoner population at any given time. More recently, Ben-Natan showed that the numbers of Palestinian prisoners continue to be the definitive factor in Israel’s rising incarceration rates.Footnote 49 The one carceral state, we argue, extends mass incarceration, which until now has been used to describe the incarceration of Palestinians, to the entire Israeli carceral system, by raising the overall rates of incarceration and affecting the capacity and management of the entire carceral apparatus.Footnote 50
We argue that the connection between incarcerating Palestinians and the civil mechanisms of the state has now become so central to the one-state regime that it constitutes carceral citizenship. The concept of carceral citizenship has been articulated in two different yet complementary contexts, global and national. Jenna Lloyd frames it as a relation of exclusion from citizenship (which, in US history, has been constructed around race) that defines stateless, “deportable alien,” and asylum-seeker populations, which are increasingly subject to domestic and offshore detention.Footnote 51 Lloyd argues that global exclusions based on race, together with the carceral state, constitute global apartheid and carceral regimes in “regional racial formations.” Therein, populations are racialized and managed by mechanisms of mobility restriction and confinement within the political and cultural structures of a particular region, such as the Americas and the Pacific.
Focusing on the domestic US dynamic, Jonathan Miller and Forrest Stuart make an argument similar to ours, that mass incarceration has effectively remade the US state and has therefore affected citizenship, because incarceration has become such a common feature of the state and is so strongly correlated with the racialized impoverished classes.Footnote 52 Understanding citizenship as a set of rights, privileges, and responsibilities, Miller and Stuart argue that carceral citizenship not only reduces citizenship (leading to second-class citizenship) but also creates a unique set of rights and entitlements, constituting an alternate citizenship category in which carceral citizens are governed through institutions of coercion and care. Imprisonment embodies care when it renders the state responsible for meeting basic needs and providing social benefits (shelter, food, health care, legal representation, therapy, and so on) under some standard of adequacy. Such benefits are especially pronounced in the capitalist US, where many ostensibly free American citizens have no such minimal social guarantees, and in Israel/Palestine when imprisonment confers rights on noncitizens. Miller and Stuart also note the care afforded by social organizations developing “prisoner-friendly” policies and advocating for prisoners.
In Israel/Palestine, the citizenship literature remains firmly within the separation paradigm and barely touches on the realities of Palestinians from the OPT. A burgeoning body of literature, by Hassan Jabareen, Nadeem Rouhana, Areej Sabbagh-Khoury, Amal Jamal, and others, focuses on Palestinian citizens of Israel and stresses their exclusion and subordination vis-à-vis the Jewish majority as part of a settler-colonial project.Footnote 53 Gershon Shafir and Yoav Peled’s major contribution discusses citizenship as a social institution and outlines the “incorporation regime” that places different social groups on a hierarchical scale.Footnote 54 In this account, Palestinians participate in Israeli citizenship only on the very margins, through the labor market.Footnote 55
We believe, however, that the forcible transfer of Palestinian prisoners, followed by their active participation in the carceral state, deserves equal attention in the one-state condition, complementing the aforementioned accounts of settler-colonial citizenship of Palestinian citizens of Israel.Footnote 56 In this sense, as Yael Berda argues, citizenship is constituted by mobility, but mobility also includes the forced mobility of Palestinian prisoners into Israel, and the absolute denial of mobility that underlies the paradox of carceral citizenship.Footnote 57
Joining scholars of citizenship studies, we do not limit our study of citizenship to formal status but, rather, examine the contingent interactions and social institutions constituting the relationships between individuals and communities with the state as members of the polity, in which, we argue, Palestinian prisoners take part.Footnote 58 We draw on Linda Bosniak’s work on citizenship beyond the state, which outlines four conceptions of citizenship: as legal status, as a system of rights, as a form of political activity, and as identity and solidarity.Footnote 59 These framings are helpful in examining the carceral citizenship in our case, which refers to formal noncitizens who do not enjoy the rights to vote, be elected for office, or travel freely in and out of the country.Footnote 60 Other rights, however, are not necessarily dependent on formal citizenship.Footnote 61 Similarly, political activity is not limited to voting and party politics but is also understood as active engagement in the life of the political community. We consider criminalization and incarceration as mechanisms under which individuals (regardless of formal citizenship status) negotiate various rights and deprivations vis-à-vis the state.Footnote 62
Under the conditions in Israel/Palestine, we conceptualize carceral citizenship as a mechanism of exclusionary inclusion, whereby some Palestinians exceptionally become rights-bearers under Israeli law and regulations as well as political actors, but only as prisoners.Footnote 63 Adi Ophir et al., following Giorgio Agamben, argued that Israel’s treatment of Palestinians in the OPT constituted “inclusive exclusion,” whereby they were paradoxically included by the Israeli legal order only by constituting an exception to that order. In this idea, inclusion is a tacit conceptual acknowledgment that is only used to materially exclude. However, what we discuss here is territorial, material, and legal inclusion under complete state control and the more repressive conditions of incarceration.Footnote 64 The exclusion created by incarceration paradoxically enables a greater degree of legal inclusion and civic agency. Against this backdrop, we turn to our own study and findings.
Consolidating the One Carceral State
The consolidation of the one carceral state that we describe in this section across two periods—from the occupation (1967–2000) to the one state (roughly since 2000)—reflects the transition of the Israeli state from the separation paradigm to the one-state paradigm. This transition is traceable through state documents and other archive or online materials, analyzed here for the first time, that articulate the differences between these periods.
Pre-1967, Israel’s carceral system operated as a centralized national prison system, the IPS, under the Ministry of Police (Misrad Hamishtara). Although both civilian courts and military courts (under Israel’s military regime over Palestinian citizens) were used to prosecute and punish both citizens and noncitizens, the central prison system confined all types of prisoners.Footnote 65 In 1958, the IPS started distinguishing Palestinian and Arab prisoners linked to armed resistance by categorizing them as security prisoners.Footnote 66 The conquest and occupation of the WB, GS, Sinai Peninsula, and the Golan Heights in 1967 was followed by extensive arrests of Palestinians by the military in the WB and the GS. In the very first days of the occupation, the Israeli military took over the management of detention facilities and prisons, thereby ostensibly establishing a separate military carceral system.Footnote 67 After nine months, 500 Palestinians were serving prison sentences; and in the second year of occupation 894 were administratively detained.Footnote 68
On the formal level, Israel refrained from annexing the OPT but established a separate military government system therein. Although it did not acknowledge these territories as occupied under international law and thereby denied the applicability of the Fourth Geneva Convention (hereafter the Convention), Israel initially constructed its military judicial and carceral system according to the Convention rules. These mandate a separation of territory and population: military courts should operate in the occupied territory, and prisoners from the occupied population should serve their sentence therein.Footnote 69 By following this strategy, Israel effectively maintained a de jure separate status: the military issued orders carrying the status of law and established a new prison system under military command.
However, very early on, Israeli authorities permitted the military and civilian carceral systems to cooperate. The IPS assumed responsibility for existing prisons in the WB cities of Jenin, Nablus, Ramallah, Hebron, and Gaza, whereas the military was responsible for other detention and prison facilities in the OPT and inside Israel.Footnote 70 Within a short time, the prisons in the OPT were overcrowded. In response, in July 1967, the government allowed, under emergency regulations, the transfer of prisoners and detainees into Israel.Footnote 71 This move already constituted a violation of international law, since the Convention prohibits individual or mass transfer of occupied people, specifically prisoners, out of occupied territories, but the military carceral system continued to operate.Footnote 72 To house the rapidly growing incarcerated population, new prisons were established inside Israel in 1968, 1969, 1980, and 1984. Also, in 1984, Israel opened the Central Prison (Judea-Samaria Central) in the WB.Footnote 73 Over the years, then, prisoners have been held either in Israel or in the OPT, subject to the discretion of administrative authorities and negotiated between the military and the IPS. In fact, the two formally separate prison systems operated jointly through territorial and organizational fluidity.Footnote 74
During the First Intifada that broke out in December 1987, thousands of Palestinians were arrested and the number of detention facilities inside Israel grew accordingly. Israel established the Ketsiot (Naqab) detention facility in the south, near the Egyptian border.Footnote 75 At its peak in 1991, this military-managed facility held over 7,000 Palestinian administrative detainees.Footnote 76 Ofer military facility also was opened around the same time.Footnote 77 Many other prisoners were transferred from the OPT to other Israeli prisons, peaking at about 4,000.Footnote 78
Importantly, mass detentions were not yet the centerpiece of punitive measures; home demolitions and deportations were also widely used.Footnote 79 In 1992, for instance, the Israeli government carried out a mass deportation of over 400 Palestinians who allegedly belonged to the militant groups Hamas and Palestinian Islamic Jihad. The men were rounded up, transported in buses, and dropped beyond the Lebanese border, under military deportation orders valid for two years. Defying these harsh conditions, they organized a training camp supported by Hezbollah and gained world media attention. One member of Hamas is quoted as saying: “The Israelis have done us a big favour. We are the winners in all of this.” The Hamas members eventually returned home more militant and politically stronger, internally and internationally.Footnote 80 This took the Israeli authorities entirely by surprise, adding to the pressure from international bodies to allow the deportees’ return.Footnote 81 Externalizing the conflict proved to involve serious unintended consequences, which were later avoided by increasingly relying on incarceration.
The First Intifada also created major problems for the carceral apparatus. The volume of prisoners was beyond the military’s capacity and resulted in severe overcrowding and constant tensions between the military and the IPS on the allocation of prisoners. Additionally, human rights organizations reported widespread abuse of detainees.Footnote 82 Israeli human rights lawyers challenged harsh imprisonment conditions and the transfer of prisoners into Israel as a violation of international law.Footnote 83 The military appointed Major General Raphael Vardi to probe into the abuse allegations. Among other recommendations, the Vardi report (1991) recommended that responsibility for imprisoning Palestinians should be transferred from the military to the IPS, which was expected to be more professional, provide proper conditions, and be more likely to avoid committing abuses.Footnote 84 The recommendation already reflected the civilian logic of a single state, assigning the responsibility for abuse to the military while presenting the IPS as the solution. However, it was not implemented.
The 1993 Oslo Accords and ensuing negotiations between Israel and the Palestinian Liberation Organization (PLO) brought a sharp drop in prisoner numbers, which is arguably one reason why this recommendation of the Vardi report was shelved. The pace of arrests declined, and collective prisoner releases were carried out as part of the agreements. Israel withdrew from Palestinian cities where prisons were located (defined as Area A), and new prison facilities were built in more peripheral areas (areas B and C). Ketsiot and Ofer facilities were closed, and the total number of Palestinian prisoners fell to a low of just 800 by 2000.Footnote 85
In 1996–97, due to the decrease in numbers, it was agreed between the ministries of defense and internal security that it was unnecessary to operate two carceral systems. The various rationales also echoed the Vardi report recommendations in favor of a switch of powers to the IPS. These included greater operational efficiency (avoiding redundancies and constant coordination between the two systems); the superior logistical and professional capacities of the IPS; reducing the cost to the military budget, which came at the expense of essential operations; and avoiding arbitrary differences in treatment of prisoners in the two systems.Footnote 86 Nevertheless, once again, the organizational transfer of the carceral apparatus to the IPS was not completed and the separation paradigm was maintained.
During the occupation period, then, the separation of prison systems was never absolute, since Palestinian prisoners have been held inside Israel and by the IPS since 1967. But, until 2000, the military carceral system was maintained as part of the organizational separation paradigm. What was new in the one-state period was the formal civilianization of incarceration: the military system was dismantled and the IPS was institutionalized as the state authority responsible for confining Palestinians.
It was the outbreak of the Second Intifada following the ultimate failure of Israel–PLO negotiations, toward the end of 2000, that brought about this transition. Hostilities intensified, the scale of arrests grew, and the number of Palestinian prisoners and security detainees rose sharply as the military summarily arrested around 6,000 detainees.Footnote 87 Ketsiot and Ofer were then hastily reopened in April 2002, and yet more Palestinian prisoners were transferred to prisons inside Israel.Footnote 88 The total number of Palestinian prisoners rose from 1,854 in 2001 (20 percent of the total prisoner population of 10,339) to 9,178 (44 percent of the total of 20,835) in 2006.Footnote 89 As complaints and legal challenges to the ill-treatment of detainees mounted, the HCJ raised the bar of human rights obligations toward Palestinians under military detention.Footnote 90 Crucially, due to the collapse and abandonment of the peace negotiations, the sustained increase in incarceration rates was no longer looking like a temporary spike but an issue to be managed for the long term.
In 2005, Israel initiated a unilateral withdrawal of military forces and settlements (“disengagement”) from the GS, which entailed closing the detention facilities therein and revoking the military orders under which Gazans had previously been detained. As incursions into Gaza continued, newly captured detainees were transferred to IPS prisons inside Israel and arrested under Israeli law.Footnote 91 These differences in the detention regimes between the WB and the GS were but part of the “division policy” between these areas that Israel adopted after Hamas took over Gaza’s government in 2007.
Politically, in the post-2000 one-state period, the Israeli government adopted a “no partner for peace” approach, under which it ceased any attempts, genuine or performative, at conflict resolution, including prisoner releases.Footnote 92 With the two-state solution off the table, the paradigm shifted from conflict to governance. The detention and management of Palestinian prisoners became an integral part of the role of the state for the foreseeable future. Recognizing this shift, the HCJ stated that “Israel will continue to hold significant numbers of security detainees.”Footnote 93 With Israeli-run prisons in the OPT having been previously abandoned, more prisons were now built and expanded inside Israel, creating large compounds comprising several facilities.Footnote 94 Currently, the Ofer facility remains the only Israeli prison on the fringes of the WB. Being located adjacent to a military court and military base, it can provide more support to military detention operations.Footnote 95 Until October 2023, the military also continued to operate only very small transitory facilities where detainees were held for short periods.
Critically, it was between 2005 and 2006 that the shift to a single carceral system was completed, when the entire organizational responsibility was transferred to the IPS. Although this reorganization had been contemplated since the Vardi report, its actual implementation was only seriously pursued in the era of the one state, when it aligned with the transformation from conflict to governance. The military prison facilities in Megiddo and Ketsiot in Israel, as well as Ofer prison, were all transferred to the IPS.Footnote 96 Although the military continued to arrest, prosecute, and sentence Palestinians in military courts, it ceased to be responsible for incarcerating them, thereby turning incarceration into an internal “homeland security” issue.Footnote 97 To manage the additional organizational and budgetary burden, the military has been assigning soldiers to the IPS, who perform their compulsory military service as guards in prisons housing Palestinian prisoners.Footnote 98 Ultimately, in 2010, ruling on a petition brought by the human rights organization Yesh Din against the mass transfer of prisoners, the HCJ legalized this policy, citing the long-term outlook of Palestinians’ imprisonment and improved conditions as the primary justifications.
After the transfer of prisoners from the military, the number of prisoners in the IPS spiked from 13,869 in 2004 to 20,708 in 2006, constituting a rise of about 30 percent in the total prisoner population.Footnote 99 The World Prison Brief documented Israel’s rate of incarceration as 208 per 100,000 inhabitants in 2004, rising to 302 per 100,000 in 2006, which reflects the transfer of Palestinian prisoners to the IPS.Footnote 100 All post-2006 figures place Israeli incarceration rates far higher than those of most developed countries and within the range of nondemocratic states such as Iran and Morocco or highly racially divided states such as South Africa and Brazil (which remain behind the United States as an outlier in its incarceration rates).Footnote 101 In 2020, Oren Gazal-Ayal predicted that by 2040 Israel would need to accommodate 9,300 security prisoners, approximately double the volume at that time.Footnote 102 That number has already been reached: as of June 2024, Israel holds 9,440 Palestinian security prisoners.Footnote 103
The logic of external conflict once dictated an organizational division of labor and costs by which the military was considered responsible for Palestinians and negotiated the shared burden of incarceration with the IPS. But this has changed in the one state, shifting to governmental-managerial logics of the state such as efficiency, professional capacities, standardization, and human rights standards. The shift also channeled all long-term investment in the construction of prisons into Israeli territory, efficiently locating them adjacent to existing facilities and standardizing imprisonment conditions that would withstand judicial review and pressure from NGOs. Furthermore, the IPS came to be considered the professional organization fit for the job, which also freed military personnel to attend to other security missions.
Carceral Citizenship
As the scale of incarceration increased dramatically in the one state, Israel’s scaled citizenship regime incorporated thousands of carceral citizens. Although Israeli citizens maintain and exercise the right to vote even while incarcerated, in the one-state regime, Palestinians as noncitizens constitute a constant 30 to 45 percent of the civilian prison population, having no political representation or voting rights. These rates reflect the undemocratic and racially repressive nature of the one-state condition. However, paradoxically, the one state also creates additional rights for Palestinian prisoners vis-à-vis the state, thereby establishing grounds for claims of equal treatment compared to other prisoners, which they seize upon to engage with the state in new ways. Following Bosniak, we argue that, despite not possessing citizenship as a formal status, carceral citizenship reflects citizenship as (limited) rights and political activity. Our analysis of court cases and other official documents demonstrates these aspects of rights-based and civic engagement between Palestinian prisoners and multiple mechanisms of the state and civil society.
Within a legal framework that was originally intended to apply only to Israeli citizens, the transfer of responsibility to the IPS meant that Palestinian prisoners became subject to Israeli law and IPS regulations, which left state authorities having to deal with these new rights-bearers. Once in the system, they gained direct access to civilian Israeli courts, inmate litigation, and IPS parole boards; and they became eligible to be represented by public defenders.Footnote 104 These are all rights to which prisoners held by the military or in the OPT are not entitled.
The state’s discriminatory response was to curb the rights and benefits of this cohort. Based on our analysis of court cases and other documents, starting around 2002, visits to Palestinian prisoners began to be strictly limited; physical connection during family visits was severed by a separating glass; access to books, newspapers, and TV channels was restricted; higher education in the Israeli Open University was banned; access to private social workers and psychologists involved in reentry programs was prohibited; force-feeding of hunger-striking prisoners was legalized; and the IPS responded more aggressively to hunger strikes.Footnote 105 Such measures were described by Walid Daka, a longtime prisoner and a Palestinian citizen of Israel, as an “aspect of the shock doctrine … during and after the second Intifada.”Footnote 106
Additionally, the Palestinian prisoners issue has acquired more prominence than ever before in Israeli politics, involving state agencies, civil society, and public discourse, as we further elaborate below. In line with growing populist trends in Israeli politics, ministers and politicians have adopted a “tough on Palestinians” stance in their rhetoric, often creating linkages between carceral policies and the politics of the conflict, turning the prisoners into bargaining chips of the Israeli government. Indeed, as we will show, government ministers have made this issue a platform for gaining media attention and popular support. Other public actors also engage in this issue, adopting various positions. The Knesset members, committees, and Research and Information Center (RIC) began to study this topic and frequently discuss it in public arenas; the PDO provides these prisoners with legal representation and increasingly criticizes their imprisonment conditions; and NGOs and other civil society actors have stepped up their involvement, some advocating for prisoners’ rights and others, such as movements of victims of terrorism and families of Israeli captives, pushing back against them having any such rights.
Palestinian prisoners themselves have a long tradition of organizing: initiating hunger strikes and other protests alongside constant negotiations with prison authorities, which typify anticolonial struggles.Footnote 107 Since the Oslo Process and the Second Intifada, many of these strategies have continued, although some of them have weakened.Footnote 108 With the emergence of the one carceral state, prisoners have increasingly turned to means of claiming rights that are more typically associated with citizenship, such as bringing claims before the courts, either independently or with the help of lawyers and civil society organizations.Footnote 109 The prisons also became a site of encounter with other groups of prisoners, including Israeli Jews, with whom most Palestinians in the OPT would very rarely interact outside the prison, and with broader sectors of Israeli politics and society.Footnote 110 To a lesser extent, the prisons are also a space for encounter between Palestinians from the fragmented areas of Palestine (the WB and the GS) and Palestinian citizens of Israel.
Take the example of Muhammad, arrested during the Second Intifada. Thirteen years into his sentence, in an exchange with an Israeli judge while giving testimony in Hebrew, he looked back over his incarceration:
[When I was interrogated,] I didn’t know Hebrew at all. I learned Hebrew in prison…. I read [about this case] a week ago in Yediot Ahronot [Israeli newspaper]…. I study Hebrew at the university. [Judge: What do you study?] Democracy and dictatorship. Now they have banned this [program] so I study through a university in Gaza … I am now studying history…. You will not find a person who wants peace, or, like, wants this mess in all of Palestine to end, more than I do. Because after I entered prison and met prison guards, I learned what is a Jew, or, like, an Israeli. I was brought up thinking that all Jews are bad. But when I started to know Jews in prison, the prison guards and the criminal prisoners… my thinking has changed. I don’t think like that anymore.Footnote 111
This passage captures multiple dimensions of Palestinian prisoners’ carceral engagement with Israel, regardless of whether they come to the same conclusions (which may have been intended to please the Israeli courtroom audience). Like many others, Muhammad acquired language skills and followed the news as reported in Israeli newspapers, and he studied remotely at an Israeli university. And, when university access was banned in 2011, he and other prisoners resumed their studies by contracting a Palestinian university. The ambivalence of the colonial encounter intensifies in these carceral encounters, which effectively form a hybrid citizenship and identity.Footnote 112
Through our analysis of documents and court cases, we mapped the following thematic examples, demonstrating how, since the 2000s, authorities have devised ways to deny the rights that Palestinian prisoners have automatically gained under liberal state law designed for Israeli citizens. These examples also illustrate different ways in which the prisoners challenge these repressive measures with a widening repertoire of civic engagement and resistance.
Classification as Security Prisoners
The category of security prisoners has existed since 1958.Footnote 113 However, after 2000, its definition was expanded to include more prisoners and detainees, and, in 2002, the IPS changed its internal ordinances, specifying a different carceral regime.Footnote 114 These IPS rules provide that security prisoners are to be kept in separate wings from those of criminal prisoners, and visits were restricted to first- and second-degree family members only, excluding all men between 17 and 50 years old. Security prisoners are not allowed regular phone calls or furloughs; do not have access to educational activities, work, or conjugal visits; and have limited access to books, newspapers, television, and radio. Furthermore, the IPS may change a prisoner’s status from security to criminal or exempt a prisoner from some of the restrictive conditions, after consulting with the Israeli Security Agency (Sherut habitaḥon haklali, acronym Shabak, also formerly known in English as Shin Bet or GSS). Our analysis of court cases shows that prisoners have been using the courts to challenge various aspects of this regime; some demand to be categorized as criminal prisoners, and others seek exemption from some of these restrictions.Footnote 115
Although this classification system also is applicable to ultra–right-wing Jewish prisoners who target and harm Palestinians, very few Jewish prisoners have been categorized as security prisoners, and they are not housed in the same wings as their Palestinian counterparts. They are typically handed shorter sentences and are often acknowledged as qualifying for exemption from security prisoners’ conditions.Footnote 116
Carceral Populism
The living conditions of Palestinian prisoners have become a matter of heated political debate, especially after the capture of Israeli soldier Gilad Shalit by Hamas in 2006. A popular movement for Shalit’s release mobilized arguments against Hamas prisoners and demanded that the government harshen their allegedly luxurious imprisonment conditions to pressure the organization. Such new policies were described by the Knesset’s RIC as “reflecting a criticism … that security prisoners held by Israel receive improved conditions while Israeli captives and hostages who are held by terrorist organizations do not enjoy similar conditions, not even the minimum of visits by the International Committee of the Red Cross.”Footnote 117
The populist mobilization of the “too-good conditions” rhetoric remains a constant public issue, long after Shalit’s release in 2011. The IPS’s stated plan for 2012 was to “restrict and standardize living conditions of Palestinian prisoners across prisons, dispersing their leadership and isolating dominant figures.”Footnote 118 When the RIC compared the living conditions of criminal and security prisoners in 2015, it found that the latter’s were considerably harsher across the board, affecting, among other aspects, food, canteen account management, cigarette purchases, medical and dental treatment, and religious practices.Footnote 119 Facts, however, were not sufficient to mute the debates in the Knesset. For example, in a 2016 plenary session, a member of the Knesset challenged the public security minister, arguing that “security prisoners receive outrageous conditions, such as many television channels, more than 200 products in the canteen, long and multiple visits, while Hamas holds the bodies of IDF fighters.”Footnote 120 The minister, Gilad Erdan, responded to the criticism:
The whole subject of academic studies … has already been canceled. Even the matriculation exams have been canceled, except for minors to whom the state is bound [to allow exams] by the Geneva Convention. Security prisoners are not entitled to telephones, conjugal visits, furloughs, employment, and social services. For Hamas prisoners, visits also have been significantly reduced, the number of television channels was reduced and the number of purchases in the canteen was reduced.Footnote 121
In 2018, Erdan appointed a public committee with a specific remit to review the conditions of security prisoners and identify any that could be limited even further. Following the committee’s recommendations, Erdan publicized their adoption, including “revoking security prisoners’ autonomy in prison,” cutting off money transfers, and limiting the “water usage time of the terrorists.”Footnote 122 These recommendations were not fully implemented at that time, however, partly because the security establishment opposed them.Footnote 123 The subsequent minister, appointed in 2022, Itamar Ben Gvir, changed the name of the ministry from public security to national security, and escalated both discourse and practice in pursuit of vindictive and populist policies, even more so after the beginning of the 2023 war on Gaza.Footnote 124
Using the Courts
To assess the effect of the one carceral state in terms of litigation, we searched the Nevo legal database for Supreme Court decisions on cases relating to Palestinian prisoners from 1967 to 2022, using the search terms “security prisoner” and “imprisonment conditions.”Footnote 125 Our initial search produced 260 results, and the final data set (after screening out unrelated cases) comprised 168 decisions. Of these, 146 cases concerned Palestinian noncitizens and citizens, and 22 concerned Jewish citizens classified as security prisoners.Footnote 126 Analysis showed that, in the period from 1967 to 2022, the vast majority of cases (102) have been brought since 2006, marking the turn to the era of the one carceral state. These published HCJ decisions constitute only a meager portion of the entire scope of litigation, not all of which is published, starting in parole committees and district courts. According to one report, during the 2.5 years from 2013 to mid-2015, approximately 15,447 petitions were submitted to the district courts by security prisoners.Footnote 127
The proceedings we analyzed included strategic litigation by NGOs seeking to extend or limit prisoners’ rights, and proceedings on behalf of individual prisoners. To map the issues raised by prisoners, we classified them into 14 categories, presented here with the number of respective cases we identified: release, parole, and parole revocation (68); imprisonment conditions (43); accompanied leave or furlough (13); visitation (10); family connections and reproductive rights (10); classification as criminal/security and in-prison organizational affiliation (9); schooling and academic education (7); transfer between prisons (7); deportation after release (5); solitary confinement (5); conviction and punishment (5); meeting with counsel (4); hunger strike treatment (3); and access to rehabilitation (2).Footnote 128 The diversity of issues exemplified here shows that prisoners use the courts to challenge a wide range of decisions pertaining to their length of sentence as well as their individual treatment over the course of imprisonment.
Prison Overcrowding
One of the consequences of mass incarceration is severe and chronic overcrowding of prisons.Footnote 129 In 2014, several NGOs petitioned the HCJ over the continuous violation of the prisons’ maximum occupancy and the legal minimum living space per prisoner. As mentioned earlier, in 2017 the HCJ ordered the state to reduce overcrowding within 18 months.Footnote 130 Although the case may seem unrelated to Palestinian prisoners, our analysis, outlined above, shows that the increasing imprisonment of Palestinians in the one carceral state was the critical contributing factor that led to overcrowding in the first place. After the HCJ decision was given, the state excused its noncompliance by arguing, inter alia, that a third of the prisoner population comprised Palestinian security prisoners who were allegedly too dangerous for early release or parole. The Knesset also amended provisions regarding early administrative release so that they categorically excluded security prisoners, a decision that was challenged jointly by individual prisoners and Adalah, the Legal Center for Arab Minority Rights in Israel.Footnote 131 The new carceral emergency of 2023 seems to have frustrated decrowding for the foreseeable future, showing once again the impact of the Palestinian prisoners issue on the entire Israeli carceral landscape.
Eligibility for Parole
In practice, parole has always been very difficult for Palestinian prisoners to obtain, even when it theoretically applied to them. Since 1967, parole arbitrarily applied only to those Palestinian prisoners held inside Israel and by the IPS. In 2001, Israel enacted a new Parole Law with mostly Israeli citizens in mind, assigning great importance to rehabilitation programs. Since security prisoners had always been excluded from such programs, the law rendered their chances of being granted parole even slimmer. When the one carceral state was consolidated in 2006, all Palestinian prisoners became subject to the law and theoretically eligible for parole. However, under this new law, and because parole decisions remained highly discretionary, the parole boards developed distinct standards for security prisoners, making releases almost impossible to attain.Footnote 132 Netanel Dagan analyzed 207 decisions of the Israeli parole boards, showing that security prisoners were overwhelmingly denied parole (91.78 percent of the study sample from 2019 to 2020).Footnote 133 Dagan concluded that parole boards constructed “enemy parole” as an exceptional, exclusionary, and punitive process disguised as inclusionary and equal.
Eligibility for Rehabilitation and Reentry Programs
The 2001 Parole Law created an incentive for Palestinian prisoners to undertake rehabilitation and reentry programs. IPS policy has long been to deny security prisoners access to these, but it was not until 2012 that this policy was enacted into law.Footnote 134 For the first time, the Prisons Ordinance was amended to formally limit such programs only to prisoners “who are residents of Israel,” which of course excludes all Palestinians from the OPT.Footnote 135 The rationale offered by the IPS was that security prisoners are ideologically motivated and supported by their own society and are therefore “irredeemable” with regard to their motives, and that the IPS should not engage in attempting to change their ideology.Footnote 136
In a bid to surmount this obstacle, prisoners and defense lawyers have suggested alternative plans delivered by private reentry services. Attempting to block this route, in 2015, the IPS prohibited visits to security prisoners by private social workers and therapists, who were essential to preparing such plans. Our research found that several prisoners petitioned the HCJ against this prohibition, and the PDO submitted an amicus curiae brief in support of the petitions. This collaboration between civil society actors and Palestinian prisoners was successful in that the court ordered the IPS to enable the visits.Footnote 137
Academic Education
Academic education in prison used to serve Palestinian prisoners as a primary route to personal growth.Footnote 138 Unlike the informal education of the prisoners’ movement, academic studies confer degrees that prisoners can benefit from once released. Since prisoners, in general, were allowed to undertake academic studies through the Israeli Open University, once Palestinian prisoners were included in the IPS, they, too, enjoyed this right. They took courses taught in Hebrew, including content on Israeli society, history, and politics (the IPS having banned the study of sciences, considered high risk due to potentially delivering knowledge of explosives).Footnote 139 However, in 2011, Prime Minister Netanyahu declared a ban on all academic studies among security prisoners, in response to Hamas holding captive the Israeli soldier Gilad Shalit, thereby discontinuing the studies of 210 prisoner students who were already enrolled. This ban has remained in place ever since, despite the time that has elapsed since Shalit’s release in 2011.
Several prisoners, represented by the Association for Civil Rights in Israel, petitioned the HCJ against this ban in 2012.Footnote 140 Researchers and professors from the Open University submitted an amicus curiae brief supporting the petition, explaining the benefits of higher education to prisoners. Pushing back, the right-wing Legal Forum for Eretz Israel argued that allowing studies went against the retributive principle that prisoners should suffer as part of their punishment. The HCJ denied the anti-ban petition, ruling that Israel has no obligation to provide higher education to security prisoners. However, as the aforementioned testimony of Muhammad shows, this was not the only possibility that prisoners pursued, and many opted to resume their studies with a Palestinian university instead (a fact the IPS is aware of but does not authorize).
Hunger Strikes and Force-Feeding
Palestinian prisoners have historically used hunger strikes to protest and pressure prison authorities.Footnote 141 In the one carceral state, the treatment of all hunger strikes became subject to Israeli law and IPS management, as well as to Israel’s Patient’s Rights Act and medical treatment by civilian hospitals and doctors. In 2004, a collective hunger strike was treated harshly and failed to yield any significant results.Footnote 142 In 2012, prisoners launched another mass hunger strike that was more successful, demanding the end of long-term solitary confinement, the resumption of academic studies, and family visits from Gaza. Israel agreed to remove 18 out of 19 Palestinian prisoners from long-term solitary confinement, among other concessions.Footnote 143
In 2015, Israeli efforts to quell hunger strikes moved to the next level. For the first time, the Knesset legalized the force-feeding of prisoners under the Law to Prevent Harm Caused by Hunger Strikes, effectively overriding the Patient’s Rights Act that gives primacy to the dignity and informed consent of the individual patient.Footnote 144 This amendment permits, in some instances, coerced medical treatment and force-feeding, creating a procedure for legal, rather than medical, authorization of force-feeding, in which the court should consider “risk to human life or a real risk of serious harm to national security.”Footnote 145 In response, the Israeli Medical Association (IMA) and several human rights NGOs (including the Palestinian, Gaza-based, Al Mezan Center for Human Rights, and the Palestinian-citizens’, Israel-based, Yussef al Sadik Society for Prisoner Support), petitioned the HCJ on the matter. They argued that the amendment was unconstitutional under Israel’s Basic Law: Human Dignity and Liberty, but the court denied the petition, alluding to the permanence of Israel’s responsibility for the lives of Palestinian prisoners and citing national security concerns.Footnote 146
Despite the HCJ’s ruling, however, the government’s attempt seems to have failed. The IMA still prohibits Israeli physicians from administering force-feeding, in line with the policy of the World Medical Association. Israel has reportedly been seeking to hire foreign physicians instead.Footnote 147 At the same time, the IPS changed its general approach to hunger strikes—and for the worse: in 2017, a hunger strike of over 1,500 Palestinian prisoners was countered with harsh measures and achieved only one demand, additional family visits, out of a longer list.Footnote 148
Together, the foregoing thematic examples demonstrate how holding Palestinian prisoners inside Israel has involved multiple sectors shaping and contesting carceral policies, far beyond those concerned with civil rights and prisoners’ rights. These include, inter alia: higher education and healthcare systems; professionals such as doctors, professors, and social workers; and social movements, professional associations, and NGOs. Entities involved in legal proceedings include Israeli organizations on both sides of the political divide, as well as collaborations in the one state across ethnic, political, and geographical lines, with organizations of Palestinian citizens of Israel and Palestinians in the OPT.Footnote 149 The Palestinian prisoners issue has come to occupy multiple core institutions of the state.
Postresearch Reflections: Detentions during the War on Gaza
As part of the war on Gaza that began in October 2023, there has been another peak in carceral operations. As in previous hostilities, large numbers of Palestinians have been detained; but, this time, the military has been left without any sizable detention facilities. To solve this problem, two new military facilities were hastily erected, in Sde Teiman in southern Israel and Anatot in the WB. As of August 2024, the military had arrested around 14,400 Palestinians, some of whom have been released; 6,100 were added to IPS facilities.Footnote 150
At least 4,500 detainees from the GS have been detained in the Sde Teiman facility under the 2002 Incarceration of Unlawful Combatants Law, which allows for longer periods of incommunicado detention than the military law in the WB.Footnote 151 A series of legislative amendments after 7 October 2023 extended even further the permitted duration of incommunicado detention and prevented any monitoring of these detention facilities for months on end, creating a screen behind which horrific conditions, torture, and ill-treatment have been documented.Footnote 152 Due to these reports and under pressure from the media, NGOs, and the HCJ, the state announced its intention to transfer prisoners from the military facilities to the IPS and close the Sde Teiman detention camp. By June 2024, 1,415 detainees defined as unlawful combatants had been transferred to the IPS.Footnote 153 A new permanent military detention facility was also recently opened adjacent to the IPS-managed Ofer prison in the WB, which is constructed according to the same standards as IPS facilities, and has absorbed many of the new detainees.Footnote 154 As of August 2024, Anatot facility in the WB had been emptied and closed, and the occupancy in Sde Teiman has now been drastically reduced.
These developments suggest that, so far, military detention continues to be an exceptional short-term and flexible measure, and that IPS imprisonment of Palestinians continues to be the rule. Like other facilities in the past, Ofer prison in the WB has now been turned into another multifacility compound. Since the new wing, managed by the military, is described as consistent with IPS standards, it could potentially be transferred to the IPS in the future. Meanwhile, the engagement of civil society with detained Palestinians continues, with petitions demanding the closure of the Sde Teiman facility submitted by several NGOs. It is reported that the current national security minister, the extremist Itamar Ben Gvir, has ordered drastic reductions in food rations and has discontinued the collective purchase of food items, which is also currently being challenged in the HCJ. A major report on these new abusive policies was made public by the Israeli NGO B’tselem.Footnote 155
Unlike before, “unlawful combatants” status (which was hardly used prior to October 7, 2023) has now become an additional subclassification within the security prisoners category that distinguishes between prisoners from the WB and those from the GS (a large proportion of whom are classified as unlawful combatants). This constitutes yet another facet of fragmentation in the scaled citizenship regime of the one state, mirroring Israel’s policy of distinction between the WB and the GS, internalizing it in the carceral apparatus, and under it subjecting detainees from Gaza to harsher conditions.
As part of this new policy, the PDO has effectively been prevented from representing these Gaza detainees.Footnote 156 A bill proposing that the PDO be officially barred from doing so is pending at present, and the PDO has reportedly opposed it.Footnote 157 The PDO has, however, conducted visits to IPS facilities to monitor detention conditions and issued a special report criticizing the extreme deterioration in the treatment of both criminal and security prisoners since the war began.Footnote 158 Such attempts to restrict the PDO are also part of a broader attack on the legal system by the far-right Israeli government in power. Government ministers and supporters now vocally and unabashedly advocate for vindictive policies, one of which is seeking to maintain the Sde Teiman military facility. The one carceral state has further increased internal fragmentation by differentiating detainees from the Gaza Strip amid mounting demands to end any inclusionary and rights-granting policies that might apply to Palestinian prisoners.
Conclusion: In the One Carceral State
The perverse citizenship regime of the one state does not treat Palestinian prisoners as citizens, either by legal status or by identity, two aspects of exclusion.Footnote 159 At the same time, it does provide them with a limited set of rights and benefits, and access to mechanisms for claiming them, but only under conditions of incarceration.Footnote 160 Some of these rights are afforded inadvertently, as unintended consequences or collateral damage to including Palestinians in a system originally designed for full citizens. Others are provided intentionally, as means to maintain order and control and to comply with international and domestic legal standards. The rights aspect of carceral citizenship should be contrasted not only with the rights of Jewish citizens, in which Palestinian prisoners are clearly disadvantaged, but also with “free” Palestinians in the OPT, who are systematically subjected to Israeli violence and oppression, absent the legal recourse to which prisoners are entitled.Footnote 161
It is the prisoners themselves who increasingly incorporate these rights-based means into their repertoire of resistance, utilizing practices of claiming and negotiating rights vis-à-vis the state.Footnote 162 In so doing, their repertoire expands to political activity and civic engagement, the third aspect of citizenship, liaising with a range of state agencies and civil society actors. As Muhammed’s testimony demonstrates, political engagement also is facilitated by acquiring language, which many prisoners do. It enables one to take part in political and social life, such as by reading newspapers, and is a common requirement in naturalization, attesting to one’s ability to engage in society.
But this civic engagement with Israel does not mean that these prisoners abandon Palestinian society, where they also are citizens in the crucial sense of their identity and solidarity with other Palestinians. Carceral citizenship places them in a liminal position. Metaphorically speaking, just like individuals with dual citizenship, they practice civic engagement with Palestine and Israel simultaneously: with the one state. A perfect example of this dynamic is the ban on academic education: prisoners both challenged the ban in Israeli courts (and failed) and switched civic spaces by replacing the Israeli university with a Palestinian one.
The idea of carceral citizenship in Israel/Palestine as a racial regional formation applies to Palestinians—indigenous yet stateless, refugees and internally displaced, racially constructed as undesirable—who are included only in so far as their citizenship rights are recognized due to their incarceration.Footnote 163 The regional logic of the one state in Palestine/Israel is to incorporate these prisoners into Israeli territory, in contrast to Lloyd’s examples of Haitian refugees and Guantanamo Bay detainees, whom the US did its utmost to keep offshore as a way to exclude them from rights under the law.
Unlike offshore detention, incorporating detainees does not result in a “vacuum of rights.”Footnote 164 Rather, it includes them within a regime of rights that, as observed by Miller and Stuart, comprises both coercion and care.Footnote 165 The coercive effect of incarceration is almost self-explanatory: it denies freedom of movement, rights, entitlements, and simple pleasures; and it creates subordination, duties, and restrictions, often subjecting prisoners to violence, torture, and abuse. Against this backdrop, the idea that prisoners are governed through care may seem counterintuitive. Perhaps the best way to demonstrate it is by contrasting today’s Israeli prisons with the Hamas deportation of 1992, which reflected an earlier regional logic of exclusion beyond state borders. Deportation to the rural mountains of southern Lebanon, from the perspective of Israel, constituted a form of banishment, abandonment to “bare life” in Agamben’s terms, as deportees were given no protection by status, not even from the elements, nor provided with any basic means of subsistence. What Agamben’s concept of bare life misses and Lloyd’s regional formation captures is the regional context and quasi-sovereignties in which Hezbollah took the deportees under its wing. But both conceptualizations failed to consider the deportees’ agency in organizing a training camp, capturing the attention of international media, and building the power of their organization. This outcome was also not foreseen by Israel; sanctioning total exclusion also means renouncing control.
Inclusion in the carceral state thus embodies a trade-off between care and control. Incarceration triggers a set of rights to physical conditions such as shelter, food, and health services, visits by families, entitlement to public defenders, access to parole committees, courts, and independent monitoring of prisons, and contact with a range of professionals that includes educators, probation officers, and social workers. Care also is provided by voluntary bodies and professionals, including human rights NGOs, lawyers, and psychologists. Although many of these were intended to serve Israeli citizens, some actors (notably, the PDO and human rights NGOs) devote unique attention to Palestinian prisoners, practicing genuine care toward them.Footnote 166 The connections between prisoners and Israeli civil society are not merely technical. Many public defenders representing Palestinian prisoners and other professionals in human rights NGOs are, themselves, Palestinian citizens of Israel. It is not the type of care we know from other contexts, nor one that anyone would choose over freedom, yet it extends beyond control to include solidarity, compassion, and human connection that those not participating in carceral life find hard to imagine. As Irit Ballas argues, based on interviews with Palestinian-Israeli lawyers representing Palestinians, “[these lawyers] challenge the very boundaries of the political community promoted by the state … they promote an indigenous community of Palestinians from both sides of the border, a nation-state with different borders, or a universal political community.”Footnote 167
Looking beyond expansion and annexation as the main features of the one state, the one carceral state lens reveals a movement in the other direction: from external to internal, from military to civilian, and from temporary to permanent. The state has internalized the incarcerated Palestinian population into the territory and civilian government mechanisms of Israel, and the military carceral system has been dismantled and absorbed into the core organizational apparatus of the state.
As Israel is camouflaging its one-state condition under the guise of separate sovereignty, our analysis shows that the one carceral state reflects the actual governance and citizenship regime, which goes much deeper than the contours of borders and formal status. Sovereignty that is bound by territory and international law serves as a smokescreen to obscure the organizational apparatus that transcends these boundaries. Organizational changes should be taken as primary evidence of the transition to a one-state regime, and their effects are not limited to the carceral apparatus but involve major state institutions, civil society, and professional communities. Inside the prison system, the old separation has been internalized, constituting a new hierarchical segregation of security and criminal prisoners. This new citizenship regime is created through layers of organizational, legal, and administrative means, but has so far remained hidden behind prison walls. The unfolding prison overcrowding catastrophe, cramming individuals from the entire one state into the same prison system, and subjecting Palestinians to torturous treatment, epitomizes Israel’s carceral system as the regime of the one state.
Acknowledgments
The authors wish to thank the Harry Frank Guggenheim Foundation, the Simpson Center for the Humanities at the University of Washington, the participants of the workshop Negotiating Carceral Regimes in the Global South, Jonathan Simon, Anat Matar, Anand Yang, Brendan Goldman, Anne Laura Stoler, Ian Lustick, Amal Jamal, Nir Gazit, Netanel Dagan, Katherine Beckett, Jamie Mayerfeld, Noga Rotem, Jawad Boulus, Irit Ballas, Tamir Moustafa, and the faculty of the School of International Studies at Simon Fraser University for their support and insightful comments about this study. The first author is responsible for the conceptualization and writing of this article. The second and third coauthors contributed equally to the study research.
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